Riggins v. Secretary, Department of Corrections et al
Filing
26
ORDER denying the Petition 1 and dismissing the action with prejudice, with directions to the Clerk. Signed by Judge Marcia Morales Howard on 5/29/2015. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
MICHAEL E. RIGGINS,
Petitioner,
v.
Case No. 3:12-cv-72-J-34JBT
SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Michael Emiel Riggins, an inmate of the Florida
penal system, initiated this action on January 23, 2012, by filing
a pro se Petition for Writ of Habeas Corpus (Petition; Doc. 1)
under 28 U.S.C. § 2254. In the Petition, Riggins challenges a 2008
state court (Clay County, Florida) judgment of conviction for
burglary of a structure. Respondents have submitted a memorandum in
opposition to the Petition. See Respondents' Response to Petition
for Writ of Habeas Corpus (Response; Doc. 14) with exhibits (Resp.
Ex.). On May 9, 2012, the Court entered an Order to Show Cause and
Notice to Petitioner (Doc. 9), admonishing Riggins regarding his
obligations and giving Riggins a time frame in which to submit a
reply. Riggins notified the Court that he did not intend to file a
reply, but instead would rely on his allegations and claims as
stated in the Petition. See Petitioner's Notice to the Court (Doc.
16).
On December 9, 2014, the Court directed the Respondents to
supplement the record by submitting the jury selection transcript
and providing a copy to Riggins. See Order (Doc. 17). The Court
also
ordered
Respondents
to
file
a
Supplemental
Response,
addressing the merits of ground one, including the name of the
venire person at issue in ground one, with appropriate citations to
the transcript. Additionally, the Court advised Riggins that he
could
file
Respondents
a
Supplemental
filed
a
Reply,
Supplemental
if
he
elected
Response
to
to
do
Issue
so.
One
(Supplemental Response; Doc. 23), in which they asserted that
Riggins had not provided the name of the venire person. See
Supplemental Response at 4 n.3. The Court therefore directed
Riggins to provide the name of the venire person and citations to
relevant portions of the transcript, or voluntarily dismiss the
ground if he no longer intended to pursue the ground. See Order
(Doc. 24). On April 10, 2015, Riggins advised the Court that
"Anthony Rote was the only African American and struck juror at
Riggins' trial." Petitioner's Notice to the Court (Notice; Doc. 25)
(citation omitted). This case is ripe for review.
II. Procedural History
On May 8, 2008, the State of Florida charged Riggins with
burglary of a structure. Resp. Ex. A at 6, Information. Riggins
proceeded to trial in October 2008, see Resp. Exs. A and B,
Transcripts of the Jury Trial (Tr.), at the conclusion of which, on
2
October 9, 2008, a jury found him guilty of burglary, as charged.
See Resp. Ex. A at 50, Verdict; Tr. at 112. On November 12, 2008,
the court sentenced Riggins to a term of imprisonment of ten years.
Resp. Ex. A at 111-29, Transcript of the Sentencing; 88-93,
Judgment.
On appeal, Riggins, with the benefit of counsel, filed an
initial brief, arguing that his right to trial by jury was violated
when the sentencing court rather than the jury made the habitual
felony offender findings that authorized the imposition of a
sentence greater than the statutory maximum for the offense of
burglary of a structure. Resp. Ex. D. The State filed an answer
brief. Resp. Ex. E. On November 19, 2009, the appellate court
affirmed
Riggins'
conviction
and
sentence
per
curiam
without
issuing a written opinion, see Riggins v. State, 22 So.3d 75 (Fla.
1st DCA 2009); Resp. Ex. F, and the mandate issued on December 7,
2009, see Resp. Ex. F. Riggins did not seek review in the United
States Supreme Court.
On May 4, 2010, Riggins filed a pro se motion for post
conviction relief pursuant to Florida Rule of Criminal Procedure
3.850. In his request for post conviction relief, Riggins asserted
that counsel was ineffective because she failed to: challenge the
State's motivation for striking the only African-American juror
from the jury venire (ground one), and object to "pause-freezing"
the videotaped recording that was played for the jury (ground two).
3
Resp. Ex. G at 1-10. The circuit court denied Riggins' motion on
March 18, 2011. Id. at 17-37. On August 3, 2011, the appellate
court affirmed the trial court's denial per curiam, see Riggins v.
State, 67 So.3d 205 (Fla. 1st DCA 2011); Resp. Ex. H, and the
mandate issued on August 30, 2011. See Resp. Ex. H.
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d); Response at 2 n.2.
IV. Evidentiary Hearing
"In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted).
"It follows that if the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court
is not required to hold an evidentiary hearing." Id. The pertinent
facts of this case are fully developed in the record before the
Court. Because this Court can "adequately assess [Petitioner's]
claim[s] without further factual development," Turner v. Crosby,
339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will
not be conducted.
4
V. Standard of Review
The Court will analyze Riggins' claims under 28 U.S.C. §
2254(d), as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Section 2254(d) states:
An application for a writ of habeas
corpus on behalf of a person in custody
pursuant to the judgment of a State court
shall not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings 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.
Thus,
28
U.S.C.
§
2254(d)
"bars
relitigation
of
any
claim
'adjudicated on the merits' in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 131
S.Ct. 770, 784 (2011). As the United States Supreme Court stated,
"AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court." Burt
v. Titlow, 134 S.Ct. 10, 16 (2013). This standard of review is
described as follows:
Under AEDPA, when the state court has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
5
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). "Under § 2254(d)(1)'s 'contrary
to' clause, we grant relief only 'if the state
court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme Court] has on a
set of materially indistinguishable facts.'"
Jones v. GDCP Warden, 753 F.3d 1171, 1182
(11th Cir. 2014) (quoting Williams v. Taylor,
529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d
389
(2000)).
"Under
§
2254(d)(1)'s
'unreasonable application' clause, we grant
relief only 'if the state court identifies the
correct governing legal principle from [the
Supreme] Court's decisions but unreasonably
applies that principle to the facts of the
prisoner's case.'" Id. (quoting Williams, 529
U.S. at 413, 120 S.Ct. 1495).
For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court – not Supreme Court dicta, nor
the opinions of this Court. White v. Woodall,U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698
(2014). To clear the § 2254(d) hurdle, "a
state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
770, 786-87, 178 L.Ed.2d 624 (2011). "[A]n
'unreasonable application of' [Supreme Court]
holdings must be 'objectively unreasonable,'
not merely wrong; even 'clear error' will not
suffice." Woodall, 134 S.Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123
S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state
court need not cite or even be aware of
6
Supreme Court cases "so long as neither the
reasoning nor the result of the state-court
decision contradicts them." Early v. Packer,
537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263
(2002); accord Richter, 131 S.Ct. at 784.
"AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings
and demands that state-court decisions be
given the benefit of the doubt." Renico v.
Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176
L.Ed.2d 678 (2010) (citations and internal
quotation marks omitted). And when a claim
implicates both AEDPA and Strickland, our
review is doubly deferential. Richter, 131
S.Ct. at 788 ("The standards created by
Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem,
review is doubly so." (citations and internal
quotation marks omitted)). [A petitioner] must
establish that no fairminded jurist would have
reached the Florida court's conclusion. See
Richter, 131 S.Ct. at 786-87; Holsey v.
Warden, Ga. Diagnostic Prison, 694 F.3d 1230,
1257-58 (11th Cir. 2012). "If this standard is
difficult to meet, that is because it was
meant to be." Richter, 131 S.Ct. at 786....
Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th
Cir. 2014), cert. denied, 2015 WL 1228919 (U.S. May 18, 2015) (NO.
14-8875, 14A694); see also Hittson v. GDCP Warden, 759 F.3d 1210,
1230 (11th Cir. 2014), petition for cert. filed, (U.S. Feb. 23,
2015) (NO. 14-8589, 14A549).
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
7
rationale for such a ruling. Hittson, 759 F.3d at 1232 ("[T]here is
no AEDPA requirement that a state court explain its reasons for
rejecting a claim[.]"); Richter, 131 S.Ct. at 785 (holding that §
2254(d) does not require a state court to give reasons before its
decision can be deemed to have been adjudicated on the merits);
Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th
Cir.
2002).
Thus,
to
the
extent
that
Riggins'
claims
were
adjudicated on the merits in the state courts, they must be
evaluated under § 2254(d).
VI. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
assistance
counsel's
of
counsel.
performance
That
right
is
denied
when
falls
below
an
objective
a
defense
standard
of
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
8
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "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. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
Richter, 131 S.Ct. at 787-88. Since both prongs of the two-part
Strickland
test must be satisfied to show a Sixth Amendment
violation, "a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa." Ward
v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010)(citation omitted).
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
9
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson, 759 F.3d at 1248; Knowles v. Mirzayance, 556 U.S. 111, 123
(2009); see also Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004) ("In addition to the deference to counsel's performance
mandated
by
Strickland,
the
AEDPA
adds
another
layer
of
deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision."). "Surmounting Strickland's high bar is never an
easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
VII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Riggins asserts that counsel (Assistant Public
Defenders Christina Guidry and Rosa Price) were ineffective because
they failed "to challenge the State's motivation for striking the
only African-American juror from the jury venire." Petition at 15.
Riggins raised the ineffectiveness claim in his Rule 3.850 motion.
See Resp. Ex. G at 6-7. Identifying the two-prong Strickland
ineffectiveness test as the controlling law, the circuit court
denied the post conviction motion with respect to this claim,
stating in pertinent part:
In ground one, Defendant alleges that
counsel was ineffective by failing to raise an
10
objection to the State's peremptory striking
of an African-American juror.[1] The Fourth
District Court of Appeal addressed the exact
same claim in Jenkins v. State, 824 So.2d 977
(Fla. 4th DCA 2002). The appellate court
affirmed the summary denial of this claim,
writing:
[W]e do not see how the claim of a
lawyer's failure to raise a Neil[2]
objection could ever be the basis
for
post-conviction
relief
for
incompetence of counsel. Unlike the
situation where a biased juror
served on a jury, the failure of a
lawyer to raise a Neil challenge
does not mean that the jury was
biased. The state might have acted
in bad faith in exercising its
peremptory challenges, but the jury
trying the case might have been
simon-pure in its objectivity and
ability to follow the law. In such a
situation, there can be no showing
that counsel's failure to assert a
Neil challenge had any effect on the
defendant's ability to receive a
fair trial. Thus, there can be no
prejudice sufficient to support
post-conviction relief.
Id. at 984. Following Jenkins, courts have
held that post conviction relief cannot be
granted in this context unless counsel's error
resulted in a jury that was not impartial.
1
According to Riggins, Anthony Rote was the African-American
juror that the State used a peremptory challenge to strike. See
Notice (Doc. 25).
2
See State v. Neil, 457 So.2d 481 (Fla. 1984), receded from
on other grounds by State v. Johans, 613 So.2d 1319, 1321 (Fla.
1993) ("[W]e hold that from this time forward a Neil inquiry is
required when an objection is raised that a peremptory challenge is
being used in a racially discriminatory manner. We recede from Neil
and its progeny to the extent that they are inconsistent with this
holding.").
11
Yanes v. State, 960 So.2d 834 (Fla. 3d DCA
2007). Therefore, Defendant has not made a
legally cognizable claim for which relief can
be granted as he cannot establish the required
Strickland prejudice. Accordingly, Defendant's
first ground for relief is denied.
Resp. Ex. G at 18-19. On Riggins' appeal, the appellate court
affirmed the trial court's denial per curiam. See Riggins, 67 So.3d
205.
Assuming the appellate court affirmed the denial on the
merits, there are qualifying state court decisions. Thus, the Court
considers this claim in accordance with the deferential standard
for federal court review of state court adjudications. After a
thorough review of the record and the applicable law, the Court
concludes 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.
Thus, Riggins is not entitled to relief on the basis of this claim.
Moreover, even assuming the state courts' adjudications of
this claim are not entitled to deference, Riggins' ineffectiveness
claim is still without merit. The record fully supports the trial
court's conclusion. In evaluating the performance prong of the
Strickland ineffectiveness inquiry, there is a strong presumption
in favor of competence. See Anderson v. Sec'y, Fla. Dep't of Corr.,
752 F.3d 881, 904 (11th Cir. 2014), cert. denied, 135 S.Ct. 1483
12
(2015). The inquiry is "whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range of
professionally competent assistance." Strickland, 466 U.S. at 690.
"[H]indsight
is
discounted
by
pegging
adequacy
to
'counsel's
perspective at the time' . . . and by giving a 'heavy measure of
deference to counsel's judgments.'" Rompilla v. Beard, 545 U.S.
374, 381 (2005). Thus, Riggins must establish that no competent
attorney would have taken the action that counsel, here, chose.
Moreover, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward v. Hall, 592 F.3d at 1164 (quotations
and citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,
1099
(11th
Cir.
2007)
("The
question
is
whether
some
reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On the record in this case, counsels' performance was well
within the wide range of professionally competent assistance. The
voir dire transcript, see Notice of Filing Transcript of Jury
13
Selection (JS Tr.; Doc. 22), provides the necessary facts for
resolution of Riggins' ineffectiveness claim. On October 6, 2008,
the court began with thirty-five prospective jurors, and ultimately
selected three juries (six jurors and one alternate on each jury)
for three separate trials. Id. at 3. The first jury was for Johvany
Ashley's trial, id. at 7; the second jury for Alrah Bynum's trial,3
id. at 116; and the third jury for Riggins' trial, id. at 145. The
transcript of all three jury selections is silent as to the race of
any of the prospective jurors. According to Riggins, Anthony Rote
was the only African-American venire member when his jury was
selected. Respondents accept Riggins' assertion "as true, despite
no record proof." Supplemental Response at 3.
Initially, the court asked the thirty-five prospective jurors
a variety of background questions. Id. at 3-112. The following
colloquy ensued with respect to the background of prospective juror
Anthony Rote (Juror No. 4):
THE COURT: Okay. Thank you. Anthony, is
it, Rote?
PROSPECTIVE[4] JUROR: Yes, sir.
3
Assistant State Attorneys James Boyle and Darcy Galnor were
the prosecutors for the Ashley and Bynum trials. For Riggins'
trial, the prosecutors were Ray Deal and Mike Williams.
4
The transcript deems the venire persons to be "perspective"
jurors, instead of "prospective" jurors. Respondents advised the
Court that they did not return the transcript for correction due to
the "difficulty in obtaining the transcript at all[.]" Supplemental
Response at 2 n.2. The Court will refer to them as prospective
jurors.
14
THE COURT: What part of the county [do]
you live, sir?
PROSPECTIVE JUROR: Fleming Island.
THE COURT: Fleming Island. How long?
PROSPECTIVE JUROR: For 13 years.
THE COURT: Are you employed?
PROSPECTIVE JUROR: No.
THE COURT: No?
PROSPECTIVE JUROR: No.
THE COURT: Student?
PROSPECTIVE JUROR: No.
THE COURT: What do you do?
PROSPECTIVE JUROR: I'm in limbo. I might
be moving to Virginia.
THE COURT: All right. How long [have] you
been out of high school?
PROSPECTIVE JUROR: About a year.
THE COURT: And your marital status?
PROSPECTIVE JUROR: I'm single.
THE COURT: Single. Have you served on a jury before?
PROSPECTIVE JUROR: No, sir.
Id. at 14-15. Rote also responded to other questions related to his
understanding of the law. When the judge asked why Jaguars football
players on the field are not arrested for battery when a battery is
defined as a touching or striking, Rote responded that "they're
15
willing." Id. at 74-75. As to the prosecutor's inquiry relating to
non-serious bodily harm, the following colloquy ensued.
[PROSECUTOR]: Okay. Mr. Rote, can you
think of any other examples of just bodily
harm?
PROSPECTIVE JUROR: (Inaudible.)
[PROSECUTOR]: Okay. I don't think I'd
call it anything like that, but very good.
PROSPECTIVE JUROR: Yeah, just getting hit
in any kind of way. It doesn't have to be a
bruise. The body heals fast.
Id. at 77-78. The prosecutor later asked if any of the prospective
jurors had heard of presumption of innocence. Id. at 98.
[PROSECUTOR]: No hands. Okay.
Mr. Rote, what do you think that means,
the presumption of innocence?
PROSPECTIVE JUROR: That there is a chance
that they could be innocent and not be guilty
-– (inaudible).
[PROSECUTOR]: Okay.
PROSPECTIVE JUROR: There is a little bit
of innocence and there's -– (inaudible) –criminal case.
Id. at 98-99. In selecting a jury for the Ashley trial, the State
used its first peremptory challenge to strike Anthony Rote. Id. at
112. Ashley's defense counsel (Jim Thies) did not object. Id. at
113.
Next, a jury was selected for Bynum's trial. Again, the
prosecutors were Boyle and Galnor. The court did not repeat the
16
background questions.5 After a brief voir dire, see id. at 119-35,
peremptory challenges were exercised, see id. at 136-38. Notably,
the court instructed the prosecutor and defense counsel to start
with juror number 18 and "work to the end of the 35."6 Id. at 136.
Lastly,
a
jury
was
selected
for
Riggins'
trial.
The
prosecutors (Ray Deal and Mike Williams) and defense counsel
(Christina Guidry and Rosa Price) were different from the first two
cases. The prosecutors in Riggins' case inherited the venire as it
remained after two other juries had been selected. Toward the end
of defense counsel's questioning, she inquired as follows:
[DEFENSE COUNSEL]: Mr. Riggins, as you
can see, is a black man. Is anybody going to
have a problem dealing with the fact that Mr.
Riggins is black?
[PROSPECTIVE
responses.)
JURORS]:
(Negative
[DEFENSE COUNSEL]: Anybody going to find
it harder to find him -- acquit him because
he's black?
[PROSPECTIVE
responses.)
JURORS]:
(Negative
Id. at 159. After voir dire, the court asked defense counsel if she
needed "some time" to confer; she affirmed; and a brief recess was
taken. Id. at 162. The court instructed the prosecutor and defense
5
See JS Tr. at 116 ("The next two will be much quicker since
most of these questions have been asked and won't be asked again.
So my part will take five minutes at the most. Doing three at a
time saves a lot of time overall.").
6
As previously stated, Anthony Rote was juror number 4.
17
counsel that the State should begin with juror number 32 and then
"we'll go back to Number 1." Id. The State used its second
peremptory challenge to strike Anthony Rote with no objection from
defense counsel. Id. at 163.
On this record, Riggins failed to carry his burden of showing
that his counsels' representation fell outside that range of
reasonably
professional
assistance.
Even
assuming
arguendo
deficient performance by defense counsel, Riggins has not shown
prejudice. He has not shown that a reasonable probability exists
that the outcome of the case would have been different if counsel
had objected to the State's striking Anthony Rote. See Price v.
Sec'y, Fla. Dep't of Corr., 548 F. App'x 573, 576 (11th Cir. 2013)
("[W]e agree with the district court that 'there is no evidence
that an African American juror would have seen the evidence any
differently than the white jurors seated on the jury.' . . . As the
district court noted, race was not the central theme of this case,
and did not play a significant role."), cert. denied, 134 S.Ct.
1896 (2014); Sneed v. Fla. Dep't of Corr., 496 F. App'x 20, 27
(11th Cir. 2012) (per curiam) ("Indeed, Sneed has not shown that,
had counsel objected, his challenge would have been successful, nor
is it clear that the second prospective black juror being on the
jury would have carried a reasonable probability of changing the
outcome of the trial.") (citation omitted). Therefore, Riggins'
18
ineffectiveness claim is without merit since he has shown neither
deficient performance nor resulting prejudice.7
B. Ground Two
As ground two, Riggins asserts that counsel were ineffective
because they failed to object to the prosecutor "pause-freezing"
the videotaped recording of him "glancing at a cash register as he
quickly
passed
by
it."
Petition
at
17.
Riggins
raised
the
ineffectiveness claim in his Rule 3.850 motion. See Resp. Ex. G at
8. The circuit court ultimately denied the post conviction motion
with respect to this claim, stating in pertinent part:
7
See Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006)
(stating that, where petitioner claims counsel should have
objected, "we are to gauge prejudice against the outcome of the
trial: whether there is a reasonable probability of a different
result at trial, not on appeal."). The Court noted that its
decision in Davis v. Sec'y for the Dep't of Corr., 341 F.3d 1310
(11th Cir. 2003) (per curiam), "is not to the contrary." Purvis,
451 F.3d at 739.
[In Davis, 341 F.3d 1310] trial counsel
objected during voir dire to the Batson error
that was being committed but when his
objection was rejected, counsel failed to take
the next step of renewing that objection after
the conclusion of voir dire; in the Florida
courts that is a necessary step before the
issue may be reviewed on appeal. Id. at 1312.
This Court held that because the failure of
counsel was solely in his role as appellate
counsel at trial (those are not the words we
used in Davis, but it is what we meant), the
prejudice inquiry should focus on the effect
that counsel's omission at trial had on the
appeal. Id. at 1315-16.
Id.
19
In ground two, Defendant alleges that
counsel was ineffective for failing to object
to the State's use of a still-frame image
taken from a surveillance camera that showed
"Defendant peering at the cash register."
(Defendant's Motion for Post Conviction
Relief, page 8) . . . . Defendant's claim is
without merit. Defendant alleges that his
counsel should have objected because the
State's "leaving this still-frame image
hovering above the jury throughout the
presentation of the State's case was grossly
unfair and prejudiced the jury against him."
(Defendant's Motion for Post Conviction
Relief, page 8.) Having reviewed the trial
transcript, the Court notes that a still-frame
image was used by the State, but only for a
brief period of time at the end of the State's
closing argument. (Exhibit "C," pages 82-85.)
The image was not used, as Defendant asserts,
throughout the presentation of the State's
case. In addition, during defense counsel's
closing argument, she made the same argument
that forms the basis of Defendant's claim:
COUNSEL: Now the state's put a still
of that on there and they've kept it
on there for a long time so it looks
like he's leering in the cash
drawer. But if you remember the real
time video, he looks and he looks
away. That is human nature to look
and look away. That is what you saw
in the video.
(Exhibit "C," pages 85-86.)[8] Thus, the Court
finds counsel was not ineffective for failing
to object to the State's use of the stillframe image. In addition, even assuming it was
error in not objecting, Defendant has failed
to demonstrate prejudice. . . . [H]e also
fails to establish either prong of Strickland.
8
See Tr. at 87-88.
20
Resp. Ex. G at 19-20. On Riggins' appeal, the appellate court
affirmed the trial court's denial per curiam. See Riggins, 67 So.3d
205.
Given the record in the instant action, the appellate court
may have affirmed the denial of Riggins' motion for post conviction
relief on the merits. If the appellate court addressed the merits,
Riggins would not be entitled to relief because the state courts'
adjudications of this claim are entitled to deference under AEDPA.
After a review of the record and the applicable law, the Court
concludes that the state courts' adjudications of this claim were
not contrary to clearly established federal law and did not involve
an unreasonable application of clearly established federal law. Nor
were
the
state
court
adjudications
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Thus, Riggins is not entitled to
relief on the basis of this claim.
Even assuming that the appellate court did not affirm the
denial of the Rule 3.850 motion on the merits or that the state
courts' adjudications of this claim are not entitled to deference
under AEDPA, Riggins' claim is still without merit. The trial
court's conclusion is fully supported by the record. Based on the
record in the instant case, counsels' performance was within the
wide range of professionally competent assistance. Even assuming
arguendo deficient performance by defense counsel, Riggins has not
21
shown prejudice. Thus, Riggins' ineffectiveness claim fails because
he has shown neither deficient performance nor resulting prejudice.
VIII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Riggins seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. §2253(c)(2). To make this
substantial showing, Riggins "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
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. See
Slack, 529 U.S. at 484. 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
22
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 (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If Riggins appeals the denial of the Petition, the Court
denies a certificate of appealability. Because this Court has
determined that a certificate of 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 filed in this
case.
Such termination shall serve as a denial of the motion.
4.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 29th day of
May, 2015.
23
sc 5/29
c:
Michael Emiel Riggins
Ass't Attorney General (McCoy)
24
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