Hamilton v. Secretary, Department of Corrections et al
Filing
21
ORDER denying the Petition, and dismissing the action with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 11/15/2016. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
TERRY HAMILTON,
Petitioner,
v.
Case No. 3:13-cv-864-J-34JRK
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Terry Hamilton, an inmate of the Florida penal
system, initiated this action on July 18, 2013, by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. In the Petition, Hamilton challenges a 2005 state
court (Duval County, Florida) judgment of conviction for attempted
sexual battery, resisting an officer without violence, battery and
kidnaping. Respondents have submitted a memorandum in opposition to
the Petition. See Respondents' Answer in Response to Order to Show
Cause and Petition for Writ of Habeas Corpus (Response; Doc. 14)
with exhibits (Resp. Ex.). On April 30, 2014, the Court entered an
Order to Show Cause and Notice to Petitioner (Doc. 12), admonishing
Hamilton regarding his obligations and giving Hamilton a time frame
in which to submit a reply. Hamilton submitted a brief in reply.
See Rebuttal Reply Brief of Appellant (Reply; Doc. 16). This case
is ripe for review.
II. Procedural History
On December 23, 2004, the State of Florida, in Case No. 2004CF-11201,
charged
Hamilton
with
sexual
battery
(count
one),
resisting an officer without violence to his or her person (count
two), battery (count three), and two counts of kidnaping (counts
four and five). Resp. Ex. C at 131-32, Amended Information.
January 2005, Hamilton proceeded to trial, see
In
Resp. Ex. D,
Transcript of the Jury Trial (Tr.), at the conclusion of which, on
January 5, 2005, a jury found him guilty of attempted sexual
battery, a lesser-included offense of sexual battery (count one),
resisting an officer without violence to his or her person (count
two), battery (count three), kidnaping (count four), and false
imprisonment, a lesser-included offense of kidnaping (count five).
Id. at 362-63; Resp. Ex. C at 188-92, Verdicts. On February 24,
2005, the court sentenced Hamilton to a term of life imprisonment
on count four; a term of imprisonment of ten years on count one, to
run consecutively to count four; a term of imprisonment of one year
on count two, to run consecutively to count four; a term of
imprisonment of one year on count three, to run consecutively to
counts two and four; and a term of imprisonment of ten years on
count five, to run consecutively to counts one and four. Resp. Ex.
2
C at 219-28, Judgment; 268-315, Transcript of the Sentencing
(Sentencing Tr.).
On direct appeal, Hamilton, with the benefit of counsel, filed
an initial brief, arguing that the circuit court erred when it:
admitted the victim's statements in violation of Hamilton's right
of confrontation (ground one); refused to permit Hamilton to
recount statements made by the victim after permitting the State to
do so (ground two); excluded testimony of the victim's history of
prostitution and drug usage (ground three); and entered dual
convictions and consecutive sentences for kidnaping and false
imprisonment based upon the same conduct in violation of double
jeopardy (ground four). Resp. Ex. G. The State filed an answer
brief, see Resp. Ex. H, and Hamilton filed a reply brief, see Resp.
Ex. I. On April 18, 2006, the appellate court affirmed in part and
reversed in part, stating:
Appellant was found guilty after a jury trial
of attempted sexual battery, resisting an
officer without violence to his or her person,
battery, kidnaping, and false imprisonment. As
a result, appellant was sentenced to ten years
in prison for sexual battery, one year in
prison each for resisting an officer without
violence and for battery, life in prison for
kidnaping, and ten years in prison for false
imprisonment,
all
sentences
running
consecutive to the kidnaping sentence. On
appeal, appellant raises several issues,
including an argument that his convictions for
both kidnaping and false imprisonment violate
double jeopardy. The State concedes error on
this double jeopardy ground, and because of
this concession, we reverse and vacate
appellant's conviction and sentence for false
3
imprisonment. Charneco v. State, 917 So.2d 378
(Fla. 2d DCA 2005) (reversing the appellant's
conviction for possession of heroin on double
jeopardy grounds where the appellant was
convicted of both trafficking in heroin and
possession of heroin and the State conceded
error). We otherwise affirm the judgment and
sentence without further discussion.
Hamilton v. State, 929 So.2d 575 (Fla. 1st DCA 2006) (per curiam);
Resp. Ex. J. The appellate court denied Hamilton's motion for
clarification on May 30, 2006, see Resp. Exs. K; L, and the mandate
issued on June 15, 2006, see Resp. Ex. M. The Florida Supreme Court
denied Hamilton's petition for discretionary review on August 30,
2006. Hamilton v. State, 939 So.2d 93 (Fla. 2006); Resp. Exs. N; O;
P; Q.
On May 24, 2007, pursuant to the mailbox rule, Hamilton filed
a pro se motion for post-conviction relief pursuant to Florida Rule
of Criminal Procedure 3.850. See Resp. Ex. S at 4-27. In his
request for post-conviction relief, he asserts that the State's
evidence against him was insufficient (ground one); the circuit
court improperly sentenced him as a habitual felony offender
(grounds two and four); the court erred when it imposed consecutive
sentences since his sentences were from a single criminal episode
(ground three); and counsel was ineffective because she failed to
present a security videotape and the testimony of store employees
(ground five). On August 17, 2007, the court denied grounds one,
two, four and five for the reasons stated in the State's response.
As to ground three, the court stated in pertinent part:
4
As to Ground III, the defendant's motion
is granted as to the claim that the
consecutive Habitual Felony Offender sentences
imposed on Counts 1, 4, and 5 of the
Information should be set aside and the
defendant
resentenced
on
those
counts.
However, that part of Ground III which raises
the issue that his sentences were from a
"single criminal episode" is denied.
Id. at 33 (emphasis deleted). On September 13, 2007, the court
resentenced Hamilton to a term of life imprisonment on count four;
a
term
of
imprisonment
of
ten
years
on
count
one,
to
run
concurrently with count four; a term of imprisonment of one year on
count two, to run consecutively to count four; and a term of
imprisonment of one year on count three, to run consecutively to
count two. Id. at 46-54, New Judgment.
Hamilton, with the benefit of counsel, appealed from the new
judgment, arguing that the circuit court erred when it denied his
request
for
post-conviction
relief
as
to:
the
imposition
of
misdemeanor sentences to run consecutively to a habitual offender
sentence (ground one), and his ineffectiveness claim without either
an evidentiary hearing or the attachment of portions of the record
which would refute the claim (ground two). Resp. Ex. T. The State
filed an answer brief. Resp. Ex. U. On December 24, 2008, the
appellate court affirmed the circuit court's denial as to ground
one, stating that the sentences for Hamilton's misdemeanor offenses
could be imposed to run consecutively to one another and to his two
concurrent habitual felony offender sentences. Hamilton v. State,
5
996 So.2d 964 (Fla. 1st DCA 2008); Resp. Ex. V. As to the
ineffectiveness claim, the court reversed and remanded the case to
the circuit court to either hold an evidentiary hearing on the
claim or attach portions of the record that conclusively refuted
the claim. Id. The mandate issued on January 9, 2009. Resp. Ex. W.
On remand, the court held an evidentiary hearing, see Resp.
Ex. Y at 11-72, Transcript of the Evidentiary Hearing (EH Tr.), and
ultimately denied the ineffectiveness claim on April 10, 2012, see
id. at 7-10. Hamilton appealed, see Resp. Ex. Z, and the State
filed an answer brief, see Resp. Ex. AA. On January 23, 2014, the
appellate court affirmed the court's denial of post-conviction
relief per curiam, see Hamilton v. State, 130 So.3d 1279 (Fla. 1st
DCA 2014); Resp. Ex. BB, and the mandate issued on February 18,
2014, see Resp. Ex. CC.
While his post-conviction proceedings were pending, Hamilton
filed a pro se petition for writ of certiorari on February 5, 2007.
Resp. Ex. EE. The appellate court construed it as a petition
alleging ineffective assistance of appellate counsel and on March
30, 2007, found the unsworn petition to be "legally insufficient";
but gave Hamilton twenty days to serve a sworn amended petition.
Resp. Exs. DD; HH. After Hamilton failed to timely respond, the
court dismissed the action on May 2, 2007. Resp. Ex. II. On June
13, 2007, the court granted Hamilton's motion for clarification and
6
denied his motion for reinstatement of the action. Resp. Exs. JJ;
LL.
Also, while his post-conviction proceedings were pending,
Hamilton filed a pro se petition alleging ineffective assistance of
appellate counsel on June 29, 2007. Resp. Ex. NN. In the petition,
Hamilton asserted the trial court erred by allowing Hamilton to
stand trial for kidnaping when the State failed to prove all the
statutory elements (ground one); the court erred when it sentenced
Hamilton as a habitual felony offender because the State failed to
prove that he was convicted of two or more felonies within the last
five years (ground two); and the court erred when it sentenced him
to a prison term for two misdemeanor convictions (ground three). On
July 25, 2007, the appellate court denied the petition on the
merits. Hamilton v. State, 962 So.2d 366 (Fla. 1st DCA 2007) (per
curiam); Resp. Ex. OO.
On May 10, 2012, Hamilton filed a pro se amended motion for
newly discovered evidence. Resp. Ex. PP. In the request for postconviction
ineffective
relief,
due
to
Hamilton
a
asserted
conflict
of
that
his
interest.
counsel
According
was
to
Respondents, see Response at 4, and the state court docket,1 the
motion is still pending in state court.
1
See https://core.duvalclerk.com (Case No. 16-2004-CF-011201AXXX-MA).
7
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).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See Chavez
v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). "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); Jones v. Sec'y,
Fla. Dep't of Corr., No. 13-15053, 2016 WL 4474677, at *14 (11th
Cir. Aug. 25, 2016). "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." Schriro, 550 U.S. at 474. The pertinent facts of this
case are fully developed in the record before the Court. Because
this Court can "adequately assess [Hamilton's] claim[s] without
further factual development," Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003), an evidentiary hearing will not be conducted.
8
V. Standard of Review
The Court will analyze Hamilton'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 (1) resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
established
Federal
law,
as
determined by the Supreme Court of
the United States; or
(2) resulted in a decision that
was
based
on
an
unreasonable
determination of the facts in light
of the evidence presented in the
State court proceeding.
Thus,
28
U.S.C.
§
2254(d)
"bars
relitigation
of
any
claim
'adjudicated on the merits' in state court, subject only to the
exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 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
9
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States," 28 U.S.C. § 2254(d)(1), or
"was based on an unreasonable determination of
the facts in light of the evidence presented
in the State court proceeding," id. §
2254(d)(2). "Under § 2254(d)(1)'s 'contrary
to' clause, we grant relief only 'if the state
court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme Court] has on a
set of materially indistinguishable facts.'"
Jones v. GDCP Warden, 753 F.3d 1171, 1182
(11th Cir. 2014) (quoting Williams v. Taylor,
529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d
389
(2000)).
"Under
§
2254(d)(1)'s
'unreasonable application' clause, we grant
relief only 'if the state court identifies the
correct governing legal principle from [the
Supreme] Court's decisions but unreasonably
applies that principle to the facts of the
prisoner's case.'" Id. (quoting Williams, 529
U.S. at 413, 120 S.Ct. 1495).
For § 2254(d), clearly established
federal law includes only the holdings of the
Supreme Court – not Supreme Court dicta, nor
the opinions of this Court. White v. Woodall,U.S. -, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698
(2014). To clear the § 2254(d) hurdle, "a
state prisoner must show that the state
court's ruling on the claim being presented in
federal court was so lacking in justification
that there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement."
Harrington v. Richter, 562 U.S. 86, 131 S.Ct.
770, 786-87, 178 L.Ed.2d 624 (2011). "[A]n
'unreasonable application of' [Supreme Court]
holdings must be 'objectively unreasonable,'
not merely wrong; even 'clear error' will not
suffice." Woodall, 134 S.Ct. at 1702 (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123
S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state
court need not cite or even be aware of
10
Supreme Court cases "so long as neither the
reasoning nor the result of the state-court
decision contradicts them." Early v. Packer,
537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263
(2002); accord Richter, 131 S.Ct. at 784.
"AEDPA thus imposes a highly deferential
standard for evaluating state-court rulings
and demands that state-court decisions be
given the benefit of the doubt." Renico v.
Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 176
L.Ed.2d 678 (2010) (citations and internal
quotation marks omitted). And when a claim
implicates both AEDPA and Strickland, our
review is doubly deferential. Richter, 131
S.Ct. at 788 ("The standards created by
Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem,
review is doubly so." (citations and internal
quotation marks omitted)). [A petitioner] must
establish that no fairminded jurist would have
reached the Florida court's conclusion. See
Richter, 131 S.Ct. at 786-87; Holsey v.
Warden, Ga. Diagnostic Prison, 694 F.3d 1230,
1257-58 (11th Cir. 2012). "If this standard is
difficult to meet, that is because it was
meant to be." Richter, 131 S.Ct. at 786....
Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th
Cir. 2014), cert. denied, 135 S.Ct. 2323 (2015); see also Hittson
v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014), cert. denied,
135 S.Ct. 2126 (2015).
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
11
no AEDPA requirement that a state court explain its reasons for
rejecting a claim[.]"); see Richter, 562 U.S. at 100 (holding and
reconfirming 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'"). Recently, the Eleventh Circuit instructed:
Under section 2254(d), a federal court
reviewing the judgment of a state court must
first identify the last adjudication on the
merits. It does not matter whether that
adjudication provided a reasoned opinion
because section 2254(d) "refers only to 'a
decision'" and does not "requir[e] a statement
of reasons." Id. at 98, 131 S.Ct. 770.[2] The
federal court then must review that decision
deferentially.
Wilson v. Warden, Ga. Diagnostic Prison, No. 14-10681, 2016 WL
4440381, at *6 (11th Cir. Aug. 23, 2016) (en banc). Once the
federal court has identified the last adjudication on the merits,
it must review that decision under the deferential standard of
section 2254(d). Id.
When the last adjudication on the merits
provides no reasoned opinion, federal courts
review that decision using the test announced
in Richter. In Richter, . . . the Supreme
Court of the United States ruled that,
"[w]here
a
state
court's
decision
is
unaccompanied
by
an
explanation,"
a
petitioner's burden under section 2254(d) is
to "show[] there was no reasonable basis for
the state court to deny relief." Id. at 98,
131 S.Ct. 770. "[A] habeas court must
determine what arguments or theories supported
or, as here, could have supported, the state
court's decision; and then it must ask whether
2
Harrington v. Richter, 562 U.S. 86, 98 (2011).
12
it is possible fairminded jurists could
disagree that those arguments or theories are
inconsistent with the holding in a prior
decision of [the] Court." Id. at 102; 131
S.Ct. 770....
Id. at *5.
As such, the Eleventh Circuit instructed that "federal courts
should not . . . assume that the summary affirmances of state
appellate courts adopt the reasoning of the court below." Id. at
*7. Nevertheless, when assessing whether there "was no reasonable
basis for the state court to deny relief," Richter, 562 U.S. at 98,
"a federal habeas court may look to a previous opinion as one
example of a reasonable application of law or determination of
fact." Wilson, 2016 WL 4440381, at *9. The Eleventh Circuit
explained the role of the state trial court's reasoned opinion
under these circumstances as follows:
When the reasoning of the state trial court
was reasonable, there is necessarily at least
one reasonable basis on which the state
supreme court could have denied relief and our
inquiry ends. In this way, federal courts can
use previous opinions as evidence that the
relevant state court decision under review is
reasonable. But the relevant state court
decision for federal habeas review remains the
last adjudication on the merits, and federal
courts are not limited to assessing the
reasoning of the lower court.
Id. Thus, to the extent that Hamilton's claims were adjudicated on
the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
13
VI. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust
state remedies, the petitioner must "fairly present[]" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one
complete
round
of
the
State's
established
appellate
review
process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the
necessary "opportunity," the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court
with powers of discretionary review), thereby
alerting that court to the federal nature of
the claim. Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
14
838, 845,
(1999).
119
S.Ct.
1728,
144
L.Ed.2d
1
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a potential
bar to federal habeas review. The United States Supreme Court has
explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman,[3] supra, at 747–748, 111 S.Ct.
2546; Sykes,[4] supra, at 84–85, 97 S.Ct. 2497.
A state court's invocation of a procedural
rule to deny a prisoner's claims precludes
federal review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. --, --, 131 S.Ct. 1120,
1127–1128, 179 L.Ed.2d 62 (2011); Beard v.
Kindler, 558 U.S. --, --, 130 S.Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine
barring procedurally defaulted claims from
being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
3
Coleman v. Thompson, 501 U.S. 722 (1991).
4
Wainwright v. Sykes, 433 U.S. 72 (1977).
15
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus, procedural
defaults
may
be
excused
under
certain
circumstances.
Notwithstanding that a claim has been procedurally defaulted, a
federal court may still consider the claim if a state habeas
petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Maples v.
Thomas, 132 S.Ct. 912, 922 (2012) (citations omitted); In Re Davis,
565 F.3d 810, 821 (11th Cir. 2009) (citation omitted). In order for
Petitioner to establish cause,
the procedural default "must result from some
objective factor external to the defense that
prevented [him] from raising the claim and
which cannot be fairly attributable to his own
conduct." McCoy v. Newsome, 953 F.2d 1252,
1258 (11th Cir. 1992) (quoting Carrier, 477
U.S. at 488, 106 S.Ct. 2639). Under the
prejudice prong, [a petitioner] must show that
"the
errors
at
trial
actually
and
substantially disadvantaged his defense so
that he was denied fundamental fairness." Id.
at 1261 (quoting Carrier, 477 U.S. at 494, 106
S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In
the
petitioner
absence
may
of
receive
a
showing
of
consideration
cause
on
and
the
prejudice,
merits
of
a
a
procedurally defaulted claim if he can establish that a fundamental
miscarriage of justice, the continued incarceration of one who is
16
actually innocent, otherwise would result. The Eleventh Circuit has
explained:
[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default." Carrier, 477 U.S. at 496,
106 S.Ct. at 2649.[5] "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. "To meet this standard, a petitioner must
'show that it is more likely than not that no reasonable juror
would have convicted him' of the underlying offense." Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, "'[t]o be credible,'
a claim of actual innocence must be based on reliable evidence not
presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(quoting
Schlup,
513
U.S.
at
324).
With
the
rarity
of
such
evidence, in most cases, allegations of actual innocence are
ultimately summarily rejected. Schlup, 513 U.S. at 324.
5
Murray v. Carrier, 477 U.S. 478 (1986).
17
VII. Ineffective Assistance of Counsel
"The Sixth Amendment guarantees criminal defendants effective
assistance
counsel's
of
counsel.
performance
That
right
is
denied
when
falls
below
an
objective
a
defense
standard
of
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
18
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized "the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other." Ward, 592 F.3d at 1163.
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." Id. (citing Holladay v. Haley, 209 F.3d
1243, 1248 (11th Cir. 2000)). As stated in Strickland: "If it is
easier to dispose of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will often be so, that
course should be followed." Strickland, 466 U.S. at 697.
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
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
19
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). "In addition to the deference to counsel's performance
mandated
by
Strickland,
the
AEDPA
adds
another
layer
of
deference--this one to a state court's decision--when we are
considering whether to grant federal habeas relief from a state
court's decision." Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th
Cir. 2004). As such, "[s]urmounting Strickland's high bar is never
an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
VIII. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Hamilton asserts that the trial court denied
him the right to confront the victim at trial. See Petition at 5.
He states that the State's presentation of statements made by the
victim to a sexual assault examiner in the course of the sexual
assault examination violated his confrontation rights. Id. He
explains:
The victim was not present in trial to be
pressured by cross examine for the truth.
State relied on medical examiner, but this was
not the victim, the victim should have [been]
present during trial to verify the State
witness statements [were] true, State witness
statements should be hear-say.
Id. Hamilton argued this issue on direct appeal, see Resp. Exs. G;
I; the State filed an Answer Brief, see Resp. Ex. H, and the
20
appellate court affirmed Hamilton's conviction and sentence per
curiam as to this issue, see Hamilton, 929 So.2d 575; Resp. Ex. J.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. H at 12-24, and therefore, the appellate
court may have affirmed Hamilton's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly 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. Accordingly, Hamilton is
not entitled to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, Hamilton's claim is still
without merit. The Confrontation Clause of the Sixth Amendment of
the United States Constitution guarantees a defendant the right "to
be confronted with the witnesses against him." U.S. Const. amend.
VI; see Crawford v. Washington, 541 U.S. 36, 42 (2004) (citation
omitted).
This includes the right to cross-examine witnesses. See
Pointer v. Texas, 380 U.S. 400, 406-07 (1965). As such, the
Confrontation Clause prohibits the use of "testimonial hearsay"
21
against a defendant to secure his conviction. Crawford, 541 U.S. at
53. In the instant action, Hamilton asserts that the Confrontation
Clause required the State to produce the victim to testify at trial
instead of relying on Nurse Practitioner Jodi B. Yaver to testify
about what the victim told her at the Sexual Assault Response
Center (SARC).
On federal habeas review, harmless error is determined by
applying the standard set forth in Brecht v. Abrahamson, 507 U.S.
619 (1993).
On collateral review, we apply the harmlesserror standard as articulated in Brecht v.
Abrahamson, which dictates that a federal
court may grant habeas relief on account of a
constitutional error only if it determines
that
the
constitutional
error
had
a
"substantial and injurious effect or influence
in determining the jury's verdict." 507 U.S.
619, 623, 113 S.Ct. 1710, 1714, 123 L.Ed.2d
353 (1993) (internal quotation marks omitted);
see Trepal v. Sec'y, Fla. Dep't of Corr., 684
F.3d 1088, 1110-12 (11th Cir. 2012) (outlining
Brecht analysis on federal habeas review),
cert. denied, Trepal v. Crews, -- U.S.--, 133
S.Ct. 1598, 185 L.Ed.2d 592 (2013). Under the
Brecht standard, the petitioner should prevail
when the record is "so evenly balanced that a
conscientious judge is in grave doubt as to
the harmlessness of an error." O'Neal v.
McAninch, 513 U.S. 432, 437, 115 S.Ct. 992,
995, 130 L.Ed.2d 947 (1995); see Caldwell v.
Bell, 288 F.3d 838, 842 (6th Cir. 2002) ("When
faced with a Sandstrom error a court should
not assume it is harmless but must review the
entire case under the harmless-error standard
the Supreme Court most recently expounded in
Brecht...."). "To show prejudice under Brecht,
there must be more than a reasonable
possibility that the error contributed to the
22
conviction or sentence." Trepal, 684 F.3d at
1114 (internal quotation marks omitted).
Owens v. McLaughlin, 733 F.3d 320, 328 (11th Cir. 2013).
Applying Brecht, "a federal constitutional error is harmless
unless there is 'actual prejudice,' meaning that the error had a
'substantial and injurious effect or influence' on the jury's
verdict." Mansfield v. Sec'y, Dep't of Corr., 679 F.3d 1301, 1307
(11th Cir. 2012) (quoting Brecht, 507 U.S. at 637). "To show
prejudice under Brecht, there must be more than a reasonable
possibility
that
the
error
contributed
to
the
conviction
or
sentence." Mason v. Allen, 605 F.3d 1114, 1123 (11th Cir. 2010)
(internal quotation marks and alteration omitted).
As previously stated, the State charged Hamilton with sexual
battery, see Resp. Ex. C at 131, and a jury found him guilty of
attempted sexual battery, a lesser-included offense of sexual
battery, see id. at 188, Verdict-Count I; Tr. at 362. At trial,
Nurse Yaver testified:
A. Okay. Basically she [(the victim)]
told me that a stranger at the Smokers Express
called her over to talk to her in a parking
lot. And she remembers it was near the Hardees
in Riverside. He hit her and he drug her to
the back of a building and, he raped me, is
what she told me. She said that he had hit her
with his fist. She described penile/vaginal
intercourse only and she said there was no
condom used.
Tr. at 161. By finding Hamilton guilty of attempted sexual battery,
the jury apparently rejected the victim's statement made to Nurse
23
Yaver. Indeed, there was ample evidence of attempted sexual battery
without Nurse Yaver's testimony describing the victim's statement.
Such evidence is entirely independent of the victim's account that
Hamilton had hit and raped her.
The evidence at trial included the testimony of part-time
private investigator Jack McDowell, who was conducting independent
covert surveillance in the early morning hours of August 3, 2004,
in the Riverside neighborhood. Id. at 30-34. McDowell testified
that he saw a woman struggling with a large black man and heard
what sounded to him "like a woman crying or exclaiming." Id. at 36.
He stated that "she was trying to make noises that were almost [a]
call for help or exclamation of distress but that was being impeded
by the actions" of the man. Id. at 37. McDowell said that "she was
definitely
trying
to
get
away"
from
the
man.
Id.
at
37-38.
According to McDowell, he saw the man kicking and punching the
victim, heard a "sob or whimper" after the punching, and saw the
man reach down and say something in a "[r]ough, angry, demeaning"
tone of voice. Id. at 42-43. McDowell stated that he saw the man
"dragging, pulling, persuading, like it was a pulling and then a
talking component, then another couple more pulls." Id. at 43-44.
Kristan Renee Hunter lived near the scene of the crime. Id. at
61. Hunter testified that she was awakened just before 3:00 a.m.
that morning and was getting a glass of water when she heard crying
and whimpering from a female. Id. at 66. According to Hunter, she
24
looked out of her apartment window, did not see or hear anything,
and returned to her bed; she then "heard the crying again" and
"heard a female say no." Id. at 66-67. She testified:
I heard, no, and some more crying. And
then I heard her say stop. And then that was
when I looked out my bedroom window and I -from my bedroom window I can see directly down
in that space between those two buildings
behind my place and that's when I saw him
raping her.
. . . .
It was -- it was dark, and I could
definitely tell that it was a male and I saw
his -- his body was thrusting back and forth,
and then I ran to get my phone to call 911.
. . . .
It was her left arm up against that wall
and it was kind of just moving back and forth,
and seemed very disoriented.
Id. at 67, 68. She stated that she "was looking directly" at the
man's back, and "[i]t looked like he was propped up by his hands"
and was thrusting "[h]is hips, his body." Id. at 68. According to
Hunter, once she retrieved her phone to call 911, she looked out
the window again and saw "[t]he same thing" and the victim's
"crying and whimpering was on and off" and "[e]ventually [the
victim] just stopped." Id.
at 68-69. Hunter stated that she
described the ongoing incident to the 911 operator, and confirmed
that the man never stopped his thrusting while she was on the
phone. Id. at 69. She further testified as to what transpired when
the police arrived.
25
It seemed like a long time . . . . And
then eventually I heard some noise, I heard
her start yelling help, and then -- and then
the officers and the dogs.
. . . .
My memory of this part isn't as great. I
remember as soon as -- as soon as she started
yelling help, help, help, he stood up and
pulled his pants up and the girl backed up
more toward my place and they started to try
to detain him. An officer came back and put a
blanket over -- around her. She -- she was
holding parts of her shirt, I don't know, I
can't remember if her shirt was all the way
off or I just I could see her bra.
. . . .
She had -- she had her pants on and I
could see her bra and I can't remember if her
shirt was half on or totally off.
Id.
at
70,
71.
On
cross-examination,
the
following
transpired:
Q. Okay. Now, you don't know why this
woman was crying and whimpering, do you?
A. Because she was being raped.
Q. You don't know -- well, did you ever
actually see them having sex?
A. Technically I can't say that I saw
penetration.
Q. In fact, you told the 911 operator you
couldn't say that he was actually raping her?
A. Well, when she asked me that question
do you see -- can you see him raping her, I
paused thinking in my head I know what the
26
colloquy
definition of rape is, and I said no because I
couldn't see actual penetration.[6]
Q. Absolutely. You never saw his penis in
or upon the vagina of this woman?
A. Correct.
Q. You never actually saw any part of her
body other than her arm?
A. Correct.
Q. You have no idea whether her pants
were up or down?
A. None.
Q. You never saw him hit her?
A. No.
Q. You never saw him drag her into the
alley?
A. No, they were already there.
Q. You don't
consent or not?
know
if
she
had
given
A. When I heard her say no and stop.
Q. But you –
A. I wouldn't have called the police if I
hadn't heard that.
Q. You don't know what she was saying no
and stop about, though?
A. I assumed it was about the sex.
. . . .
6
Hunter testified that she worked for the State Attorney's
Office as a victim's advocate. Tr. at 76.
27
A. In my gut I knew that's what was
happening, I would never have called the
police if I didn't think that.
Id. at 78-79.
Jacksonville Sheriff's Officer Jason Charles Royal, who was
assigned
to
the
canine
unit,
responded
to
the
911
testified as follows:
At that time I turned, I had already locked my
vehicle, so I put the key in the door and was
unlocking the door to get Ranger [(his canine
dog)] out of the vehicle. At that time I heard
a woman's voice saying, please don't leave,
please don't leave, please help me. And at
that time I turned and put my flashlight on
the area that I heard the voice coming from
and I seen [sic] a woman on the ground on her
back looking back at me with a black male on
the top of her with his arm around her head
and his hand looked like he was trying to put
his hand over her mouth.
Id. at 89. The following colloquy transpired:
Q. Okay. Officer, the people that you're
referring to, were they sort of like heads
toward you or heads away from you pointing
down.
A. Heads toward me.
Q. Did you notice anything about their
state of clothing?
A. Yes, sir, it was in disarray.
Q. Could you tell whether there was any
clothing removed from either individual?
A. Yes, when the suspect actually got up,
his pants were around his ankles and the
woman, it appeared her pants have [sic] been
torn down around her ankles.
28
call
and
Q. So was either of them clothed in the
genital area?
A. No, sir, weren't.
Q. When you observed them please describe
the relative position of their body; was he on
top of her, was she on top of him, what was
going on?
A. She was on her back and he was on top
of her in, like, a head lock.
Q. Did she appear to be enjoying what was
going on?
A. No, sir.
Q. Was she offering resistance as far as
you could tell?
A. Yes, sir, she was trying to get out
from underneath him.
Id. at 93-94. Royal identified Hamilton as the male involved. Id.
at 94-95.
Jacksonville Sheriff's Officer Frederick Ralph Dash also
responded to the 911 call and testified as follows:
A. Yes, sir, when I got there Officer
Bowen had his dog out and his dog began to
alert, then we heard [a] cry for help coming
between the building.
Q. Cry for help, female, male, could you
tell?
A. Female.
. . . .
A. Upon my arrival Officer Bowen and
myself arrived and we heard the cry for help.
And went back toward the alleyway. And we seen
[sic] the suspect coming off of a victim who
29
was crawling off the top of her. He was in the
prone position crawling. And as he crawled out
you could see his pants were slightly down.
Id. at 116, 117.
Canine Officer Wes Bowen, who also responded to the 911 call,
testified as follows:
Yes, as I was saying when my dog started
to indicate and I felt there was a victim and
suspect were possibly close by, just then
Officer Royal had pulled up and actually
pulled his car up to the Hardees. Pulled into
the Hardees actually just shy of the Hardees
parking lot and he started to get out of his
car. I started to say to them hey, I think
they're right here somewhere by the way the
dog is acting, right then I saw him shine his
flashlight back behind the Hardees. And I
looked to the area where the flashlight was
and immediately I saw the victim and suspect,
the suspect was on top of the victim. And he
started to stand up and I noticed that he
didn't have any pants on. And then at the same
time the victim cried out something and the
victim started to get up and I saw she didn't
have pants on. The suspect started to crawl
out, looked like he was getting ready to try
and escape so we started running toward him
yelling at him to come out, show his hands.
Id. at 138-39.
There
was
ample
evidence,
unrelated
to
Nurse
Yaver's
testimony, of Hamilton's attempted sexual battery upon the victim.
Upon review of the record as a whole, this Court concludes Hamilton
has not established that any purported Confrontation Clause error
"had a substantial and injurious effect or influence in determining
the jury's verdict." Nor has he shown "more than a reasonable
possibility that the error contributed" to the conviction. Trepal
30
v. Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1114 (11th Cir. 2012)
("The question turns on whether the Court can 'say, with fair
assurance,' that the verdict 'was not substantially swayed by the
error[.]'"). Given the record, Hamilton is not entitled to habeas
relief as to ground one.
B. Ground Two
As ground two, Hamilton asserts that the trial court violated
his First Amendment right to freedom of speech when it permitted
the State to provide evidence of the victim's statements, but did
not permit him, during his trial testimony, to recount statements
made by the victim. Petition at 6. Respondents argue that Hamilton
did not present this First Amendment claim on direct appeal, and
thus Hamilton's freedom of speech claim has not been exhausted and
therefore is procedurally barred. See Response at 16-18. On this
record, the Court agrees that the claim has not been exhausted and
is therefore procedurally barred since Hamilton failed to raise the
claim in a procedurally correct manner. Hamilton has not shown
either cause excusing the default or actual prejudice resulting
from
the
warranting
bar.
the
Moreover,
he
application
has
of
failed
the
to
identify
fundamental
any
fact
miscarriage
of
justice exception.
Even
assuming
that
Hamilton's
claim
is
not
procedurally
barred, Hamilton is not entitled to relief. To the extent Hamilton
argued this issue on direct appeal, see Resp. Exs. G; I, the State
31
filed an Answer Brief, see Resp. Ex. H, and the appellate court
affirmed Hamilton's conviction and sentence per curiam as to this
issue, see Hamilton, 929 So.2d 575; Resp. Ex. J. In its appellate
brief, the State addressed the claim on the merits, see Resp. Ex.
H at 25-26, and therefore, the appellate court may have affirmed
Hamilton's
conviction
appellate
court
based
addressed
on
the
the
State's
merits,
argument.
the
state
If
the
court's
adjudication of this claim is entitled to deference under AEDPA.
After a review of the record and the applicable law, the Court
concludes that the state court's adjudication of this claim was not
contrary to clearly established federal law and did not involve an
unreasonable application of clearly 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. Accordingly, Hamilton is not entitled
to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, and that the claim presents a
sufficiently exhausted issue of federal constitutional dimension,7
Hamilton's First Amendment claim is nevertheless without merit.
The Florida Evidence Code dictates the admissibility of evidence
and witness testimony. Specifically, Florida Statutes section
90.801(c) provides that hearsay is "a statement, other than the one
7
See Response at 16-18.
32
made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted."
Florida Statutes section 90.803 sets forth numerous exceptions to
Florida's evidentiary hearsay rule. At trial, Hamilton testified.
See Tr. at 189-249. Hamilton wanted to testify about how the victim
allegedly had said she was beaten up by another man shortly before
the incident involving Hamilton. See id. at 196. The trial judge
sustained the prosecutor's objection. See id. Throughout Hamilton's
testimony, the trial judge admonished Hamilton that he would not be
permitted to testify about what the victim said.
Although alleged state law errors generally are not grounds
for federal habeas relief, "a habeas court may review a state
court's evidentiary rulings in order to determine whether those
rulings violated the petitioner's right to due process by depriving
him of a fundamentally fair trial." Copper v. Wise, 426 F. App'x
689, 692 (11th Cir. 2011) (citing Felker v. Turpin, 83 F.3d 1303,
1311-12 (11th Cir. 1996)). The Eleventh Circuit explained:
Of course not all errors in state trial
proceedings support claims for habeas relief.
As relevant here, a federal court reviewing a
state prisoner's habeas petition may not
"reexamine
state-court
determinations
on
state-law questions," Estelle v. McGuire, 502
U.S. 62, 67–68, 112 S.Ct. 475, 480, 116
L.Ed.2d 385 (1991), but it may review state
evidentiary rulings to determine whether the
rulings violated the petitioner's due process
rights. Felker v. Turpin, 83 F.3d 1303,
1311–12 (11th Cir. 1996). In such instances,
the inquiry is limited to determining whether
evidentiary errors "'so infused the trial with
33
unfairness as to deny due process of law.'"
Felker, 83 F.3d at 1311 (quoting Lisenba v.
California, 314 U.S. 219, 228, 62 S.Ct. 280,
286, 86 L.Ed. 166 (1941)) (citations omitted).
Smith v. Jarriel, 429 F. App'x 936, 937 (11th Cir. 2011). "To
constitute a violation of a defendant's due process rights, the
admitted evidence must have been (1) erroneously admitted, and (2)
'material in the sense of a crucial, critical, highly significant
factor in the [defendant's] conviction.'" Hill v. Sec'y, Fla. Dep't
of Corr., 578 F. App'x 805, 810 (11th Cir. 2014) (per curiam)
(citation omitted), cert. denied, 135 S.Ct. 1483 (2015). In the
context of the trial as a whole, the trial court's ruling, see Tr.
at 196, resulting in Hamilton not being permitted to testify about
what the victim allegedly told him about another man beating her,
did not so infuse the trial with unfairness as to deny Hamilton due
process of law. The trial judge sustained the State's objections to
hearsay throughout Hamilton's testimony and admonished Hamilton
numerous times that he would not be permitted to testify as to what
the victim or other individuals said that morning. See id. at 194,
195, 196, 198, 199, 209, 212, 213, 215, 220. Nevertheless, the jury
heard Hamilton's account of how he met the victim, what she looked
like each time he saw her, and what transpired that morning between
them. Hamilton is not entitled to federal habeas relief on ground
two.
34
C. Ground Three
As ground three, Hamilton asserts that counsel (Debra Billard)
was ineffective because she failed to investigate witnesses and
present a videotape to the jury that would have been "helpful" to
his defense. Petition at 8. Hamilton raised the ineffectiveness
claim in his Rule 3.850 motion in state court, and the circuit
court held an evidentiary hearing concerning this issue.8 The court
ultimately denied the post-conviction motion with respect to this
claim, stating in pertinent part:
1. Debra Billard is an experienced and
well respected Assistant Public Defender, who
had been practicing criminal defense law for
18 years at the time of the hearing. Ms.
Billard testified that, while it was true that
she did not obtain any surveillance camera
films or photographs from stores in the
neighborhood where the jury found that the
defendant kidnaped, battered and attempted to
rape the victim in this case, the defendant
took the stand in the trial and testified at
great length as to how he and the alleged
victim had been drinking and smoking crack
cocaine together and had been together for a
couple of days. She testified that the State
never disputed that point. The State conceded
that the defendant and the victim were not
strangers during the trial. The victim was not
present for the trial and did not testify. She
apparently was incarcerated in Tennessee at
the time of the trial.
2. The motion complains of the fact that
the victim told the police that she and the
defendant were strangers. However, as the
victim did not testify, the jury never heard
8
At the evidentiary hearing, the court heard testimony from
Hamilton and Debra Billard (Hamilton's trial counsel).
35
about this issue from her or any other
witness, other than the defendant. As the
State conceded this issue, there was no reason
for Ms. Billard to seek or obtain any photos
or videos showing the victim and the defendant
together prior to the commission of the crime.
3. Several eyewitnesses testified that
they saw the defendant dragging the victim
through an alley, stomping on her, beating
her, and then appearing to have sex with her
in an alley behind a garage. One witness was
Jack McDowell, a private investigator who was
using binoculars to stake out a convenience
store to investigate allegations that the
clerk was giving away inventory to his
friends. Another was a paralegal who worked
for the State Attorney's Office, who lived
above the alley. She testified that she heard
screaming under her window and looked out and
saw what she believed to be a sexual battery
taking place. Another was an officer from a
canine unit who arrived on the scene, heard
someone yelling "Help me," and observed a
naked girl on the ground and a man getting up
and putting on his pants.
4. Ms. Billard also testified that the
defendant never made any mention to her about
surveillance film or photos until shortly
before the case was set for trial. When he
brought up this subject, she told him she
would ask for a continuance of the trial date
so that she could subpoena the films and
photos from stores in the area and investigate
whether
they
contained
any
exoneration
evidence. She testified that the defendant
refused to let her ask for a continuance
because he did not want to waive speedy trial.
She testified that she brought the issue up to
the Court during a pretrial hearing, and the
Court inquired of him "Do you want to take
more time and let Ms. Billard get all of these
films?", and the defendant answered that he
did not want a continuance, he wanted a speedy
trial.
Ms.
Billard
testified
that
she
therefore was unable to obtain the films
36
because of the defendant's decision, whether
the films exonerated him or not.
5. State Exhibit 2, admitted into
evidence at the evidentiary hearing, is a
transcript of the hearing wherein the Court
inquired of the defendant on this issue and he
declined his opportunity to continue the trial
and have the tapes produced.
6. Ms. Billard also testified that she
had since the trial reviewed a videotape of
the store that the defendant and victim
visited some time before the crime and that
nothing in the video showed anything she could
have used. In her testimony she stated "You
couldn't really see anything."[9]
7. Ms. Billard also testified that even
if the State had not conceded the point, no
evidence of the defendant and victim knowing
each other prior to this crime would have
exonerated him, given the evidence in this
case. According to Ms. Billard, with the
evidence in this case, "They could have been
married for twenty years and it wouldn't have
changed the accusation."[10]
8. Ms. Billard is a well respected and
experienced public servant and attorney in
Jacksonville, Florida. She enjoys an excellent
reputation as a criminal defense attorney. She
practices law subject to the requirement that
she maintain truthfulness with all tribunals
at all times. She has no interest in the
outcome of this hearing, and her demeanor
while
testifying
was
frank,
open
and
responsive.
9. The defendant is a six-time convicted
felon who is desperately trying to avoid life
imprisonment for a brutal and violent crime.
He also has several misdemeanor convictions
9
10
EH Tr. at 25.
EH Tr. at 25.
37
for crimes involving dishonesty, and
demeanor while testifying was evasive
manipulative.
his
and
10. In all instances where the motion or
the defendant's testimony conflicts with the
testimony of Ms. Billard, the Court finds Ms.
Billard to be credible, and the defendant to
be unworthy of belief.
11. The defendant waived this issue by
declining his opportunity to continue the
trial date and allow Ms. Billard to procure
the films in question.
12. Whether the victim knew the defendant
or not was totally irrelevant, given the
evidence in the case; further, the State
conceded that the victim knew the defendant
and the evidence was more than sufficient to
convict defendant regardless.
Resp. Ex. Y at 7-10. On Hamilton's appeal, the appellate court
affirmed the trial court's denial per curiam, see Hamilton, 130
So.3d 1279; Resp. Ex. BB.
To the extent that the state appellate court affirmed the
trial court's denial on the merits, the appellate court's opinion
affirming the trial court's denial of this claim is the last
adjudication on the merits for purposes of this Court's deferential
review
under
§
2254(d).
Thus,
the
Court
considers
this
ineffectiveness claim in accordance with the deferential standard
for federal court review of state court adjudications. The postconviction court's reasoned order serves as evidence that the
appellate court's decision is reasonable. See Wilson, 2016 WL
4440381,
at
*9.
Additionally,
38
the
transcript
of
the
state
evidentiary hearing supports the post-conviction court's factual
findings. After a review of the record and the applicable law, the
Court concludes that the state appellate court's adjudication of
this claim was not contrary to clearly established federal law, did
not involve an unreasonable application of clearly established
federal law, and was not based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceedings. Thus, Hamilton is not entitled to relief on the basis
of this claim.
Moreover,
even
assuming
the
state
appellate court's
adjudication of this claim is not entitled to deference, Hamilton's
ineffectiveness claim is still without merit. The trial court's
conclusion
is
fully
supported
by
the
record.
Moreover,
"[d]etermining the credibility of witnesses is the province and
function of state courts, not a federal court engaging in habeas
review. Federal habeas courts have 'no license to redetermine
credibility of witnesses whose demeanor was observed by the state
court, but not by them.'" Consalvo v. Sec'y for Dep't of Corr., 664
F.3d 842, 845 (11th Cir. 2011) (quoting Marshall v. Lonberger, 459
U.S. 422 (1983)). Questions about the credibility and demeanor of
a
witness
involve
issues
of
fact,
and
"the
AEDPA
affords
a
presumption of correctness to a factual determination made by a
state court." Id. (citations omitted). It is a petitioner's burden
to rebut the presumption of correctness by clear and convincing
39
evidence. Burt, 134 S.Ct. 10. After the evidentiary hearing in
state court, the circuit court resolved the credibility issue in
favor of believing counsel's testimony over that of Petitioner
Hamilton. See Resp. Ex. Y at 10, ¶10 ("In all instances where the
motion or the defendant's testimony conflicts with the testimony of
Ms. Billard, the Court finds Ms. Billard to be credible, and the
defendant to be unworthy of belief."). Here, Hamilton has not
rebutted
the
convincing
trial
court's
evidence.
determination,
credibility
Given
Hamilton's
the
claim
finding
trial
is
by
court's
wholly
clear
and
credibility
unsupported,
and
therefore must fail.
In
evaluating
the
performance
prong
of
the
Strickland
ineffectiveness inquiry, there is a strong presumption in favor of
competence. See Anderson v. Sec'y, Fla. Dep't of Corr., 752 F.3d
881, 904 (11th Cir. 2014), cert. denied, 135 S.Ct. 1483 (2015). The
presumption that counsel's performance was reasonable is even
stronger when, as in this case, defense counsel Ms. Billard is an
experienced criminal defense attorney.11 The inquiry is "whether,
in light of all the circumstances, the identified acts or omissions
11
"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). Ms. Billard was admitted to the Florida Bar in 1991.
See http://www.floridabar.org. At the time of Hamilton's trial in
2005, Billard was an experienced trial lawyer. At the time of the
2009 evidentiary hearing, she had been practicing criminal defense
law for eighteen years. See EH Tr. at 20.
40
were
outside
assistance."
the
wide
Strickland,
range
466
of
U.S.
professionally
at
690.
competent
"[H]indsight
is
discounted by pegging adequacy to 'counsel's perspective at the
time' . . . and by giving a 'heavy measure of deference to
counsel's judgments.'" Rompilla v. Beard, 545 U.S. 374, 381 (2005).
Thus, Hamilton must establish that no competent attorney would have
taken the action that counsel, here, chose.
Moreover, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward, 592 F.3d at 1164 (quotations and
citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,
1099
(11th
Cir.
2007)
("The
question
is
whether
some
reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
On this record, Hamilton has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance. As the Eleventh Circuit has
recognized, "[t]here is much wisdom for trial lawyers in the adage
41
about
leaving
well
enough
alone."
Waters,
46
F.3d
at
1512.
Counsel's decision as to "[w]hich witnesses, if any, to call, and
when to call them, is the epitome of a strategic decision, and it
is one that [the court] will seldom, if ever, second guess." Id.;
Chandler v. United States, 218 F.3d 1305, 1314 n.14 (11th Cir.
2000) (describing the decision to call some witnesses and not
others as "the epitome of a strategic decision" (quotation marks
and citation omitted)). Moreover, "evidence about the testimony of
a putative witness must generally be presented in the form of
actual testimony by the witness or on affidavit. A defendant cannot
simply state that the testimony would have been favorable; selfserving speculation will not sustain an ineffective assistance
claim." United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991).
Even
assuming
arguendo
deficient
performance
by
defense
counsel, Hamilton has not shown any resulting prejudice. He has not
shown that a reasonable probability exists that the outcome of the
case would have been different if counsel had investigated the case
differently or more thoroughly and presented the store videotape
and/or witnesses at trial to show the jury that he and the victim
were not strangers. Hamilton's ineffectiveness claim is without
merit
since
he
has
shown
neither
deficient
performance
nor
resulting prejudice. Accordingly, Hamilton is not entitled to
federal habeas relief on ground three.
42
D. Ground Four
As ground four, Hamilton asserts that his appellate counsel
was ineffective because he failed to raise the following issue on
direct appeal: the trial court erred when it sentenced him as a
habitual felony offender where the State failed to prove that he
had committed two or more felonies within five years. Petition at
9. Hamilton raised the claim in his state "Petition Alleging
Ineffective Assistance of Appellate Counsel." Resp. Ex. NN. The
appellate court ultimately denied the petition on the merits.
Hamilton, 962 So.2d 366; Resp. Ex. OO. Respondents argue that
Hamilton's
claim
has
not
been
exhausted
and
therefore
is
procedurally barred. See Response at 26. On this record, the Court
will assume that Hamilton sufficiently exhausted the claim.
Thus,
assuming
that
Hamilton's
claim
is
a
sufficiently
exhausted claim of federal constitutional dimension, Hamilton is
still not entitled to relief. The appellate court denied Hamilton's
petition alleging ineffective assistance of appellate counsel on
the merits. Resp. Ex. OO. Therefore, the Court will address this
claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court's
adjudication of this claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
43
determination of the facts in light of the evidence presented in
the state court proceedings. Thus, Hamilton is not entitled to
relief on the basis of this claim.
Moreover, even assuming that the state court's adjudication of
this claim is not entitled to deference, Hamilton's ineffectiveness
claim
is
without
merit.
Claims
of
ineffective
assistance
of
appellate counsel are governed by the same standards applied to
trial counsel under Strickland. In order to establish prejudice,
the court must review the merits of the omitted claim. See Philmore
v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir. 2009) (citation
omitted). Appellate counsel's performance is prejudicial only if
"the neglected claim would have a reasonable probability of success
on appeal." Id. at 1265 (citation and quotations omitted); Farina
v. Sec'y, Fla. Dep't of Corr., 536 F. App'x 966, 979-80 (11th Cir.
2013)
(citation
prejudice,
omitted)
therefore,
we
("To
must
determine
evaluate
whether
whether
there
there
was
was
a
reasonable probability that [petitioner's] argument - that the
prosecutor's misconduct constituted fundamental error - would have
won the day . . . on direct appeal."), cert. denied, 135 S.Ct. 475
(2014).
Hamilton has failed to establish that appellate counsel's
failure
to
raise
the
issue
on
direct
appeal
was
deficient
performance. See Sentencing Tr. at 279 ("I find Mr. Hamilton meets
the statutory criteria and will therefore adjudicate him to be [a]
44
habitual felony offender under chapter 775.084."). Even assuming
arguendo deficient performance by appellate counsel, Hamilton has
not shown resulting prejudice. See Fla. Stat. § 775.084(1)(a).
Given the record, Hamilton has not shown a reasonable probability
exists that the claim would have been meritorious on direct appeal,
if
counsel
had
raised
the
claim
in
the
manner
suggested
by
Hamilton. Accordingly, Hamilton's ground four is without merit
since he has neither shown deficient performance nor resulting
prejudice.
E. Remaining Grounds
It appears that Hamilton is raising two more grounds in the
Reply that were not presented in the Petition. First, Hamilton
asserts that the trial court erred when it excluded testimony
relating to the victim's history of alcohol, prostitution, and drug
usage. See Reply at 2. Hamilton argued this issue on direct appeal,
see Resp. Ex. G; the State filed an Answer Brief, see Resp. Ex. H,
and the appellate court affirmed Hamilton's conviction and sentence
per curiam as to this issue, see Hamilton, 929 So.2d 575; Resp. Ex.
J. In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. H at 27-29, and therefore, the appellate
court may have affirmed Hamilton's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
45
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly 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. Accordingly, Hamilton is
not entitled to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, Hamilton's claim is still
without merit. In the context of the trial as a whole, the trial
court's ruling as to the proffer, see Tr. at 27-28, did not so
infuse the trial with unfairness as to deny Hamilton due process of
law. The jury heard Hamilton's account that he gave the victim
drugs in exchange for oral sex, see Tr. at 207-08, and that she
later agreed to exchange drugs for intercourse, see id. at 219-20.
Undoubtedly, with Hamilton's testimony at trial, the jury heard
evidence about the victim's less than desirable character and was
able to assess that evidence and give it the proper weight, if any.
Hamilton is not entitled to federal habeas relief on this issue.
Secondly, Hamilton asserts that the State should not be
allowed to justify other errors made at his trial that led to
unfairness in violation of his right to due process of law. See
Reply at 12. It appears that he is complaining that he was
convicted and sentenced for kidnaping (count four) and false
46
imprisonment (count five). Hamilton argued this issue on direct
appeal, see Resp. Ex. G, and the State filed an Answer Brief, see
Resp. Ex. H. In its appellate brief, the State addressed the claim
on the merits. See id. at 30-33. The appellate court affirmed
Hamilton's conviction and sentence per curiam as to this issue, and
stated in pertinent part:
On appeal, appellant raises several issues,
including an argument that his convictions for
both kidnaping and false imprisonment violate
double jeopardy. The State concedes error on
this double jeopardy ground, and because of
this concession, we reverse and vacate
appellant's conviction and sentence for false
imprisonment.
Hamilton, 929 So.2d 575; Resp. Ex. J (emphasis added). Hamilton
acknowledges that he was ultimately resentenced, but apparently
believes that the State and trial court are still responsible for
any resulting unfairness. Upon review of the record as a whole,
this
Court
concludes
Hamilton
has
not
established
that
any
purported trial errors had a substantial and injurious effect or
influence in determining the jury's verdict. Nor has Hamilton shown
"more than a reasonable possibility" that any alleged errors
contributed to the conviction. Trepal, 684 F.3d at 1114. Given the
record, Hamilton is not entitled to habeas relief as to this issue.
47
IX. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Hamilton seeks issuance of a certificate of appealability,
the undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial showing, Hamilton "must demonstrate that reasonable
jurists
would
find
the
district
court's
assessment
of
the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where
a
constitutional
district
claims
court
on
the
has
rejected
merits,
the
a petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
48
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If Hamilton appeals the denial of the Petition, the Court
denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
case. Such termination shall serve as a denial of the motion.
4.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 15th day of
November, 2016.
sc 11/7
c:
Terry Tyrone Hamilton, FDOC #788941
Counsel of Record
49
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