Woodward v. Secretary, Department of Corrections et al
ORDER denying 7 Amended Petition and dismissing this action with prejudice. The Clerk of the Court is directed to enter judgment in accordance with this Order and close the file. If Petitioner appeals the denial of the Amended Petition, the Court denies a certificate of appealability. Signed by Judge Marcia Morales Howard on 3/28/2016. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
LARRY WAYNE WOODWARD, SR.,
Case No: 3:13-cv-155-J-34JRK
DEPARTMENT OF CORRECTIONS
and ATTORNEY GENERAL, STATE
Petitioner Larry Wayne Woodward (“Woodward” or “Petitioner”),
an inmate of the Florida penal system, initiated this action by
filing a pro se Petition for Writ of Habeas Corpus under 28 U.S.C.
§ 2254 (Doc. 1, filed February 13, 2012).
His amended petition
is presently before the Court (Petition; Doc. 7, filed March 22,
In the Petition, Woodward challenges convictions from the
Fourth Judicial Circuit, in and for Duval County Florida, for three
counts of sexual battery on a person less than twelve years of age
and one count of lewd and lascivious touching on a person less
than sixteen years of age. Id. at 2.
Respondents submitted a
memorandum and exhibits in opposition to the Petition (Response;
Doc. 15; Doc. 18).
On April 8, 2013, the Court entered an Order
to Show Cause and Notice to Petitioner (Doc. 10), admonishing
Woodward regarding his obligations and giving him a time frame in
which to submit a reply.
Woodward submitted a brief in reply
(Reply; Doc. 19). This case is ripe for review.
On January 22, 2004, the State of Florida charged Woodward by
third amended information with three counts of capital sexual
battery, in violation of Florida Statute § 794.011(2)(a), and one
count of lewd, lascivious, or indecent touching, in violation of
Florida Statute § 800.04(1) (Ex. G).1
At the conclusion of a four-day jury trial that began on
January 26, 2004, the jury returned a guilty verdict on all counts
(Ex. O; Ex. P). Following the conviction, the trial court sentenced
convictions and to three and a half years in prison on the lewd
and lascivious touching conviction (Ex. S).
sentences per curiam (Ex. Y); Woodward v. State, 902 So. 2d 799
(Fla. 1st DCA 2005).
On January 31, 2006, Woodward filed a motion for postconviction relief pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (“Rule 3.850 motion”) in which he raised twenty-
Unless otherwise indicated, citations to exhibits are to
those filed by Respondents on January 2, 2014 (Doc. 18). Citations
to the trial transcript, located in Respondents’ Exhibit O, is
cited as (T. at __).
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four claims of ineffective assistance of counsel (Ex. EE). The
state post-conviction court conducted an evidentiary hearing on
December 14, 2006 (Ex. II).
Although Woodward requested counsel
at the hearing, the court denied his request. Id. at 5.
hearing, the post-conviction court denied all of Woodward’s claims
Florida’s First District Court of Appeal reversed the state
post-conviction court’s decision in part and remanded the case,
finding that Petitioner was entitled to post-conviction counsel at
the evidentiary hearing on his claims that trial counsel was
ineffective for failing to pursue an insanity defense and for
failing to challenge the voluntary nature of his confession (Ex.
QQ); Woodward v. State, 992 So. 2d 391 (Fla. 1st DCA 2008).
appellate court affirmed the denial of the remainder of Woodward’s
claims, concluding that they “either were not so complex as to
require counsel’s assistance or did not state a prima facie case
for collateral relief[.]” Woodward, 992 So. 2d at 394.
On remand, the state post-conviction court appointed counsel
to represent Woodward, and conducted two additional hearings (Ex.
RR; Ex. TT). Following the proceedings, the parties submitted
written memoranda (Ex. TT).
Thereafter, the trial court entered
an order denying Woodward’s request for post-conviction relief
Florida’s First District Court of Appeal affirmed per
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curiam without a written opinion (Ex. AAA); Woodward v. State, 84
So. 3d 315 (Fla. 2012).
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); (Doc. 12 at 6-7).
"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.
Upon consideration of the pleadings and
the state court record, each of Woodward’s fifteen claims is either
due to be dismissed or denied.
Because this Court can "adequately
assess [Woodward’s] claim[s] without further factual development,"
evidentiary hearing will not be conducted.
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Standard of Review
The Court will analyze Woodward’s 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 –
resulted in a decision that was contrary
Federal law, as determined by the Supreme
Court of the United States; or
resulted in a decision that was based on
an unreasonable determination of the
facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
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, 562 U.S. 86, 98 (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
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
- 5 -
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
'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 [a circuit 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
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 Supreme Court cases "so long as
neither the reasoning nor the result of the
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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); see also Hittson v. GDCP Warden, 759 F.3d 1210, 1230
(11th Cir. 2014).
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. Hittson, 759 F.3d at 1232 ("[T]here
is no AEDPA requirement that a state court explain its reasons for
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rejecting a claim[.]"); Richter, 562 U.S. at 100 (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 Woodward’s claims were adjudicated
on the merits in the state courts, they must be evaluated under §
Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
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
[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'
Amendment." Id., at 687, 104 S. Ct. 2052.
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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
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, 562 U.S. at 104.
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). "Surmounting Strickland's
high bar is never an easy task." Padilla v. Kentucky, 559 U.S.
356, 371 (2010).
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
representation is a most deferential one."
Richter, - U.S. at -, 131 S. Ct. at 788. But
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
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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, 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
VII. Exhaustion and Procedural Default
circumstances, from granting habeas relief unless a petitioner has
Exhaustion of state remedies requires that the state prisoner
“fairly presen[t] federal claims to the state courts in order to
give the State the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights[.]” Duncan v. Henry,
513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270,
The petitioner must apprise the state court of
the federal constitutional issue, not just the underlying facts of
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the claim or a similar state law claim.
Snowden v. Singletary,
135 F.3d 732 (11th Cir. 1998).
considering claims that are not exhausted and would clearly be
barred if returned to state court. Coleman v. Thompson, 501 U.S.
722, 735 n.1 (1991) (if a petitioner has failed to exhaust state
remedies and the state court to which the petitioner would be
required to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred, there
is a procedural default for federal habeas purposes regardless of
the decision of the last state court to which the petitioner
actually presented his claims).
Finally, a federal court must dismiss those claims or portions
of claims that have been denied on adequate and independent
procedural grounds under state law. Coleman, 501 U.S. at 750.
a petitioner attempts to raise a claim in a manner not permitted
by state procedural rules, he is barred from pursuing the same
claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
constitutional violation. Spencer v. Sec'y, Dep't of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner
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“must demonstrate that some objective factor external to the
defense impeded the effort to raise the claim properly in state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999);
Murray v. Carrier, 477 U.S. 478 (1986).
To show prejudice, a
petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A second exception, known as the fundamental miscarriage of
“constitutional violation has probably resulted in the conviction
of one who is actually innocent[.]”
Murray, 477 U.S. at 479-80.
Actual innocence means factual innocence, not legal insufficiency.
Bousley v. United States, 523 U.S. 614, 623 (1998).
To meet this
standard, a petitioner must “show that it is more likely than not
underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995).
be credible, a claim of actual innocence must be based on [new]
reliable evidence not presented at trial.” Calderon v. Thompson,
523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).
VIII. Findings of Fact and Conclusions of Law
Woodward asserts that the trial court erred when it denied
his motion to suppress the statements and written confession he
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made to the police (Petition at 21).2 Specifically, he claims that:
(1) the interviewing detective implied that a confession would
result in leniency; (2) the detective directed him to produce a
written confession; (3) the detective refused to permit him to use
the bathroom until he produced a written confession; (4) the
detective undermined the Miranda warnings by telling him that he
would be appointed a “fly by night” public defender; (5) the
detective implied that he would not get a fair trial because of
the inadequacy of the public defender; (6) he was in poor health;
and (7) the detective used interrogation techniques tending to
elicit false confessions. Id. at 21-22.
Woodward raised Claim One in a motion to suppress before the
state trial court, and the court held an evidentiary hearing during
which the interviewing detective (Detective Gupton) testified
The written confession at issue read:
I, Larry W. Woodward, Sr. hereby acknowledge
that I am guilty as best I can remember of the
said allegations by (T.W. and H.B.).
extremely sorry and remorseful of the hurt and
mistrust I caused them and would like to
convey that they told the truth. I would also
like to find some help for them and myself [so
that] something like this never happens again.
It would also help to acknowledge that they
were victims of substance abuse as were [sic]
I myself. I hope and I pray for them to start
healing right away with this acknowledgment.
(Ex. T at 19).
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about his interview techniques (Ex. D; Ex. K).
The court held
another hearing on November 14, 2003, during which the trial court
heard testimony from a psychologist, Dr. Meissner, about the
likelihood of false confessions under certain interview conditions
The trial court also listened to a recording of Detective
Gupton’s interview with Woodward.3
At a January 4, 2004 hearing,
the trial court orally denied the motion to suppress:
As to the motion to suppress, I listened to
all the testimony, I actually listened to all
of the CD recording of the interview with Mr.
Woodward, and I think I pointed out to counsel
on the record already that the CD recording
that I was provided is in some manner,
although probably not significant, but it is
transcripts that I was provided, so my
conclusion is based primarily on what I
I also had benefit of depositions that I read
with all for this. And I also considered the
testimony of Dr. . . . Meissner, the expert
on the – what you call it – psychologist. In
any event, his expertise is in the record.
Having done all that and having listened to
all of the interview, including Mr. Woodward’s
voice patterns and what he had to say and the
entire context of the thing, I cannot conclude
as a matter of law that the confession was
involuntarily entered, and accordingly, the
motion to suppress is denied.
A redacted transcript of Woodward’s interview with Detective
Gupton is attached to the transcript of Woodward’s November 6,
2003 suppression hearing. See Doc. 18-1 at 84; Doc. 18-2. Unless
otherwise indicated, citations to this interview transcript will
be cited as (Int. at ___).
- 14 -
(Ex. N at 4-5).
Florida’s First District Court of Appeal affirmed
per curiam without a written opinion (Ex. Y).
Woodward now asserts that “[u]nder the unusual set of coercive
circumstances” to which he was subjected, his confession was
involuntary (Petition at 21-22).
The Court disagrees. Given the
record in the instant action, Woodward is not entitled to relief
because the state court's adjudication of this claim is entitled
to deference under the AEDPA. See Land v. Allen, 573 F.3d 1211,
1217 (11th Cir. 2009) (“We agree that we must independently
ascertain and apply Federal law to determine whether the challenged
However, we do so as a first step in order to ultimately determine
voluntary was contrary to, or an unreasonable application of, that
The law regarding the voluntariness of a confession is well
voluntary in the sense that it was the product of a free and
A court’s assessment of voluntariness must
be based on an examination of the totality of the circumstances.
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Frazier v.
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circumstances” to assess the admissibility of a confession).
conclusion that a confession was involuntary requires a finding of
confession. Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir. 1988).
Thus, for example, sufficiently coercive conduct has been found
interrogation; the interrogator threatened or used physical force;
or the interrogator made a promise that induced a confession. See
Connelly, 479 U.S. at 163 n. 1; Miller, 838 F.2d at 1536.
After a thorough review of the record and the applicable law,
the Court concludes that the state court's adjudication of this
claim was not contrary to Connelly or any other clearly established
law as set forth by the Supreme Court of the United States and did
not involve an unreasonable application of clearly established
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.
Accordingly, under the
AEDPA’s deferential standard, Woodward is not entitled to relief
on the basis of this claim.
Woodward’s medical and physical conditions
The Court first turns to Woodward’s claims that he was “highly
interrogation and that the detective refused his request to use
the bathroom until he confessed (Petition at 21). Upon review of
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the record, the Court determines that these contentions are not
supported by the transcript of the interview.
At the beginning of the interview, Detective Gupton asked
Woodward whether he suffered from “any condition that you know of
or are aware of that would prevent you from speaking to me or
nitroglycerin and the pain-reliever Lortab. Id. 4
course of the interview, Detective Gupton asked Woodward whether
he needed anything and asked whether he had his medication with
Woodward asked only for water. Id. at 36. The transcript
does not indicate that Woodward showed signs of confusion or
expressed discomfort to Detective Gupton. At trial, Detective
Gupton testified that he was aware of Woodward’s recent heart
surgery, but stated that Woodward gave no indication he could not
continue to speak with the police (T. at 509-10, 512).
Gupton further testified that Woodward exhibited only slight signs
of discomfort from his recent surgery and walked to the jail
without assistance after the interview (T. at 536, 541).
Woodward testified differently at trial, stating that he
had also taken blood pressure medication, a muscle relaxant, and
an anti-anxiety drug on the day of the interview (T. at 576-77).
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With regard to Woodward’s assertion that Detective Gupton
refused to allow him to use the bathroom unless he confessed, this
contention is refuted by the record.
Woodward had already decided
to write the confession when he first asked to go to the bathroom
(Int. at 77).
After finishing the statement, Woodward did not
rush to the bathroom or even immediately repeat his request; rather
he continued to ask Detective Gupton questions as to what would
happen next and whether his medication would be available in
prison. Id. at 77-79. It was only after Detective Gupton asked
Woodward whether he wanted something to eat that Woodward repeated
his request to use the bathroom. Id. at 79.
In light of the record, Woodward has failed to show that his
state of health, use of medication, and need to use the restroom
rendered his confession involuntary.
Detective Gupton’s suggestions of leniency
Next the Court turns to Woodward’s contention that, during
the interview, Detective Gupton implied that the State Attorney
might treat him more leniently if he confessed to the allegations
of sexual abuse.
In this regard, Woodward points to the fact that
committed the sexual batteries while intoxicated (Int. at 48, 49,
Detective Gupton explained his reasoning to Woodward
during the interview:
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No. I’ve done enough reading, enough classes,
enough practical cases of people that have sat
right across from me, sat in your same seat
right now. Over a period of years, Larry over
a lifetime, there is something that you can’t
control that would cause you – help you act
out that way. And I think alcohol’s a conduit
that would stoke the fire. Okay?
And I could go to the State Attorney’s Office
and say, this is what happened to Larry to
help cause this, to help cause his actions. Or
I’m simply going to go to the State Attorney’s
Office and say, Larry says he was drunk and if
he can’t remember something, maybe – it maybe
– whether it happened or not, he can’t
. . .
I don’t want to see anybody get dragged
It causes too much pain – too
much pain to the kids.
. . .
What I’d rather do is go to the state and say
this is the truth. This is how these things
occurred. This is why Larry had to do what
he did, from Larry’s own words and try to find
some solution to help make this situation –
help find some light at the end of the tunnel,
Because right now there ain’t no
light. I’m searching for some sort of light.
Okay? Right now there’s a big black hole.
But with your help, I can give a little bit of
light at the end of that tunnel. And there
will be – and there will be a light at the end
of the tunnel. But I can only do that with
. . .
You know, but you’ve got to ask yourself,
Larry, do you want to see that light or do you
want it to be a continual black hole?
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Id. at 57-60.
Detective Gupton told Woodward that he could tell
the State Attorney that Woodward wanted to make amends and to speak
with his children.
The following exchange occurred:
WOODWARD: And if I say that, then what do I
get? Five, ten years in the state
penitentiary for something that I
felt that I shouldn’t deserve?
I don’t want you to do anything –
I don’t care if you
spend a day in prison, Larry.
WOODWARD: It ain’t what you care, it’s what
the state attorney wants.
Id. at 61-62.
I give strong input in that. A lot
of that depends on what you’re going
Detective Gupton told Woodward that neither of his
daughters wanted to see him go to jail – rather, all they wanted
“is a relationship with their father back.
But right now, Larry,
that can’t happen until you come to grips with what has happened
and work to make amends towards it.” Id. at 67.
told Woodward that he would be arrested but ”what the State
Attorney’s Office does with it depends a lot on yourself as well”
and “the only person that has the most control over their destiny
right now is you.” Id. at 72.
In Bram v. United States, 168 U.S. 532 (1897), the Supreme
Court observed that “a confession, in order to be admissible, must
be free and voluntary; that is, must not be extracted by any sort
of threats or violence, nor obtained by any direct or implied
- 20 -
omitted). In Brady v. United States, 397 U.S. 742 (1970), the
Supreme Court explained that Bram suggested that “even a mild
undermines the voluntariness of a confession “because defendants
at such times are too sensitive to inducement and the possible
impact on them too great to ignore and too difficult to assess.”
Id. at 754. Bram's suggestion of a per se rule that renders a
confession involuntary if preceded by “any direct or implied
Supreme Court. See Arizona v. Fulminante, 499 U.S. 279, 284–84
(1991)(recognizing that Bram “does not state the standard for
determining the voluntariness of a confession.”). Instead, as
previously noted, the issue of voluntariness must be determined by
examining the totality of the circumstances. Id. at 284-86.
Although Detective Gupton may have been given some indication
of leniency, the record does not establish that Detective Gupton
made an express promise of leniency to Woodward if he confessed.
Moreover, Detective Gupton did not tell Woodward he could escape
prosecution by confessing, or that he could successfully avail
himself of a voluntary intoxication defense. See United States v.
misrepresentations of law . . . are much more likely to render a
suspect’s confession involuntary [than are misrepresentations of
- 21 -
fact].”). “While innuendo might rise to the level of trickery, it
is not so likely to break down resistance as is a promise that is
spelled out.” Miller v. Fenton, 796 F.2d 598, 609 (3d Cir. 1986).
Gupton’s implied promises, standing alone, induced Woodward’s
It is unnecessary to determine whether Detective Gupton’s
physical condition, were such that Woodward’s confession was the
confession is improperly admitted at trial, a reviewing court must
apply a harmless error analysis, assessing the error “in the
context of other evidence presented in order to determine whether
its admission was harmless beyond a reasonable doubt.” Fulminante,
499 U.S. at 308. In the context of habeas review, the standard is
whether the error had substantial and injurious effect or influence
in determining the jury's verdict. See Brecht v. Abrahamson, 507
U.S. 619, 637 (1993). The analysis must be conducted with an
awareness that “a confession is like no other evidence,” and that
“a full confession may have a profound impact on the jury.”
Fulminante, 499 U.S. at 296 (internal quotations omitted).
- 22 -
Woodward’s confession did not have a “substantial and injurious
effect” on the jury’s verdict. Brecht, 507 U.S. at 637.
In an effort to minimize the impact of the confession, defense
counsel Thomas Bell (“Counsel” or “Bell”) reviewed and critiqued
Woodward’s entire interview with Detective Gupton at trial.
criticized the detective’s interviewing techniques and pointed out
the detective’s implied promises that Woodward would be treated
testified that he felt pressured to confess and feared he would
never be allowed to leave the police station if he did not do so.
Id. at 587.
associated with an increased likelihood of false confessions (T.
at 651, 557).
The jurors were instructed by the trial court that
the confession should be viewed with caution and disregarded if
found to be coerced:
Now a statement that is reported or claimed to
have been made by the defendant outside of
court, of course I am talking about the
interview, has been placed before you. Those
considered with caution and be weighed with
great weight or great care to make certain
Therefore, if you, the jury, first – I am
sorry. Therefore, you the jury must determine
from the evidence if the alleged statement was
- 23 -
knowingly, voluntarily and freely made. Now
in making this determination you should
certainly consider the totality of the
circumstances including but certainly not
limited to whether when the defendant made the
statement he had been threatened in order to
get him to make the statement and whether or
not anyone had promised him anything in order
to get him to make the statement.
Now if you conclude that the out-of-court
statement was not freely and voluntarily made
then of course you should disregard it.
Id. at 786-87.
Notably, jurors are presumed to follow jury
instructions. Weeks v. Angelone, 528 U.S. 225, 226 (2000). Thus,
Woodward’s jury is assumed to have carefully weighed his confession
and determined, based on the totality of the circumstances, whether
he made the statements knowingly and voluntarily.
Moreover, in addition to Woodward’s confession to Detective
Gupton, the state presented other evidence of Woodward’s guilt at
Woodward’s stepdaughter, H.B., testified that Woodward
began molesting her when she was six or seven years old (T. at
When she was seven or eight years old, Woodward made H.B.
perform oral sex on him, and several days later, he performed oral
sex on her. Id. at 207-08.
When she was eight or nine, Woodward
tried to put his penis inside H.B.’s vagina while her mother held
her down. Id. at 209.
Similar fact evidence was introduced through the testimony of
Woodward’s daughter, T.W., and niece, C.F. T.W. testified that
Woodward began molesting her when she was three or four years old,
- 24 -
performed oral sex on her when she was five years old, forced her
to touch his penis, and digitally penetrated her when she was ten
years old (T. at 287, 291, 293, 294-95).
T.W.’s parents divorced
after her mother learned of the abuse. Id. at 287. Additionally,
Woodward’s brother-in-law, James Forman, testified that Woodward
confessed to fondling T.W.5 Id. at 364.
T.W.’s mother testified
that Woodward admitted sexually abusing T.W., telling her that he
“would rather teach [T.W.] about sex than have somebody else” do
so. Id. at 678.
C.F. also testified at trial, stating that when
she was a child, Woodward fondled her, and stuck her in a closet
when somebody came into the house. Id. at 550.
She testified that
Woodward put his fingers in her (C.F.’s) vagina when she was
spending the night with T.W. and licked her vagina when she was
seven or eight years old. Id. at 552-53.
minimization of Woodward’s statements to Detective Gupton, the
Court concludes that the admission of the confession was harmless
beyond a reasonable doubt. Fulminante, 499 U.S. at 308.
even if the state courts’ decisions were not entitled to deference,
Woodward is not entitled to habeas relief on Claim One.
Woodward admitted at trial to speaking with Forman, but
claimed that the reference to sexual abuse pertained to his former
wife and her brother (T. at 586).
- 25 -
As Claim Two, Woodward asserts that the State failed to prove
interview with Detective Gupton (Petition at 22).6
he argues that because portions of the recording are inaudible, it
must be presumed “that he either invoked his right to counsel or
his right to remain silent.” Id.
Woodward does not argue that he
actually invoked his right to remain silent or that he was not
Miranda 7 rights
Rather, he asserts that he did not completely understand his right
to counsel and that the state did not prove his waiver was valid
(Petition at 22).
Petitioner raised this claim on direct appeal
(Ex. T at 40-41), but the claim was denied without a written
opinion (Ex. Y). Upon review of the record and the applicable
authority, the Court concludes that the state court's adjudication
The words written in the title of Claim Two (which appear
to set forth a Sixth Amendment Confrontation Clause claim) do not
match the accompanying argument (Petition at 22).
Woodward also indicates in his Petition that he raised Claim Two
as Issue II on his direct appeal. Id. Issue II on appeal is the
same claim discussed in the instant petition. Accordingly, the
Court will address the claim raised on direct appeal.
extent Woodward seeks to raise a separate Confrontation Clause
claim, the claim appears to be unexhausted, and will not be further
addressed by the Court.
Miranda v. Arizona, 384 U.S. 436 (1966)(statements made by
a defendant in police custody in response to interrogation are
admissible at trial only if the defendant was informed of his right
to consult with an attorney and of the right against selfincrimination).
- 26 -
of this claim was not contrary to clearly established federal law
established federal law. Nor was the state court's adjudication
based on an unreasonable determination of the facts in light of
the evidence presented in the state court proceedings.
In accordance with the Supreme Court’s decision in Johnson v.
Zerbst, 304 U.S. 458, 464 (1938), a valid waiver is defined as the
Prior to the interview, Woodward was advised:
You have the following rights under the United
You do not have to make a statement or say
Anything you say can be used
against you in court. You have the right to
talk to a lawyer for advice before you make a
statement, before any questions are asked of
you, and to have a lawyer with you during any
If you cannot afford to hire a lawyer, one
questioning, if you wish.
If you do answer the questions, you have the
right to stop answering the questions at any
time and at any time consult with a lawyer.
(Int. at 3); (T. at 389).
Woodward affirmed that he understood
these rights and acknowledged such on the written waiver. Id.
Woodward’s acknowledgment of understanding his rights supports a
conclusion that he knowingly and voluntarily spoke with Detective
petitioner made any incriminating statements, he received partial
- 27 -
warnings of his constitutional rights; this is, of course, a
circumstance quite relevant to a finding of voluntariness.”).
At trial, Woodward explained why he told Detective Gupton
that he understood his rights.
He stated, “I think I understood
but, you know, I have heard about the rights all my life and still
never really understood what it meant, how they operated.” (T. at
He further explained that he understood his right to remain
silent, but did not understand he could stop at any point and ask
for an attorney because, although he read the statement explaining
this right, “during the course of the interview it was all gone.
It slipped [his] mind.” Id. at 609-10. Despite his statement that
he forgot the warnings during his interview, Woodward did not
request that Detective Gupton clarify or repeat the warnings.
Nothing in the record, or Petitioner's background 8 would have
Woodward’s self-serving statement that he initially understood his
interview is not credible.
Indeed, in light of this background,
he provides no explanation for a sudden inability to retain an
understanding of his rights.
Woodward was forty-nine years old at the time of the
interview with Detective Gupton, could read and write, and had
held several jobs over the course of his life, including a threeyear stint in a supervisory position for Venus Swimwear. Id. at
- 28 -
Moreover, neither Woodward’s statement that, “I can’t afford
no lawyer so I guess I’ll just hang out (inaudible)” or his
reaction to Detective Gupton’s statement that the State would
appoint a “fly-by-night” public defender if Woodward proceeded to
trial were unambiguous requests for counsel.9
At trial, Woodward
responded to a question from Bell about how Woodward interpreted
The “fly-by-night” statement is referenced in both the
Petition and in the transcript of the hearing on the motion to
suppress (Ex. K). However, it was inadvertently omitted from the
transcript of the interview attached to the motion to suppress.
However, the judge read the omitted portion to the jury at trial
(T. at 451-52). Detective Gupton told Woodward:
I have done enough reading, enough classes,
enough practical cases of people that have sat
right across from me, sat in your same seat
Over a period of years, Larry,
over a lifetime there is something that you
can’t control that would cause you – help you
to act out that way and I think alcohol is a
conduit that would stoke the fire, okay, and
I could go to the State Attorney’s Office and
say this is what happened to Larry to help
cause this, to help cause his actions or I
simply – or I am simply going to go to the
State Attorney’s Office and say Larry says he
was drunk and if he can’t remember something
maybe – it may be whether it happened or not
he can’t remember and the state attorney is
going to say, okay, and they are going to
assign you one of these – a fly by night public
defender and that’s going to be the end of
Id. Woodward responded,
Woodward.” Id. at 452.
- 29 -
explaining, “I have always heard the public defenders they weren’t
really that great and everything and if you got problems, you got
troubles and everything if you are going to get cleared you are
going to have money to buy a lawyer.” (T. at 583-84). It appears
Woodward did not want a public defender because he believed they
were not as competent as other lawyers.
belief about the quality of public defenders, even if articulated
to Detective Gupton, would have been insufficient to require the
detective to stop the interview. See Davis v. United States, 512
U.S. 452, 459 (1994) (“[T]he suspect must unambiguously request
counsel. . . [H]e must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a request
for an attorney.”); McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)
(“[T]he likelihood that a suspect would wish counsel to be present
is not the test for [whether a suspect has invoked his right to
counsel]”)(emphasis in original).
On this record, Woodward has failed to make a showing that
the waiver of his Miranda rights was involuntary, or that he made
an unequivocal request for counsel during the course of the
Accordingly, Woodward is not entitled to federal
habeas relief on Claim Two.
- 30 -
In Claim Three, Woodward asserts that the trial court erred
by allowing the state’s Williams Rule10 evidence of his alleged
The Williams Rule is based on Williams v. State, 110 So.
2d 654 (Fla. 1959) (evidence of collateral crimes is admissible at
a jury trial when it is not introduced to prove the bad character
or criminal propensity of the defendant, but is used to show
motive, intent, knowledge, modus operandi, or lack of mistake).
The rule is codified at Florida Statute § 90.404(2)(a):
Similar fact evidence of other crimes, wrongs,
or acts is admissible when relevant to prove
a material fact in issue such as proof of
motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake or accident, but it is inadmissible
when the evidence is relevant solely to prove
bad character or propensity.
Id. Florida's “prior bad acts” rule for child molestation cases
is found at Florida Statute § 90.404(2)(b):
In a criminal case in which the defendant
is charged with a crime involving child
molestation, evidence of the defendant's
commission of other crimes, wrongs, or
acts of child molestation is admissible,
and may be considered for its bearing on
any matter to which it is relevant.
For purposes of this paragraph, the term
proscribed by s. 794.011 or s. 800.04
when committed against a person 16 years
of age or younger.
Accordingly, for child molestation cases in the state of
Florida, prior bad act evidence “is admissible, and may be
considered for its bearing on any matter to which it is relevant.”
- 31 -
sexual activity with T.W. and C.F. to become an impermissible
feature of his trial (Petition at 23).
With regard to this issue,
on direct appeal, Woodward argued that: (1) the state presented
the testimony of James Forman during the state’s case in chief for
the sole purpose of corroborating T.W.’s accusations; (2) the state
Woodward’s ex-wife that he told her he would rather teach T.W.
about sex than have somebody else do it; (3) the prosecutor placed
argument; and (4) Detective Gupton’s interrogation of Woodward
made it appear as if he had gotten away with something, and
encouraged the jury to punish him for the collateral offenses (Ex.
T at 41-45).
To the extent Claim Three can be construed liberally to raise
a federal constitutional challenge to the admission of evidence
regarding Woodward's alleged molestation of T.W. and C.F., the
claim is unexhausted because Woodward did not present the federal
constitutional nature of this claim to the state appellate court
on direct appeal.
When briefing this claim, Woodward did not
state, or even suggest, that it was a federal claim about due
process or any other federal constitutional guarantee.
he argued, in terms of state law only, contending that “undue
prejudice will be found when the collateral crimes evidence has
been allowed to become a ‘feature of the trial’ in respect to both
- 32 -
the quantum of evidence presented and the arguments of counsel.”
Id. at 42 (citing Turtle v. State, 600 So. 2d 1214, 1218 (Fla. 1st
DCA 1992)). Woodward further argued that the State “was not legally
permitted to impeach [Woodward’s] testimony that T.W. had never
before accused him of sexual abuse with extrinsic evidence to the
The state was bound to accept [Woodward’s] testimony
as conclusive.” (Ex. T at 43).
Woodward cited exclusively to
state decisional law to support his arguments. Id. (citing Ruiz v.
State, 743 So. 2d 1 (Fla. 1999); Caruso v. State, 645 So. 2d 389
(Fla. 1994); Smith v. State, 754 So. 2d 54 (Fla. 3d DCA 2000);
Arrington v. State, 700 So. 2d 777 (Fla. 2d DCA 1997); Gonzalez v.
State, 538 So. 2d 1343 (Fla. 4th DCA 1989)).
Woodward’s failure to exhaust the federal basis of his claim
renders it both unexhausted and procedurally defaulted because he
is barred by state procedural rules from returning to state court
Woodward has shown neither cause excusing the default nor actual
prejudice resulting from the bar. Moreover, he has failed to
identify any fact warranting the application of the fundamental
miscarriage of justice exception. The default bars federal habeas
review of Claim Three. See Duncan, 513 U.S. at 366 (“If a habeas
petitioner wishes to claim that an evidentiary ruling at a state
court trial denied him the due process of law guarantee by the
- 33 -
Fourteenth Amendment, he must say so, not only in federal court,
but in state court.”).
To the extent Woodward asserts that the trial court erred
under Florida law by admitting evidence of his alleged molestation
of T.W. and C.F., the claim is not cognizable on federal habeas
“As a general rule, a federal court in a habeas corpus
case will not review the trial court's actions concerning the
admissibility of evidence,” because the state court “has wide
discretion in determining whether to admit evidence at trial[.]”
Alderman, 22 F.3d at 1555; see also Baxter v. Thomas, 45 F.3d 1501,
1509 (11th Cir. 1985) (federal habeas corpus is not the proper
vehicle to correct evidentiary rulings); Boykins v. Wainwright,
737 F.2d 1539, 1543 (11th Cir. 1984) (federal courts are not
empowered to correct erroneous evidentiary rulings in state court
except where rulings deny petitioner fundamental constitutional
Therefore, it is not for this Court on federal
review to decide whether the state trial court erred under Florida
law by admitting evidence; rather, this Court may only consider
established federal law, “as determined by the Supreme Court of
the United States[.]” 28 U.S.C. § 2254(d).
Petitioner has not
made this showing.
Even assuming arguendo that this claim is exhausted and raises
a federal due process issue, Woodward is not entitled to habeas
- 34 -
corpus relief because he does not identify a Supreme Court case
holding that the admission of similar fact or collateral crime
evidence in similar circumstances is unconstitutional.
Woodward cannot show that the appellate court’s rejection of this
claim was contrary to, or an unreasonable application of, clearly
4:08cv318/RH/MD, 2009 WL 1833872 (N.D. Fla. June 23, 2009) (denying
habeas relief on ground that there is no clearly established
federal law as determined by the Supreme Court suggesting that the
admission of evidence that a defendant committed sexual battery on
3:11cv334/LAC/EMT, 2012 WL 4660685, at *16 (N.D. Fla. Sep. 10,
2012) (“Petitioner has pointed to no Supreme Court precedent
holding that the admission of relevant evidence, even evidence of
a defendant's other bad acts, violates the Due Process Clause”);
O’Leary v. Sec’y, Fla. Dep’t of Corr., No. 2:12-cv-599-FtM-29CM,
2015 WL 1909732, at *7 (M.D. Fla. Apr. 27, 2015) (“Petitioner is
not entitled to habeas relief because he has failed to identify a
Supreme Court case holding that the admission of similar fact or
The Supreme Court has addressed whether prior acts evidence
is permissible under the Federal Rules of Evidence, see Old Chief
v. United States, 519 U.S. 172 (1997), Huddleston v. United States,
- 35 -
Upon consideration of the foregoing, the Court concludes that
Claim Three is due to be dismissed as unexhausted and procedurally
Moreover, Claim Three is denied on the merits pursuant
to 28 U.S.C. § 2254(d).
Next, Woodward asserts that the trial court erred by refusing
to allow him to present evidence that H.B. ran away from home after
his arrest (Petition at 24).
He claims the evidence was relevant
to corroborate his defense theory that his arrest gave H.B. an
opportunity “to engage in behavior like running away, sleeping
with her boyfriend and so forth.” Id.
Woodward raises this claim
under the Fourteenth and Sixth Amendments to the United States
Respondents urge that Claim Four is only partially exhausted
because Woodward did not raise a Sixth Amendment claim at trial
(Response at 36).
It is unnecessary for this Court to determine
Fourteenth or the Sixth Amendment. See 28 U.S.C. § 2254(b)(2) (“An
application for a writ of habeas corpus may be denied on the
485 U.S. 681 (1988).
However, these cases did not explicitly
address admission of such evidence in constitutional terms.
- 36 -
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.”).
Prior to trial, the state filed a motion in limine asking the
trial court to exclude any evidence or reference to H.B.’s leaving
home twice after Woodward’s arrest (Ex. J).
The prosecutor argued
that the evidence was irrelevant and “would only serve in some way
to comment on the victim’s character and it would be improper
character evidence because it happened well after the incidents
occurred, well after it was reported, and it has no bearing on her
ability to tell the truth now.” (T. at 141-42).
argued that by putting Woodward, who was an authority figure over
H.B., in jail, he could no longer “control [H.B.’s] coming and
going because he used to object and complain and exercise some
authority over her going to sleep, when she is 15 years old, with
her boyfriend[,] and [H.B.’s] grandmother has less control over
her.” Id. at 144, 146.
In support of his argument, Bell proffered the testimony of
H.B.’s grandmother who told the court that H.B. ran away “no more
than three times” since Woodward’s arrest, but always came home
voluntarily. Id. at 256-57.
She also testified that H.B. stayed
at a girlfriend’s house during her absences. Id. at 258.
hearing the proffered testimony, the Court sustained the state’s
objection to the admission of evidence regarding H.B.’s absences
from home after Woodward’s arrest.
- 37 -
Woodward appealed the trial
court’s decision, and Florida’s First District Court of Appeal per
curiam affirmed the denial (Ex. T; Ex. Y).
Under the Due Process Clause of the Fourteenth Amendment,
criminal prosecutions must comport with prevailing notions of
fundamental fairness. California v. Trombetta, 467 U.S. 479, 485
This standard ensures that criminal defendants have the
opportunity to present a complete defense. Id.
“To safeguard that
right, the Court has developed ‘what might loosely be called the
area of constitutionally guaranteed access to evidence.’” Id.
(quoting United States v. Valenzuela–Bernal, 458 U.S. 858, 867
Woodward cannot demonstrate a due process violation because
he was not prohibited from presenting evidence of his control over
H.B. testified that Woodward did not care if she skipped
school and that her grandmother made the rules of the house.
also testified that nothing changed in terms of her freedom after
Woodward’s arrest (T. at 213, 217, 222).
She admitted Woodward
tried to tell her what to do “from time to time” and that he
described her as an “out of control teen.” Id. at 223.
testified that after Woodward left, her boyfriend moved in with
her. Id. at 224.
H.B.’s grandmother testified that Woodward and
H.B.’s mother sometimes disciplined H.B. Id. at 267.
testified that he had a stormy relationship with H.B. because she
- 38 -
was rebellious. Id. at 606-07.
He also testified that he was
stricter than H.B.’s grandmother. Id. at 608. Woodward testified
that he believed H.B. fabricated the allegations against him
because he was too much of an authority figure. Id.at 613.
During closing argument, Bell argued that H.B. was not to be
believed (T. at 753).
He suggested that H.B. and the collateral
crime victims were disgruntled children seeking revenge because
Woodward was a mean guy who drank too much. Id. at 748-50.
Woodward’s authority and wanted him out of the house. Id. at 75051.
Given that Woodward was able to present his theory of defense,
even without testimony of H.B.’s absences from home after his
arrest, he has not set forth a Fourteenth Amendment due process
Fourteenth Amendment claim was not contrary to clearly established
federal law and did not involve an unreasonable application of
adjudication of Woodward’s Fourteenth Amendment claim based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.
A Sixth Amendment Confrontation Clause violation arises when
a criminal defendant is unable to “expose to the jury the facts
from which jurors . . . could appropriately draw inferences
- 39 -
relating to the reliability of the witness.” Delaware v. Van
Arsdall, 475 U.S. 673, 678-79 (1986) (quoting Davis v. Alaska, 415
U.S. 308, 318 (1974)).
The right of confrontation is subject to
limitation by the trial court “based on concerns about, among other
witness’ safety, or interrogation that is repetitive or only
marginally relevant . . . [T]he Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the
defense might wish.” Van Arsdall, 475 U.S. at 678 (emphasis in
occurred, reversal is mandated on collateral review when the error
“had substantial and injurious effect or influence in determining
the jury's verdict.” O'Neal v. McAninch, 513 U.S. 432, 436 (1995)
(quotation marks and citation omitted); Brecht, 507 U.S. at 623.
The analysis of whether such a violation has occurred requires
consideration of several factors, including “the importance of the
testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on
prosecution’s case.” Van Arsdall, 475 U.S. at 684.
- 40 -
Evidence, whether elicited through the testimony of H.B.’s
grandmother or through the cross examination of H.B., that months
after Woodward’s arrest, H.B. left the house without permission to
stay with a girlfriend, was only marginally relevant to Woodward’s
theory of defense that H.B. sought his removal from the house
because he was an authority figure.
Moreover, Bell was allowed
to otherwise extensively cross examine H.B. regarding Woodward’s
alleged authority and control over her. Id. at 222-24.
court’s limitation of Bell’s cross-examination did not violate the
Confrontation Clause. Van Arsdall, 475 U.S. at 678.
Bell presented testimony that H.B. quit school and that her
boyfriend moved into her grandmother’s house after Woodward was
If a Confrontation Clause violation occurred, it did
determining the jury's verdict.” O'Neal, 513 U.S. at 436.
As to Claim Five, Woodward asserts that the trial court erred
by failing to exclude testimony from collateral crime witness T.W.
that she was a church-goer and that the people at her church
encouraged her to forgive him for his alleged molestation (Petition
Specifically, Woodward argues that the trial court should
- 41 -
not have overruled Bell’s objection to T.W.’s explanation of why
she reconciled with her father.
T.W. testified at trial that she
was encouraged to forgive Woodward for the sexual abuse:
Well, through the next couple years after
that, you know, everybody was – kind of kept
encouraging me. They are like this is your
dad, you know. He drank back then. You need
to forgive him, and everybody just wanted me
to kind of let it go and drop it because it
had been in the past, and when I turned 18 and
I had my son at that time I was going to church
and I was just trying to get my life together.
. . .
I was trying to get my life together, you know,
because I had a family and I just wanted to,
you know, start all over with my own family
and, you know, the pastor and people at the
church were like you need to forgive—
(T. at 302-03).
Bell objected to the testimony, but the trial
Court overruled the objection. Id.
Woodward now asserts that
T.W.’s testimony violated Florida Statue Section 90.611 (evidence
of the beliefs or opinions of a witness on matters of religion is
inadmissible to show the witness’s credibility is impaired or
enhanced thereby) and Rule 610 of the Federal Rules of Evidence
witness’s credibility), and in so doing violated the Sixth and
Fourteenth Amendments (Petition at 25-26).
Respondents urge that this claim is unexhausted (Response at
Indeed, Woodward raised this claim in his brief on direct
- 42 -
appeal, but framed his argument in terms of state law only – making
no reference to the United States Constitution, federal law, or
even federal cases. 12
Therefore, Respondents are correct that
Woodward did not exhaust this claim.
For a habeas petitioner to fairly present a federal claim to
It is not sufficient merely that the federal
habeas petitioner has been through the state
courts . . . nor is it sufficient that all the
facts necessary to support the claim were
before the state courts or that a somewhat
similar state-law claim was made. Rather, in
order to ensure that state courts have the
first opportunity to hear all claims, federal
courts “have required a state prisoner to
present the state courts with the same claim
he urges upon the federal courts.” While we do
not require a verbatim restatement of the
claims brought in state court, we do require
that a petitioner presented his claims to the
state court “such that a reasonable reader
would understand each claim's particular legal
basis and specific factual foundation.
McNair v. Campbell, 416 F.3d 1291, 1302–03 (11th Cir. 2005)
(emphasis added) (internal citations omitted). As part of such a
showing, the claim presented to the state courts “must include
reference to a specific federal constitutional guarantee, as well
as a statement of the facts that entitle the petitioner to relief.”
Reedman v. Thomas, 305 F. App’x 544, 545–46 (11th Cir. 2008)
Notably, although titled as a constitutional violation, the
argument supporting the instant claim is also presented solely in
terms of state and federal evidentiary law.
- 43 -
(internal citation omitted).
Because he did not refer to any
“specific federal constitutional guarantee” in his brief on direct
admission of T.W.’s statement was not fairly presented to the state
court and is unexhausted.
Petitioner does not satisfy (or even
allege) the cause and prejudice, or fundamental miscarriage of
justice exceptions to overcome the procedural default of this
Florida’s procedural rules and time limitations preclude
a second direct appeal. Fla. R. App. P. 9.140(b)(3) (defendant
wishing to appeal a final judgment must do so within “30 days
Petitioner's claim cannot be considered by this Court and is due
to be dismissed.
Even had Petitioner properly exhausted this claim, it is
without merit on federal habeas review. See 28 U.S.C. § 2254(b)(2).
application of state procedure or evidentiary law, particularly
cognizable as grounds for federal habeas relief. See Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of
a federal habeas court to reexamine state-court determinations on
state-law questions. In conducting habeas review, a federal court
- 44 -
Generally, a state court evidentiary ruling cannot rise to the
level of a federal due process violation “unless ‘it offends some
principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.’” Montana v. Egelhoff,
518 U.S. 37, 43 (1996) (quoting Patterson v. New York, 432 U.S.
197, 202–03 (1977)).
Petitioner has presented nothing in the way
of a Supreme Court case or other federal law to convince this Court
Finally, even if constitutional error is found in a habeas
proceeding, it is still subject to a harmless error analysis.
objectionable portion of T.W.’s testimony, Woodward has failed to
persuasively show that the jury would not have reached a different
credibility, but to explain why she initiated contact with her
father years after he allegedly molested her.
Woodward fails to
demonstrate, in light of the entire trial record, a harmful error
under Brecht. See discussion supra Claim One. Consequently, even
if Claim Five were exhausted, it warrants no federal habeas relief.
Next, Woodward argues that the trial court erred by sentencing
him without the benefit of a presentence investigation report
(Petition at 27).
He asserts that this failure violated both the
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Florida and Federal Rules of Criminal Procedure as well as the
Sixth and Fourteenth Amendments to the United States Constitution.
Woodward raised a similar claim on direct appeal in which he
argued that a presentence investigation report is mandatory under
Rule 3.710 of the Florida Rules of Criminal Procedure when a
defendant has been convicted of his first felony offense (Ex. T at
Woodward’s appellate brief did not reference the United
States Constitution or any other clearly established federal law.
Respondents urge that this claim is unexhausted because in
his brief on direct appeal, Woodward raised it in terms of state
law only (Response at 41).
The Court agrees that Woodward’s
failure to refer to any specific federal constitutional guarantee
in his brief on direct appeal renders this claim unexhausted.
Additionally, Woodward does not satisfy the cause and prejudice,
or fundamental miscarriage of justice exceptions to overcome the
procedural default of this claim. Consequently, Claim Six cannot
be considered by this Court and is due to be dismissed.
discussion supra Claim Five.
Even if this claim were exhausted, to the extent a report was
required, it was required only as a matter of state law.
did not enact 28 U.S.C. § 2254 to enforce state-created rights.
Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000).
has not set forth any “clearly established law as determined by
- 46 -
the Supreme Court of the United States” establishing a state
criminal defendant’s right to a presentence investigation report.
In addition to being unexhausted, Claim Six fails to set forth a
cognizable habeas corpus claim.
As Claim Seven, Woodward asserts that the trial court erred
under Blakely v. Washington,13 by calling the jury’s attention to
the fact that the interrogatory pertaining to his age on the
verdict form had not been checked (Petition at 29).
In the jury
instructions, the trial court explained that if the jury found
Woodward guilty of the alleged conduct, it would next need to
determine whether he was 18 years or older at the time the crime
was committed (T. at 795-96).
The court explained that “if you
have factually found that to be the case then the [jury foreman]
would mark that line in.
You don’t have to but that is, you know,
the next step in the process.” Id. at 796.
After the jury returned with a verdict (but prior to the
verdict’s announcement), the trial judge reviewed the verdict
forms and called counsel to a sidebar conference (T. at 813).
Blakely v. Washington, 542 U.S. 296 (2004) (in the context
of mandatory sentencing guidelines under state law, the Sixth
Amendment right to a jury trial prohibits judges from enhancing
criminal sentences based on facts other than those decided by the
jury or admitted by the defendant).
- 47 -
judge noted that each of the interrogatories on Woodward’s age was
left blank. Id.
The following exchange occurred:
Members of the jury, specifically
Ms. Valentino [the jury foreman],
I’ve looked at the forms, and I want
to make sure that I didn’t mislead
you about the instructions.
noticed that the age matter was not
marked on any of the forms, was that
because you decided not to do that,
or because you misunderstood my
instructions about it?
I think we must have misunderstood.
Okay. What I was talking about was
only one on the margin.
stepping back. Just talk about it,
make sure – I mean, it may well be
that that was what your decision
was. But I just want to make sure
that that was the correct outcome.
(T. at 813-14).
When the jury returned, the judge asked whether
“the consensus was that [his] instructions weren’t very clear?”
Id. at 14.
The jury foreman affirmed. Id.
Woodward now claims that under Florida law, “the jury’s
misapprehension of misunderstanding of the court’s instructions is
a matter which inheres in the verdict.” (Ex. T at 49) (citing
Marshall v. State, 854 So. 2d 1235, 1240 (Fla. 2003); Marks v.
State Road Department, 69 So. 2d 771 (Fla. 1954); Wright v.
Illinois & Mississippi Telegraph Co., 20 Iowa 195, 210 (1866)). He
- 48 -
argues that his sentence is illegal because the jury failed to
make a finding of his age, and therefore he was not subject to a
mandatory life sentence (Ex. T at 50).
Woodward raised this claim
in his brief on appeal, and Florida’s First District Court of
Appeal rejected it (Ex. T; Ex. Y).
Despite Woodward’s assertion otherwise, the jury, not the
judge, made the determination that he was over the age of eighteen
when the crimes occurred.
Woodward cites no clearly established
federal law establishing that a trial court may not have a jury
clarify a verdict.
To the contrary, federal courts that have
appearance of any uncertainty or contingency in a jury’s verdict,
it is the duty of the trial judge to resolve that doubt[.]” United
States v. Morris, 612 F.2d 483, 489 (10th Cir. 1979); United States
v. Rastelli, 870 F.2d 822, 835 (2d Cir. 1989) (“[A] district judge
has authority to require re-deliberation in cases in which there
is uncertainty, contingency, or ambiguity regarding the jury’s
verdict.”); United States v. Gaton, 98 F. App’x 61, at *2 (2d Cir.
2004) (unpublished) (“The jury's responses on the verdict form
were clearly ambiguous. Having not yet discharged the jury, the
District Court had the authority to require re-deliberation, and
we certainly find no error in its doing so.”); see also Griffin v.
State, 414 So.2d 1025, 1029 (Fla. 1982) (“If it appears that a
- 49 -
mistake or oversight needs to be corrected, the court may send the
jury back for further deliberations”) (citation omitted).
Woodward presents nothing to show how the state court’s
adjudication of this claim was contrary to, or an unreasonable
determination of, Blakely or any other clearly established federal
law. Moreover, that Woodward was over the age of eighteen when the
alleged crimes occurred was not disputed at trial.
he is not entitled to federal habeas relief on Claim Seven. 28
U.S.C. § 2254(d).
suffered under an inherently prejudicial conflict of interest
(Petition at 31-32; Ex. EE at 12-15).
asserts that Bell told him that he (Bell) was a victim of childhood
sexual abuse. Id.
Woodward raised this claim as ground one in his
Rule 3.850 motion, where he argued that “to be represented by a
inherent prejudice that both consciously and subconsciously cannot
be deemed harmless without investigation by way of an evidentiary
hearing.” (Ex. EE at 13) (emphases in original).
The post-conviction court held an evidentiary hearing on
Petitioner's Rule 3.850 motion (Ex. II).
At the hearing, Bell
denied that he was a victim of childhood sexual abuse or telling
Woodward he was a victim of childhood sexual abuse. Id. at 8-9,
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Specifically finding Bell’s testimony to be credible, the
post-conviction court denied this claim (Ex. JJ at 96).
now argues that the post-conviction court abused its discretion
when it credited Bell’s testimony over his own without explaining
the reasons for doing so (Petition at 32-33) (citing United States
v. Camacho, 40 F.3d 349 (11th Cir. 1994); Gallego v. United States,
174 F.3d 1196 (11th Cir. 1999)).14
Respondents urge that Woodward failed to exhaust this claim
because he expressly abandoned it in his collateral appeal after
receiving an evidentiary hearing (Response at 55).
While Woodward appealed the denial of his Rule 3.850
motion, he specifically noted that only grounds 2A, 3, 4, 5, 12,
14, 16, 17A, and 17B, none of which addressed the instant issue,
were pertinent to the appeal (Ex. MM at 11).
The First District
Court of Appeal affirmed as to all but two of Woodward’s claims
It is unclear why Woodward cites Camacho; the opinion has
little bearing on the facts at hand. In Gallego, the Eleventh
Circuit determined that while a district court could legitimately
find a defendant’s testimony to be not credible, it cannot base a
credibility determination solely upon the fact that a defendant’s
testimony is unsubstantiated. 174 F.3d at 1198-99. Gallego is an
opinion from the Eleventh Circuit Court of Appeals, and is not
“clearly established Federal law, as determined by the Supreme
Court of the United” States. 28 U.S.C. § 2254(d). Moreover, here,
unlike Gallego, the state court specifically made a credibility
And, finally, the Gallego court was not
constrained by the deferential standards set forth in the AEDPA.
- 51 -
The “one complete round” exhaustion requirement set forth in
O'Sullivan v. Boerckel, 526 U.S. 838 (1999) applies to post-conviction
review as well as direct appeal; a prisoner must appeal the denial
of post-conviction relief in order to properly exhaust state remedies.
Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (“Boerckel applies
to the state collateral review process as well as the direct appeal
process”); LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1261
(11th Cir. 2005) (as Florida prisoner failed to properly exhaust
claim on direct appeal or Rule 3.850 appeal, it was procedurally
barred, citing Coleman).
Pursuant to Rule 9.141(b)(3) of the Florida Rules of Appellate
Procedure, the failure to fully brief and argue an issue on appeal
constitutes a waiver of that claim. See Leonard v. Wainwright, 601
F.2d 807, 808 (5th Cir. 1979) (Florida prisoner must appeal denial
of Rule 3.850 relief to exhaust remedies);15 Cortes v. Gladish, 216
F. App’x 897, 899-900 (11th Cir. 2007)(recognizing that when a
petitioner receives an evidentiary hearing on his Rule 3.850 motion,
his failure to address issues in his appellate brief constitutes a
waiver of those claims); Coolen v. State, 696 So. 2d 738, 742 n.2
(Fla. 1997) (failure to fully brief and argue points on appeal
constitutes a waiver of these claims).
Woodward therefore failed to
The Eleventh Circuit adopted as precedent decisions of the
former Fifth Circuit rendered prior to October 1, 1981. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
- 52 -
invoke one full round of the state's established appellate review
process with regard to Claim Eight and cannot now return to state
court and file an untimely collateral appeal challenging the denial
of this claim. See Fla. R. Crim. P. 3.850(k).
In his reply, Woodward asserts that post-conviction appellate
counsel, Bryan S. Gowdy, was ineffective for abandoning this claim
in his appeal of the Rule 3.850 denial, and therefore, ineffective
assistance of appellate counsel provides cause for the default (Reply
In support, he cites Martinez v. Ryan, 132 S. Ct. 1309
(2012). Id. at 2. Martinez does recognize a narrow exception to the
general rule that ineffective assistance of post-conviction counsel
cannot constitute cause to overcome a procedural default.
the Supreme Court expressly limited Martinez to attorney errors in
initial-review collateral proceedings:
The rule of Coleman governs in all but the
limited circumstances recognized here. The
holding in this case does not concern attorney
collateral proceedings, second or successive
collateral proceedings, and petitions for
discretionary review in a State's appellate
courts. It does not extend to attorney errors
in any proceeding beyond the first occasion
the State allows a prisoner to raise a claim
of ineffective assistance at trial, even
proceeding may be deficient for other reasons.
Martinez, 132 S. Ct. at 1320 (internal citations omitted) (emphasis
added); see also Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d
1246, 1260 (11th Cir. 2014) (“Importantly, the Martinez rule is
- 53 -
expressly limited to attorney errors in initial-review collateral
Accordingly, ineffective assistance of post-
conviction appellate counsel does not provide cause for Woodward’s
failure to exhaust this claim.
Woodward has not presented any
other evidence to demonstrate cause or prejudice, much less the
existence of the “fundamental miscarriage of justice” exception to
dismissed as unexhausted. See also discussion infra Claims Ten,
Thirteen, and Fourteen (discussing credibility determinations on
federal habeas corpus review).
Woodward asserts that trial counsel, Bell, was ineffective
for failing to properly “raise, argue and preserve for appellate
review the inadmissibility” of his confession (Petition at 34).
Specifically, Woodward argues that Bell should have challenged the
voluntariness of his confession on the ground that he suffered a
heart attack days prior to the interrogation and was under the
influence of narcotic drugs during his police interview. Id.
Petitioner raised this issue in his Rule 3.850 motion, and
considered at the evidentiary hearing, denied the claim as clearly
negated by the record:
The defendant's own attachments to his motion
negate his claim. It is clear from the record
in this cause that an extensive motion to
- 54 -
suppress hearing was conducted at which all
the issues regarding the defendant's mental
stability and his medical condition and the
medications which he consumed were thoroughly
documented during the course of that hearing.
Furthermore, the matter of the Court’s denial
of the motion to suppress was preserved for
appellate review by way of the defendant's
motion for new trial, which was submitted on
(Ex. JJ at 3-4).
Woodward appealed, and the appellate court
reversed on the ground that Woodward was entitled to an evidentiary
hearing on this claim (Ex. QQ); Woodward v. State, 992 So. 2d 391,
394 (Fla. 1st DCA 2008).
After a second evidentiary hearing in front of a different
judge (Ex. RR), the post-conviction once again denied the claim,
finding it satisfied neither prong of Strickland:16
Defendant also asserts that trial counsel was
ineffective by not further investigating
Defendant’s mental state at the time he was
questioned by police.
At the hearing, Mr.
Bell explained his approach to Defendant’s
Motion to Suppress. Mr. Bell testified that
he hired an expert witness on the subject of
suppression hearing. The expert, Dr. Christian
Meissner, focused on police tactics in
obtaining false confessions. However, he did
understand that the vulnerability of the
person being questioned was an important
consideration, especially when combined with
the police tactics.
Despite Dr. Meissner’s
knowledge of this “other side” of false
confessions, he provided no recommendations to
Woodward asserts that the post-conviction court found
Bell’s performance to be deficient (Petition at 34-35). This is
The post-conviction court concluded that Woodward
failed to prove either Strickland prong (Ex. UU at 2-4).
- 55 -
information or advice regarding Defendant’s
While Mr. Bell’s investigation may have been
less than complete due to not seeking out, on
questioning, his actions were still reasonable
under the circumstances. As the U.S. Supreme
Court in Strickland states: “strategic choices
made after less than complete investigation
are reasonable precisely to the extent that
reasonable professional judgments support the
limitations on investigation.” Strickland, at
690. Here, Mr. Bell’s professional judgment
was reasonable. Upon hiring Dr. Meissner, an
expert on false confessions, one would
reasonably expect the expert to provide clear
indications that further investigation is
warranted in order to fully explain the
potential of a false confession for someone in
Defendant's position. Nothing in the record
demonstrates Dr. Meissner alerted trial
How should we expect Mr. Bell to
recognize a need to further investigate after
consulting with an expert in the field of
The second prong of Strickland requires
Defendant to establish he was prejudiced by
trial counsel’s deficient performance. Id. at
In the instant case, even if trial
ineffective, Defendant has not proven he has
suffered any prejudice as a result of that
Meissner’s questioning that Defendant, prior
to being questioned by police, had shortly
beforehand been hospitalized for a heart
operation and at the time of the interview was
Defendant had a history of alcohol abuse. Dr.
Meissner acknowledged those factors could
potentially lead one to confess falsely.
- 56 -
At Defendant’s post-conviction hearing, Dr.
DeClue, an expert in confessions as well,
additional drugs Defendant was taking at the
time of the questioning, as well as his
history of drug and alcohol abuse should have
been explored more fully by an expert and
could have made Defendant more susceptible to
giving a false confession. Dr. DeClue never
met Defendant and never conducted any sort of
an evaluation of Defendant.
witness admitted on cross-examination that he
could not say whether an expert evaluation
focusing on Defendant's vulnerabilities at the
time of the interview would have helped or
hurt Defendant. Moreover, it is possible the
evaluation of Defendant would lead to the
opinion he was not any more susceptible to
confess falsely than an average person.
Defendant presented nothing to dispel that
possibility and “it is not enough for the
defendant to show that the errors had some
conceivable effect on the outcome of the
proceeding.” Consequently, as to the outcome
of the Motion to Suppress hearing, Defendant
has failed to “show that there is a reasonable
unprofessional errors, the result of the
proceeding would have been different.”
If the Motion to Suppress had been granted
(denying the State the use of Defendant’s
statements), Defendant has not established
that there is a reasonable probability he
would not have been convicted at trial. The
trial record shows enough evidence with which
to prove Defendant's guilt beyond a reasonable
doubt. Specifically, the victim’s testimony
and the “Williams Rule” witness’ testimony
about Defendant's sexual abuse of both victims
could have still been sufficient for the jury
to render a “guilty” verdict.
of the Motion to Suppress would not have been
- 57 -
(Ex. UU at 2-4) (internal citations to record omitted).
court’s determination of this claim without a written opinion (Ex.
Woodward does not explain how the post-conviction court’s
conclusion was contrary to, or an unreasonable application of,
Instead, he merely disagrees with the state court’s
conclusions which are supported by the record.
At the evidentiary hearing, Bell testified that he believed
Woodward’s confession was coerced by the police and that the
recording of the interview with Detective Gupton revealed that
Woodward took narcotic pain medication on the day of the interview
(Ex. RR at 33).
After speaking with two recognized experts on the
subject of false confessions, Bell hired Dr. Meissner, an expert
on coerced confessions, and told him about Woodward’s drug use and
heart condition. Id. at 27-29, 31, 56. Bell testified that his
decision to focus on Detective Gupton’s coercive interviewing
tactical decision, not an oversight; therefore, he believed that
an additional medical expert was unnecessary to develop the issue
of Woodward’s health or drug use. Id. at 38, 56-58.
Woodward presented the testimony of a different expert, Dr.
DeClue, at the hearing who opined that it would have been helpful
to the defense if Woodward had received a psychological examination
on the same day, or shortly after, Detective Gupton’s interview
- 58 -
(Ex. SS at 13).
Dr. DeClue believed that, while Dr. Meissner was
qualified to “discuss and analyze the police techniques used during
a specific interrogation,” such would not be a thorough analysis
vulnerabilities of the individual. Id. at 20.
Dr. DeClue believed
that a clinical or counseling psychologist could have added to and
supported Dr. Meissner’s work. Id. at 27.
The test for ineffective assistance of counsel is not whether
Bell could have done more; indeed, “perfection is not required.”
Waters v. Thomas, 46 F.3d 1506, 1518 (11th Cir. 1995).
is the test what the best criminal defense attorney might have
Instead, the test is whether Bell performed within the wide
range of reasonable professional assistance. Id.
In the instant
case, Bell’s decision to focus on Detective Gupton’s coercive
interview techniques through Dr. Meissner was not outside the wide
range of reasonable professional assistance. Accordingly, Woodward
cannot satisfy the narrow question of whether the state court
unreasonably applied Strickland when it concluded that Bell’s
reliance on Dr. Meissner was reasonable. 17
The presumption that Bell’s performance was reasonable is
even stronger given his experience as a defense attorney at the
time he took Woodward’s case. "When courts are examining the
performance of an experienced trial counsel, the presumption that
his conduct was reasonable is even stronger." Chandler v. United
States, 218 F.3d 1305, 1316 (11th Cir. 2000); see Williams v. Head,
185 F.3d 1223, 1229 (11th Cir. 1999). Thomas Bell was admitted to
the Florida Bar in 1986. See http://www.floridabar.org. Therefore,
- 59 -
Woodward’s statements to Detective Gupton was, at most, harmless
error. See discussion supra Claim One.
Since the admission did
not satisfy Brecht’s harmless error standard, it cannot satisfy
Pirtle v. Morgan, 313 F.3d 1160, 1173 n.8 (9th Cir. 2002) (Brecht
prejudice standard); Albrecht v. Horn, 485 F.3d 103, 139 (3d Cir.
essentially the same standard.”); Hall v. Vasbinder, 563 F.3d 222,
236 (6th Cir. 2009) (“The prejudice prong of the ineffective
assistance analysis subsumes the Brecht harmless-error review.”);
Smith v. Dixon, 14 F.3d 956, 974, 976 (4th Cir. 1994) (en banc)
(the prejudice inquiry under Strickland is essentially the same as
the harmless-error inquiry under Brecht).
ineffective assistance test, and he is not entitled to federal
habeas corpus relief as to Claim Nine.
at the time of Woodward’s trial in 2004, Bell was an experienced
trial lawyer. See Ex. II at 18 (stating he had been practicing law
for twenty years and had tried numerous felony cases including
eight or nine first degree murder cases and three prior capital
sexual battery cases).
- 60 -
CLAIMS TEN, THIRTEEN, AND FOURTEEN
In Claim Ten, Woodward asserts that Bell was
ineffective for failing to move the trial court for funding to
Thirteen, Woodward asserts that Bell was ineffective for failing
to “properly investigate and advise the defendant [sic] answers
regarding the real and maximum consequences of accepting the
state’s ten years offer on a guilty plea when conveying the state’s
offer to the defendant.” Id. at 43.
In Claim Fourteen, Woodward
asserts that Bell was ineffective for failing to properly prepare
him to testify at trial. Id. at 45.
Woodward raised each of these claims in his Rule 3.850 motion
(Ex. EE). After conducting an evidentiary hearing, the postconviction
appealed the denials (Ex. MM).
Although he raised twenty-four
separate claims in his Rule 3.850 motion, in his brief on appeal,
Woodward specifically noted that only grounds 2A, 3, 4, 5, 12, 14,
16, 17A, and 17B were pertinent to his appeal (Ex. MM at 11).
previously noted, the appellate court affirmed the post conviction
decision as to all but two of Woodward’s claims (Ex. QQ).
As in Claim Eight, Respondents urge that Claims Ten, Thirteen,
and Fourteen are unexhausted because Woodward expressly abandoned
them in his collateral appeal after receiving an evidentiary
- 61 -
hearing (Response at 75, 87, 90, 92).
Woodward complains that he
wanted to appeal all twenty-four of the claims raised in his Rule
3.850 motion, but post-conviction appellate counsel told him that
“he was only going to file what he deemed was essential to get
[Woodward] back to court for a New Hearing [sic]” and that he
(collateral counsel) had not been paid enough to handle all issues
raised in the Rule 3.850 motion (Reply at 5).
ineffective assistance of post-conviction appellate counsel does
not provide cause for a petitioner’s failure to fully exhaust his
claims. See Martinez, 132 S. Ct. at 1320; Lambrix, 756 F.3d at
1250; discussion supra Claim Eight.
Accordingly, Woodward has not
shown cause or prejudice for his failure to exhaust Claims Ten,
Thirteen, or Fourteen.
Neither does he present new evidence of
actual innocence to open a gateway to these defaulted claims.
Accordingly, Claims Ten, Thirteen, and Fourteen are due to be
dismissed as unexhausted. 28 U.S.C. § 2254.
Even if these claims were exhausted, Woodward is not entitled
court’s factual findings are entitled to AEDPA deference. 28 U.S.C.
Claims Ten, Thirteen, and Fourteen (grounds three,
six, and seven in Woodward’s Rule 3.850 motion) are based on
determination that Belll’s testimony at the first evidentiary
hearing was more credible than Woodward’s testimony (Petition at
- 62 -
39, 43, 46-47).
Indeed, in its written order denying Claims Ten
and Thirteen, the post-conviction court specifically determined
that “the testimony of trial counsel on this issue is credible.”
(Ex. JJ at 4, 5).
The court also determined that Woodward’s
Questions of the credibility and demeanor of a witness are questions
of fact. Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir. 1999).
determination made by a state court, and the habeas petitioner has
the burden of overcoming the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e).
Determining the credibility of a witness, “is the province
and function of the state courts, not a federal court engaging in
habeas review.” Consalvo v. Sec'y for Dep’t of Corr., 664 F.3d
842, 845 (11th Cir. 2011); see also Gore v. Sec'y for Dep’t of
Corr., 492 F.3d 1273, 1300 (11th Cir. 2007) (recognizing that while
reviewing court also gives a certain amount of deference to
credibility determinations, that deference is heightened on habeas
review) (citing Rice v. Collins, 546 U.S. 333, 341–42 (2006)
(“[r]easonable minds reviewing the record might disagree about the
[witness'] credibility, but on habeas review that does not suffice
to supersede the trial court's credibility determination”)). As
credibility of witnesses whose demeanor has been observed by the
- 63 -
state trial court, but not by them.” Marshall v. Lonberger, 459
U.S. 422, 434 (1983).
Woodward has not shown by clear and convincing evidence that
the state court unreasonably found Bell’s testimony to be more
credible than his own.
Accordingly, he has not satisfied the
first prong of Strickland on any of these claims. In addition to
being unexhausted, Claims Ten, Thirteen, and Fourteen are due to
be denied on the merits.
CLAIMS ELEVEN AND TWELVE
In Claim Eleven, Woodward asserts that Bell was ineffective
involved a documented mental health history, and the effects of
drug and alcohol abuse as they contributed to [his] mental health
conditions.” (Petition at 39).
Woodward argues that Bell could
have used the information learned from the investigation to offer
an insanity defense at trial. Id. at 40.
In Claim Twelve, Woodward
asserts that Bell was ineffective for “failing to develop and
present a valid and substantiated defense strategy of the combined
intoxication strategy[.]” Id. at 41.18
Effective October 1, 1999, voluntary intoxication due to
alcohol or drug use is no longer admissible to negate specific
intent during the guilt phase of a trial. See § 775.051, Fla. Stat.
However, Woodward would not have been precluded from
raising a voluntary intoxication defense at trial because the
- 64 -
Woodward raised these claims in his Rule 3.850 motion, and
the post-conviction court denied them because Bell’s decisions
“were consistent with a plausible trial strategy and consistent
with the defendant's manner of presentation at the time.” (Ex. JJ
The post-conviction court also concluded that Woodward and
Bell had discussed the matter and “did agree to a defense to which
[Woodward] actually testified at trial.” Id. at 5.
appealed the denial of this claim, and the appellate court remanded
because Woodward should have been appointed collateral counsel to
develop this issue at his evidentiary hearing. Woodward, 992 So.
2d at 393.
Specifically, the appellate court concluded that
without collateral counsel, Woodward was unable to produce the
medical records or expert witnesses necessary to support his claim
that he may have been insane when he molested H.B. Id.
represent Woodward at his second evidentiary hearing (Ex. RR).
After hearing testimony from Bell and expert witness Dr. DeClue,
the post-conviction court denied the claim a second time:
The Defendant also asserts that trial counsel
was ineffective for not arguing Defendant was
temporarily insane at the time of the
offense(s) alleged. This is similar to State
v. Williams, 797 So. 2d 1235 (Fla. 2001). In
that case, the defendant alleged his counsel
was ineffective for not pursuing the defense
of voluntary intoxication. Id. at 1238-39.
offenses for which he was tried occurred prior to October 1, 1999.
See Ex. G (Third Amended Information).
- 65 -
The Court concluded that the trial counsel in
Williams could not be deemed ineffective for
intoxication because it was inconsistent with
the defendant’s theory of the case – that he
was innocent. Id. at 1239.
At the evidentiary hearing, Mr. Bell testified
he discussed with Defendant the trial strategy
and Defendant agreed to maintain his innocence
and allege that the victim was lying.
Accordingly, trial counsel in the instant case
cannot be deemed ineffective because of the
trial strategy, as discussed with and approved
by Defendant that is inconsistent with a
defense of voluntary intoxication.
(Ex. UU at 2-3).
Florida’s First District Court of Appeal affirmed
the denial of relief as to this claim (Ex. AAA).
not suggest how the post-conviction court’s denial of this claim
determination of the facts.
To the contrary, the record supports
the state court's factual finding that Bell considered and rejected
reasonable defense theory that Woodward did not molest H.B.
At the second evidentiary hearing, Bell testified that he
considered all possible defenses, but concluded that insanity was
not a viable defense for Woodward (Ex. RR at 10).
that Woodward told him prior to trial that the molestation may
have occurred with T.W., but insisted that he never molested H.B.
and that she was lying. Id. at 11, 22.
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Bell did not believe a
factual basis existed to pursue an insanity defense, and therefore,
consistent with the facts.” Id. at 22.
Woodward’s defense theory
at trial was that his confession was coerced, and that he never
sexually molested or tried to rape H.B. (T. at 588, 593-94).
Woodward testified at trial that H.B. lied about the sexual abuse
because he was a disciplinarian and she wanted him out of the
defense, and Woodward’s insistence that he never molested H.B., it
was certainly reasonable for Bell to forego pursuing an insanity
or voluntary intoxication defense in favor of an actual innocence
performance under Strickland. See Occhicone v. State, 768 So.2d
1037, 1048 (Fla. 2000) (“strategic decisions do not constitute
ineffective assistance of counsel if alternative courses have been
considered and rejected and counsel's decision was reasonable
under the norms of professional conduct”); White v. Singletary,
972 F.2d 1218, 1221 (11th Cir. 1992) (defense counsel’s failure to
present voluntary intoxication as a defense in a capital-murder
prosecution was not beyond the range of reasonable professional
judgment and, thus, did not amount to ineffective assistance, in
view of inconsistency of intoxication defense with deliberateness
of the defendant's actions during the shootings); Cherry v. State,
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781 So.2d 1040, 1050 (Fla. 2000) (recognizing that a voluntary
intoxication defense is wholly inconsistent with the defense of
Moreover, to establish the affirmative defense of insanity
under Florida law, a defendant must prove by clear and convincing
constituting the offense, he: (1) had a mental infirmity, disease,
or defect; and (2) because of this condition he either did not
know what he was doing or its consequences, or if he knew what he
was doing and its consequences, he did not know that what he was
doing was wrong. Fla. Stat. §§ 775.027(b)(1) and (2) (2003).
Likewise, at the time Woodward committed the offenses, “voluntary
intoxication [was] an affirmative defense and  the defendant
[was required to] come forward with evidence of intoxication at
the time of the offense sufficient to establish that he was unable
to form the intent necessary to commit the crime charged.” Linehan
v. State, 476 So.2d 1262, 1264 (Fla. 1985), receded from on other
grounds, Coicou v. State, 39 So.3d 237 (Fla. 2010).
Even with the assistance of collateral counsel on this claim,
Woodward presented no evidence at his evidentiary hearing that he
was insane when he molested H.B.
Also, he does not allege that
he was intoxicated when he sexually molested H.B. and that he could
not, therefore, form the requisite intent to commit the charged
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prejudice. See Kight v. Singletary, 50 F.3d 1539, 1546 (11th Cir.
1995) (failure to pursue insanity defense when defendant would not
admit culpability in crime and failed to come forward with evidence
to support claim of insanity, was not ineffective assistance of
counsel); Presnell v. Zant, 959 F.2d 1524, 1533 (11th Cir. 1992)
(rejecting habeas petitioner's ineffective assistance of counsel
claim based upon counsel's failure to raise insanity defense
because defendant failed to come forward with evidence supporting
In light of the foregoing, Woodward has failed to satisfy
either prong of Strickland’s ineffectiveness test.
Woodward is not entitled to federal habeas corpus relief. 28 U.S.C.
Woodward asserts that the post-conviction court erred when it
denied grounds eight through eleven of his Rule 3.850 motion which
collectively alleged that Bell was ineffective for allowing a
Specifically, Woodward argues that prior to voir dire, a newscast
about a child victim of sexual abuse played in the jury room and
the jury could have been tainted as a result. Id.
this issue in his Rule 3.850 motion, and the post-conviction court
ground that he could not demonstrate Strickland prejudice:
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In each of these grounds, the defendant
suggests in assorted ways that trial counsel
was ineffective with regard to one issue in
the jury selection process in this cause. The
author of the defendant's motion contends that
the jurors were exposed to prejudicial
newscasts in the jury waiting room prior to
their selection and that trial counsel did
nothing about it. The defendant's motion does
not assert in any plausible manner how the
outcome of the defendant’s trial would have
been different given what actually happened.
These grounds were not considered during the
The matter briefly arose during the course of
jury selection when the Court received an
email from an Assistant Public Defender
expressing her concern that Fox News article
had run that morning regarding a case of the
sexual abuse of a child. A television in the
jury waiting area was turned to Fox News. The
Assistant Public Defender happened to have
been a member of the jury pool, happened to
have been assigned to the undersigned’s felony
division, and happened to know that the
defendant’s case was set for trial that day.
When the Court received the information about
the newscast, a recess was taken and the
matter discussed with counsel. The Court read
into the record the e-mail message sent by the
Assistant Public Defender in the jury pool.
The Court concluded that it would be
appropriate to question the potential jurors
on the issue and voir dire resumed.
counsel then proceeded to ask assorted
questions of the jurors, many of which
included their views of the media and their
specifically alluding to the information
received by the Court about that morning’s
newscast. When trial counsel had concluded,
the Court specifically asked the jury members
whether or not they had seen the newscast and
if so, whether or not it would in any way
affect their ability to sit fairly and
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impartially in the matter.
indicated that they had seen the article, no
one in the jury pool indicated that it would
affect them in any way.
developed that indicated that the Court should
take any further action whatsoever regarding
In support of this claim, the defendant has
attached assorted exhibits. None of them are
part of the record in this cause.
have any connection to the defendant’s trial,
it is an indirect connection at best.
exhibits are obviously the result of a web
search conducted on the name of the victim
apparently mentioned during the Fox News
The resulting exhibit appears to
be news reports of the trial in that case which
defendant's trial. It is also noted that the
transcript of the television program included
in the defendant's exhibit involves and
“Encore presentation” of an article apparently
about the referenced child sexual abuse case.
The “Encore presentation” occurred on August
4, 2002, at 21:00 E.T., that is 9:00P.M., well
before the trial in this cause.
It is a
transcript of an interview conducted by
commentator, Larry King, during the course of
his program, Larry King Live.
transcript might be factually interesting, it
is of virtually no significance to the matter
at hand. Larry King Live airs at 9:00 P.M.
in Jacksonville and not during the course of
a morning when jurors are awaiting movement to
Furthermore, Larry King is
employed by CNN and not by Fox News.
As to these grounds, the Court concludes that
the defendant has failed to establish that
trial counsel’s performance was substandard.
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Respondents urge that Claim Fifteen suffers from the same
exhaustion defect as Claims Eight, Ten, Thirteen, and Fourteen
because Woodward abandoned these issues in his appeal of the denial
of his Rule 3.850 motion (Response at 92-93).
Indeed, the grounds
comprising Claim Fifteen were not among those post-conviction
appellate counsel expressly decided to challenge on appeal of the
denial of Woodward’s Rule 3.850 motion (Ex. MM).
ineffective assistance of post-conviction appellate counsel cannot
provide the cause and prejudice necessary to excuse a habeas
petitioner’s failure to exhaust his claims in state court, and
Woodward has not presented new evidence of actual innocence to
excuse the procedural default.
Accordingly, Claim Fifteen is due
to be dismissed as unexhausted. See discussion supra Claims Eight,
Ten, Thirteen, and Fourteen.
Even had Woodward exhausted this claim, he does not show how
the post-conviction court’s denial of it was contrary to, or an
unreasonable application of, clearly established federal law or
based upon an unreasonable determination of the facts.
contrary, the record and applicable law support the state postconviction court’s conclusions.
During voir dire, the trial court received a note that the
jury room television aired a program regarding a young girl who
had been sexually abused and murdered (T. at 105).
interviewed the child’s mother who discussed “what people should
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look for in sexual predators.” Id.
Bell asked the trial court to
inquire of the jury as to whether they had seen the program and
whether it would affect any juror’s feelings about sitting on a
jury in a sex abuse case. Id. at 106-07.
The court inquired of
the prospective jurors whether they had seen the program. Id. at
When some of the jurors indicated that they had seen the
program, the court asked whether they could “set aside anything
you may have seen in that show and rest your verdict in this case
solely and exclusively on the evidence which you hear or see during
the course of the trial?” Id. at 117-18.
The entire jury panel
indicated that they could so. Id. After the jury was selected, the
Court asked Woodward directly whether he was comfortable with the
jury, and he affirmed that he was. Id. at 128.
Because empaneled jurors are presumed impartial, Smith
v. Phillips, 455 U.S. 209, 215 (1982), to satisfy Strickland’s
prejudice prong, Woodward must show that the jury selection process
produced a juror that was actually biased against him. Rogers v.
McMullen, 673 F.2d 1185, 1189 (11th Cir. 1982) (defendant's Sixth
Amendment right to a fair and impartial jury was not violated absent
a showing that a jury member hearing the case was actually biased
Woodward presents no evidence that any juror who
actually saw the news report, or was otherwise biased, was selected
to sit on the jury.
Rather, he merely speculates that “the trial
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Court allowed a prejudicial jury to be seated[.]” (Petition at 48).
Petitioner's unsupported and speculative assertions do not entitle
him to habeas relief on this claim. See Hill v. Lockhart, 474 U.S.
counsel are insufficient to raise a constitutional issue); Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or
unsupported allegations cannot support an ineffective assistance of
Petitioner fails to establish that the state post-conviction
determined the facts in rejecting this claim of ineffective assistance
of counsel. In addition to being unexhausted, Claim Fifteen is due
to be denied on the merits.
Any of Woodward’s allegations not specifically addressed
herein have been found to be without merit.
Certificate of Appealability Pursuant to 28 U.C.S. §
Woodward is not entitled to a certificate of appealability.
entitlement to appeal a district court’s denial of his petition.
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” As this Court has
determined that Woodward is not entitled to habeas corpus relief,
it must now consider whether he is entitled to a certificate of
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28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (“COA”).
“A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such
a showing, Woodward 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). Woodward has not made the requisite showing in these
appealability, he may not appeal in forma pauperis.
Therefore, it is now ORDERED AND ADJUDGED:
1. The Petition (Doc. 7) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
The Clerk of Court is directed to enter judgment denying
the Petition and dismissing this case with prejudice.
If Woodward appeals the denial of the Petition, the Court
denies a certificate of appealability.
Because the Court has
determined that a certificate of appealability is not warranted,
the Clerk of Court shall terminate from the pending motions report
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any motion to proceed on appeal as a pauper that may be filed in
Such termination shall serve as a denial of the motion.
The Clerk of the Court is directed to close this case
and terminate any pending motions.
DONE and ORDERED in Jacksonville, Florida on March 28, 2016.
Copies to: Larry Wayne Woodward
Counsel of Record
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