Jean v. Secretary, DOC et al
Filing
24
OPINION AND ORDER re: 1 Petition for writ of habeas corpus. The Florida Attorney General is DISMISSED as a named Respondent. The 28 U.S.C. § 2254 petition for habeas corpus relief filed by Germain Jean is DENIED, and this case is dismis sed with prejudice. Petitioner is DENIED a certificate of appealability. The Clerk of Court is directed to terminate any pending motions, enter judgment accordingly, and close this case. Signed by Judge Sheri Polster Chappell on 3/31/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GERMAIN JEAN,
Petitioner,
v.
Case No: 2:14-cv-276-FtM-38CM
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.1
/
OPINION AND ORDER2
This matter comes before the Court upon a pro se petition for habeas corpus relief
filed pursuant to 28 U.S.C. § 2254 by Germain Jean (“Petitioner”) (Doc. 1, filed May 19,
2014).
Petitioner, a prisoner of the Florida Department of Corrections, attacks the
convictions entered by the Twentieth Judicial Circuit Court in and for Collier County,
Florida for two counts of capital sexual battery against a child less than twelve years old
1
When the petitioner is incarcerated and challenges his present physical
confinement “the proper respondent is the warden of the facility where the prisoner is
being held, not the Attorney General or some other remote supervisory official.”
Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004) (citations omitted). In Florida, the proper
respondent in this action is the Secretary of the Florida Department of Corrections.
Therefore, the Florida Attorney General will be dismissed from this action.
2
Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other
documents or Web sites. These hyperlinks are provided only for users’ convenience.
Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees.
By allowing hyperlinks to other Web sites, this court does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on their
Web sites. Likewise, the court has no agreements with any of these third parties or their
Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.
(Doc. 1 at 1). Respondent filed a response to the petition (Doc. 14). Petitioner filed a
reply (Doc. 23), and the petition is now ripe for review.
Petitioner raises six claims in his petition.
Upon due consideration of the
pleadings and the state court record, the Court concludes that each claim must be
dismissed as unexhausted or denied. Because the petition may be resolved on the basis
of the record, an evidentiary hearing is not warranted. See 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 is not required to hold an evidentiary hearing).
I.
Background and Procedural History3
On April 13, 2005, the state of Florida charged Petitioner with three counts of
sexual battery on a child less than twelve years of age, in violation of Florida Statute §
794.011(2) (Ex. 1 at 15-16).4 Petitioner’s first trial that ended in a mistrial after a state
witness commented on Petitioner’s right to remain silent (Ex. 1 at 45-49). Thereafter,
the state amended the information to reflect only two counts of capital sexual battery and
to change the dates of the alleged offenses (Ex. 1 at 50a-50b).
After a second trial, the jury found Petitioner guilty as charged (Ex. 1 at 67-68).
Petitioner received two life sentences (Ex. 1 at 75-106). Florida’s Second District Court
of Appeal affirmed the judgments and sentences without a written opinion (Ex. 4); Jean
v. State, 967 So. 2d 207 (Fla. 2d DCA 2007).
3
Unless otherwise indicated, citations to exhibits are to those filed by Respondent
on February 26, 2017 (Ex. 17). References to the trial transcript, located in Exhibit 1(B)
will be cited as (T. at __).
4
The charges stem from accusations made by the victim that Petitioner sexually
molested her in 1995 or 1996 while he was staying at her home.
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On February 14, 2006, Petitioner filed a motion for post-conviction relief pursuant
to Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 motion”) (Ex. 6 at
1-20). Petitioner filed an amended Rule 3.850 motion on July 15, 2009 (Ex. 6a at 296336). On September 27, 2010, an evidentiary hearing was held on ground five of the
Rule 3.850 motion (Ex. 6a). Thereafter, the post-conviction court denied all claims raised
in the Rule 3.850 motions (Ex. 6a at 351-55). Florida’s Second District Court of Appeal
affirmed without a written opinion (Ex. 10); Jean v. State, 124 So. 3d 237 (Fla. 2d DCA
2013).
Petitioner signed the instant Petition on May 16, 2014 (Doc. 1).
II.
a.
Governing Legal Principles
Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to
a claim adjudicated on the merits in state court unless the adjudication of the claim:
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v.
Woodall, 134 S. Ct. 1697, 1702 (2014). A state court’s summary rejection of a claim,
even without explanation, qualifies as an adjudication on the merits which warrants
deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state
court’s violation of state law is not sufficient 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);
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Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing legal principles, rather
than the dicta, set forth in the decisions of the United States Supreme Court at the time
the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S.
70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the
Supreme Court has also explained that “the lack of a Supreme Court decision on nearly
identical facts does not by itself mean that there is no clearly established federal law,
since ‘a general standard’ from [the Supreme Court’s] cases can supply such law.”
Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
State courts “must reasonably apply the rules ‘squarely
established’ by [the Supreme] Court’s holdings to the facts of each case.” White, 134 S.
Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point, habeas relief is only
appropriate if the state court decision was “contrary to, or an unreasonable application
of,” that federal law. 29 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 the Supreme
Court’s precedents if the state court correctly identifies the governing legal principle, but
applies it to the facts of the petitioner’s case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th
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Cir. 2000), or “if the state court either unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should apply.” Bottoson, 234
F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state
court’s ruling was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” White,
134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, “it is
not an unreasonable application of clearly established Federal law for a state court to
decline to apply a specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind
that any “determination of a factual issue made by a State court shall be presumed to be
correct[,]” and the petitioner bears “the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); 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.”)
(quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
b.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-part test for
determining whether a convicted person is entitled to relief on the ground that his counsel
rendered ineffective assistance. 466 U.S. 668, 687-88 (1984).
A petitioner must
establish that counsel’s performance was deficient and fell below an objective standard
of reasonableness and that the deficient performance prejudiced the defense. Id. This
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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)).
The focus of inquiry under Strickland’s performance prong is “reasonableness
under prevailing professional norms.” Strickland, 466 U.S. at 688-89.
In reviewing
counsel’s performance, a court must adhere to a strong presumption that “counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Indeed, the petitioner bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable[.]” Jones v. Campbell, 436 F.3d
1285, 1293 (11th Cir. 2006).
A court must “judge the reasonableness of counsel’s
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct,”
applying a “highly deferential” level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S.
470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
As to the prejudice prong of the Strickland standard, Petitioner’s burden to
demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002).
Prejudice “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That
is, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
c.
Exhaustion and Procedural Default
The AEDPA precludes federal courts, absent exceptional circumstances, from
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granting habeas relief unless a petitioner has exhausted all means of available relief
under state law. Exhaustion of state remedies requires that the state prisoner “fairly
presen[t] federal claims to the state courts in order to give the State the opportunity to
pass upon and correct alleged violations of its prisoners’ federal rights[.]” Duncan v.
Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)).
The petitioner must apprise the state court of the federal constitutional issue, not just the
underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135
F.3d 732 (11th Cir. 1998).
In addition, a federal habeas court is precluded from
considering claims that are not exhausted but would clearly be barred if returned to state
court. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed to
exhaust state remedies and the state court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement would now find the claims
procedurally barred, there is a procedural default for federal habeas purposes regardless
of the decision of the last state court to which the petitioner actually presented his claims).
Finally, a federal court must dismiss those claims or portions of claims that have been
denied on adequate and independent procedural grounds under state law. Coleman, 501
U.S. at 750. If a petitioner attempts to raise a claim in a manner not permitted by state
procedural rules, he is barred from pursuing the same claim in federal court. Alderman v.
Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural default will be excused only in two narrow circumstances. First, a
petitioner may obtain federal review of a procedurally defaulted claim if he can show both
“cause” for the default and actual “prejudice” resulting from the default. “To establish
cause for a procedural default, a petitioner must demonstrate that some objective factor
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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) (internal quotation marks omitted). 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. Henderson v. Campbell, 353
F.3d 880, 892 (11th Cir. 2003).
The second exception, known as the fundamental miscarriage of justice, only
occurs in an extraordinary case, where a “constitutional violation has probably resulted in
the conviction of one who is actually innocent[.]” Murray v. Carrier, 477 U.S. 478, 47980 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley
v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must
“show that it is more likely than not that no reasonable juror would have convicted him” of
the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, “[t]o be
credible, a claim of actual innocence must be based on [new] reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III.
Analysis
Petitioner raises six claims of ineffective assistance of counsel in his petition. He
asserts that defense counsel (“Counsel”) was ineffective for failing to: (1) adequately
investigate or subpoena the custodian of Budget Inn and the victim’s father to testify at
trial; (2) object to the prosecutor’s amended information; (3) call defense witness Renol
Jean to testify; (4) object to the translator’s inadequate translation; (5) challenge Juror
Perry Sheppard; and (6) file a motion for a judgment of acquittal and a new trial (Doc. 1
at 5-12). Each claim will be addressed separately.
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a.
Claim One
Petitioner urges that Counsel was ineffective for failing to investigate and
subpoena the custodian of Budget Inn and the victim’s (“E.L.’s”) father to testify at his trial
(Doc. 1 at 5). He asserts that E.L.’s father would have testified that: Petitioner was not
living with E.L. at the time of the alleged offense; he had used his credit card to pay for
Petitioner’s room at the Budget Inn; and E.L.’s mother never told him about E.L.’s
molestation as she had testified at trial. Id. He asserts that the custodian would have
“provided further support that Petitioner was not living at the residence at the time the
alleged offense occurred.” Id. Petitioner raised this claim in his first Rule 3.850 motion
(Ex. 6 at 9). The claim was stricken by the post-conviction court as facially insufficient,
but Petitioner was provided leave to amend the claim, which he did not timely do (Ex. 6a
ta 353). Accordingly, the claim was denied as abandoned. Id. Florida’s Second District
Court of Appeal affirmed (Ex. 10).
Respondent argues that Claim One is unexhausted and procedurally barred
because Petitioner did not timely amend his Rule 3.850 motion (Doc. 14 at 13-14).
Petitioner urges that any failure to exhaust this claim is excused by the United States
Supreme Court’s decision in Martinez v. Ryan.5 (Doc. 23 at 2-7). Upon review of the
5
In Martinez v. Ryan, 132 S. Ct. 1309 (2012) the United State Supreme Court held:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective.
Id. at 1320. Under Martinez, a petitioner still must establish that his underlying ineffective
assistance claim is “substantial” -- that it has “some merit” before the procedural default
can be excused. Martinez, 132 S. Ct. at 1318-19.
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record, the Court finds that Claim One is unexhausted because it is not “substantial” and
does not fall within Martinez’ equitable exception to the procedural bar since Petitioner
does not demonstrate Strickland prejudice.
Petitioner asserts that, had Counsel called E.L.’s father and the unnamed
custodian of Budget Inn to testify at trial, they would have testified that Petitioner did not
live with E.L.’s family during the time the crimes were alleged to have occurred and that
E.L.’s mother fabricated the story of sexual abuse because she did not like Petitioner
(Doc. 1 at 5). However, he has not provided any evidence to the Court in support of his
assertions. 6
He has not produced a sworn statement of these witnesses’ putative
testimony or even asserted that they would have been available to testify. Consequently,
the claim is too speculative to warrant relief. See Johnson v. Alabama, 256 F.3d 1156,
1187 (11th Cir. 2001) (“Johnson offers only speculation that the missing witnesses would
have been helpful. This kind of speculation is ‘insufficient to carry the burden of a habeas
corpus petitioner.’”) (quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985));
see also United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about
the testimony of a putative witness must generally be presented in the form of actual
testimony or by the witness by affidavit.
A defendant cannot simply state that the
6
To the extent Petitioner now urges that it was Counsel’s job to investigate and
find the evidence that is now missing (Doc. 23 at 7), he misunderstands his burden on
federal habeas corpus review. In a § 2254 petition, the burden of proof is on the habeas
petitioner “to establish his right to habeas relief and he must prove all facts necessary to
show a constitutional violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008)
(citation omitted); see also Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir. 1985)
(holding that a general allegation of ineffective assistance of counsel is insufficient; a
petition must allege specific errors in counsel’s performance and facts showing prejudice).
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testimony would have been favorable; self-serving speculation will not sustain an
ineffective assistance claim.”).
Because Petitioner has not demonstrated Strickland prejudice, Claim One is not
“substantial” so as to excuse his failure to exhaust it in state court. Martinez, 132 S. Ct.
at 1318-20. Nor has Petitioner presented new, reliable evidence indicating that the
actual innocence exception would apply to excuse his default of this claim. Accordingly,
Claim One is dismissed as unexhausted.
b.
Claim Two
Petitioner asserts that Counsel was ineffective for failing to object to the state’s
amended information which changed the dates of the alleged offenses (Doc. 1 at 6). He
sets forth Claim Two as follows:
On March 18, 2005, Petitioner was arrested and initially
charged with three counts of capital sexual battery against a
child less than twelve years of age, which allegedly occurred
between January 1, 1996 and January 1, 1997. Petitioner
pled not guilty and demanded a jury trial. Petitioner’s first trial
ended in mistrial.[] Prior to Petitioner’s second trial however,
the prosecution filed an amended information charging
Petitioner with two counts of capital sexual battery against a
child less than twelve years of age and changed the dates of
the alleged offense to have occurred between January 1,
1995 and December 31, 1996. At Petitioner’s second trial,
Petitioner was compelled to abandon the alibi portion of his
defense by the prosecution’s amended information. Further,
Petitioner only lived at the alleged victim’s residence from
November 1995 to May 22, 1996 and from May 22 to May 29,
1996, Petitioner stayed at the Budget Inn Hotel. Ultimately,
Petitioner moved to Bradenton, Florida where he had
established his permanent residence until the day of his
arrest.
Id. at 7. Petitioner raised this claim in his Rule 3.850 motion, and the post-conviction
court denied it because “the amendment to the information could not have affected the
outcome of the trial.” (Ex. 6a at 353). The post-conviction court noted that Petitioner’s
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defense was that he never had sexual relations with E.L. and that Counsel was not
ineffective for failing to make a meritless objection. Id. Florida’s Second District Court of
Appeal affirmed (Ex. 10). A review of the record and applicable law supports the state
courts’ rejection of Claim Two.
Rule 3.140(j) of the Florida Rules of Criminal Procedure provides that an
information may be amended at any time before trial due to formal defects. See, e.g.,
Johnson v. State, 433 So. 2d 648 (Fla. 2d DCA 1983). The State may also substantively
amend an information during trial, even over the defendant’s objection, unless there is a
showing of prejudice to the substantive rights of the defendant. State v. Anderson, 537
So. 2d 1373 (Fla. 1989); Lackos v. State, 339 So. 2d 217 (Fla. 1976); Rosser v. State,
658 So. 2d 175 (Fla. 3d DCA 1995) (state could amend affidavit to reflect correct date
that defendant was placed on probationary status); Young v. State, 632 So. 2d 245 (Fla.
3d DCA 1994).
In the instant case, Counsel and Petitioner were on notice of the change in the
dates alleged in the information a week before trial. Petitioner has not shown that no
reasonable competent attorney would have decided against objecting to the amended
information, given that Rule 3.140(j) expressly allows the prosecution to amend an
information, even during trial. See Brownlee v. Haley, 306 F.3d 1043, 1066 (11th Cir.
2002) (counsel was not ineffective for failing to raise issues that clearly lack merit).
Accordingly, Petitioner has not satisfied Strickland’s performance prong.
Moreover, Petitioner has not demonstrated Strickland prejudice from the
amendment. Although Petitioner now argues that the amended information interfered
with his planned alibi defense, he does not explain how an objection by Counsel would
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have aided him with that defense. Under Florida law, the trial court would not have
stricken the amended information or required the state to proceed under the original
information, even had Counsel objected. At most, Petitioner would have received an
extension of time to prepare for trial, and he does not now urge that such an extension
was necessary. See Davis v. State, 740 So. 2d 96 (Fla. 1st DCA 1999) (finding that the
trial court erred by requiring a defendant to proceed to trial on information amended by
the prosecutor on the morning of trial without affording him additional time to prepare);
Tingley v. State, 549 So. 2d 649, 650 (Fla. 1989) (recognizing that “time” is not generally
considered a substantive part of the charging document, and “as long as a defendant is
neither surprised nor hampered in preparing his defense, there can be a variance
between the dates proved at trial and those alleged in an indictment or information”).
Given that Petitioner has demonstrated neither deficient performance nor resulting
prejudice from Counsel’s failure to object to the amended information, the state courts’
rejection of Claim Two was neither contrary to Strickland nor based upon an
unreasonable determination of the facts. Accordingly, Claim Two is denied pursuant to
28 U.S.C. § 2254(d).
c.
Claim Three
Petitioner asserts that Counsel was ineffective for failing to call Renol Jean to
testify at Petitioner’s trial (Doc. 1 at 8).
Petitioner asserts that Renol Jean had a
conversation with E.L.’s mother who “expressed her hatred for Petitioner and vowed to
do anything to put [him] away.” Id. Specifically, when Petitioner raised this claim in his
amended Rule 3.850 motion, he asserted that in June of 1995 (six years before E.L. came
forward with her accusations), E.L.’s mother told several people that “I hate Jean Germain
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so much, if he didn’t moved out from my house, I would do my best with everything I know
to lie on him, accused him just to put him away or I would have killed myself; he is lucky,
but I’m still pursuing him until the end.” (Ex. 6a at 299). Petitioner asserts that he told
Counsel about this witness and the information he could provide; he also asserts that
Renol Jean contacted Counsel’s office, but Counsel never asked him to testify.7 Id. The
post-conviction court denied this claim on both prongs of Strickland, noting that “the
substance of the witness’ testimony would have been inadmissible hearsay.” (Ex. 6a at
354-55). Florida’s Second District Court of Appeal affirmed (Ex. 10). A review of the
record and applicable law supports the state courts’ rejection of Claim Three.
“Hearsay is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla. Stat.
§ 90.801(1)(c) (internal quotation marks omitted). Hearsay is inadmissible except as
provided by statute. Fla. Stat. § 90.802. In determining whether a prior out-of-court
statement is hearsay, it does not matter that a person has testified as a witness during
the trial. Carter v. State, 951 So. 2d 939, 944 (Fla. 4th DCA 2007) (“Hearsay includes an
out-of-court statement of a witness who testifies at trial, as well as an out-of-court
statement by someone who is not a witness on the stand testifying to the statement.”).
In the instant case, Petitioner faults Counsel for not offering the statement of E.L.’s
mother to prove that she hated Petitioner, would “lie on him,” and would pursue him “to
the end.” In short, Petitioner wished to offer the out-of-court statement of E.L.’s mother
for the truth of the matter asserted in her statement. Accordingly, reasonable competent
7
Petitioner did not allege in his amended Rule 3.850 motion that Jean Renal
contacted Counsel.
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counsel could have concluded that the proposed testimony from Renol Jean was hearsay,
and absent an exception to the hearsay rule, which Petitioner does not advance, the
statement was inadmissible. Moreover, a statement from E.L.’s mother expressing her
extreme dislike for Petitioner and asserting that she would rather kill herself than live in
the same house with him did not reflect positively on Petitioner.8 In short, given the
potential that Renol Jean’s testimony could actually harm the defense case, reasonable
competent counsel could have decided against calling him as a witness, even if the
mother’s statement was admissible. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.
1995) (“Which witnesses, if any, to call, and when to call them, is the epitome of a strategic
decision, and it is one that [the habeas court] will seldom, if ever, second guess.”).
Finally, Petitioner cannot demonstrate Strickland prejudice from Counsel’s failure
to offer Renol Jean’s testimony. First, as discussed in Claim One, Petitioner has not
produced a sworn statement of Renol Jean’s putative testimony. Consequently, the
claim is too speculative to warrant habeas relief. See discussion supra Claim One. Next,
the post-conviction court—and by its affirmance, the appellate court—already told us how
this issue would have been resolved had Counsel offered Renol Jean’s testimony. The
mother’s out-of-court statement would have been rejected as inadmissible hearsay. It is
“a ‘fundamental principle that state courts are the final arbiters of state law, and federal
habeas courts should not second-guess them on such matters.’ “ Herring v. Sec’y, Dep’t
of Corr., 397 F.3d 1338, 1355 (11th Cir. 2005) (quoting Agan v. Vaughn, 119 F.3d 1538,
8
In her deposition, E.L.’s mother said that Petitioner was bossy, arrogant, critical,
and was involved in Haiti’s Duvalier regime in Haiti prior to coming to the United States
(Ex. 6A at 323).
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1549 (11th Cir. 1997)).
Petitioner has not demonstrated Strickland prejudice from
Counsel’s failure to call Renol Jean as a witness.
Because Petitioner demonstrates neither deficient performance nor resulting
prejudice from Counsel’s failure to call this witness, the state courts’ rejection of Claim
Three was neither contrary to Strickland nor based upon an unreasonable determination
of the facts.
d.
Claim Four
Petitioner asserts that, prior to his second trial, “it was determined that an
interpreter was required.” (Doc. 1 at 9).
Petitioner asserts that an interpreter was
provided, but the trial court failed to swear her in. Id. Petitioner also asserts that he “told
counsel on several occasions that he did not understand the proceedings due to the
interpreter’s lack of interpretation,” but that Counsel did not “correct that deficiency.” Id.
Petitioner raised this claim in his Rule 3.850 motion, but it was determined to be
procedurally barred by the post-conviction court because “[c]laims involving the absence
of an interpreter at trial could be and should be raised on direct appeal; they are not
appropriately raised in a rule 3.850 proceeding.” (Ex. 6a at 354). Florida’s Second
District Court of appeal affirmed (Ex. 10). Respondent now asserts that this claim is
procedurally barred because of the state courts’ determination that it should have been
raised on direct appeal (Doc. 14 at 28) (citing Agan v. Vaughn, 119 F.3d 1538, 1549 (11th
Cir. 1997) (rejecting contention that court could make an independent review of whether
state had correctly applied its procedural default law)).
Petitioner argues that, even if Claim Four is procedurally barred, Martinez v. Ryan
operates to excuse the default (Doc. 23 at 20).
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However, Petitioner demonstrates
neither deficient performance nor Strickland prejudice from Counsel’s alleged failure to
ensure that he had an adequate translator at his second trial. Notably, despite asserting
that he “did not understand the proceedings due to the interpreter’s lack of interpretation,”
Petitioner fails to point to a single part of the trial or other proceeding he feels he did not
understand. Nor does Petitioner urge that anything was translated incorrectly or that the
outcome of the proceedings would have differed had Petitioner been given a different
translator.
Prior to voir dire, Counsel told the Court that “[Petitioner] does have a good
comprehension of English, but he prefers an interpreter.” (T. at 4, 9). Despite Petitioner’s
ability to understand English, the trial court immediately ordered that an interpreter be
brought to the courtroom. Id. The interpreter was sworn before Petitioner testified (T. at
176).
During Petitioner’s testimony, he answered every question appropriately, and
twice asked the interpreter to rephrase a question. Id. at 203, 214. Although Petitioner
now urges that he told Counsel he did not understand the proceedings, nothing in the
record shows that Petitioner mentioned his confusion to the trial court or demonstrates
that Petitioner was confused. Because he failed to complain about the quality of the
translation during his trial, Petitioner’s instant claim of Strickland prejudice is not credible.
See Alvarez v. United States, No. 8:04-cr-335-T-17MSS, 2008 WL 619314, at *8 (M.D.
Fla. Mar. 4, 2008) (“The record clearly demonstrates that Alvarez understood the
proceedings, communicated with his counsel without impairment, and an interpreter did
assist during the proceedings rendering this claim without merit. Consequently, Alvarez
fails to show prejudice under Strickland and this claim has no merit.”). Petitioner has not
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met his burden under Strickland to show prejudice from Counsel’s failure to ensure that
Petitioner was provided an adequate translator.
Claim Four is not “substantial” so as to excuse Petitioner’s failure to exhaust it in
state court. Martinez, 132 S. Ct. at 1318-20. Nor has Petitioner presented new, reliable
evidence indicating that the actual innocence exception would apply to excuse his default
of this claim. Accordingly, the claim is dismissed as unexhausted. Alternatively, Claim
Four is denied on the merits because Petitioner fails to demonstrate Strickland prejudice.
28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies available in
the courts of the State.”).
e.
Claim Five
Petitioner asserts that Counsel was ineffective for failing to challenge the
empanelment of Juror Perry Shepard (Doc. 1 at 11). As grounds, Petitioner points to a
portion of the voir dire in which Counsel questioned the jurors about their understanding
of the presumption of innocence. Mr. Shepard responded to Counsel’s questions:
Q.
Okay.
Let me ask, when you all walked in this
morning and you looked around the courtroom, how
many of you looked at me and said, I wonder what he
did? How many of you had that thought when you
walked in the door?
(No response.)
Q.
Nobody? Mr. Shepard.
A.
Yes.
Q.
All right.
Do you understand that Mr. Jean is
presumed innocent as he sits here now?
A.
Oh, yeah.
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Q.
Okay. Do you really believe that –
A.
Oh, no, no, no. That’s the law.
Q.
All right.
A.
I understand somewhat of the law.
Q.
Okay. Well—
A.
But I am here for a reason. For something that’s going
on. Was I wondering that walking through the door?
Yeah.
(T. at 91-92).
Petitioner urges that this passage demonstrates that it was error for
Counsel to allow Juror Shepard to serve on the jury (Doc. 1 at 11). Petitioner concedes
that he did not exhaust Claim Five in state court, but urges that Martinez v. Ryan excuses
his failure to do so. Id. at 11. Upon review of the record, the Court finds that this claim
is unexhausted because it is not “substantial” and does not fall within Martinez’ equitable
exception to the procedural bar.
The Sixth Amendment guarantees the accused a trial by an impartial jury in federal
criminal prosecutions. U.S. Const. amend VI. Because “trial by jury in criminal cases is
fundamental to the American scheme of justice,” the Due Process Clause of the
Fourteenth Amendment guarantees the same right to the accused in state criminal
prosecutions. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). As with federal law, the
test for determining juror competency in the Florida courts is “whether the juror can lay
aside any bias or prejudice and render his verdict solely upon the evidence presented
and the instructions on the law given to him by the court.” Lusk v. State, 446 So.2d 1038,
1041 (Fla. 1984).
Petitioner has not satisfied Strickland’s performance prong because nothing in the
record suggests that no reasonable competent attorney would have decided against
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striking Juror Shepard from the jury panel. Shepard said that he would follow the law as
explained by the trial judge and that the state had to prove the elements of the charges
beyond a reasonable doubt (T. at 82-83). He said that, if the state could not prove each
element beyond a reasonable doubt, he would return a not-guilty verdict. Id. at 83.
Counsel did not merely agree to Shepard’s empanelment without considering his
statements during voir dire; to the contrary, when it came time to select an alternate juror,
Counsel specifically stated, “I like Mr. Shepard.” Id. at 102.9
The Eleventh Circuit has cautioned that courts applying Strickland must “defer to
trial counsel’s performance and eschew the distorting effects of hindsight” when
interpreting a prospective juror’s statements and trial counsel’s decision whether to leave
that person on the jury. Harvey v. Warden, Union Correctional Institution, 629 F.3d 1228,
1247 (11th Cir. 2011) (internal quotation omitted); see also Babb v. Crosby, 197 F. App’x
885, 887 (11th Cir. 2006) (“the Supreme Court has not concluded that a lawyer who
leaves an arguably biased juror on a jury is per se ineffective”). Moreover, “[a]ssessing
jurors during voir dire also requires an evaluation of demeanor and credibility. Review of
counsel’s performance is highly deferential in any case, but the case for deference is even
greater when counsel is evaluating credibility.” Bell v. United States, 351 F. App’x 357,
360 (11th Cir. 2009) (internal citation omitted).
Under these standards, reasonable
competent counsel could have determined that Juror Shepard understood that the state
bears the burden of proof at a criminal trial, and that he should remain on the jury.
9
Although initially selected as an alternate juror, Shepard served on the jury after
Juror Partridge was excused (Doc. 1 at 11).
- 20 -
Likewise, because empaneled jurors are presumed impartial, to satisfy Strickland’s
prejudice prong, Petitioner must show that Juror Shepard was actually biased against
him. Smith v. Phillips, 455 U.S. 209, 215 (1982); Rogers v. McMullen, 673 F.2d 1185,
1189 (11th Cir. 1982) (defendant’s Sixth Amendment right to a fair and impartial jury was
not violated absent a showing that a jury member hearing the case was actually biased
against him). During the jury charge, the trial court instructed the jury:
The defendant has entered a plea of not guilty. This means
you must presume or believe the defendant is innocent.
Presumption stays with the defendant as to each material
allegation in the charges against him through each stage of
the trial unless it has been overcome by the evidence to the
exclusion of and beyond a reasonable doubt.
Now, to overcome the defendant’s presumption of innocence,
the state has the burden of proving the crime with which the
defendant is charged was committed and the defendant is the
person who committed the crimes. The defendant is not
required to present or prove anything.
(T. at 217). A jury is presumed to follow its instructions. Weeks v. Angelone, 528 U.S.
225, 226 (2000).
Accordingly, it is presumed that Petitioner’s jury, including Juror
Shepard, concluded that the state proved each element of the crimes with which
Petitioner was charged beyond a reasonable doubt.
Petitioner presents no evidence that Shepard, or any other juror, was actually
biased; nor has he overcome the presumption that Shepard followed the jury instructions.
Therefore, he has satisfied neither prong of the Strickland ineffectiveness test, and Claim
Five is not “substantial” so as to excuse Petitioner’s failure to exhaust it in state court.
Martinez, 132 S. Ct. at 1318-20. Nor has Petitioner presented new, reliable evidence
indicating that the actual innocence exception would apply to excuse his default of this
claim. Accordingly, Claim Five is dismissed as unexhausted.
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f.
Claim Six
Petitioner asserts that Counsel was ineffective for failing to file a motion for a
judgment of acquittal and a motion for a new trial based on the weight of the evidence
(Doc. 1 at 12). Respondent urges that this claim is unexhausted because Petitioner
initially raised it only as a claim of trial court error in state court—not ineffective assistance
of counsel (Doc. 38-41).
Petitioner counters that he did, indeed, raise this as an
ineffective assistance claim in state court; however, the caption of this ground in his statecourt pleadings “misleadingly alleged trial court error.” (Doc. 23 at 27). Petitioner further
asserts that, even if this claim is unexhausted, Martinez v. Ryan allows him to raise claims
of ineffective assistance for the first time on habeas corpus review. Id. at 28. Upon
review of the record, the Court concludes that, even if Petitioner’s ineffective assistance
claim were exhausted, it must be denied for lack of merit. See 28 U.S.C. § 2254(b)(2).
Alternatively, Claim Six is dismissed as unexhausted because Petitioner has not
demonstrated that it is substantial under Martinez.
Notably, contrary to Petitioner’s instant averment, Counsel filed a motion for a new
trial in which he asserted that no physical or testimonial evidence supported E.L.’s
testimony (Ex. 1 at 107-109).
In the motion, Counsel argued that the case was “a
swearing match between the victim, who waited five years before ever reporting the
alleged assaults, and the Defendant, who denied the allegations altogether.” Id. at 108.
Counsel argued that “[t]he verdict was contrary to law, and against the weight of the
evidence.” Id. at 109 (citing Fla. R. Crim. P. 3.600(a)(2)). However, the motion was
denied. Id. at 110. Accordingly, Petitioner cannot demonstrate deficient performance
from Counsel’s failure to file a motion for a new trial because Counsel did, in fact, do so.
- 22 -
Petitioner’s argument that Counsel was ineffective for failing to move for a
judgment of acquittal after the close of the state’s case fares no better. Under Florida
law, a motion for a judgment of acquittal is designed to challenge the legal sufficiency of
the state’s evidence. State v. Williams, 742 So. 2d 509, 510 (Fla. 1st DCA 1999). In
moving for a judgment of acquittal, a defendant admits not only the facts stated in the
evidence, but also every reasonable conclusion favorable to the state that the fact-finder
might fairly infer from the evidence. Williams, 742 So.2d at 510 (citing Lynch v. State, 293
So.2d 44, 45 (Fla. 1974)). If the state presents competent evidence to establish each
element of the crime, a motion for a judgment of acquittal should be denied. Id. at 510.
In other words, a trial court may not grant the motion for a judgment of acquittal unless
the evidence, when viewed in a light most favorable to the state, fails to establish a prima
facie case of guilt. Id.
To prove Petitioner guilty of capital sexual battery under § 794.011(2), the state
had to offer evidence showing that E.L. was less than twelve years of age when the crime
occurred and that Petitioner “committed an act upon [E.L.] in which the sexual organ of
[Petitioner] had union with the vagina of [E.L.].” (Ex. 1 at 53). E.L. testified that on two
separate occasions, when she was five or six years old,10 Petitioner woke her as they
slept next to each other on the floor (T. at 148). Petitioner removed E.L.’s pajamas and
panties and laid her on top of his naked body. Id. Petitioner’s penis touched E.L.’s
vagina, and his penis was hard. Id. at 149. After some time, Petitioner removed E.L. and
ejaculated. Id.
10
E.L. was sixteen years old at the time of Petitioner’s trial (T. at 116).
- 23 -
Given E.L.’s testimony, evidence was presented that E.L. was under the age of
twelve at the time of the alleged crime, and that Petitioner’s penis had contact with her
vagina. Therefore, reasonable competent counsel could have decided against moving
for a judgment of acquittal because, when viewing the evidence in the light most favorable
to the state, the state proved a prima facie case of capital sexual battery. Moreover, had
Counsel made such a motion, it would have been denied. Accordingly, Petitioner has
demonstrated neither deficient performance nor resulting prejudice from Counsel’s failure
to move for a judgment of acquittal.
Claim Six is not “substantial” so as to excuse Petitioner’s failure to exhaust it in
state court. Martinez, 132 S. Ct. at 1318-20. Nor has Petitioner presented new, reliable
evidence indicating that the actual innocence exception would apply to excuse his default
of this claim. Alternatively, the claim is denied on the merits. 28 U.S.C. § 2254(b)(2).
Any of Petitioner’s allegations not specifically addressed herein have been found
to be without merit.
IV.
Certificate of Appealability11
Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ
of habeas corpus has no absolute entitlement to appeal a district court’s denial of his
petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability (“COA”).
“A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
11
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, the “district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Id. As this Court has determined
that Petitioner is not entitled to habeas corpus relief, it must now consider whether
Petitioner is entitled to a certificate of appealability.
- 24 -
make such a showing, Petitioner must demonstrate that “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),
or that “the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller–El, 537 U.S. at 335–36. Petitioner has not made the requisite showing in
these circumstances.
Because Petitioner is not entitled to a certificate of appealability, he is not entitled
to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Florida Attorney General is DISMISSED as a named Respondent.
2.
The 28 U.S.C. § 2254 petition for habeas corpus relief filed by Germain
Jean is DENIED, and this case is dismissed with prejudice.
3.
Petitioner is DENIED a certificate of appealability.
4.
The Clerk of Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this 31st day of March, 2017.
SA: OrlP-4
Copies: Germain Jean
Counsel of Record
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