Thomas v. Secretary, Department of Corrections et al
Filing
32
OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying Claims 1, 3, and 8 of 9 Amended petition for writ of habeas corpus, deeming Claim 2 waived, and the remaining claims are dismissed as unexhausted. The case is dismissed with prejudice and petitioner is denied a certificate of appealability. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 4/12/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL THOMAS,
Petitioner,
v.
Case No: 2:14-cv-338-FtM-29CM
SECRETARY,
DEPARTMENT
OF
CORRECTIONS
and
ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court on an amended petition for
habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Michael
Thomas (“Petitioner”), a prisoner of the Florida Department of
Corrections (Doc. 9, filed July 24, 2014).
Petitioner, proceeding
pro se, attacks the conviction and sentence entered against him by
the Twentieth Judicial Circuit Court in Lee County, Florida for
robbery with a firearm. Id.
petition (Doc. 24).
1
Respondent filed a response to the
Despite being granted an extension of time
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.
to do so (Doc. 30), Petitioner filed no reply, and the matter is
now ripe for review.
Upon due consideration of the pleadings and the state court
record, the Court concludes that each claim must be dismissed or
denied.
Because the petition is resolved on 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 2
On October 21, 2009, the State of Florida charged Petitioner
with one count of robbery while discharging a firearm, in violation
of Florida Statute §§ 812.13, 777.011, and 775.087 (Ex. 1 at 14).
A jury found Petitioner guilty as charged (Ex. 1 at 111).
He was
sentenced to a mandatory minimum prison term of twenty years.
at
159.
Florida’s
Second
District
Court
of
Appeal
Id.
affirmed
Petitioner’s conviction and sentence without a written opinion
(Ex. 4); Thomas v. State, 97 So. 3d 228 (Fla. 2d DCA 2012).
On October 15, 2013, Petitioner filed a motion pursuant to
Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850
motion”) (Ex. 15).
An amended Rule 3.850 motion was filed on
2
Citations to exhibits are to those filed by Respondent on
July 28, 2015 (Doc. 26).
A trial transcript was provided by
Respondent along with the state-court record. Citations to the
trial transcript will be cited as (T. at __).
- 2 -
November 13, 2013 (Ex. 19).
After securing a response from the
state (Ex. 20), the post-conviction court denied the amended Rule
3.850 motion without an evidentiary hearing (Ex. 21).
Florida’s
Second District Court of Appeal affirmed (Ex. 23); Thomas v. State,
152 So. 3d 580 (Fla. 2d DCA 2014).
Petitioner filed another Rule 3.850 motion on June 6, 2014
(Ex. 26).
The motion was dismissed as successive by the post-
conviction court (Ex. 27).
Florida’s Second District Court of
Appeal affirmed (Ex. 31); Thomas v. State, 192 So. 3d 55 (Fla. 2d
DCA 2015).
Petitioner filed a 28 U.S.C. § 2254 petition in this Court on
June 9, 2014 (Doc. 1).
The amended petition was filed on July 21,
2014 (Doc. 9).
II.
a.
Legal Standards
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.
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28 U.S.C. § 2254(d).
to meet.
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
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);
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
- 4 -
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 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,
Williams, 529 U.S. at 406).
234
F.3d
at
531
(quoting
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
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specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Notably,
even
when
the
opinion
of
a
lower
state
post-
conviction court contains flawed reasoning, the federal court must
give the last state court to adjudicate the prisoner’s claim on
the merits “the benefit of the doubt.” Wilson v. Warden, Ga.
Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert.
granted Wilson v. Sellers, No. 16-6855, -- S. Ct. ---, 2017 WL
737820 (Feb. 27, 2017).
A state court’s summary rejection of a
claim, even without explanation, qualifies as an adjudication on
the merits which warrants deference.
F.3d 1144, 1146 (11th Cir. 2008).
theories
could
have
supported
Ferguson v. Culliver, 527
Therefore, to determine which
the
state
appellate
court’s
decision, the federal habeas court may look to a state postconviction court’s previous opinion as one example of a reasonable
application of law or determination of fact; however, the federal
court is not limited to assessing the reasoning of the lower court.
Wilson, 834 F.3d at 1239.
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); Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“a
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decision adjudicated on the merits in a state court and based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence presented
in the state-court proceeding”) (dictum);
Burt v. Titlow, 134 S.
Ct. 10, 15-16 (2013) (same).
b.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part
test
entitled
to
for
relief
determining
on
the
whether
ground
that
a
convicted
his
person
counsel
ineffective assistance. 466 U.S. 668, 687-88 (1984).
is
rendered
A petitioner
must establish that counsel’s performance was deficient and fell
below
an
objective
standard
of
reasonableness
and
deficient performance prejudiced the defense. Id.
that
the
This is a
“doubly deferential” standard of review that gives both the state
court and the petitioner’s attorney the benefit of the doubt.
Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 563 U.S. 170
(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.
“prove,
by
Indeed, the petitioner bears the heavy burden to
a
preponderance
of
the
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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.
is
“a
probability
sufficient
to
A reasonable probability
undermine
confidence
in
the
outcome.” Strickland, 466 U.S. at 694.
c.
The
AEDPA
Exhaustion and Procedural Default
precludes
federal
courts,
absent
exceptional
circumstances, from 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
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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 and 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).
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A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim
in
state
court
and
actual
prejudice
from
the
alleged
constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner
“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
Murray v. Carrier, 477 U.S. 478 (1986).
To show prejudice, a
petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A 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[.]”
478, 479-80 (1986).
Actual innocence means factual innocence, not
legal insufficiency.
(1998).
Murray v. Carrier, 477 U.S.
Bousley v. United States, 523 U.S. 614, 623
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).
“To be credible, a claim of actual innocence
must be based on [new] reliable evidence not presented at trial.”
- 10 -
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
According to the Lee County Sheriff’s Office Probable Cause
statement, on October 23, 2008, three masked people, a black male,
a white female, and another male of unknown race, entered a Subway
restaurant and robbed it at gunpoint (Doc. 1 at 6).
During the
robbery, the gun was dropped by one of the suspects, and it
accidentally discharged into the ground.
Id.
Subsequently, Myron Vann was identified as a robber in a
different robbery (Doc. 1 at 7).
In a sworn statement, Vann
admitted to driving the getaway vehicle in the Subway robbery.
Id.
Vann told police that Alisa Montalvo and Petitioner were two
of the Subway robbers, and he identified Petitioner as the person
who accidentally fired a gun into the floor.
Id.
When detectives
questioned Montalvo, she identified Vann and Petitioner as Subway
robbers.
Id.
At
a
second
interview,
Montalvo
admitted
participating in the Subway robbery, and said that she, Petitioner,
and Julian Swisher robbed the restaurant while Vann waited outside
in the getaway car. Id.
On April 15, 2009, Petitioner was pulled over for speeding
(Ex. 1 at 9).
The deputy who stopped him conducted a driver’s
license check that identified Petitioner as a habitual offender
with a suspended license. Id.
Petitioner was placed under arrest,
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and a search of his car revealed a .45 caliber firearm in his
unlocked glove box. Id.
It was determined that a bullet recovered
from the Subway restaurant was a positive match to the firearm
retrieved from Petitioner’s glove box. Id.
Petitioner
raises
the
following
claims
in
the
instant
petition: (1) the trial court erred by failing to suppress the gun
found in his car; (2) defense counsel (“Counsel”) failed to call
Dorothy Thomas and Lamonicka Thomas to testify about out-of-court
statements made by Montalvo; (3) Counsel failed to call Dorothy
Thomas and Lamonicka Thomas as alibi witnesses; (4) Counsel failed
to call a firearms expert to testify that the bullet found at
Subway did not come from Petitioner’s gun; (5) Counsel failed to
request an “alibi” jury instruction; (6) Counsel failed to object
to the prosecutor’s prejudicial statements during closing; and (7)
cumulative
errors
resulted
in
the
constitutional rights (Doc. 9 at 5-13).
deprivation
of
his
Each claim will be
addressed separately.
a.
Claim One
Petitioner asserts that the trial court erred when it denied
his motion to suppress the firearm found in his car (Doc. 9 at 5).
He asserts that the firearm was found during a search of his car
after he was pulled over for speeding.
Id.
After Petitioner was
removed from the car, the arresting officer searched his vehicle
and found the legally owned gun in Petitioner’s glove box.
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Id.
Prior to trial Counsel filed a motion to suppress the gun (Ex. 1
at 22).
In his motion to suppress the firearm, Petitioner argued that
under Arizona v. Gant, 566 U.S. 332 (2009), 3 “police may search a
vehicle incident to a recent occupant’s arrest only if the arrestee
is within reaching distance of the passenger compartment at the
time of the search or it is reasonable to believe the vehicle
contains evidence of the offense of arrest.” (Ex. 1 at 23).
Since
Petitioner was removed from his car after it was stopped, he argued
that the gun found in his glovebox must be suppressed under Gant.
Id.
An evidentiary hearing was held on Petitioner’s motion to
suppress, during which Counsel again argued that, pursuant to Gant,
the gun must be suppressed. Id. at 28-68.
In a written order, the
trial court denied the motion, noting that, to the extent Gant was
retroactive, the case would require suppression of the gun. Id. at
69.
However, the court noted, an inventory search of Petitioner’s
car would have inevitably occurred pursuant to Lee County Sheriff’s
policy and as a result, “[t]he firearm would have ultimately been
discovered by legal means.” Id. at 70.
3
Petitioner appealed the
Gant overruled New York v. Belton, 453 U.S. 454 (1981) and
reaffirmed Chimel v. California, 395 U.S. 752 (1969) in holding
that law enforcement officers may search the passenger compartment
of a vehicle incident to a recent occupant’s arrest only if it is
reasonable to believe that the arrestee might access the vehicle
at the time of the search or that the vehicle contains evidence of
arrest. Notably, Gant was decided after Petitioner’s arrest.
- 13 -
denial of his motion to suppress (Ex. 2); the State filed a brief
in response (Ex. 3); and the trial court was affirmed without a
written opinion (Ex. 4).
Although this claim appears to be
exhausted, under the principles of Stone v. Powell, 428 U.S. 465
(1976), federal habeas review of Petitioner’s illegal search and
seizure
claim
is
not
cognizable
in
this
proceeding
because
Petitioner had a full and fair opportunity to litigate his Fourth
Amendment issue in state court.
[W]hen “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 or seizure was
introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976)
(footnotes omitted).
Thus, the only way for this Court to review
the merits of Petitioner’s Fourth Amendment claim is for Petitioner
to demonstrate that the state courts deprived him of a full and
fair opportunity to litigate the claim.
Petitioner does not make
this showing.
In Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir. 1990),
the
Eleventh
Circuit
Court
of
Appeals
addressed
the
Stone
requirement for a “full and fair” opportunity to litigate a Fourth
Amendment claim and concluded:
For a claim to be fully and fairly considered
by the state courts, where there are facts in
dispute, full and fair consideration requires
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consideration by the fact-finding court, and
at least the availability of meaningful
appellate review by a higher state court.
377 F.3d at 1224.
As noted previously, Petitioner’s illegal
search and seizure claim was raised in a pretrial motion to
suppress, and the trial court heard testimony on the motion.
The
trial judge allowed both parties to present argument on the motion.
The court then provided a reasoned written opinion on the motion.
In addition, the illegal search and seizure claim was raised on
direct appeal, and the trial court’s decision with regard to this
issue was affirmed.
In sum, Petitioner was afforded a full and
fair opportunity to litigate and have adjudicated his Fourth
Amendment claim in state court; therefore, under Stone v. Powell,
he is not permitted to further litigate the claim in this Court.
Thus, Claim One is barred from review.
b.
Claim Three 4
In Claim Three, Petitioner merely offers the following:
Dorothy Thomas and Lamonicka Thomas were
witnesses to why state’s witness Ms. Montalvo
testified and implicated Petitioner in crime.
The two witnesses were told by Ms. Montalvo if
she did not testify and say Petitioner was
involved in crime, her child was going to be
taken away from her.
Brandon Murph had testimony that state witness
Myron Vann, fabricated story of Petitioner
4
Petitioner scratched through Claim Two with a note stating,
“Petitioner waives this ground.” (Doc. 9 at 7). Accordingly, this
Court will not address Claim Two. For clarity, the Court will use
the same numbering system as Petitioner.
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being involved in crime. He would explain why
Myron
Vann
claimed
he
wrote
statement
exonerating Petitioner, and then saying he
wrote such statement from fear.
(Doc. 9 at 8).
Although these statements do not state a claim,
Petitioner asserts that he raised this issue in his Rule 3.850
motion. Id. at 9.
Accordingly, the Court will liberally construe
the statements as raising the same issue as he raised in the first
ground of his amended Rule 3.850 motion. In the Rule 3.850 motion,
Petitioner argued that Counsel was ineffective for failing to
adequately investigate and call Dorothy Thomas, Lamonicka Thomas,
and Brandon Murph as defense witnesses at his trial (Ex. 19 at 6).
The
post-conviction
court
denied
the
claim
on
Strickland’s
performance prong:
With regards to Dorothy Thomas and Lamonicka
Thomas, Defendant asserts that had counsel
called these two witnesses, they both would
have testified that Alisa Montalvo, a codefendant who entered a plea in exchange for
testifying against the Defendant, came to
their house crying while telling them that she
did not want to testify against the Defendant
because her testimony would be untruthful, but
that her lawyer advised her that she had to
testify.
They would also testify that Ms.
Montalvo told them that she had to testify
untruthfully against the Defendant, because
her mother threatened to take her son away
from her. Furthermore, Ms. Lamonicka Thomas
would have testified that at a later date, Ms.
Montalvo ad told her that the Defendant did
not commit the robbery.
As it relates to Brandon Murph, Defendant
alleges that had counsel called him to
testify, he would have testified that he and
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Myron
Vann,
another
co-defendant,
were
roommates, and Mr. Vann told Mr. Murph that he
falsely accused the Defendant so as to cover
up the involvement of his cousin, Gabriel
Vann, in the robbery. Defendant contends Mr.
Murph would have further testified that Myron
Vann told him that he knowingly retrieved the
Defendant’s gun from Ms. Montalvo’s house.
Defendant has attached affidavits from each of
the three potential witnesses to his rule
3.850 motion.
He argues that had counsel
called these three witnesses, then their
testimony would have potentially corroborated
the Defendant’s testimony, strengthened his
credibility, impeached the State’s witnesses,
and created reasonable doubt in the minds of
the jurors.
Ms. Montalvo and Mr. Vann’s
testimony, according to the Defendant, was
motivated
by
malice,
vindictiveness,
intolerance, prejudice, and jealousy; and was
obtained by a quid pro quo agreement with the
State; therefore, he argues that it was
incumbent upon his counsel to call these three
witnesses.
While adequately pled, this claim must fail,
because the purported testimony of these
witnesses would have been hearsay testimony,
with some of the testimony amounting to double
hearsay. Pursuant to § 90.802, Fla. Stat., a
statement, other than one made by the
declarant while testifying at trial or
hearing, offered in evidence to prove the
truth of the matter asserted is inadmissible.
Trial counsel cannot be found ineffective for
failing to raise inadmissible evidence. Pietri
v. State, 885 So. 2d 245, 252 (Fla. 2004).
This is not an instance where Defendant is
arguing that his co-defendants wished to
recant their testimony or that the attached
affidavits represent the desire of the codefendants to recant their testimony; rather,
Defendant
is
arguing
that
these
three
witnesses should have been called to give
hearsay testimony that the co-defendants were
untruthful in their testimony. Contrast Butler
- 17 -
v. State, 946 So. 2d 30 (Fla. 2d DCA 2006)
(holding that an affidavit from the mother of
a key state witness that reflected that her
son wished to recant his trial testimony was
facially sufficient to warrant an evidentiary
hearing). Accordingly, Ground One is without
merit.
(Ex. 21 at 3-4).
Florida’s Second District Court of Appeal
affirmed (Ex. 23).
The silent affirmance of the post-conviction
court’s
entitled
ruling
is
to
deference,
and
the
Court
must
determine whether any arguments or theories could have supported
the state appellate court’s decision. Wilson, 834 F.3d at 1235.
Petitioner has not shown that there was no reasonable basis for
the state court to deny relief on this ground.
conviction
court’s
finding
deficiently
because
the
that
proposed
Indeed, the post-
Counsel
did
testimony
not
was
perform
impermissible
hearsay provides a reasonable basis on which to deny habeas relief.
“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
except as provided by statute. Fla. Stat. § 90.802.
is
inadmissible
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
- 18 -
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 statements from Dorothy Thomas and Lamonicka Thomas that
state’s witness Montalvo told them that she (Montalvo) had to lie
about Petitioner’s involvement in the robbery because if she did
not do so, her mother would take away her child.
Petitioner also
urges that Counsel should have offered testimony from Brandon Murph
that his cellmate, Myron Vann, falsely accused Petitioner of
participating in the robbery because the real robber was Myron
Vann’s cousin.
In short, Petitioner wished to offer the out-of-
court statements of Montalvo and Vann for the truth of the matter
asserted in those statements.
Accordingly, reasonable competent
counsel could have concluded that the proposed testimony from
Dorothy Thomas, Lamonicka Thomas, and Brandon Murph was hearsay,
and absent an exception to the hearsay rule, which Petitioner does
not advance, the statements were inadmissible.
state
court’s
conclusion
that
Counsel’s
Accordingly, the
performance
was
not
deficient was neither contrary to Strickland nor based upon an
unreasonable determination of the facts.
Moreover, Petitioner cannot demonstrate Strickland prejudice
from Counsel’s failure to offer the witnesses’ testimony.
First,
on
making
cross-examination,
inconsistent
both
pre-trial
Montalvo
statements
- 19 -
and
Vann
admitted
regarding
Petitioner’s
involvement in the robbery, so the proposed testimony from the
Thomases’ and Murph would have merely been cumulative to evidence
actually offered at trial (T. at 208, 214-16). See Ledford v.
Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 64950 (11th Cir. 2016)(“[N]o prejudice can result from the exclusion
of cumulative evidence, which means that trial counsel’s failure
to present cumulative evidence was not prejudicial.”).
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 the Thomases’ and Murph’s testimony.
Vann’s
out-of-court
inadmissible hearsay.
statements
would
have
Montalvo’s and
been
rejected
as
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, 1549 (11th Cir. 1997)).
Petitioner
has
not
demonstrated
Strickland
prejudice
from
Counsel’s failure to call the Thomases or Murph to testify at
Petitioner’s trial.
Because Petitioner demonstrates neither deficient performance
nor resulting prejudice from Counsel’s failure to call Dorothy
Thomas, Lamonicka Thomas, or Brandon Murph at trial, there were
reasonable bases for the state courts’ rejection of Claim Three,
and the claim is denied pursuant to 28 U.S.C. § 2254(d).
- 20 -
d.
Claim Four
Petitioner asserts that “Dorothy Thomas and Lamonicka Thomas
were alibi witnesses.
They had testimony that Placed Petitioner
with them instead of at the scene of crime.
They were to testify,
but were not called to do so.” (Doc. 9 at 10).
Although these
statements do not state a claim, Petitioner asserts that he raised
this issue in his Rule 3.850 motion. Id. at 10.
A review of the
record indicates that this claim was not raised in Petitioner’s
Rule 3.850 motion.
of
counsel
witnesses
claim
in
his
Petitioner did raise an ineffective assistance
based
second
upon
Counsel’s
amended
Rule
failure
3.850
to
motion
call
(Ex.
alibi
26).
However, the motion was dismissed by the post-conviction court as
an abuse of procedure pursuant to Rule 3.850(h) (Ex. 27).
Respondent argues that even if the Court were to construe
Claim Four as raising a claim of ineffective assistance of counsel,
the
claim
is
unexhausted
and
procedurally
barred
because
Petitioner did not raise it when he presented his other claims of
proposed ineffective assistance in his amended Rule 3.850 motion
and then appeal the post-conviction court’s ruling thereon (Doc.
24 at 27).
Respondent is correct.
Moreover, Petitioner does not
offer cause for his failure to exhaust his claim.
Even if
Petitioner were to urge that his failure to exhaust this claim is
excused by the United States Supreme Court’s decision in Martinez
- 21 -
v. Ryan 5
he would be unsuccessful because Claim Four is not
“substantial”
and
does
not
fall
within
Martinez’s
equitable
exception to the procedural bar.
In his second amended Rule 3.850 motion, Petitioner asserted
that, had Counsel called Dorothy Thomas and Lamonicka Thomas to
testify at his trial, they would have said that: Petitioner was
with them on the night of the robbery; they were all at Dorothy
Thomas’ house; Dorothy Thomas’s daughter was with them; and Myron
Vann borrowed Petitioner’s car numerous times (Ex. 26 at 9).
However, he has not provided any evidence to the Court in support
of his assertions. He has not produced a sworn statement of these
witnesses’ putative testimony regarding an alibi. 6
Consequently,
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. Id. at 1318-19.
6
Petitioner attached notarized affidavits of these witnesses
to his first Rule 3.850 motion (Ex. 19), but neither witness
attested that Petitioner was with them at the time of the robbery
or even suggested that they could provide an alibi. Rather, the
- 22 -
the claim is too speculative to warrant relief. See Johnson v.
Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001) (“Johnson offers
only
speculation
helpful.
that
the
missing
witnesses
would
have
been
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 testimony
would
been
have
favorable;
self-serving
speculation
will
not
sustain an ineffective assistance claim.”).
Because Petitioner cannot demonstrate Strickland prejudice,
Claim Four 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 showing that the
actual innocence exception would apply to excuse his default of
this claim.
Accordingly, Claim Four is dismissed as unexhausted.
d.
Claim Five
Petitioner asserts that Counsel was ineffective for failing
to retain a “firearms expert” to testify that the bullet found at
affidavits were offered to prove that Montalvo and Vann told these
witnesses that Petitioner was not involved in the Subway restaurant
robbery. See discussion supra Claim Two.
- 23 -
the crime scene did not come from Petitioner’s gun (Doc. 9 at 12).
He asserts that, because the state retained an expert who testified
that the bullet was “definitely linked” to Petitioner’s gun,
Counsel’s failure to secure an expert to refute the testimony
constituted ineffective assistance.
Id.
Petitioner raised this
claim in his third Rule 3.850 motion (Ex. 26).
However, the motion
was dismissed by the post-conviction court as an abuse of procedure
pursuant to Rule 3.850(h) (Ex. 27), and as a result, Claim Five is
unexhausted.
Petitioner does not offer cause for his failure to exhaust
his claim.
Even if Petitioner were to urge that his failure to
exhaust this claim is excused by the United States Supreme Court’s
decision in Martinez v. Ryan, he would be unsuccessful because
Claim Five is not “substantial” and does not fall within Martinez’s
equitable exception to the procedural bar.
is
purely
speculative.
Petitioner
has
Notably, this claim
not
established
the
existence of an expert who would have testified that the bullet
did not come from Petitioner’s gun, nor has he established that
such a witness would have been available to testify.
some
specificity
as
to
the
proposed
expert’s
“Without
testimony,
any
assertion that an expert would testify consistently with his claims
is mere speculation and does not entitle him to habeas relief.”
Finch v. Sec’y, Dept of Corr., 643 F. App’x 848, 852 (11th Cir.
2016); see also Sullivan v. DeLoach, 459 F.3d 1097, 1109 (11th
- 24 -
Cir. 2006) (“Th[e] prejudice burden is heavy where the petitioner
alleges ineffective assistance in failing to call a witness because
‘often allegations of what a witness would have testified to are
largely speculative.’”) (quoting United States v. Guerra, 628 F.2d
410, 413 (5th Cir. 1980)).
Because Petitioner has not demonstrated Strickland prejudice,
Claim Five 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
Five
is
dismissed
as
unexhausted.
e.
Claim Six
Petitioner asserts that Counsel was ineffective for failing
to request an alibi jury instruction (Doc. 9 at 12).
He asserts
that such an instruction was necessary because evidence was offered
at
trial
that
Petitioner
was
not
at
the
crime
scene.
Id.
Petitioner raised this claim in his third Rule 3.850 motion (Ex.
26).
However, the motion was dismissed by the post-conviction
court as an abuse of procedure pursuant to Rule 3.850(h) (Ex. 27),
and as a result, Claim Six is unexhausted.
Petitioner does not offer cause for his failure to exhaust
his claim.
Even if Petitioner were to urge that his failure to
exhaust this claim is excused by the United States Supreme Court’s
- 25 -
decision in Martinez v. Ryan, he would be unsuccessful because
Claim Five is not “substantial” and does not fall within Martinez’s
equitable exception to the procedural bar.
Under Florida law, an instruction on an alibi defense must be
given if requested by counsel and there is evidence to support
such an instruction. Ford v. State, 848 So. 2d 415, 416-17 (Fla.
4th
DCA
2003).
Here,
while
the
jury
was
not
specifically
instructed on the theory of alibi because counsel never requested
a separate alibi instruction, the court’s charge, when viewed as
a whole, correctly stated the issues and law and was adequate. See
United States v. Russell, 717 F.2d 518, 521 (11th Cir. 1983).
Review
of
the
record
reveals
that
the
defense
presented
by
Petitioner at trial was that his co-defendants implicated him in
the Subway restaurant robbery in exchange for a lighter sentence.
Petitioner testified at trial that he was actually with his family
at the time of the robbery (T. at 319-20).
In this case, the jury was properly and fully instructed about
the presumption of innocence and the burden of proof in a criminal
case (T. at 351-52). The jury was also expressly instructed that
they should find Petitioner not-guilty of the crime charged if the
state had not proved the case beyond a reasonable doubt. Id.
Additionally,
reliability
of
the
the
court
instructed
evidence,
the
weighing
credibility of witnesses. Id. at 352-54.
- 26 -
jury
the
regarding
evidence,
and
the
the
The trial court clearly
and
correctly
instructed
the
jury
that
it
could
believe
or
disbelieve all or any part of the evidence presented or the
testimony of any witness. Id. at 354.
Accordingly, the jury was
instructed that they must find Petitioner not-guilty if they did
not believe the testimony of the state’s witnesses or if they
believed Petitioner’s alibi. It is generally presumed that jurors
follow their instructions. See Richardson v. Marsh, 481 U.S. 200,
211 (1987).
The evidence admitted at trial of Petitioner’s guilt was more
than sufficient and included cooperating co-defendant testimony.
In light of the instructions actually given to the jury and the
trial transcript, it is clear the jury was aware that it should
find Petitioner not-guilty if there was any reasonable doubt he
was present at the scene.
In other words, the jury knew that if
it were to find the alibi defense believable, it was required to
acquit Petitioner of the charged offense. The jury rejected the
defense presented and instead believed the strong testimony of the
state witnesses. Thus, petitioner cannot demonstrate that failure
to provide the alibi instruction resulted in the guilty verdict.
Consequently, he cannot demonstrate Strickland prejudice.
Because Petitioner has not demonstrated Strickland prejudice,
Claim Six 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
- 27 -
the actual innocence exception would apply to excuse his default
of
this
claim.
Accordingly,
Claim
Six
is
dismissed
as
unexhausted.
f.
Claim Seven
Petitioner asserts that Counsel was ineffective for failing
to object to the state prosecutor: calling Petitioner a liar;
urging the jury to believe the state’s witnesses; and telling the
jury
to
disregard
testimony
which,
if
exonerated Petitioner (Doc. 9 at 13).
believed,
would
have
Petitioner raised this
claim in his third Rule 3.850 motion (Ex. 26).
However, the motion
was dismissed by the post-conviction court as an abuse of procedure
pursuant to Rule 3.850(h) (Ex. 27), and as a result, Claim Seven
is unexhausted.
Petitioner does not offer cause for his failure to exhaust
his claim.
Even if Petitioner were to urge that his failure to
exhaust this claim is excused by the United States Supreme Court’s
decision in Martinez v. Ryan, he would be unsuccessful because
Claim Five is not “substantial” and does not fall within Martinez’s
equitable exception to the procedural bar.
In Ruiz v. State, the Florida Supreme Court noted that “the
role of counsel in closing argument is to assist the jury in
analyzing [the] evidence, not to obscure the jury’s view with
personal opinion, emotion, and nonrecord evidence[.]” 743 So. 2d
1, 4 (Fla. 1999).
The Ruiz court explained that “[t]he assistance
- 28 -
permitted includes counsel’s right to state his contention as to
the conclusions that the jury should draw from the evidence.” Id.
(citing United States v. Morris, 568 F.2d 396, 401 (5th Cir.
1978)).
The Florida Supreme Court has further stated that “[t]he
proper exercise of closing argument is to review the evidence and
to explicate those inferences which may reasonably be drawn from
the evidence.” Robinson v. State, 610 So. 2d 1288, 1290 (Fla. 1992)
(quoting Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985)).
In the instant case, the prosecutor informed the jury that
they were allowed to consider the stake someone has in a case when
weighing
a
witness’
testimony
(T.
at
323).
The
prosecutor
summarized the witness’ testimony and the evidence presented at
trial and urged that the state’s witnesses had no reason to lie
about Petitioner’s involvement in the robbery. Id. at 323-29.
Under Florida law, a prosecutor is allowed to argue credibility of
witnesses or any other relevant issue so long as the argument is
based on the evidence; and this is precisely what the prosecutor
did. Miller v. State, 926 So. 2d 1243, 1254 (Fla. 2006); Craig v.
State, 510 So. 2d 857, 865 (Fla. 1987) (“When counsel refers to a
witness or a defendant as being a ‘liar,’ and it is understood
from
the
context
that
the
charge
is
made
with
reference
to
testimony given by the person thus characterized, the prosecutor
is merely submitting to the jury a conclusion that he is arguing
can be drawn from the evidence. It was for the jury to decide what
- 29 -
evidence and testimony was worthy of belief and the prosecutor was
merely
submitting
consideration.”).
his
view
of
Petitioner
the
evidence
cannot
to
satisfy
them
for
Strickland’s
performance prong because, based on Ruiz, Robinson, and Miller,
reasonable defense counsel could have concluded that he had no
grounds on which to object to the prosecutor’s statements.
Because Petitioner has not demonstrate deficient performance,
Claim Seven 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
Seven
is
dismissed
as
unexhausted.
g.
In
Claim
Eight,
Claim Eight
Petitioner
appears
to
argue
that
he
is
entitled to habeas relief because of Counsel’s cumulative errors
(Doc. 9 at 13).
This Court need not determine whether, under
current Supreme Court precedent, cumulative error claims can ever
succeed under 28 U.S.C. § 2254(d).
Nor must the Court determine
whether this claim has been exhausted. 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.”).
Petitioner
has not shown an error of constitutional dimension with respect to
- 30 -
any federal habeas claim.
Therefore, he cannot show that the
cumulative effect of the alleged errors deprived him of fundamental
fairness in the state criminal proceedings. See Morris v. Sec’y,
Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (refusing to
decide whether post-AEDPA claims of cumulative error may ever
succeed in showing that the state court’s decision on the merits
was
contrary
to
or
an
unreasonable
application
of
clearly
established law, but holding that petitioner’s claim of cumulative
error was without merit because none of his individual claims of
error or prejudice had any merit); Forrest v. Fla. Dep’t of Corr.,
342 F. App’x 560, 565 (11th Cir. 2009) (noting absence of Supreme
Court precedent applying cumulative error doctrine to claims of
ineffective
assistance
of
counsel,
but
holding
that
the
petitioner’s cumulative error argument lacked merit because he did
not establish prejudice or the collective effect of counsel’s error
on the trial); Hill v. Sec’y, Fla. Dep’t of Corr., 578 F. App’x
805 (11th Cir. 2014)(same).
Petitioner is not entitled to federal
habeas relief.
Any of Petitioner’s allegations not specifically addressed
herein have been found to be without merit.
- 31 -
IV.
Certificate of Appealability 7
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 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:
7
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.
- 32 -
1.
The Florida Attorney General is DISMISSED as a named
Respondent.
2.
Claims One, Three, and Eight of the amended 28 U.S.C. §
2254 petition for habeas corpus relief filed by Michael Thomas
(Doc. 9) are DENIED, Claim Two is deemed waived, and the remaining
claims are dismissed as unexhausted.
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
of April, 2017.
SA: OrlP-4
Copies: All Parties of Record
- 33 -
12th
day
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