Hitchcock v. Secretary, Department of Corrections et al
Filing
49
ORDER denying the petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Virginia M. Hernandez Covington on 12/14/2011. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL HITCHCOCK,
Petitioner,
vs.
Case No. 3:05-cv-487-J-33MCR
SECRETARY, DOC, et al.,
Respondents.
ORDER
I. Status
Petitioner initiated this action by filing a pro se Petition
(Doc. #1) (hereinafter Petition) for writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
He also filed an Appendix (Doc. #2)
(hereinafter Appendix). The Petition challenges a 1999 state court
(Duval County) conviction for three counts of capital sexual
battery.
Eleven grounds are raised in the Petition: (1) trial court
erred in refusing to allow Petitioner to tell the jury what the
interrogating
detectives
informed
him
was
the
nature
of
the
penalty; (2) trial court erred in refusing to instruct the jury on
the lesser included offense of simple battery when trial counsel
refused to agree to have the jury instructed on attempted sexual
battery as well; (3) trial court erred in denying Petitioner's
motion for judgment of acquittal; (4) ineffective assistance of
counsel for failure to conduct a reasonable investigation into the
state's medical evidence; (5) ineffective assistance of counsel for
failure to consult with and use a defense medical expert witness;
(6) ineffective assistance of counsel for failure to object to the
tender of Nurse Practitioner Mary Prevatt as an expert of child
sexual abuse; (7) ineffective assistance of counsel for failure to
object
to
the
expert
testimony
of
Mary
Prevatt
not
meeting
admissibility under Frye1; (8) ineffective assistance of counsel
for failure to prepare for and counter the testimony of Nurse
Practitioner Mary Prevatt; (9) ineffective assistance of counsel
for
failure
to
suppress,
exclude
and
object
to
Petitioner's
confession; (10) ineffective assistance of counsel for failure to
object to a discovery violation by the state; and (11) ineffective
assistance of counsel for admitting the team assessment summary, a
hearsay document, into evidence.
Petitioner appealed the dismissal of his federal Petition,
asserting that this Court erred in holding certain claims to be
procedurally defaulted from federal habeas review.2
The Eleventh
1
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)
(establishing the "Frye rule" barring evidence derived from novel
scientific techniques).
2
The Eleventh Circuit recognized that the District Court
considered on the merits and denied the claims that were raised on
appeal by Petitioner's post-conviction counsel and were denied by
the First District Court of Appeal; however, the Eleventh Circuit
did not specifically consider, in its Opinion, any of the grounds
addressed on the merits by the District Court. (Doc. #37 at 3
n.2).
- 2 -
Circuit, in its Opinion of January 7, 2010, found that Petitioner's
federal claims were not barred from review and reversed and
remanded for further proceedings not inconsistent with the opinion.
(Doc. #37).
Respondents were directed to respond to grounds four, six,
seven, eight, ten and eleven of the Petition, and they were advised
not to refer back to their previous response.
(Order, Doc. #38).
Petitioner moved to expand the record, and the motion was granted.
(Order, Doc. #41).
Petition
for
Writ
Respondents filed a Supplemental Answer to
of
Supplemental Response).3
Habeas
Corpus
(Doc.
#45)
(hereinafter
Petitioner filed a Supplemental Reply to
the Respondents' Answer to Petition for Writ of Habeas Corpus Under
28 U.S.C. § 2254 (Doc. #48).
See Docs. #7, #38, #41, #47).
With respect to grounds one, two, three, five, and nine, the
Court will also consider Respondents' November 10, 2005, Answer in
Response to Order to Show Cause (Doc. #14) (hereinafter Response),
the
Exhibits
(Doc.
#17),
and
Petitioner's
Traverse to State's Answer (Doc. #24).
3
January
30,
2006,
See Doc. #7.
The Court hereinafter refers to the Exhibits (Doc. #17) as
"Ex." Although the Respondents were directed to provide the Court
with a copy of the case study, Respondents have notified the Court
that the case study is not contained within the state court record;
however, Petitioner included a copy of the case study as Exhibit A
of the Appendix (Doc. #2). The case study as well as the other
exhibits to the Appendix have been reviewed and considered in
rendering the Court's decision.
- 3 -
II.
Evidentiary Hearing
The pertinent facts of the case are fully developed in the
record before the Court.
(11th Cir. 1999).
Court.
Smith v. Singletary, 170 F.3d 1051, 1054
No evidentiary proceedings are required in this
See High v. Head, 209 F.3d 1257, 1263 (11th Cir. 2000)
(citing McCleskey v. Zant, 499 U.S. 467, 494 (1991)), cert. denied,
532
U.S.
909
(2001).
The
Court
can
"adequately
assess
[Petitioner's] claim[s] without further factual development."
Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert.
denied, 541 U.S. 1034 (2004).
III.
Standard of Review
The Court will analyze Petitioner's claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act (hereinafter AEDPA).
This standard is described as
follows:
As explained by the Supreme Court, the
phrase
"'clearly
established
Federal
law' . . . refers to the holdings . . . of
[the Supreme Court's] decisions as of the time
of the relevant state-court decision."
Williams v. Taylor, 529 U.S. 362, 412, 120
S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We
have held that to be "contrary to" clearly
established federal law, the state court must
either (1) apply a rule "that contradicts the
governing law set forth by Supreme Court case
law," or (2) reach a different result from the
Supreme Court "when faced with materially
indistinguishable facts." Putman v. Head, 268
F.3d 1223, 1241 (11th Cir. 2003).
- 4 -
As regards the "unreasonable application"
prong of § 2254(d)(1), we have held as
follows:
A state court decision is an
unreasonable application of clearly
established law if the state court
unreasonably extends or fails to
extend a clearly established legal
principle to a new context.
An
application of federal law cannot be
considered
unreasonable
merely
because it is, in our judgment,
incorrect or erroneous; a state
court
decision
must
also
be
unreasonable. Questions of law and
mixed questions of law and fact are
reviewed de novo, as is the district
court's conclusion regarding the
reasonableness of the state court's
application of federal law.
Jennings v. McDonough, 490 F.3d 1230, 1236
(11th
Cir.
2007)
(quotation
marks
and
citations omitted). In sum, "a federal habeas
court making the 'unreasonable application'
inquiry should ask whether the state court's
application of clearly established federal law
was objectively unreasonable." Williams, 529
U.S. at 409, 120 S.Ct. at 1521. Finally, 28
U.S.C. § 2254(e)(1) commands that for a writ
to issue because the state court made an
"unreasonable determination of the facts," the
petitioner must rebut "the presumption of
correctness [of a state court's factual
findings] by clear and convincing evidence."[4]
28 U.S.C. § 2254(e)(1).
Ward v. Hall, 592 F.3d 1144, 1155-56 (11th Cir. 2010), cert.
denied, 131 S.Ct. 647 (2010).
4
This presumption of correctness applies equally to factual
determinations made by state trial and appellate courts." Bui v.
Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (footnote omitted)
(citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
- 5 -
Finally, for a state court's resolution of a claim to be an
adjudication on the merits, so that the state court's determination
will be entitled to deference for purposes of federal habeas corpus
review under AEDPA, all that is required is a rejection of the
claim on the merits, not an opinion that explains the state court's
rationale for such a ruling.
Wright v. Sec'y for the Dep't of
Corr., 278 F.3d 1245, 1255 (11th Cir. 2002), cert. denied, 538 U.S.
906 (2003).
See Peoples v. Campbell, 377 F.3d 1208, 1227 (11th
Cir. 2004), cert. denied, 545 U.S. 1142 (2005).
Thus, to the
extent Petitioner's claims were adjudicated on the merits in the
state courts,5 they must be evaluated under § 2254(d).
IV.
Timeliness
Respondents calculate that the Petition is timely filed,
Response at 6-7, and the Court will accept this calculation.
V.
Ineffective Assistance of Counsel
Petitioner contends that he received ineffective assistance of
trial counsel. "The Sixth Amendment guarantees criminal defendants
effective assistance of counsel.
That right is denied when a
defense counsel's performance falls below an objective standard of
reasonableness and thereby prejudices the defense."
Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citations omitted). The
5
The Court's evaluation is limited to examining whether the
highest state court's resolution of the claim is contrary to, or an
unreasonable application of, clearly established law, as set forth
by the United States Supreme Court. See Newland v. Hall, 527 F.3d
1162, 1199 (11th Cir. 2008), cert. denied, 129 S.Ct. 1336 (2009).
- 6 -
Eleventh Circuit has captured the essence of an ineffectiveness
claim:
The clearly established federal law for
ineffective assistance of counsel claims was
set forth by the U.S. Supreme Court in
Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). To
establish a claim of ineffective assistance of
counsel, first, "the defendant must show that
counsel's performance was deficient . . .
[which] requires showing that counsel made
errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment."
Id. at
687, 104 S.Ct. at 2064. Second, the defendant
must show that counsel's deficient performance
prejudiced him.
Id.
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.
A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome." Id. at 694, 104 S.Ct. at 2068.
Gaskin v. Sec'y, Dep't of Corr., 494 F.3d 997, 1002 (11th Cir.
2007). "Establishing these two elements is not easy: 'the cases in
which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.'"
Van
Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002)
(per curiam) (citations and footnote omitted), cert. denied, 537
U.S. 812 (2002), 537 U.S. 1105 (2003).
VI.
Petitioner
was
Procedural History
charged
by
amended
information,
November 23, 1998, with three counts of sexual battery.
- 7 -
filed
on
Ex. A.
A
jury trial was conducted, Ex. B,6 and Petitioner was convicted of
three counts of capital sexual battery.
Ex. C.
trial was filed, Ex. D, and the motion was denied.
340.
A motion for new
Ex. E; Ex. G at
Petitioner was sentenced to life terms in prison on each
count, to be served consecutively.
Petitioner appealed.
Ex. H.
Ex. F; Ex. G at 346.
He raised three grounds:
(1)
the trial court erred in refusing to allow appellant to tell the
jury what the interrogating detectives informed him was the nature
of the penalty for the charged offenses; (2) the trial court erred
in refusing to instruct on the lesser included offense of simple
battery because defense counsel refused to agree to have the jury
instructed on attempted sexual battery as well; and (3) the trial
court erred in denying appellant's motion for judgment of acquittal
because the state failed to prove that the crimes occurred within
the time frame narrowed by the state's amended statement of
particulars.
Ex. J.
The state answered, Ex. I, and Petitioner replied.
The First District Court of Appeal affirmed per curiam on
June 28, 2000.
Ex. K.
The mandate issued on July 14, 2000.
Ex.
L.
On April 5, 2001, Petitioner filed a pro se motion for post
conviction relief pursuant to Fla. R. Crim. P. 3.850, Ex. M; on
June 1, 2001, Petitioner filed an amended pro se Rule 3.850 motion,
6
A number of pages of the transcript of the trial proceedings
are missing; however, this will not prevent the Court from
addressing the claims before the Court.
- 8 -
Ex. N; and on September 26, 2001, Petitioner filed a second amended
pro se Rule 3.850 motion.
Ex. O.
On November 1, 2002, Petitioner,
through counsel, filed a Third Amended Motion for Postconviction
Relief (hereinafter Third Amended Rule 3.850 Motion).
following grounds were raised therein:
Ex. P.
The
(1) ineffective assistance
of counsel for failure to prepare for and counter the testimony of
Nurse Practitioner Mary Prevatt, a state witness;7 (2) ineffective
assistance of counsel for failure to retain and utilize the
services and testimony of a child psychologist; (3) ineffective
assistance of counsel for failure to suppress, exclude and object
to
Petitioner's
confession;
(4)
the
state
committed
a
Brady8
violation, keeping key evidence from the Petitioner and preventing
him from receiving a fair trial; and (5) ineffective assistance of
counsel for submitting the team emergency assessment summary,
prepared by case coordinator Christy Wright of the Children's
Crisis Center, into evidence for review by the jury.
Petitioner
was
represented
by
counsel
at
an
Id.
evidentiary
hearing conducted on July 8, 2003 and July 16, 2003.
Ground
two
was
abandoned.
Id.
at
1176.
An
Order
Ex. Q.
Denying
Defendant's Motion for Post Conviction Relief was filed on October
15, 2003.
Ex. R.
7
This issue contains twelve subclaims (a-l).
8
Brady v. Maryland, 373 U.S. 83 (1963).
- 9 -
On appeal, Petitioner was represented by the same counsel who
represented
him
on
evidentiary hearing.
the
Third
Amended
Rule
3.850
Motion
and
After an initial appeal brief was filed by
counsel on February 11, 2004, Petitioner filed a pro se Request for
Stay of Proceedings and Request for Leave to File Supplement
Initial Brief, on February 26, 2004, pursuant to the mailbox rule.
Ex. Y at 2.
The pro se Request for Stay of Proceedings and Request
for Leave to File Supplement Initial Brief was denied by the First
District Court of Appeal on March 4, 2004.
Ex. Z.
In the Amended Initial Brief of Appellant filed by counsel and
dated March 11, 2004, two issues are raised:
(1) the trial court
erred in failing to find that Appellant suffered from ineffective
assistance of counsel due to his trial lawyer's failure to use a
defense medical expert at trial, and (2) the trial court erred in
failing to find that Appellant suffered from ineffective assistance
of counsel due to his trial lawyer's failure to bring a pre-trial
motion to suppress Defendant's confession.
Ex. S at ii.
These
issues correlate with grounds 1(b) and 3 of the Third Amended Rule
3.850 Motion.
The state filed an answer brief.9
Ex. T.
A reply
brief, dated April 2, 2004, was filed by Petitioner's counsel. Ex.
U.
On December 27, 2004, the First District Court of Appeal
9
This brief was apparently filed in response to the initial
appeal brief, as it is dated March 8, 2004, prior to the date of
the Amended Initial Brief of Appellant, March 11, 2004.
- 10 -
affirmed per curiam.
2005.
Ex. V.
The mandate issued on January 12,
Ex. W.
VII.
Findings of Fact and Conclusions of Law
A.
Ground One
In the first ground, it is asserted that the trial court erred
in
refusing
to
allow
Petitioner
to
tell
the
jury
what
the
interrogating detectives informed him would be the nature of the
penalty he would face if he went to trial, which was a penalty of
life in prison.
The issue was raised on appeal and affirmed by the
First District Court of Appeal.
At first blush this claim appears to be a state law claim
addressing an evidentiary ruling by the trial court. To the extent
it was presented as a claim of trial court error based on an
improper trial court evidentiary ruling, without an underlying due
process claim, it presents an issue of state law that is not
cognizable in this federal habeas proceeding.
federal
habeas
proceeding
is
review
of
The purpose of a
the
lawfulness
of
Petitioner's custody to determine whether that custody is in
violation of the Constitution or laws or treaties of the United
States.
See Coleman v. Thompson, 501 U.S. 722 (1991).
This Court
will not reexamine state-court determinations on issues of state
law.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Thus, to
the extent this ground is a state law claim complaining about an
evidentiary ruling by the trial court, Petitioner is not entitled
- 11 -
to federal habeas corpus relief as there has been no breach of a
federal constitutional mandate.
It does appear, however, that appellate counsel cited Crane v.
Kentucky, 476 U.S. 683 (1986), a case concerning the deprivation of
rights under the Confrontation Clause of the Sixth Amendment and
the Due Process Clause of the Fourteenth Amendment of the United
States Constitution.
In Crane, 476 U.S. at 691, the Supreme Court
found the Kentucky courts had erred in forbidding Crane's efforts
to introduce testimony concerning the physical environment and the
circumstances in which his confession was secured, finding that the
circumstances of an interrogation and confession bear on the issue
of credibility, a factual issue relevant to guilt or innocence.
In the instant case, Petitioner was allowed to testify as to
the circumstances of his confession, however, he was prohibited
from stating he was facing a life sentence, although he was allowed
to attest that the severity of the penalty was so harsh, it made
him make a decision to make a statement/confession that would get
him probation.
Ex. B at 544, 600.
Petitioner did not face the
blanket exclusion of all testimony regarding his version of the
events.
Indeed, he testified as to the circumstances of the
interrogation and the varied details about the environment he was
in when he made his confession. He was only limited in referencing
the specific life sentence he faced.
blanket exclusion prohibited by Crane."
237 Fed.Appx. 550,
"This is not the kind of
United States v. Gibbs,
560 (11th Cir.) (per curiam) (not selected for
- 12 -
publication in the Federal Reporter), cert. denied, 552 U.S. 1005
(2007).
To the extent a federal constitutional claim was raised on
appeal, the decision of the First District Court of Appeal is
entitled to deference under AEDPA.
The adjudication of the state
appellate court resulted in a decision that involved a reasonable
application of clearly established federal law, as determined by
the United States Supreme Court.
Therefore, Petitioner is not
entitled to relief on ground one because the state court's decision
was not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal
law, and was not based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings.
B.
Ground Two
In ground two, Petitioner claims that the trial court erred in
refusing to instruct the jury on the lesser included offense of
simple battery when trial counsel refused to agree to have the jury
instructed on attempted sexual battery as well.
This ground was
raised on appeal and affirmed per curiam.
The claim was presented to the First District Court of Appeal
as a claim of trial court error, not a claim of constitutional
dimension.
The claim exhausted in the state court system was a
state law claim. There is no entitlement to habeas relief on state
- 13 -
law errors.
Since there was no breach of a federal constitutional
mandate, Petitioner is not entitled to habeas relief on ground two.
In the alternative, to the extent a federal constitutional
claim was raised on appeal, the decision of the First District
Court
of
Appeal
is
entitled
to
deference
under
AEDPA.
The
adjudication of the state appellate court resulted in a decision
that involved a reasonable application of clearly established
federal law, as determined by the United States Supreme Court.
Therefore, Petitioner is not entitled to relief on ground two
because the state court's decision was not contrary to clearly
established
federal
law,
did
not
involve
an
unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
C.
Ground Three
In his third ground, Petitioner claims the trial court erred
in denying the motion for judgment of acquittal.
The ground was
raised on appeal, and the appellate court per curiam affirmed.
The trial court record shows that a motion for judgment of
acquittal was made at the close of the state's case:
MR. MILLER
Honor.
[defense
counsel]:
Yes,
Your
At this time I would like to make an Oral
Motion for Judgment of Acquittal, and I would
rely on Audano v. State, 674 So.2d 882, which
is a Florida Second DCA, 1996 case.
- 14 -
Your Honor, it is my contention that the
evidence presented by the State, places the
child at the ages of eight or nine years old.
On two occasions she stated –- one occasion
she stated eight or nine.
If this Court will take notice of her
date of birth, which is July 1st, and she is
twelve years old at this moment, going back in
time when she was nine years old, that would
have been July '95 through July '96. When she
was eight years old, that would have been July
'94 through July '95.
THE COURT:
MR. MILLER:
old.
THE COURT:
MR. MILLER:
THE COURT:
MR. MILLER:
Hold on just a second.
July '94.
To July '95, she was eight years
All right.
July '95 through July '96.
Nine.
She was nine.
Your Honor, the original information in
this case had a time frame of 1-92 through 1295.
I filed a Motion for More Definite
Statement of Particulars, and I received an
Amended Information and Amended Statement of
Particulars which states now the alleged
offenses occurred between January 1st, 1992,
and December 31st, 1994.
Your Honor, it is my contention that the
State has not placed on any conclusive,
reliable, or substantial evidence that these
allegations occurred during the time frame
alleged in the information.
If it happened
between when she was eight and nine, looking
at her birth date in the information, there is
only a small period of time in 1994 that it
could have happened, and there is a 16-month
period of time –- or, I'm sorry. There is a,
I guess, a year and-a-half period of time
where it could have happened outside the
- 15 -
information alleged in the information in the
Amended Statement of Particulars.
The only competent evidence is that she
told Detective Eason and Nurse Prevatt at the
time when she was eight, or nine, and I think
that is sufficient to prevail this judgment –win a judgment of acquittal.
And I would state –- rely on Audano v.
State, which states, "When a statement of
particulars narrows the time within which the
crime occurred, and the prosecution fails to
show that the defendant committed that offense
within that time frame, a conviction on that
charge must be reversed."
THE COURT:
Correct me if I'm wrong
before we go to the State; assuming that the
child was eight, because there was testimony
that the child could have been eight or nine.
MR. MILLER:
Yes, You Honor.
THE COURT: Assuming she was eight, that
would give you a five-month period.
MR. MILLER:
have failed –THE COURT:
Yes, Your Honor, but they
In the Amended Information.
MR. MILLER:
But
whether it was during
fourth of that time is
would say they have
burden.
they failed to state
eight or nine. And a
outside the period. I
failed to meet their
THE COURT:
Which is usually why the
State does not give, in child cases, does not
give such a narrow window.
MR. MILLER:
I agree.
. . . .
MRS. BRAY [prosecutor] I have before the
Court a chart which listed July 1, 1986,
[A.G.] is born.
- 16 -
It goes down to list how old she is
through certain dates and what grades she is
in.
Now testimony came out of the victim in
this case on cross examination by Mr. Miller
that she was in the 2nd and 3rd grade while
this was happening. That clearly places her
in the window of January 1st, 1994, through
December 31, 1994. We know she is in the 2nd
and 3rd grade and she is seven and eight years
of age.
THE COURT:
How do we know that?
MRS. BRAY: Because if we count back from
the date of the birth, we know that.
THE COURT: How do we know that?
testimony brought that out?
What
MRS. BRAY: Her testimony she was in the
2nd and 3rd grade.
Ex. B at 496-500.
The state continued, pointing out that the victim attested she
was six years old when she met the defendant, and the incidents
began occurring a couple of months afterwards.
Id. at 501.
The
motion for judgment of acquittal was denied, id. at 506, and upon
renewal, the motion was again denied.
Id. at 603.
A denial of a motion for judgment of acquittal ordinarily
presents a state law claim.
It only arises to the level of a claim
of constitutional dimension if it is asserted that the evidence was
insufficient to support the conviction, and as a result of the
deficiency, there was a violation of due process of law.
The Due Process Clause of the Fourteenth Amendment requires
the state to prove beyond a reasonable doubt each element of the
- 17 -
offense charged. Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir.
1997)(citing Jackson v. Virginia, 443 U.S. 307, 314 (1979)), cert.
denied, 522 U.S. 1125 (1998).
"[T]his court must presume that
conflicting inferences to be drawn from the evidence were resolved
by the jury in favor of the State."
Thompson, 118 F.3d at 1448
(citing Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir.
1985)).
The relevant question is whether any rational jury, after
viewing
the
evidence
in
the
light
most
favorable
to
the
prosecution, could have found the essential elements of the charged
offense beyond a reasonable doubt.
Thompson, 118 F.3d at 1448.
Indeed, after viewing the evidence in the light most favorable
to the prosecution, a rational trier of fact could have found that
Petitioner committed sexual battery as charged in the amended
information within the time frame as alleged therein. Thus, to the
extent the claim was raised in the federal constitutional sense,
and to the extent that the federal constitutional claim was
addressed, the state court's rejection of this ground is entitled
to deference as required pursuant to AEDPA. The adjudication of the
state appellate court resulted in a decision that involved a
reasonable application of clearly established federal law, as
determined
by
the
United
States
Supreme
Court.
Therefore,
Petitioner is not entitled to relief on ground three because the
state court's decision was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
- 18 -
determination of the facts in light of the evidence presented in
the state court proceedings.
D.
Ground Four
In ground four of the Petition, Petitioner asserts his trial
counsel
was
ineffective
for
failure
to
conduct
a
reasonable
investigation into the state's medical evidence. Petitioner raised
this claim as ground 1(a) of the Third Amended Rule 3.850 Motion.
Ex. P.
After conducting an evidentiary hearing, the trial court
denied the motion, referencing the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984), for reviewing a claim of
ineffective assistance of counsel.
Ex. R at 576.
In rejecting this claim, the trial court, in pertinent part,
said:
In sub-claims a and b, Defendant contends
that counsel rendered ineffective assistance
by
"failing
to
conduct
a
reasonable
investigation
into
the
State's
medical
evidence" and "by failing to consult with and
use a defense medical expert witness to
counter the State's witness, Nurse Mary
Prevatt." (Defendant's Motion, pages 7-8.)
Upon review of the trial transcripts, this
Court notes that Nurse Practitioner Mary
Prevatt was the only expert presented at trial
to testify regarding medical evidence.
(Exhibit "C.") Ms. Prevatt testified that she
did not find anything during her examination
of the victim. (Exhibit "C," pages 364-365.)
Ms. Prevatt testified that her examination of
the victim was inconclusive, in that, she
could neither confirm nor deny the allegations
of sexual abuse.
(Exhibit "C," pages [sic]
380.)
During
the
evidentiary
hearing,
Defendant's former trial counsel, Mr. Mark
- 19 -
Miller, testified that he consulted with Dr.
Indrani Joseph[10] regarding this case, but he
did not retain an expert. (Exhibit "D," pages
19-20, 31-32.) Mr. Miller testified that Dr.
Joseph explained to him prepubescent and
postpubescent changes that occur in females.
(Exhibit "D," pages 20-21).
Mr. Miller
testified that Dr. Joseph explained to him
that based upon the changes that occur in a
female's body, the lack of physical findings
in the victim were possible. (Exhibit, "D,"
pages 20-21.)
Mr. Miller testified that,
based upon his discussion with Dr. Joseph, Ms.
Prevatt's conclusions were accurate even if
they were slanted and he felt he could crossexamine her on the slant and he did not need
an expert. (Exhibit "D," pages 78-80.)
The defense then presented the taped
deposition of Dr. Russel Bain. It should be
noted that counsel conceded that Dr. Bain
supported Ms. Prevatt's statement that there
are "no objective physical bodily findings of
sexual abuse in the victim's body in a
majority of cases." (Exhibit "D," page[s] 7475.) Dr. Bain testified that "the more times
the vaginal area is penetrated the greater
likelihood
that
there
will
be
hymenal
findings," but acknowledged that there would
be cases w[h]ere no findings were present.
(Exhibit "D," pages 105-107, 117-118.)
Dr.
Bain testified that a premenarche girl would
be more susceptible to damage than a
postmenarche girl if the same trauma was done.
(Exhibit "D," page 117.) Dr. Bain testified
that in a majority of cases there are no
findings but that does not mean the abuse did
not take place and that any type of abuse
could leave no findings. (Exhibit "D," pages
10
Mr. Miller explained that Dr. Indrani Joseph, a doctor at
Shands hospital, had previously done some work at the Child
Protection Team facility on other matters. Ex. Q at 1185-86. Mr.
Miller had two to three conversations with Dr. Joseph.
Id. at
1198. Dr. Joseph "opined to [Mr. Miller] that the body change –a woman's body changes during puberty to the extent that it is
possible for the allegations as purported to have occurred and
there to be no physical evidence on the girl at the age that she
made the accusations." Id. at 1186-87.
- 20 -
120-121.)
Dr. Bain acknowledged that there
could be repeated sexual abuse and the hymen
would still be intact.
(Exhibit "D," pages
132-133.)
Based upon the testimony presented at
trial, this Court finds that the only medical
evidence
obtain[ed]
by
the
State
was
inconclusive in establishing the guilt or
innocence of Defendant.
Additionally, this
Court finds that Mr. Miller did not render
ineffective assistance. Mr. Miller discussed
with a doctor the allegations of the victim in
relation to the evidence and lack thereof and
discovered that the ultimate conclusions made
by Ms. Prevatt were possible. Further, this
Court finds that even had counsel presented a
defense expert, based upon the testimony of
Dr. Bain, the jury would have had to make a
credibility determination between the victim
and Defendant. Accordingly, this Court finds
that Defendant has failed to establish error
by counsel or prejudice to his case.
Additionally, in sub-claim a, Defendant
alleges
that
Mr.
Miller
should
have
investigated the victim's medical records,
mental health records, and school history to
discover admissible evidence that the victim
was not exhibiting any signs of being abused,
In Hadden v. State, 690 So.2d 573, 577 (Fla.
1997), the Florida Supreme Court held "expert
testimony offered to prove the alleged victim
of sexual abuse exhibits symptoms consistent
with one who has been sexually abused should
not be admitted." Accordingly, had Mr. Miller
conducted such an investigation, any evidence
discovered, would have been subject to a Frye
challenge
and
ultimately
declared
inadmissible.
Hadden.
Accordingly, this
Court finds that Defendant has failed to
establish error by counsel. Strickland.
Ex. R at 576-78.
Upon review, there was no unreasonable application of clearly
established law in the state court's decision to reject the
- 21 -
Strickland ineffectiveness claim.
Indeed, the decision of the
state court is entitled to deference under AEDPA. The adjudication
of
the
state
court
resulted
in
a
decision
that
involved
a
reasonable application of clearly established federal law, as
determined
by
the
United
States
Supreme
Court.
Therefore,
Petitioner is not entitled to relief on ground four, the claim of
ineffective assistance of trial counsel, because the state court's
decision was not contrary to clearly established federal law, did
not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceedings.
See Supplemental Response at 6-34.
E.
Ground Five
Petitioner, in ground five, claims his counsel was ineffective
for failure to consult with and use a defense medical expert
witness.
In the Third Amended Rule 3.850 Motion, the claim was
raised in ground 1(b).
The issue was raised on appeal of the
denial of the motion, and the First District Court of Appeal
affirmed per curiam the decision of the trial court.
The trial court denied this claim.
576-78.
See Ground Four; Ex. R at
The ruling of the state trial court in denying the above-
mentioned claim of ineffective assistance of counsel raised in the
Third Amended Rule 3.850 Motion resulted in a decision that
involved a reasonable application of clearly established federal
law, as determined by the United States Supreme Court.
- 22 -
28 U.S.C.
§ 2254(d).
Further, the decision was affirmed by the state
appellate court.
Upon a thorough review of the record and the applicable law,
it is clear that the state courts' adjudications of this claim were
not contrary to clearly established federal law, did not involve an
unreasonable application of clearly established federal law, and
were not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings.
Accordingly, Petitioner is not entitled to relief on the basis of
ground five.
F.
Ground Six
In his sixth ground, Petitioner claims his trial counsel was
ineffective
for
failure
to
object
to
the
tender
of
Nurse
Practitioner Mary Prevatt as an expert of child sexual abuse.
In
the Third Amended Rule 3.850 Motion, the issue was raised in ground
1(e).
The trial court addressed this claim and said:
In sub-claims c, e, f, i, k and l,
Defendant contends that counsel rendered
ineffective assistance by "failing to cross
examine nurse practitioner Mary Prevatt;" "by
failing to object to tender of nurse
practitioner Mary Prevatt as an expert on
child abuse;" "by conceding that nurse
practitioner Mary Prevatt was qualified to
testify as an expert;" "by failing to
adequately prepare for and cross-examine nurse
practitioner
Mary
Prevatt
about
her
conclusions
and
the
bases
for
her
conclusions;" "failing to cross-examine Nurse
Prevatt so as to reveal an inexplicable
increase in the number of incidents of sexual
abuse claimed by the victim over time;" and
"failing to cross-examine Nurse Prevatt so as
- 23 -
to reveal to the jury that Nurse Practitioner
Prevatt's formal, college education, was in
matters of womens [sic] health, not children's
health." (Defendant's Motion, pages 8-9.)
Section 90.702, Florida Statutes (1998),
provides in pertinent part:
Testimony by experts If scientific,
technical, or other specialized
knowledge will assist the trier of
fact in understanding the evidence
or in determining a fact in issue, a
witness qualified as an expert by
knowledge,
skill,
experience,
training, or education may testify
about it in the form of an opinion;
the opinion is admissible only if it
can be applied to evidence at trial.
Based upon Ms. Prevatt's testimony, this Court
finds that Mr. Miller would have no basis to
object to Ms. Prevatt as an expert.
The
testimony of Ms. Prevatt established that she
had knowledge, skill, experience, training and
education in the area of child sex abuse.
Specifically, Ms. Prevatt testified that she
worked for the Children's Crisis Center since
July 1997 as a nurse practitioner and
coordinator in the sexual abuse service.
(Exhibit "C," pages 357-358.)
Ms. Prevatt
testified that she has a master's degree from
the University of Florida in women's health
nursing, an undergraduate degree from North
Florida University in sociology and an
associate degree in nursing from Florida
Community College. (Exhibit "C," page 358.)
Ms. Prevatt testified that Dr. Whitworth
trained her during a twelve week residency
program where she observed him conducting
examinations, intensively looked at slide
identification and reviewed cases. (Exhibit
"C," page 359.) Ms[.] Prevatt testified that
she was allowed to do examination with
supervision and trained with Astor Ann Hager
in Los Angeles. (Exhibit "C," page 359.) Ms.
Prevatt testified that she had conducted over
200 exams while working with the Children's
Crisis
Center
and
had
been
previously
qualified as an expert in trial.
(Exhibit
- 24 -
"C," pages 358-359.) Additionally, this Court
notes that while Ms. Prevatt's formal training
was in women's health, this would not negate
her having received additional training in the
area of child sexual abuse to qualify as an
expert pursuant to section 90.702, Florida
Statutes (1998).
Further, upon review of the trial
transcripts, this Court notes that Mr. Miller
did cross-examine Ms. Prevatt. (Exhibit "C,"
pages 380-396, 399-401.)
Specifically,
counsel pointed out that the study relied upon
by Ms. Prevatt was limited in scope. (Exhibit
"C," pages 383-384.)
Counsel also pointed
out, through Ms. Prevatt, that the victim
could not specify the number of times the
alleged abuse occurred during the interview
nor did she attempt to establish the number of
alleged incidences. (Exhibit "C," pages 384387, 394.) Ms. Prevatt acknowledged that she
did not take into account time, age and other
events in the victim's life in determining her
findings.
(Exhibit "C," page 394.)
Ms.
Prevatt testified that she was unable to make
a diagnosis of sexual abuse based upon her
examination of the victim.
(Exhibit "C,"
pages 395-396.)
Ms. Prevatt testified that
examination could neither confirm nor negate
the possibility of sexual abuse.
(Exhibit
"C," page 399.) Ms. Prevatt acknowledged that
if there was a high degree of frequency and
force, if [sic] made sense to her that there
would be a physical finding.
(Exhibit "C,"
pages 399-401.)
During the evidentiary hearing, Mr.
Miller
testified
that,
based
upon
his
discussions with Dr. Joseph, Ms. Prevatt's
ultimate conclusions were accurate even if
they were slanted and he felt he could crossexamine her on the slant and he did not need
an expert. (Exhibit "D," pages 78-80.) Mr.
Miller testified that he did not feel he
needed an expert to cross-examine Ms. Prevatt
on her prosecution slant. (Exhibit "D," pages
78-79.)
Mr. Miller testified that he
remembered not being able to get Ms. Prevatt
to deviate from her testimony that size,
- 25 -
degree, and force did not matter since
anything was possible.
(Exhibit "D," pages
25-26.) Mr. Miller testified that the focus
of the trial was not on the report by Ms.
Prevatt, but on the increasing number of
allegations that the victim was making.
(Exhibit "D," pages 22-24, 77-78.) Mr. Miller
testified
that
the
victim's
original
allegations were limited but over time the
allegations expanded to a point where the
victim's mother admitted that "it's impossible
for all of these actions to have occurred
because she wasn't even baby-sat by him at the
time or the date or the frequency that [A.G.]
was saying." (Exhibit "D," pages 21-25.) Mr.
Miller acknowledged that he was not prepared
for Ms. Prevatt's visual demonstration11 but he
understood the concepts that she was talking
about. (Exhibit "D," pages 76-77.) Mr. Miller
testified that Ms. Prevatt was a good witness
but he felt he effectively questioned her
credibility. (Exhibit "D," pages 79-80.)
Moreover, upon review of the transcripts,
this Court notes that Ms. Prevatt['s] purpose
in testifying was to establish that the victim
had been examined for signs of physical abuse
but no physical findings were present during
the examination.
(Exhibit "C," pages 356401.)
Ms. Prevatt acknowledged that her
findings were inconclusive and could not
establish that the victim had been sexually
abused.
(Exhibit "C," pages [sic] 380.)
Additionally, this Court notes that there was
no
evidence
or
testimony
presented
to
establish that Ms. Prevatt spoke with the
victim more than once to know that the victim
was increasing the number [of] allegations
against Defendant.
(Exhibit "C.")
Ms.
Prevatt was only qualified to testify to
medical evidence and lack thereof in the
victim and Mr. Miller accepted Ms. Prevatt as
11
At trial, Ms. Prevatt utilized a "scrunchy," an elasticized
fabric hair ring used to gather or fasten long hair, as a
demonstrative aid when explaining the way the hymen stretches to
accommodate an object and then goes back to its ordinary size. Ex.
B at 389-90.
- 26 -
an expert for that limit[ed] purpose.
(Exhibit "C," pages [sic] 359.) Accordingly,
this Court finds that Defendant has failed to
establish error by counsel or prejudice to his
case.
Ex. R at 578-81.
There is a qualifying state court decision and AEDPA deference
is warranted.
decision
The adjudication of the state court resulted in a
that
involved
a
reasonable
application
of
clearly
established federal law, as determined by the United States Supreme
Court.
Therefore, Petitioner is not entitled to relief on ground
six because the state court's decision was not contrary to clearly
established
federal
law,
did
not
involve
an
unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts.
G.
Ground Seven
In his seventh ground, Petitioner contends that he received
the ineffective assistance of counsel for counsel's failure to
object
to
the
expert
testimony
admissibility under Frye.
of
Mary
Prevatt
not
meeting
This claim was raised in the Third
Amended Rule 3.850 Motion as ground 1(g). The trial court rejected
this claim stating:
In sub-claims d, g and h, Defendant
contends that counsel rendered ineffective
assistance by "failing to produce evidence to
refute nurse practitioner Mary Prevatt's
testimony that, based upon a study conducted
by Ms. Joyce Adams, there are no physical
findings in 60% of all penile-vaginal sex
crimes cases," "by failing to object to the
expert testimony of nurse practitioner Mary
- 27 -
Prevatt and the Joyce Adams [study] referred
to by nurse practitioner Mary Prevatt as not
meeting the Frye test for admissibility
embodied in F.S. section 90.702" and "by
failing to obtain, review, and prepare for the
Joyce study cited by the testimony of nurse
practitioner Mary Prevatt."
(Defendant's
Motion, pages 8-9.) Upon review of the trial
transcripts, this Court notes that Ms. Prevatt
testified that before a physical examination,
she asked some basic questions regarding the
victim's general health and she then inquired
about a history of the alleged injury so she
would know what to look for during the
physical examination.
(Exhibit "C," page
361.)
Ms. Prevatt testified that in the
present case, she asked the victim what had
occurred and she wrote the response down in
her report.
(Exhibit "C," pages 361-362.)
Ms. Prevatt testified that throughout the
exam, she continued to ask questions about
what happened including what body parts were
touched. (Exhibit "C," pages 362-364.) Ms.
Prevatt testified that the victim in the
instant case could not be specific about how
many
times
the
alleged
abuse
actually
occurred. (Exhibit "C," pages 363-364.) Ms.
Prevatt testified that she then explained to
the victim about the examination and what was
going to happened [sic] and during the
examination, she found no physical evidence of
abuse.
(Exhibit "C," pages 364-365.)
Ms.
Prevatt testified that the Joyce Adams study
looked at 204 girls with subset of 60 girls
who had a confirmed sexual battery. (Exhibit
"C," page 378.)
Ms. Prevatt testified that
60% of that subset of 60 girls had negative
physical findings during their exam as a
result of delay in reporting. (Exhibit "C,"
pages 378-379.)
Ms. Prevatt testified that
based upon this report, the passage of time
could affect the physical findings of sexual
abuse. (Exhibit "C," page 379.) Ms. Prevatt
testified that based upon her physical
examination, she could not confirm nor negate
the possibility of sexual abuse.
(Exhibit
"C," page 380.) Mr. Miller pointed out the
limited nature of the study to Ms. Prevatt on
cross-examination. (Exhibit "C," pages 383- 28 -
384.) Ms. Prevatt testified that the victim
was not specific about what Defendant exactly
did and Ms. Prevatt was adamant that the type
of contact did not matter.
(Exhibit "C,"
pages 385-387.) Ms. Prevatt acknowledged that
a multitude of factors, including frequency,
force, and time were involved in determining
whether there would be physical findings.
(Exhibit "C," page[s] 392-394.)
During the evidentiary hearing, it should
be noted, that counsel conceded that Dr. Bain
supported Ms. Prevatt's statement that there
are "no objective physical bodily findings of
sexual abuse in the victim's body in a
majority of cases." (Exhibit "D," page[s] 7475.)
Counsel also conceded the statistical
information in the report was moot. (Exhibit
"D," pages 74-75.)
Dr. Bain testified that
"the more times the vaginal area is penetrated
the greater likelihood that there will be
hymenal findings," but acknowledged that there
would be cases w[h]ere no findings were
present.
(Exhibit "D," pages 105-107, 117118.) Dr. Bain testified that a premenarche
girl would be more susceptible to damage than
a postmenarche girl if the same trauma was
done.
(Exhibit "D," page 117.)
Dr. Bain
testified that in a majority of cases there
are no findings but [that] does not mean the
abuse did not take place and that any type of
abuse could leave no findings. (Exhibit "D,"
pages 120-121.)
Dr. Bain acknowledged that
there could be repeated sexual abuse and the
hymen would still be intact.
(Exhibit "D,"
pages 132-133.)
Mr. Miller conceded that he failed to
obtain and read the Joyce Adams report relied
upon by Ms. Prevatt. (Exhibit "C," pages 7374.)
Mr. Miller testified that during his
cross-examination of Ms. Prevatt, he attempted
to point out the flaws in the study, including
the limited nature of the study, but Ms.
Prevatt
would
not
deviate
from
her
conclusions.
(Exhibit "D," pages 40-41.)
Accordingly, this Court finds that Defendant
has failed to establish any prejudice as a
- 29 -
result of any
Strickland.
alleged
error
by
counsel.
Ex. R at 581-84.
There is a qualifying state court decision, and the rejection
of this claim is entitled to deference under AEDPA.
thorough review of the record and the applicable law,
Upon a
the state
court's adjudication of this claim was not contrary to clearly
established
federal
law,
did
not
involve
an
unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence
presented
in
the
state
Supplemental Response at 45.
court
proceedings.
See
Accordingly, Petitioner is not
entitled to relief on the basis of ground seven.
H.
Ground Eight
Petitioner, in his eighth ground, claims his counsel was
ineffective for failure to prepare for and counter the testimony of
Nurse Practitioner Mary Prevatt.
This claim was raised in the
Third Amended Rule 3.850 motion as ground 1(i).
rejected by the trial court.
This claim was
See Ground Six; Ex. R at 578-581.
Deference under AEDPA will be given to this decision; the
state court's decision was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings.
See Supplemental Response at 48.
- 30 -
I.
Ground Nine
In ground nine, Petitioner claims his trial counsel was
ineffective
for
failure
Petitioner's confession.
to
suppress,
exclude
and
object
to
The issue was presented in the Third
Amended Rule 3.850 Motion as ground three and was denied.
The
denial was per curiam affirmed on appeal.
At the evidentiary hearing on the Third Amended Rule 3.850
Motion, Mr. Miller, defense counsel at trial, attested on crossexamination:
Q
As to the issue of the motion to
suppress, would it be fair to say you wanted
to maintain the element of surprise and that's
why you didn't file the pretrial motion?
A
Yes.
I do recall
Hitchcock about that.
speaking
with
Mr.
Q
And you agreed that it would be better to
let the jury decide rather than let the judge
decide on that issue?
THE COURT:
Let the jury decide what?
MS. PALMER: The issue –- I guess,
not the motion to suppress, but to
take into account what bearing that
had on the confession.
A
Based on my experience, I had a pretty
good idea what Judge Day's ruling was going to
be in that regard.
Q
So it was a strategic decision based on
all the circumstances?
A
Correct.
Q
Okay.
- 31 -
THE COURT: So on that motion to suppress
it would have come down to the credibility of
whether the judge chose to credit the
testimony of Detective Eason in saying he did
not promise probation as opposed to Mr.
Hitchcock who would have testified that he did
promise probation; is that it?
MR. MILLER: Probation versus life, yes,
sir. There was no independent –- there was
[sic] no third parties there, there was
nothing on videotape.
It was Detective
Eason's word against Mr. Hitchcock, and it
would have come down to credibility, yes, sir.
THE COURT:
Thank you.
Okay.
Ex. Q at 1246-47.
After an evidentiary hearing, the trial court denied this
ground, finding:
In ground three, Defendant asserts that
counsel rendered ineffective assistance by
"failing to suppress, exclude, and object to"
the confession.
During the evidentiary
hearing,
Mr.
Miller
testified
that
he
attempted to argue to the jury that the
confession
was
involuntary
based
upon
Defendant's state of mind.
(Exhibit "D,"
pages 46-47.) Mr. Miller testified that his
argument was that Defendant's confession was
involuntary based upon a promise of probation
by Detective Eason. (Exhibit "D," pages 4749.) Mr. Miller testified that his decision
to not file a pretrial Motion to Suppress the
confession was a strategic decision. (Exhibit
"D," page 49.) Mr. Miller testified that he
believed that Detective Eason would have
denied making the promise and by not filing a
Motion to Suppress the State would not be able
to prepare for that "line of attack" at trial.
(Exhibit "D," pages 49-52.)
Mr. Miller
testified that he discussed with Defendant
"the advantages of not filing such a motion
and the benefit of surprise at trial."
(Exhibit "D," page 52.)
- 32 -
Defendant testified that the only attempt
to discredit the validity of the confession
was done at trial. (Exhibit "E," pages 3233.) Defendant testified that Mr. Miller felt
it was better for the jury to hear the
conditions of the confession directly from
him.
(Exhibit "E," page 33.)
Defendant
testified that he and Mr. Miller discussed the
benefits of a surprise attack at trial and he
relied upon his attorney's advice. (Exhibit
"E," pages 33-35.) Defendant testified that
he originally denied the allegations to
Detective Eason during the interrogation.
(Exhibit "E," pages 51-53.)
This Court finds that counsel's decision
not to file a pretrial Motion to Suppress the
confession amounted to trial strategy and
therefore is not subject to ineffective
assistance of counsel. Remetta v. Dugger, 622
So. 2d 452 (Fla. 1993); Gonzales v. State, 691
So. 2d 602, 603 (Fla. 4th DCA 1997) ("Tactical
or strategic decisions of counsel do not
constitute
ineffective
assistance
of
counsel.")
Additionally, this Court notes that even
if counsel had filed a Motion to Suppress the
confession, the Motion would have most likely
failed. In Maqueira v. State, 588 So. 2d 221,
223 (Fla. 1991), the Florida Supreme Court
held that "the fact that a police officer
agrees to make one's cooperation known to
prosecuting authorities and to the court does
not render a confession involuntary." During
the evidentiary hearing, Defendant testified
that he was told that the State would be made
aware of his cooperation and he would probably
only get probation based upon his lack of a
prior record and military service. (Exhibit
"E," pages 54, 59.) Accordingly, this Court
finds that Defendant has failed to establish
error by counsel or prejudice to his case.
Ex. R at 584-86.
Upon appeal of the denial of the Rule 3.850 motion, the
appellate court per curiam affirmed the trial court's decision.
- 33 -
Thus, the claim was rejected on the merits by the state trial and
appellate
courts.
decisions.
This
Thus,
ground
there
are
should
be
qualifying
addressed
state
applying
court
the
deferential standard for federal court review of state court
adjudications, as required by AEDPA.
Upon a thorough review of the record and the applicable law,
it is clear that Petitioner is not entitled to relief on the basis
of this claim because the state courts' adjudications of the claim
were not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal
law, and were not based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceedings.
Thus, Petitioner is not entitled to relief on this
claim of ineffective assistance of counsel raised in ground nine.
J.
Ground Ten
In ground ten, Petitioner claims counsel was ineffective for
failure to object to a discovery violation by the state.
This
issue was raised in ground four of the Third Amended Rule 3.850
Motion.
In denying this ground, the trial court held:
In ground four, Defendant asserts that
the State committed a Brady violation by
withholding the evidence of the Joyce Adams
report relied upon by the Nurse Practitioner
Mary Prevatt.
This Court notes that "the
defendant must prove three elements to
establish a Brady claim: (1) the evidence at
issue is favorable to the accused, either
because it is exculpatory, or because it is
impeaching;
(2)
the
evidence
has
been
suppressed by the State, either willfully or
- 34 -
inadvertently; and (3) prejudice has ensued."
Butler v. State, 842 So.2d 817, 830 (Fla.
2003).
During the evidentiary hearing, Mr.
Miller testified that he learned of the Joyce
Adams report during the deposition of Mary
Prevatt. (Exhibit "D," page 39.) Defendant
testified that he also knew of the report
based upon review [of] the deposition of Mary
Prevatt and discussions with Mr. Miller.
(Exhibit "E," pages 35-36.) Accordingly, this
Court finds that Defendant has failed to
establish a Brady violation by the State.
Ex. R at 586 (footnote omitted).
The decision of the state court is entitled to deference under
AEDPA.
The adjudication of the state court resulted in a decision
that involved a reasonable application of clearly established
federal law, as determined by the United States Supreme Court.
Therefore, Petitioner is not entitled to relief on ground ten, the
claim of ineffective assistance of trial counsel, because the state
court's decision was not contrary to clearly established federal
law,
did
not
involve
an
unreasonable
application
of
clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings.
See Supplemental Response at 50-51.
This Court finds that "[u]nder the doubly deferential judicial
review that applies to a Strickland claim evaluated under the §
2254(d)(1) standard, see Yarborough v. Gentry, 540 U.S. 1, 5-6, 124
S.Ct.
1,
157
L.Ed.2d
1
(2003)
(per
ineffective-assistance claim fails."
- 35 -
curiam),
[Petitioner's]
Knowles v. Mirzayance, 129
S.Ct. 1411, 1420 (2009).
Therefore, Petitioner is not entitled to
habeas corpus relief on ground ten.
K.
Ground Eleven
Petitioner, in ground eleven, claims his trial counsel was
ineffective for admitting the team assessment summary, a hearsay
document, into evidence.
This issue was raised in the Third
Amended Rule 3.850 Motion as ground five. The trial court rejected
this claim, finding:
In ground five, Defendant asserts that
counsel rendered ineffective assistance by
allowing the Team Emergency Assessment Summary
to be improperly admitted into evidence during
trial.
During the evidentiary hearing, Mr.
Miller testified that the defense strategy at
trial was to attack the credibility of the
victim's allegations as being "absurd" based
upon the increasing number of incidences she
was alleging.
(Exhibit "D," pages 22, -25
[sic], 77-78.) Mr. Miller testified that he
[sic] introduction of the entire report into
evidence was a strategic decision to show the
victim's increasing allegations of abuse.
(Exhibit "D," pages 82-83.)
Defendant
acknowledged that the trial strategy was to
show the jury the improbability of the
victim's allegations based upon the volume of
incidences she was reporting. (Exhibit "E,"
pages 29-31.) This Court finds that counsel's
decision [to] admit the Team Emergency
Assessment Summary amounted to trial strategy
and therefore is not subject to ineffective
assistance of counsel.
Remetta; Gonzales.
Accordingly, this Court finds that Defendant
has failed to establish error by counsel or
prejudice to his case.
Ex. R at 586-87 (footnote omitted).
This decision on Petitioner's claim of ineffective assistance
of counsel is entitled to deference under AEDPA.
- 36 -
Upon a thorough
review of the record and the applicable law, the state court's
adjudication of this claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings.
Accordingly, Petitioner is not
entitled to relief on the basis of ground eleven. See Supplemental
Response at 52-56.
VIII.
If
Petitioner
Certificate of Appealability
appeals,
the
undersigned
certificate of appealability is not warranted.
opines
that
a
See Rule 11, Rules
Governing Section 2254 Cases in the United States District Courts.
This Court should issue a certificate of appealability only if the
Petitioner
makes
"a
substantial
constitutional right."
showing
of
the
28 U.S.C. §2253(c)(2).
denial
of
a
To make this
substantial 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 v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
- 37 -
Where
a
constitutional
district
claims
court
on
the
has
rejected
merits,
the
a
petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.
Slack, 529 U.S. at 484.
See
However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling."
Id.
Upon consideration of the record as a whole, this Court will deny
a certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. #1) is
DENIED, and this action is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly
and close this case.
3.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.
has
determined
that
a
certificate
of
Because this Court
appealability
is
not
warranted, the Clerk shall terminate from the pending motions
report any motion to proceed on appeal as a pauper that may be
- 38 -
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
December, 2011.
sa 12/13
c:
Michael Hitchcock
Ass't A.G. (Conley)
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