Banks v. Secretary, Department of Corrections et al
Filing
29
ORDER denying the 1 petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability. Signed by Judge Roy B. Dalton, Jr. on 12/1/2011. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DONALD L. BANKS,
Petitioner,
vs.
Case No. 3:10-cv-129-J-37TEM
SECRETARY, DOC, et al.,
Respondents.
ORDER
I. Status
Petitioner is an inmate of the Florida penal system who
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 filed a Memorandum of Law for § 2254 Habeas
Corpus Petition (Doc. #9).
The Petition challenges a 2005 state
court (Duval County) conviction for armed robbery, aggravated
battery on a person over sixty-five years of age, and attempted
second degree murder.1
Five grounds are raised in the Petition:
(1) ineffective
assistance of trial counsel for conceding that a robbery occurred;
(2)
ineffective
investigate,
1
assistance
depose
and
of
call
trial
counsel
witness
for
Larriesha
failing
Davis;
to
(3)
Petitioner is serving a death sentence for first degree
murder
in
a
different
case
from
Duval
County.
See
http://www.dc.state.fl.us/ActiveInmates/detail.asp.
ineffective assistance of appellate counsel for failing to raise a
claim on direct appeal that the trial judge erred in admitting the
victim's statements under the excited utterance hearsay exception,
in
violation
of
Petitioner's
right
of
confrontation;
(4)
an
unlawful arrest based on a search obtained through coerced consent;
and (5) the trial court reversibly erred in admitting out-of-court
statements as excited utterances in violation of Petitioner's right
of confrontation.
Respondents filed a Response to Order to Show
Cause Why a Writ of Habeas Corpus Should Not be Granted (Doc. #17)
(hereinafter Response) on October 5, 2010, and an Appendix (Doc.
#18) on October 6, 2010.2
Petitioner's 2254 Habeas Corpus Reply to
State's Response (Doc. #20) was filed on January 10, 2011.
Order (Doc. #11).
See
Petitioner was granted leave to expand the
record, and he submitted the notes of his trial counsel as Exhibit
A (Doc. #25).
See Order (Doc. #27).
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
2
can
"adequately
assess
The Court hereinafter refers to the Exhibits in the Appendix
as "Ex."
- 2 -
[Petitioner's] claim 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).
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
- 3 -
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."[3]
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).
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
3
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)).
- 4 -
Cir. 2004), cert. denied, 545 U.S. 1142 (2005).
Thus, to the
extent that Petitioner's claim was adjudicated on the merits in the
state courts,4 it must be evaluated under § 2254(d).
IV.
Timeliness
Respondents calculate that the Petition is timely filed,
Response at 3-5, and the Court will accept this calculation.
V.
Exhaustion and Procedural Default
There are prerequisites to a federal habeas review:
Before bringing a § 2254 habeas action in
federal court, a petitioner must exhaust all
state court remedies that are available for
challenging his state conviction.
See 28
U.S.C. § 2254(b), (c).
To exhaust state
remedies,
the
petitioner
must
"fairly
present[]" every issue raised in his federal
petition to the state's highest court, either
on direct appeal or on collateral review.
Castille v. Peoples, 489 U.S. 346, 351, 109
S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989)
(emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state
courts one full opportunity to resolve any
constitutional issues by invoking one complete
round of the State's established appellate
review process." O'Sullivan v. Boerckel, 526
U.S. 838, 845, 119 S.Ct. 1728, 1732, 144
L.Ed.2d 1 (1999).
Maples v. Allen, 586 F.3d 879, 886 (11th Cir. 2009) (per curiam),
cert. granted in part, 131 S.Ct. 1718 (2011).
4
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).
- 5 -
Procedural
circumstances:
defaults
may
be
"[n]otwithstanding
excused
that
a
under
claim
certain
has
been
procedurally defaulted, a federal court may still consider the
claim if a state habeas petitioner can show either (1) cause for
and actual prejudice from the default; or (2) a fundamental
miscarriage of justice." Id. at 890 (citations omitted). In order
for Petitioner to establish cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct."
McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639).
Under the
prejudice prong, [a petitioner] must show that
"the
errors
at
trial
actually
and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494, 106
S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir.), cert. denied, 528
U.S. 934 (1999).
"[A] federal court may also grant a habeas petition on a
procedurally
defaulted
claim,
without
a
showing
of
cause
or
prejudice, to correct a fundamental miscarriage of justice."
Fortenberry v. Haley, 297 F.3d 1213, 1222 (11th Cir. 2002) (per
curiam) (citation omitted), cert. denied, 538 U.S. 947 (2003). The
fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
than mere "'legal' innocence."
Johnson v. Alabama, 256 F.3d 1156,
- 6 -
1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
926 (2002).
Respondents note that grounds one and two of the Petition were
raised in Petitioner's initial motion for post-conviction relief
and the claims were fully exhausted in the state court system.
Response at 10. With respect to ground three, however, Respondents
assert that Petitioner raised this claim in a successive state
petition for writ of habeas corpus, which was denied by the First
District Court of Appeal as untimely and an abuse of the writ.
Response at 11.
Respondents assert that although the claim is
exhausted, it is procedurally barred.
Id.
With regard to the
fourth ground, Respondents assert that this claim was raised in a
second
successive
motion
for
September 1, 2009.
Id.
abuse of process.
Id. at 12.
post-conviction
relief
filed
on
It was rejected as untimely filed and an
Respondents admit the claim is
exhausted but assert that it is procedurally barred.
Id.
Finally, in addressing ground five, Respondents note that this
claim was presented on direct appeal from his conviction and
sentence, and was rejected by the First District Court of Appeal.
Id.
However, they assert that Petitioner raised the claim solely
on state law grounds and a federal constitutional claim was not
presented to the First District Court of Appeal.
Id.
Thus, they
contend that the federal claim was not fairly presented to the
state courts.
Id. at 12-13.
In sum, they claim ground five, the
- 7 -
federal constitutional claim, is unexhausted and procedurally
barred.
Id. at 13.
The
Court
will
first
respect to ground three.
address
Respondents'
argument
with
The claim of ineffective assistance of
appellate counsel presented in ground three was not raised in the
state courts until Petitioner's second Petition for Writ of Habeas
Corpus.
Ex. AA.
On November 14, 2008, the First District Court of
Appeal denied the petition, citing Fla. R. App. P. 9.141(c)(4)(B)
and 9.141(c)(5)(C).
Ex. BB.
Thus, the second state habeas
petition was rejected as untimely filed, as it was filed more than
two years after the judgment and sentence became final on appeal.
Response at 15.
See e.g., Pate v. State, 71 So.3d 124 (Fla. 2nd
DCA 2011) (unpublished disposition) (dismissing a state habeas
corpus
petition,
treated
as
a
petition
alleging
ineffective
assistance of appellate counsel, as untimely filed pursuant to
Florida Rule of Appellate Procedure 9.141(c)(4)(B)). Additionally,
it
was
rejected
as
a
second
successive
petition.5
Rule
9.141(c)(5)(C), Fla. R. App. P.
Since the petition was rejected as both time barred and
procedurally barred, the third ground is barred from federal habeas
review.
5
Response at 15-16.
Petitioner has not shown cause and
"The court may dismiss a second or successive petition if it
does not allege new grounds and the prior determination was on the
merits, or if a failure to assert the grounds was an abuse of
procedure." Rule 9.141(c)(5)(C), Fla. R. App. P.
- 8 -
prejudice or that a fundamental miscarriage of justice will result
if the Court does not reach the claim on its merits.
Next,
the
Court
will
address
Respondents'
respect to ground four of the Petition.
argument
with
This ground was raised in
a successive Rule 3.850 motion, claiming newly-discovered evidence.
Ex. CC at 1-26.
The trial court rejected this contention, finding
the petition for all writs and motion for post-conviction relief
untimely and procedurally barred as an abuse of process.
27-30.
Id. at
On July 13, 2010, the First District Court of Appeal
affirmed per curiam.
Ex. FF.
Thus, ground four is procedurally
barred from federal habeas review. Response at 16. Petitioner has
not shown cause and prejudice or that a fundamental miscarriage of
justice will result if the Court does not reach ground four on its
merits.
Finally,
the
Court
will
address
Respondents'
default argument with respect to ground five.
procedural
Respondents contend
that although Petitioner raised a claim based on state law grounds,
he failed to exhaust ground five in the federal constitutional
sense.
Response at 17.
The Supreme Court of the United States, in
addressing the question of exhaustion, explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'opportunity to pass upon and correct'
alleged violations of its prisoners' federal
rights." Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
- 9 -
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)
(citation omitted)).
To provide the State
with the necessary "opportunity," the prisoner
must "fairly present" his claim in each
appropriate state court (including a state
supreme court with powers of discretionary
review), thereby alerting that court to the
federal nature of the claim. Duncan, supra,
at 365-366, 115 S.Ct. 887; O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728,
144 L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (emphasis added).
In
Baldwin, the Supreme Court recognized a variety of ways a federal
constitutional issue could be fairly presented to the state court:
by citing the federal source of law, by citing a case deciding the
claim on federal grounds, or by labeling the claim "federal."
Id.
at 32.
Respondents state that Petitioner raised the issue at trial
and on direct appeal, but it was couched in terms of a state law
issue.
Response at 17.
The record shows the following.
Defense
counsel filed a Motion in Limine Concerning Statements by the
Victim.
Ex. A at 38-39.
It was argued that the statements were
made when the victim was calm rather than excited and were made in
response to interrogatories put to him by civilians and police
officers.
Id. at 38.
Further, it was argued that statements made
to police officers were inadmissible under Crawford v. Washington,
541 U.S. 36 (2004), because they were testimonial and made with a
reasonable expectation that they would be used in court.
39.
- 10 -
Ex. A at
After hearing argument and watching a video (without recorded
sound) of the victim's conversation with civilians, id. at 178-93,
the trial court made its ruling:
But in essence I'm denying the motion in
limine.
It wasn't a motion to suppress, I
guess, it was a motion in limine concerning
statements by the victim. Denying the motion
as it regards to statements made to the
civilian witnesses at the scene of the crime.
I'm granting it as to the detective's
interrogation at the hospital on the principle
announced in Crawford versus Washington. It
would be admissible, I believe under the
hearsay code as an excited utterance, but that
doesn't resolve the Crawford issue because
it's interrogation by police officers is
obviously the testimonial, so I think in light
of Crawford I would have to say that that
would be inadmissible in violation of the
defendant's
Sixth
Amendment
right
to
confrontation.
And it is moot as to the
officers at the scene because the state
announced it did not intend to offer those
officers' testimony.
Ex. B at 217-18 (emphasis added).
See Ex. A at 59, Order.
On direct appeal, the following claim was raised:
"the trial
court reversibly erred in allowing out-of-court statements made by
the victim to be introduced as excited utterances."
Ex. I at i.
This argument was based on the assertion that the victim was calm
at the time the utterances were made to the civilian witnesses
within the convenience store following the stabbing. Id. at 9. It
was argued that the trial court made an erroneous interpretation of
the Florida Evidence Code by admitting the statements made to the
- 11 -
civilians,
citing
§
90.803(2),
Florida
Statutes.6
Appellate
counsel, in the brief, urged the appellate court to find that the
"improper admission of the hearsay constituted reversible error."
Ex. I at 11.
The state responded, Ex. J, and the appellate court
affirmed per curiam on August 14, 2006.
on August 30, 2006.
Ex. K.
The mandate issued
Ex. L.
Upon review, the appellate brief did not adequately supply the
federal or constitutional references.
The Eleventh Circuit has
explained:
If a petitioner fails to "properly"
present his claim to the state court-by
exhausting his claims and complying with the
applicable state procedure-prior to bringing
his federal habeas claim then AEDPA typically
bars us from reviewing the claim. Exhaustion
requires that "state prisoners must give the
state courts one full opportunity to resolve
any constitutional issues by invoking one
complete round of the State's established
appellate review process."
O'Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728,
144 L.Ed.2d 1 (1999); see § 2254(b), (c).
That is, to properly exhaust a claim, the
petitioner must "fairly present[ ]" every
issue raised in his federal petition to the
state's highest court, either on direct appeal
or on collateral review. Castille v. Peoples,
489 U.S. 346, 350-51, 109 S.Ct. 1056, 103
L.Ed.2d 380 (1989) (quotation omitted).
Powell v. Allen, 602 F.3d 1263, 1269 (11th Cir. 2010) (per curiam),
cert. denied, 131 S.Ct. 1002 (2011).
6
The trial court, relying on Crawford, granted the motion in
limine with respect to the statements made by the victim to the
detective at the hospital; therefore, this part of the trial
court's ruling was not at issue on direct appeal.
- 12 -
The Court finds Petitioner did not adequately raise a federal
claim under the Confrontation Clause.
This federal claim is
unexhausted and procedurally defaulted.
Petitioner has not shown
cause and prejudice or a fundamental miscarriage of justice.
Therefore, the Court will apply the state procedural bar to ground
five and will not reach the claim on its merits.
In the alternative, Petitioner is not entitled to habeas
relief on ground five.
See Response at 46-50.
As recently noted
by the Eleventh Circuit, "[t]he Confrontation Clause bars the
admission
of
'testimonial'
hearsay
unless
the
declarant
is
unavailable and the defendant had a prior opportunity for crossexamination."
United States v. Berkman, 433 Fed.Appx. 859, 863
(11th Cir. 2011) (per curiam) (not selected for publication in the
Federal Reporter) (citing Crawford v. Washington, 541 U.S. 36, 68
(2004)).
In defining testimonial hearsay statements, the Eleventh
Circuit relied on Crawford, referring to such statements as those
"made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use
at a later trial."
Id. (citing Crawford, 541 U.S. at 52).
Here, the victim's out-of-court statements qualify as excited
utterances, and fall within the firmly rooted hearsay exceptions.
Indeed, the statements made by the victim to the citizen witnesses
were not testimonial.
Wright v. Sec'y, Dep't of Corr.,
No. 8:10-
cv-770-T-33TGW, 2011 WL 2731079, at *4 (M.D. Fla. July 13, 2011).
Simply, the statements made by the victim to civilians who stopped
- 13 -
and rendered aid do not fall within the Crawford definition of
testimonial statements.
Id. at *5.
Thus, ground five is due to be
denied.
VI.
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
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.
- 14 -
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).
VII.
Findings of Fact and Conclusions of Law
A.
Ground One
In ground one of the Petition, Petitioner asserts his trial
counsel was ineffective for conceding that a robbery occurred.
Petition at 6.
This claim was presented in ground five of the
initial Rule 3.850 motion.
conducted
an
evidentiary
Chipperfield, testified.
Ex. M at 20-21.
hearing,
and
Ex. N at 7-44.
The trial court
defense
counsel,
Alan
In its Order Denying
Motion for Post-conviction Relief, the trial court, in pertinent
part, said:
GROUND FIVE: Defendant next claims that
he received ineffective assistance of counsel
because his lawyer, in opening and closing
statement, "made a concession to the robbery
charge."
Indeed, it is true that trial
counsel
conceded
that
the
robbery
had
occurred. To do otherwise would have hurt his
credibility with the jury, since the crime was
captured on videotape and was the subject of
eyewitness testimony.
Defense counsel did
not, however, ever concede that the Defendant
had been the assailant.
In short, the
lawyer's strategy of admitting that the
robbery occurred was consistent with the
- 15 -
defense
used
at
trial,
that
misidentification of the Defendant.
of
Defense counsel did argue to the jury
that even if the Defendant had been the
assailant, he should not be convicted of the
alleged crime of attempted first-degree
murder, because of a lack of proof of
premeditated intent. The fact that such was
an appropriate strategy is clear because the
jury did not convict the Defendant of this
charge; but instead convicted him of the
lesser included offense of attempted seconddegree murder.
Ex. M at 127.
This decision was per curiam affirmed by the First District
Court of Appeal on February 4, 2009.
April 6, 2009.
Ex. R.
The mandate issued on
Ex. S.
Upon review, there was no unreasonable application of clearly
established law in the state court's decision to reject the
Strickland ineffectiveness claim.
Indeed, the decisions of the
state trial and appellate courts are entitled to deference under
AEDPA. The adjudications of the state courts resulted in decisions
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, the
claim of ineffective assistance of trial counsel, because the state
courts' decisions 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
- 16 -
determination of the facts in light of the evidence presented in
the state court proceedings.
B.
See Response at 24-29.
Ground Two
In his second ground of the Petition, Petitioner claims trial
counsel was ineffective for failing to investigate, depose and call
witness Larreisha Davis.
Petition at 7.
This issue was presented
in the initial Rule 3.850 motion as ground three.
Ex. M at 16-18.
After an evidentiary hearing, the trial court rejected this claim
finding:
GROUND THREE: First, Defendant claims he
received ineffective assistance of counsel
because his attorney failed to call as a
witness at trial an eleven-year-old girl named
Larriesha
Davis.
Defense
counsel
did
interview this individual, however.
That
interview revealed that she had been present
at the scene of the crimes, but that she never
saw the assailant's full face.
She did,
though, give a general description of the
assailant to the police which matched the
description of the Defendant.
This witness was not able to identify the
Defendant from a photospread.
Defendant
asserts, therefore, that she should have been
called by the Defense to show that he had been
misidentified as the assailant. However, it
was also true that this witness had been
unable to tell police officials that all of
the persons in the photospread were not the
assailant.
Defense counsel felt that calling the
witness to trial would have added little to
his defense; but that on the other hand if the
witness had an opportunity to see the
Defendant in person, she might then identify
him as the attacker.
Defense counsel
certainly showed sound strategic thinking in
determining that the eleven-year-old witness
- 17 -
should not be brought to trial. Moreover, he
likely discussed this strategy with the
Defendant, and got his approval for the same.
The
defense
counsel
does
not
remember
specifically discussing the matter with the
Defendant, but such would have been his
practice prior to trial.
There occurred at
trial, then, after the Defense rested its
case, the following dialogue between the Court
and the Defendant:
"THE COURT: You also, can, in
the
appropriate
case,
present
additional evidence other than the
testimony of this [other] witness.
Is it your decision that this
witness' testimony will be the only
evidence that your attorney will
offer in your behalf?
"THE DEFENDANT:
problem with that."
I
have
no
Id. at 126-27.
The
trial
court
found
the
Rule
3.850
motion
frivolous,
concluding Petitioner "has totally failed to demonstrate that his
counsel's performance is either deficient, or that it prejudiced
him, under the standards announced in Strickland v. Washington, 104
S.Ct. 2052 (1984)."7
Id. at 128.
The trial court's decision was
per curiam affirmed by the First District Court of Appeal on
February 4, 2009,
Ex. R, and the mandate issued on April 6, 2009.
Ex. S.
7
The Court notes that some obvious success was achieved by
defense counsel's trial strategy as Petitioner was convicted of
attempted second degree murder, not attempted first degree murder
as charged in the amended information. Ex. A at 36, 95-96.
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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 two.
See Response at 29-34.
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)).
Where
a
constitutional
district
claims
court
on
has
rejected
the merits,
- 19 -
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
- 20 -
filed in this case.
Such termination shall serve as a denial of
the motion.
DONE AND ORDERED at Jacksonville, Florida, this 1st day of
December, 2011.
sa 12/1
c:
Donald L. Banks
Ass't A.G. (McCoy)
Ass't A.G. (Charbula)
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