Johnson v. Secretary, Department of Corrections et al
Filing
23
ORDER denying 1 the petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 8/31/2016. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM JOHNSON,
Petitioner,
vs.
Case No. 3:14-cv-372-J-39JBT
SECRETARY, DOC, et al.,
Respondents.
ORDER
I.
STATUS
Petitioner William Johnson challenges a 2007 (Duval County)
conviction for burglary of a dwelling (count one), dealing in
stolen property (count two), and false verification of ownership on
pawnbroker transaction form (count three).
Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (Petition) (Doc. 1) at 1.
He raises ten grounds in the
Petition, and this Court will address these grounds for habeas
relief, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992),
but no evidentiary proceedings are required.
In response, Respondents filed an Answer to Petition for Writ
of Habeas Corpus (Response) (Doc. 16).
In support of their
Response, they rely on Exhibits to Answer to Petition for Writ of
Habeas Corpus (Doc. 16).1
Petitioner countered this response with
his Reply Brief (Reply) (Doc. 19).2
II.
See Order (Doc. 5).
STANDARD OF REVIEW
The Court will analyze the claims raised in the Petition
pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act (AEDPA). "By its terms [28 U.S.C.]
§ 2254(d) bars relitigation of any claim 'adjudicated on the
merits' in state court, subject only to th[re]e exceptions."
Harrington v. Richter, 562 U.S. 86, 98 (2011).
The referenced
exceptions are: (1) the state court's decision was contrary to
clearly established federal law; or (2) there was an unreasonable
application of clearly established federal law; or (3) the decision
was based on an unreasonable determination of the facts.
Id. at
100.
Recently, the Eleventh Circuit described the parameters for a
federal court to grant habeas relief, as limited by the provisions
of AEDPA:
1
The Court hereinafter refers to the documents contained in
the appendix as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the appendix. Otherwise, the page number on the particular
document will be referenced. Also, the Court will reference the
page numbers assigned by the electronic docketing system where
applicable.
2
Petitioner provides Exhibits in support of his Reply (Doc.
19), and the Court will hereinafter refer to the documents
contained therein as "App."
- 2 -
if a state court has adjudicated the merits of
a claim, we cannot grant habeas 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).
"[C]learly established federal law" under §
2254(d)(1) refers to the "holdings, as opposed
to the dicta, of th[e Supreme] Court's
decisions as of the time of the relevant
state-court decision." Williams v. Taylor, 529
U.S. 362, 412 (2000). "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)
(alteration in original) (quoting Williams,
529 U.S. at 413). "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.
(alteration
in
original) (quoting Williams, 529 U.S. at 413).
Under § 2254(d)(2), we may grant relief only
if, in light of the evidence presented in the
state court proceedings, no reasonable jurist
would agree with the factual determinations
upon which the state court decision is based.
Brumfield v. Cain, 576 U.S. ––––, 135 S. Ct.
2269, 2277 (2015).
Raleigh v. Sec'y, Fla. Dep't of Corr., No. 14-14198, 2016 WL
3563623, at *5 (11th Cir. June 30, 2016).
Also of note, the state courts' factual findings will be given
a
presumption
of
correctness
unless
- 3 -
rebutted
with
clear
and
convincing evidence, 28 U.S.C. § 2254(e)(1).
Moreover, the Court
will apply this presumption to the factual determinations of both
trial and appellate courts.
See Bui v. Haley, 321 F.3d 1304, 1312
(11th Cir. 2003).
III.
PROCEDURAL HISTORY
In order to give historical context to the ten grounds
presented in the Petition for habeas relief, the Court will provide
a brief procedural history of the state criminal case.
Petitioner
was charged by information with burglary of a dwelling, dealing in
stolen property, and false verification of ownership on pawnbroker
transaction form.
Ex. 2 at 8-9.
The state filed a notice of
intent to classify Petitioner as an habitual felony offender.
Ex.
3.
On February 14, 2007, the trial court conducted a jury trial.
Ex. 8.
The jury returned a verdict of guilty as to all three
counts.
Id. at 333; Ex. 10.
Petitioner moved for a new trial, Ex.
Id. at 126;
11 at 124-25, and the trial court denied the motion.
Ex. 14 at 200.
On
March
proceeding.
28,
Ex. 17.
2007,
the
trial
court
held
a
sentencing
The court adjudicated Petitioner guilty and
sentenced him to a term of fifteen years in prison as a prison
releasee reoffender, with a minimum mandatory fifteen years on
count one; to a concurrent term of ten years as a habitual felony
offender on count two; and to a concurrent term of five years as a
- 4 -
habitual felony offender on count three.
Id. at 224.
entered judgment and sentence on March 28, 2007.
The court
Ex. 18.
Petitioner appealed his conviction, Ex. 19, and filed an
appeal brief.
Ex. 20.
Petitioner replied.
The state filed an answer brief.
Ex. 22.
Ex. 21.
On October 8, 2008, the First
District Court of Appeal affirmed per curiam. Ex. 23. The mandate
issued on October 24, 2008.
Id.
On March 31, 2009, pursuant to the mailbox rule, Petitioner
filed a Motion for Postconviction Relief.
Ex. 24.
court ordered the state to file a written response.
The circuit
Ex. 25.
The
state filed its Response to Defendant's Motion for Post-Conviction
Relief, submitting that the motion is procedurally barred as
untimely and improperly filed, or alternatively, the grounds in the
motion are without merit.
Denying
Motion
for
Post
Ex. 26.
The circuit court, in its Order
Conviction
Relief,
found
the
post
conviction motion to be timely filed, addressed the merits of the
claims, and denied the motion for the reasons set forth in Section
II, paragraphs A, B, C and D of the state's response.
130-31.
Ex. 27 at
The state's response is attached to the order.
Id. at
132-38.
Petitioner appealed.
Ex. 28; Ex. 29.
notice that it would not file a brief.
Ex. 30.
The state filed a
The First District
Court of Appeal, on February 16, 2011, entered an order requiring
the Attorney General to show cause why the denial of the claim
- 5 -
raised in ground one, that counsel was ineffective for failing to
object
to
the
introduction
of
the
hearsay
testimony
(which
allegedly also violated the confrontation clause) of Officer Reed,
should not be reversed and the cause remanded for the trial court
to
attach
record
portions
refuting
the
claim
or
to
hold
an
evidentiary hearing. Ex. 31. The state responded, requesting that
the matter be remanded on ground one for an evidentiary hearing or
appropriate record attachments.
Ex. 32 at 3.
The First District Court of Appeal, on April 29, 2011,
affirmed the denial of grounds two through eight of the Rule 3.850
motion, Ex. 33, Opinion filed April 29, 2011, at 1, but reversed
and remanded for the trial court to conduct an evidentiary hearing
or to attach records conclusively refuting the claim that counsel
was ineffective for failure to object to the introduction of
hearsay testimony of Officer Reed.
Id. at 1-2.
In doing so, the
court said:
Officer Reed allegedly suggested than an
anonymous tipster identified the appellant as
the perpetrator of the burglary or that the
appellant fit the description of the anonymous
witness. See Postell v. State, 398 So.2d 851,
854 (Fla. 3d DCA 1981) ("[T]he inexcapable
inference from the testimony is that a nontestifying witness has furnished the police
evidence of the defendant's guilt, the
testimony is hearsay, and the defendant's
right of confrontation is defeated. . . .").
Nothing in the record refutes that claim or
the claim that he was prejudiced by counsel's
failure to object.
- 6 -
Ex. 33, Opinion filed April 29, 2011, at 2.
Petitioner sought
rehearing, but the First District Court of Appeal denied rehearing.
Ex. 34.
The mandate issued on July 6, 2011.
Ex. 33.
Thereafter, on March 28, 2012, the circuit court entered an
Order Directing State Attorney to File a Response prior to the
court ordering an evidentiary hearing. Ex. 36 at 152-53. On April
25, 2012, the state filed its Response Regarding Count One(1) of
Defendant's Motion for Post-conviction Relief and stated that an
evidentiary hearing on ground one is necessary in light of the
First
District
Court
of
Appeal's
decision.
Id.
at
161.
Petitioner, on May 24, 2012, filed a Motion to Compel Evidentiary
Hearing.
Id. at 162-64.
On April 23, 2012, the circuit court
entered its Order Denying Defendant's Motion for Postconviction
Relief.
Ex. 35.
On July 12, 2012, the circuit court, in its
Amended Order Denying Defendant's Motion for Postconviction Relief
and Denying Defendant's Motion to Compel Evidentiary Hearing,
incorporated its Order dated November 9, 2010, denying grounds two
through
eight,
and
denied
ground
one
without
conducting
an
evidentiary hearing finding the record refutes Petitioner's claim.
Ex. 36 at 140-47.
A portion of the transcript of the trial
proceedings is attached to the court's decision.
Petitioner sought a belated appeal.
responded, Ex. 38, and Petitioner replied.
Id. at 165-72.
Ex. 37.
Ex. 39.
The state
On August 13,
2013, the First District Court of Appeal granted a belated appeal.
Ex. 40 at 182.
The mandate issued on August 29, 2013.
- 7 -
Id. at 181.
Petitioner filed his brief on appeal.
Ex. 41.
The state filed a
notice that it would not file a brief.
Ex. 42.
The First District
Court of Appeal, on January 23, 2014, per curiam affirmed. Ex. 43.
The First District Court of Appeal denied rehearing.
mandate issued on March 18, 2014.
IV.
Ex. 44.
The
Ex. 43.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In ground one, Petitioner raises a claim of ineffective
assistance of trial counsel, complaining that counsel failed to
object to the introduction of inadmissible hearsay testimony from
an anonymous witness through the testimony of Officer T. M. Reed.
Petition at 4.
Petitioner raised a similar claim of ineffective
assistance of counsel in ground one of his Rule 3.850 motion.
The testimony at issue concerns the trial testimony of Officer
Reed, a defense witness, on cross examination.
The defense called
Officer Reed to testify that he did not uncover any evidence during
his investigation that tied Petitioner to the burglary of the
dwelling.
Ex. 8 at 271.
On cross, the state elicited testimony
that there were two anonymous individuals who provided broad
descriptions
of
the
suspects,
but
were
unable
to
make
identifications. Id. Officer Reed confirmed that one witness said
he saw two black individuals, one driving a truck and the other
loading televisions onto the truck.
Id. at 272.
One of the
anonymous witnesses said there was a black male, approximately
twenty to twenty-five years of age.
- 8 -
Id.
The individual also
provided information concerning what the suspect was wearing.
Id.
A female anonymous witness told the officer a beige truck pulled up
at about 6:30 in the morning.
Id. at 272-73.
The witness said she
saw one person loading a television with speakers on the trailer
attached to the truck and one person sitting in the vehicle.
at
273.
Officer
identification.
Reed
reiterated
that
no
one
made
Id.
an
Id.
On re-direct, defense counsel asked Officer Reed if, at some
point during his canvass of the area, did an individual named Marco
come to his attention.
affirmative.
Id.
Id. at 274.
Officer Reed responded in the
When defense counsel made further inquiry about
Marco, the state objected and the court sustained the objection.
Id.
At side-bar, defense counsel said:
MR. LEOMBRUNO (defense counsel):
Judge, my
only concern is that when I first called
Officer Reed to the stand I was very careful
not to get into any hearsay regarding any of
his investigation.
The State kicked in the
door when they questioned him on crossexamination about all kinds of statements
about the people he canvassed. I think it's
taken out of context and I think the jury now
needs to hear what he specifically heard from
witnesses regarding this case.
THE COURT: Well, you certainly could have
objected to anything the State asked and you
didn't.
They are now objecting.
The
objection is sustained.
Id. at 274-75.
Defense counsel then asked Officer Reed if any of
the unidentified witnesses ever gave him the name William Johnson
or any reason to believe that William Johnson had committed any
- 9 -
crimes, and Officer Reed responded in the negative.
Id. at 275.
In order to prevail on a Sixth Amendment claim of ineffective
assistance of trial counsel, Petitioner must satisfy the twopronged test set forth in Strickland v. Washington, 466 U.S. 668,
688 (1984), requiring that he show both deficient performance
(counsel's representation fell below an objective standard of
reasonableness) and prejudice (there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different).
Of import, the circuit
referenced the applicable two-pronged standard in Strickland as a
preface to addressing Petitioner's claim of ineffective assistance
of counsel.
the
Ex. 36 at 141.
applicable
standard,
The circuit court not only recognized
it
further
noted
that
all
that
is
constitutionally required is reasonably effective counsel, not
perfect or error-free counsel.
Id.
The circuit court concluded that defense counsel's conduct did
not fall outside the scope of reasonable assistance because he
called Officer Reed for the purpose of demonstrating Petitioner's
innocence.
Id. at 142.
The court went on to find that any failure
on defense counsel's part to object to the testimony elicited by
the state would not have likely affected the outcome of the case,
because even if considered to be out-of-court hearsay, it was
harmless error not to object "because the contents of the report
tended to show information gathered in the course of investigation
rather than accusatory information as to Defendant's guilt."
- 10 -
Id.
at 144 (citation omitted).
information
gathered
As such, the court opined that the
neither
accused
Petitioner
through
an
anonymous tip, nor furnished evidence of Petitioner's guilt as the
perpetrator.
Id.
Finally, the court determined that the evidence
presented did not identify Petitioner as the culprit; on the
contrary,
Officer
Reed's
testimony
bolstered
"offered evidence of reasonable doubt."
the
Id. at 145.
defense
and
As such, the
court concluded that no prejudice could result from counsel's
failure to object under these circumstances ("That is, even had
trial counsel objected to the State's questioning, the statements
in question did not point to Defendant as the perpetrator, thereby
diminishing prejudice.").
Id.
Specifically, with regard to the prejudice prong, the circuit
court said that Petitioner failed to demonstrate that, but for his
counsel's
actions
in
failing
to
object,
proceedings would have been different.
the
outcome
Id. at 145-46.
of
the
The court
determined that this is especially the case in light of the
"overwhelming weight of the evidence" presented at trial against
Petitioner.
Id. at 146.
Thus, the court made the finding that if
there had been an objection and exclusion of evidence from the
police report, it would not have negated the other significant
evidence offered against Petitioner.
Moreover,
the
circuit
court
Id.
found
that
defense
counsel
zealously advocated for his client and the record "rebuts any
allegations of ineffective assistance of counsel."
- 11 -
Id.
Thus,
after finding Petitioner failed to show deficient performance, the
court concluded that he failed to demonstrate prejudice as required
by Strickland.
affirmed.
Ex. 36 at 146.
The First District Court of Appeal
Ex. 43.
In sum, the court determined that any error in failing to
object was harmless. In making its finding on prejudice, the court
referenced
the
overwhelming
evidence
of
Petitioner's
guilt,
including the fact that the items pawned by Petitioner matched the
description and serial numbers of the victim's stolen property and
that Petitioner was caught on video claiming ownership of the
property and selling it.
As a result, the court concluded that
even assuming counsel performed deficiently in failing to object to
improper questions on cross examination, any error was harmless and
did not rise to the level of ineffectiveness.
There is a qualifying state court decision and AEDPA deference
is warranted.
decision
The adjudication of the state court resulted in a
that
involved
a
reasonable
application
of
clearly
established federal law, as determined by the United States Supreme
Court.
Therefore, Petitioner is not entitled to relief on ground
one because the state court's decision was not contrary to clearly
established
federal
law,
did
not
involve
an
unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts.
Finally, to the extent Petitioner complains that the circuit
court
failed
to
attach
records to
- 12 -
its
order
or
conduct
an
evidentiary hearing, as noted by Respondents, failure to attach
records or hold an evidentiary hearing in a post conviction
proceeding does not present a basis for federal habeas relief.
Response at 24-25.
This allegation presents a defect in the state
post conviction process;
"defects in state collateral proceedings
do not provide a basis for habeas relief."
Carroll v. Sec'y, DOC,
574 F.3d 1354, 1365 (11th Cir.) (citations omitted), cert. denied,
558 U.S. 995 (2009).
Therefore, the claim of a defect in the state
collateral process is not a claim of constitutional dimension.
Alston v. Dep't of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir.)
(recognizing that challenges to a collateral proceeding do not
undermine the legality of the conviction itself; therefore, habeas
relief is inappropriate), cert. denied, 562 U.S. 1113 (2010).
As
such, Petitioner is not entitled to habeas relief on ground one.
B.
Ground Two
In his second ground for habeas relief, Petitioner raises
another claim of ineffective assistance of trial counsel.
In this
ground, Petitioner claims his counsel's performance was deficient
and caused prejudice because counsel failed to call R. H. Bowers to
testify. Petition at 5. Petitioner raised a very similar claim in
ground two of his post conviction motion.
The circuit court
rejected this ground based on the reasons provided by the state in
its response.
Ex. 27.
The state, in its response, provided the following rationale
for denying this ground:
- 13 -
Officer Reed was the responding officer
and
did
the
bulk
of
the
on-scene
investigation.
The Defendant alleges that
Zisser was ineffective for actually calling
Officer Reed to the stand. Yes, in Ground Two
of the Defendant's Motion, the Defendant
argues that his counsel was also ineffective
for not calling Detective Bowers.
The
Defendant's stated rationale is that Detective
Bower's testimony "could have cast doubt
before the jury concerning the Burglary charge
in this purely circumstantially [sic] case."
As it turns out, Detective Bowers made clear
in his sworn deposition that he got his
information from the General Offense report
(which had been written by Officer Reed). The
Defendant also invoked his right to remain
silent when interviewed by Detective Bowers.
Given these fact[s], Zisser would have known
that Detective Bowers' testimony, at trial,
would have been objected to as classic
hearsay. Instead, if Zisser wanted to elicit
the testimony that the Defendant believes was
critical in his case, Zisser had to call
Officer Reed. By calling Officer Reed, Zisser
accomplished exactly what the Defendant would
want Detective Bowers to testify to, mainly
that the State's case as to the Burglary
charge rested on circumstantial evidence.
. . . .
Based on the above-rationale, it is clear
that Zisser's decisions regarding which
witnesses to call in the Defense's case in
chief were well-founded.
It is also the
representation hoped for when considering
competent counsel for trial purposes.
Ex. 26 at 125-26. The First District Court of Appeal affirmed this
decision.
Ex. 33.
This ground simply has no merit.
was not deficient in this regard.
Trial counsel's performance
He called Officer Reed, the
writer of the General Offense report, the source of information
- 14 -
upon
which
Detective
Bowers'
relied.
Thus,
defense
counsel
provided the evidence to the jury through the most appropriate
witness, Officer Reed.
If defense counsel had called Detective
Bowers, the state most likely would have objected to "classic
hearsay" testimony.
As a result, Petitioner was certainly not
prejudiced by counsel's decision to call Officer Reed rather than
Detective Bowers.
It should be recognized that, "[t]here are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in
the same way."
Strickland, 466 U.S. at 689.
In this instance, the
record supports the trial court's conclusion that counsel made a
sound tactical decision in presenting evidence to the jury and
defended
Petitioner
well
within
the
range
of
professional
competence by calling Officer Reed, not Detective Bowers, to
testify that there was no evidence to tie Petitioner to the
burglary.
Ex. 8 at 271.
As such, Petitioner's ineffectiveness claim is without merit
since he has neither shown deficient performance nor resulting
prejudice.
He is not entitled to relief on ground two of the
Petition, the claim of ineffective assistance of trial counsel.
Deference
decision.
under
AEDPA
should
be
given
to
the
state
court's
The state court's adjudication of this claim is not
contrary to or an unreasonable application of Strickland, or based
on an unreasonable determination of the facts.
- 15 -
C.
Ground Three
In his third ground, Petitioner again raises a claim of
ineffective assistance of counsel.
This time, he claims trial
counsel deprived him of effective assistance by failing to call
Williams Jones to testify that he could not identify the two
persons pushing the shopping cart.
The
third
ground
for
Petition at 6.
habeas
relief
is
without
merit.
Petitioner took the stand and admitted that he was with Curtis
Jackson outside of a store on Moncrief road, and Curtis Jackson had
a shopping cart filled with the stolen items and some clothes,
although Petitioner contended he did not know the items were stolen
and stated he was told otherwise.3
Ex. 8 at 217-20.
Shortly
thereafter, Petitioner was videotaped at a pawn shop providing his
identification
belongings.
and
fingerprints
and
selling
the
victim's
Id. at 221.
Petitioner raised this claim of ineffective assistance of
counsel in his Rule 3.850 motion.
3
The circuit court rejected this
Prior to Petitioner taking the stand, the trial court
conducted a colloquy to ask whether Petitioner decided to take the
stand, and further inquire as to whether it was truly his decision
to take the stand. Ex. 8 at 211-12. The trial court duly warned
Petitioner that the number of prior felony convictions and
misdemeanors involving crimes of dishonesty could be brought before
the jury. Id. at 212. Even with this warning, Petitioner decided
to take the stand and testified at trial. "It is by now abundantly
clear that a criminal defendant has a fundamental right to testify
on his own behalf at trial." Nejad v. Attorney General, Ga., No.
15-14856, 2016 WL 4011142, at *7 (11th Cir. July 27, 2016)
(citations omitted).
- 16 -
ground, relying on the reasons provided in the state's response to
the post conviction motion.
The state provided:
As with any witness called by either the
State or the Defense, the opposing side has a
right to cross-examine the witness.
Many
times when this happens opposing counsel will
make points that benefit opposing counsel's
theory of the case.
That happened in this
case as well.
The door was opened for the
State to cross-examine Officer Reed regarding
the witnesses he interviewed at the scene.
Officer Reed though did not interview anyone
that actually identified the Defendant.
Instead, Officer Reed's testimony primarily
accomplished
what
both
Zisser
and
the
Defendant hoped it would.
Mainly, the jury
learned that there were two suspects and that
neither suspect was actually identified by a
witness. Of course, this also supported the
State's theory that the Defendant committed
the crime with a co-defendant and, therefore,
both would be equally guilty of the crime.
The
same
arguments
apply
to
the
Defendant's claim that William Jones should
have been called.
William Jones' testimony
would have simply corroborated that of Officer
Reed's.
William Jones testimony is not
exculpatory
in
nature
and
is
actually
inculpatory as it confirms the State's theory
that the Defendant committed the crime with
his co-defendant.
Mr. Jones testimony from
the very beginning was the he saw two (2)
black males pushing a shopping cart. This is
reflected in Officer Reed's report and, thus,
would only serve to reinforce Officer Reed's
previous testimony.
Ex. 26 at 126.
The First District Court of Appeal affirmed.
Ex.
33.
Again, Officer Reed confirmed, on the stand, that no one in
his canvass of the area identified the Petitioner.
When asked if
anyone gave him information that led him to believe that Petitioner
- 17 -
had committed any crimes, he said no.
Ex. 8 at 275.
Jones would not have provided exculpatory testimony.
If called,
Indeed, his
testimony would have been cumulative to Petitioner's testimony, and
in some respects, to Officer Reed's.
Thus, counsel's performance
was not deficient for failure to call Mr. Jones.
Even assuming arguendo counsel's performance was deficient,
Petitioner
has
not
established
Strickland's prejudice prong.
prejudice,
failing
to
meet
Petitioner has failed to show "that
it was 'reasonably likely' that, but for counsel's deficient
performance,
different."
the
result
of
the
proceeding
would
have
been
Stoddard v. Sec'y, Dep't of Corr., 600 F. App'x 696,
709 (11th Cir.) (per curiam) (citation omitted), cert. denied, 136
S.Ct. 114 (2015).
Thus, Petitioner is not entitled to habeas
relief on this ground.
The circuit court applied the appropriate standard, and found
Petitioner was not entitled to post conviction relief, and the
appellate court affirmed the circuit court's decision.
Thus, the
decision to deny this ground is entitled to AEDPA deference.
review,
there
was
no
unreasonable
application
of
Upon
clearly
established law in the state court's decision to reject the
Strickland ineffectiveness claim. The decision was not contrary to
clearly
established
unreasonable
federal
determination
law
of
the
and
was
facts.
entitled to habeas relief on ground three.
- 18 -
not
based
Petitioner
on
is
an
not
D.
Grounds Four and Five
In ground four, Petitioner raises a claim of ineffective
assistance of counsel for failure to investigate, "depose file" and
properly present the reports of Sam White, the investigator for the
defense.
Petition at 7.
Petitioner raised a similar claim in the
state court in ground four of his Rule 3.850 motion.
Petitioner,
in his fifth ground, asserts that he received the ineffective
assistance of counsel based on counsel's failure to object to the
state's suppression of the victim's second deposition. Petition at
8.
Petitioner raised this ground as ground five of his Rule 3.850
motion. As previously noted, the circuit court rejected the motion
based on the reasons provided by the state in its response.
First District Court of Appeal affirmed this decision.
The
Ex. 33.
In his supporting facts for ground four, Petitioner states
that Sam White was the investigator hired by Petitioner's initial
counsel, Lynn Martin.
Petition at 7.
The investigator spoke to
Curtis Jackson, who denied going to the pawnshop or knowing
Petitioner.
Id.
Petitioner submits that the victim wrote a
statement on his behalf, in which she stated her belief that
Petitioner was not involved in the burglary of her house.
Id. at
8.
Upon review, Sam White wrote a letter to Lynn Martin, on
September 5, 2006, stating that he met with Stephanie Johnson and
she stated, after reviewing the videotape from the pawnshop, that
she did not recognize either Curtis Jackson or Petitioner. App. B.
- 19 -
When advised of Petitioner's story, Ms. Johnson "felt that William
Johnson's story of how he came in contact with her property sounded
believable."
Id.
Ms. Johnson "did not feel like" Petitioner had
committed the burglary.
Id.
Ms. Johnson also believed that
Petitioner was wrong for pawning the items, but did "not feel he
was present at the time her residence was burglarized."
Id.
Stephine Johnson, the victim, provided an Affidavit that said she
did not believe that Petitioner was one of the intruders into her
house, but she was sure that he was the person who pawned her
belongings.
Id., Affidavit of Stephine Johnson.4
In his supporting facts for ground five, Petitioner states
that his defense attorney re-deposed the victim, but the state
filed a motion in limine seeking to prohibit the use of deposition,
"taking away statements" that could have been used to defend
against the burglary charge. Petition at 9. The record shows that
the state brought its motion in limine regarding opinion testimony
to the trial court's attention.
Ex. 8 at 8.
The prosecutor
explained that the defense moved to re-depose the victim after the
victim gave her statement to the defense investigator that she did
not believe Petitioner committed the crime of burglary.
Id. at 9.
The court inquired as to whether the victim was an eyewitness, and
the prosecutor responded no.
Id.
Defense counsel stated that he
did not object to the state's motion "in terms of bringing in just
4
In the record, the victim is referred to as both Stephanie
and Stephine Johnson.
- 20 -
mere opinion testimony of a lay witness."
Id.
He did however
"object to the wording of the motion that opinion testimony –opinion testimony by lay witnesses is expressly forbidden."
Id.
He argued that it was not expressly forbidden as it would be
allowed in certain circumstances.
Id.
He did not foresee,
however, those particular circumstances arising at trial.
Id.
The state, in its response to the Rule 3.850 motion, addressed
these two grounds and said:
Once again, it is clear from the exhibits
prevented [sic] by the Defendant in the
Defendant's Motion that Zisser was within the
range of reasonable representation regarding
these alleged grounds as well. The Victim in
this case was not present when the Burglary
occurred. As such, it was not even possible
for her to make an identification of the
person(s) who actually committed that crime.
Despite this fact, Lynn Martin (the attorney
who represented the Defendant at one point)
hired Sam White to do some additional
investigation regarding the Victim's ability
to identify the burglar. Sam White showed the
Victim the pawn shop video. The Victim made
clear she did not know the Defendant.
She
further stated she would not recognize the
alleged co-defendant (Curtis Jackson) even if
she saw him.
After showing the Victim the
pawn shop video (and telling her the
Defendant's explanation of what happened), Sam
White asked the Victim her opinion as to
whether or not "[s]he felt that William
Johnson's story of how he came in contact with
the property sounded believable." According
to Sam White, her lay opinion was "[s]he
believes William Johnson is wrong for pawning
the items but does not feel he was present at
the time her residence was burglarized."
Notably, it appears this meeting with Sam
White (where the Victim was asked to view and
comment on evidence) was conducted without the
State's presence or even knowledge despite the
- 21 -
fact that
witness.
the
Victim
was
a
listed
State
Subsequent to this meeting with the
Victim, Lynn Martin filed a motion to redepose the Victim. This motion was actually
denied on September 5, 2006. When Zisser was
appointed counsel for the Defendant and
(despite the Court's earlier ruling) Zisser
first sent out a letter (on December 6, 2006)
to Lynn Martin asking why the motion had been
denied, and then filed his own motion on
January 15, 2007, to re-depose the Victim.
This time, the Court granted that motion, but
limited the questioning to this new interview
previously conducted by Sam White.
In that
deposition, Zisser did limit his questions
based on the Court's ruling and learned that
the Victim watched the video, saw the
Defendant on it, did not recognize the codefendant on it and that her opinion was the
Defendant's
alleged
version
sounded
believable.
While questions regarding hearsay and lay
opinions may be admissible in a deposition,
they are not proper for a trial. One of the
foremost reasons why lay opinion as to the
Defendant's culpability is not appropriate is
it actually invades the province of the jury
as fact-finder. Of course, Zisser could not
breach this fundamental precept of trial.
While Zisser was more persuasive than previous
counsel (Lynn Martin) at garnering the second
deposition of the Victim, it is also clear
that the testimony learned in that deposition
would not have been admissible in trial. The
fact that the Defendant in hindsight wanted to
use the Victim's second deposition and/or the
hearsay testimony of Sam White at trial does
not obviate the clear case law and criminal
rules preventing such improper testimony.
Zisser, therefore, cannot be viewed as
ineffective for failing to do what no attorney
should have attempted at trial.
Ex. 26 at 126-27.
- 22 -
First, with respect to ground four, it is quite apparent that
defense counsel's performance was not deficient for failure to
further
investigate
and
present
investigator or the victim.
either
the
testimony
of
the
After viewing the videotape, Ms.
Johnson did not recognize Petitioner or Curtis Jackson.
Ms.
Johnson had no personal knowledge of who committed the burglary.
Thus, she would not have been allowed to testify as to her belief
that Petitioner did not burglarize her house. Although Ms. Johnson
signed an affidavit stating that she did not believe Petitioner was
an intruder into her home, it was of no real evidentiary value to
the defense as her belief or opinion would have been considered to
be
inadmissible
under
state
law
as
improper
testimony.
Additionally, anything she heard about the burglary would have been
inadmissible hearsay.
crime.
He
simply
Finally, Sam White was not a witness to the
talked
to
the
victim
and
advised
her
of
Petitioner's story.
With respect to ground five, the record is clear that defense
counsel did state some objection to the breadth of the state's
motion in limine, arguing that there were limited circumstances
allowing for testimony of lay witness opinion testimony.
9.
Ex. 8 at
Defense counsel advised the court that he did not anticipate
those limited circumstances arising at this trial. Id. Indeed, as
noted by the state in its response to the post conviction motion,
it would invade the province of the jury to allow the victim to
opine that she did not believe that Petitioner burglarized her
- 23 -
home.
She was not an eyewitness to the crime.
The trial court
adopted the state's reasoning that it would invade the province of
the jury to allow the introduction of lay opinion testimony with
regard to the question of guilt or innocence.
The decision to deny these grounds is not inconsistent with
Strickland.
"Only those habeas petitioners who can prove under
Strickland that they have been denied a fair trial by the gross
incompetence
of
their
attorneys
will
be
granted
the
writ."
Marshall v. Sec'y Fla. Dep't of Corr., No. 13-13775, 2016 WL
3742164, at *9 (11th Cir. July 12, 2016) (quoting Kimmelman v.
Morrison, 477 U.S. at 382).
This standard is extremely difficult
to meet, and even a strong case for habeas relief will not prevail
as long as the state court's contrary conclusion was reasonable.
Under these circumstances, Petitioner will not succeed on his
claims of ineffective assistance of counsel. He has failed to show
deficient performance or prejudice.
With regard to these claims,
he has failed to demonstrate that his counsel's performance was so
deficient that it deprived Petitioner of a fair trial and a
reliable result.
The First District Court of Appeal affirmed the trial court's
decision to reject these claims of ineffective assistance of
counsel.
The First District Court of Appeal did not give reasons
for its summary affirmance; however, if there was any reasonable
basis for the court to deny relief, the denial must be given
- 24 -
deference by this Court.
Cullen v. Pinholster, 563 U.S. 170, 187-
88 (2011).
With respect to these claims, deference under AEDPA should be
given to the state court's decision to reject both of these
grounds.
The state court's decision is not inconsistent with
Supreme Court precedent, including Strickland and its progeny. The
state court's adjudication of these claims is not contrary to or an
unreasonable application of Strickland, or based on an unreasonable
determination of the facts.
Therefore, grounds four and five are
denied.
E.
Ground Six
Petitioner, in ground six, raises a claim of ineffective
assistance of counsel, claiming that counsel failed to renew his
objection concerning the state striking a black juror prior to the
jury being sworn.
Petition at 9.
Petitioner argues that this
failure meant that the claim was not properly preserved for
appellate review.
Id. at 10.
He complains that "trial counsel
fail[ed] to make the legal argument that as a matter of law a race
neutral reason can't be accepted by the courts if reason given
applies to another juror of a different race who's already been
seated."
Id.
The record shows that during voir dire, the court asked the
prospective jurors whether anyone had been arrested.
Ex. 8 at 27.
Mr. Epps, a black male, stated that he had been arrested on a DUI
charge.
Id. at 28.
Mr. Dunstatter, a white male, responded that
- 25 -
he had been arrested on a domestic battery case.
Id.
Both
prospective jurors stated that they thought they could be fair to
the state in this case.
Id.
When the state used a peremptory
strike to strike Mr. Epps, defense counsel asked for a race neutral
reason for the strike.
Id. at 105.
The prosecutor responded:
MR. DORSEY:
And I'll file it with the clerk
also.
He admitted that he had the DUI but
he's also got like I want to say six or seven
for arrest for possession of cocaine. It did
get dropped. His date of birth matched up and
everything like that.
He was one of the
people who said he would have tried to prove
himself innocent because of something he did
do in the past and he out of nowhere
volunteered that thing about the Olympic
Bomber, but the main thing is you should see
his record. It's significant.
THE COURT:
All right. I will grant that
challenge based upon prior arrest record. And
for the record Mr. Epps is black and so is the
defendant.
Id. (emphasis added).
Mr. Dunstatter served on the jury.
Id. at
106.
After the jurors were selected, but before the jury was sworn,
defense counsel brought to the trial court's attention Petitioner's
complaint that he was not comfortable with the jury since there
were no black members.
Id. at 117.
Counsel reminded the court
that the only black juror was stricken and that he had objected to
that juror being stricken.
Id.
The court explained that the
Constitution guarantees no discrimination during the selection
process, but it does not guarantee that there will be a selection
of a certain number of African-American jurors.
- 26 -
Id. at 119.
The
court inquired as to the race of the victim, and was told that the
victim was an African-American.
Id. at 118.
Petitioner stated on
the record that he was uncomfortable with the situation.
119.
Id. at
The next day, defense counsel advised the court that he told
Petitioner that he thought they had a good jury and they should
proceed with the jury selected.
Id. at 130.
Petitioner confirmed
that he decided not to request a bench trial and would go forward
with the jury trial.
Id.
Thereafter, the jury was sworn.
Id. at
130-31.
The state, in its response to the Rule 3.850 motion, addressed
this issue:
The Defendant claims that Zisser was
ineffective for not objecting to the State's
strike on a black juror (Mr. Epps).
It
should, however, be noted that Zisser went so
far as to actually renew that exact objection
in his Motion for New Trial. That said, the
facts themselves make it clear that a
peremptory strike of Mr. Epps was absolutely
appropriate and, even if no Neil Challenge had
ever
been
raised,
it
would
be
an
understandable decision by a trial attorney.
The purpose of trial is not to belabor the
issues or object even when there is no valid
legal purpose.
Mr. Epps' own answers to
questions made it obvious that there were
race-neutral reasons for his exclusion. For
instance, Mr. Epps testified that he was
accused of something he did not do, that he
went so far as to try to prove himself
innocent, and he even volunteered the incident
involving the Olympic bomber as an analogy.
With this in mind, Mr. Epps made the candid
confession that it was hard to say how it was
going to make him feel during trial. Mr. Epps
also had eight (8) prior arrests, including a
Felony Possession of Cocaine charge that was
dropped.
These are the types of statements
- 27 -
and concerns that rise to the level of a Cause
Dismissal and are the foundation of a raceneutral decision to strike any juror.
The Defendant notes that Mr. Dunstatter
had a prior criminal record and, therefore,
this must be the basis of Zisser's ineffective
counsel. Mr. Dunstatter, however, had a prior
record consisting solely of a misdemeanor
where he pled guilty to his crime and
adjudication was withheld.
Mr. Dunstatter
also stated he could be a fair juror. None of
the concerns voiced by Mr. Epps were made
during Mr. Dunstatter's questioning. Simply
put, it was clear Mr. Dunstatter could sit as
a fair juror in the Defendant's case and there
was a significant risk that Mr. Epps could
not.
Ex. 26 at 128.
The trial court adopted the state's reasoning in
denying this claim.
Ex. 27.
affirmed this decision.
As
noted
by
The First District Court of Appeal
Ex. 33.
Respondents
in
their
Response,
there
is
a
fundamental flaw in Petitioner's claim, that is, prospective jurors
Epps and Dunstatter were not similarly situated.
Response at 54.
When asked if he had been arrested, Mr. Dunstatter accurately
responded that he had been arrested for a single domestic battery
charge.
Mr.
Epps,
on
the
other
hand,
failed
to
accurately respond to the question about prior arrests.
fully
and
He had a
very significant arrest history that he failed to reveal during
voir dire.
Although he did admit that he had been arrested on a
DUI charge, the state, after making its peremptory challenge,
advised the court that Mr. Epps had been arrested six or seven
times for possession of cocaine. Therefore, this prospective juror
- 28 -
was not forthright during the voir dire proceeding, and, as a
result, the court granted the challenge based on Epps' history of
prior arrests.
This misrepresentation of an extensive arrest record provided
the valid race-neutral reason for the state's exercise of a
peremptory challenge. Thus, defense counsel's failure to renew his
objection to the state's use of peremptory challenge would not
amount to deficient performance under these circumstances. Indeed,
the decisions made by counsel were not objectively unreasonable,
particularly when counsel was convinced they had selected a good
jury
and
should
proceed
to
trial
with
the
jurors
selected.
Finally, Petitioner has not shown prejudice because there is no
reasonable probability that the outcome would have been different
even if his counsel had performed as Petitioner alleges he should
have done.
Accordingly, Petitioner's ineffectiveness claim is without
merit
since
he
has
neither
resulting prejudice.
application
of
clearly
shown
deficient
performance
nor
Upon review, there was no unreasonable
established
law
in
the
state
court's
decision to reject the Strickland ineffectiveness claim.
The
decision was not contrary to clearly established federal law and
was not based on an unreasonable determination of the facts.
As
such, Petitioner is not entitled to habeas relief on ground six.
- 29 -
F.
Ground Seven
In his seventh ground for relief, Petitioner claims a Sixth
Amendment violation based on the alleged ineffective assistance of
counsel. Petition at 11. Generally, he contends that his attorney
failed to object to several improper or misleading statements made
by the prosecutor, particularly during closing argument.
Id.
Petitioner asserts that the comments made by the prosecutor
misstated the facts and were improper. Petition at 11. He focuses
on a few specific instances to support his claim, as referenced in
his Reply at 19-22.
The first instance is:
Now, I apologize if I was confused. It
just didn't make any sense to me, it was
telling, because the truth of the matter is I
always knew there were two people that did the
robbery [sic] and they were in a truck. They
got into a truck.
So you caught this
individual by his own witness in a lie.
Curtis Jackson didn't come up to –- Calvin
[sic] Jackson didn't [come] up to him in a
shopping cart because he already had a truck.
That doesn't make any sense.
Ex. 8 at 285-86.
Petitioner asserts this comment evidenced the
prosecutor giving his personal opinion on key facts in dispute when
the facts the prosecutor espoused were not in evidence.
See Reply
at 20.
The second portion of the prosecutor's closing argument at
issue is:
"evidence was created on the stand today."
Id. at 313.
The prosecutor continued: "[i]t wasn't there until today when he
took the stand and he told you a false story that clearly conflicts
with
his own witness, Officer Reed.
- 30 -
He created evidence."
Id.
Petitioner contends these statements amounted to improper comments
on his right to remain silent.
See Reply at 20-21.
The third portion mentioned is: "[i]f you'll lie about one
thing, you'll lie about anything."
Ex. 8 at 289.
Petitioner
complains that the prosecutor called his testimony false.
Reply at 20-21.
See
The fourth portion of the closing argument at
issue is: "[n]ow, that witness, Officer Reed, has to tell you the
truth."
Ex. 8 at 286.
Petitioner challenges this statement as
improperly vouching for the testimony of Officer Reed.
See Reply
at 20.
The final portion at issue is: "[a]t some point it just
becomes unfair to victims of burglaries for people, when all the
evidence pointed to you to just walk away from it."
Ex. 8 at 288.
Petitioner complains that this statement misstates the facts, seeks
sympathy,
inflames
the
jury,
and
credibility by calling him a liar.
undermines
Petitioner's
See Reply at 20, 22.
Respondents, in their Response, reference Florida law, which
provides for wide latitude during closing argument and allows for
comment on the evidence and some contention as to the conclusions
that should be drawn from the evidence.
Response at 61.
reference Florida law concerning invited response.
They also
Id. at 62.
Of
import, due to the fact that Petitioner testified before the jury,
they
also
reference
state
law
allowing
for
the
attack
of
credibility of a defendant once he takes the stand, just like any
other witness.
Id.
- 31 -
Petitioner presented this claim of ineffective assistance of
counsel in his post conviction motion as ground seven for relief.
Ex. 24.
The state addressed this claim in its response, Ex. 26,
and the court adopted the reasoning of the response.
Ex. 27.
The
response provides:
Likewise, Zisser would also be aware that
the purpose of closing argument is to
literally make arguments on behalf of your
case.
The State did so.
The State is
entitled to both argue the facts and make
reasonable inferences from those facts. The
evidence (even the Defendant's own testimony)
supported the arguments made by the State.
This is particularly so in circumstantial
evidence cases. Zisser presented his zealous
arguments on behalf of the Defendant, the
State presented its case, the jury deliberated
and (as they are entitled to do) came to a
well-reasoned decision that the Defendant was
guilty of his crimes. The Defendant took the
additional step of appealing that verdict.
The First District did not note any errors
fundamental or otherwise) requiring a new
trial, and, on October 8, 2008, issued its
Order that the trial verdict was "Per Curiam
Affirmed".
Ex. 26 at 128.
The court addressed whether the prosecutor made misstatements
of the facts.
Not only did the circuit court reject Petitioner's
claim of ineffectiveness, the First District Court of Appeal
affirmed.
Ex. 27; Ex. 33.
In order to constitute a fundamentally unfair proceeding, the
prosecutor's remarks must have made the difference in the jury's
decision. Tucker v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986) (en
banc) ("whether the improper remarks were of sufficient magnitude
- 32 -
to undermine confidence in the jury's decision"), cert. denied, 480
U.S. 911 (1987).
More importantly, mere inaccuracies are simply
not enough if the inaccuracies did not mislead the jury.
The referenced statements by the prosecutor did not mislead
the jury and counsel was not ineffective for failing to object to
these comments.
These statements, even if improper, did not
vitiate the entire trial, and counsel's failure to object to these
statements amounted to, if any error, harmless error.
This
Court
in
Dailey
v.
Sec'y,
Fla.
Dep't
of
Corr.,
8:07-CV-1897-T-27MAP, 2012 WL 1069224, at *6 (M.D. Fla. Mar. 29,
2012) imparted that,
Under Florida law, trial counsel is
permitted wide latitude in arguing to a jury.
Breedlove v. State, 413 So.2d 1 (Fla. 1982).
Federal law likewise permits wide latitude in
this regard. To prevail under federal law, a
petitioner must show that the comments so
infected the trial with unfairness as to make
the resulting conviction a denial of due
process. Darden v. Wainwright, 477 U.S. 168,
106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). See
also Cargill v. Turpin, 120 F.3d 1366 (11th
Cir. 1997) (improper remarks will compel
habeas corpus relief only if they are so
egregious as to render the proceedings
fundamentally unfair). Upon consideration, it
can be reasonably concluded that none of the
comments so infected the trial with unfairness
as to make the resulting conviction a denial
of due process. See Donnelly v. DeChristoforo,
416 U.S. 637, 642, 94 S.Ct. 1868, 40 L.Ed.2d
431 (1974); Cargill v. Turpin, 120 F.3d 1366,
1379 (11th Cir. 1997) (if reviewing court is
confident that, absent improper prosecutorial
remarks, the jury's decision would have been
no different, proceeding cannot be said to
have been fundamentally unfair, and habeas
relief is not warranted). In light of the
- 33 -
evidence which established his guilt of the
crime for which Petitioner was found guilty,
any claimed constitutional error in the
prosecutor's remarks had no substantial and
injurious effect or influence in determining
the jury's verdict. Brecht v. Abrahamson, 507
U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353
(1993).
Upon
argument
counsel.
the
review,
did
not
the
failure
constitute
to
object
deficient
to
the
performance
prosecutor's
by
defense
Furthermore, Petitioner demonstrates no prejudice from
claimed
deficient
performance.
A
fair
reading
of
the
prosecutor's argument demonstrates that he was broadly recounting
the evidence that had been presented by the state's witnesses and
making a legitimate argument, based on the testimony presented at
trial.
This is particularly so since Petitioner took the stand.
In addition, the record shows that defense counsel addressed
many of these matters in closing argument rather than through
objections to the prosecutor's closing argument. He challenged the
sufficiency of the evidence presented by the state, arguing much of
it was based on "presumptions and inferences alone." Ex. 8 at 297.
Defense counsel argued that the jury should not surmise or infer
that Petitioner should have known that the items were stolen
because of the amount of money he received from the pawn shop
because pawn shops do not ordinarily pay full value.
Id. at 299-
300.
Defense counsel made a very effective attack on the state's
burglary case.
Id. at 300-301.
He specifically addressed the
- 34 -
circumstantial evidence and the testimony concerning anonymous
individuals referring to two people and a truck outside of the
victim's house:
Nobody saw Mr. Johnson go into that house, no
one saw Mr. Johnson come out of that house.
No one took Mr. Johnson's fingerprints in that
house.
There is no link to that burglary.
Think about the testimony of Stephanie
Johnson.
She told you her house was
burglarized. I told you in opening statement
we agree her house was burglarized. What did
she tell you?
I asked you who was at your
house that day.
Curtis Jackson was at my
house that day.
Was William Johnson there?
No. Do you know William Johnson? No. Ever
seen him before?
No.
You got some person
there, you got William Johnson not there.
Sure, there was a canvass of the neighborhood.
Some people saw some things.
Two people
outside a house packing up a trunk [sic]. Two
people in an entire neighborhood.
How many
possibilities of other people could there have
been?
Id. at 301.
Finally, defense counsel countered the state's
contention that Petitioner was a liar.
Id. at 305.
Of note, the evidence in this case against Petitioner was
certainly quite damaging.
Petitioner was videotaped selling the
victim's personal property shortly after the burglary.
Not only
was he videotaped, he provided both identification and fingerprints
to the pawn shop employee. Both the physical evidence and the bulk
of the testimonial evidence were against him.
Although his own
testimony supported his version of the events and the testimony of
Officer Reed showed there was no physical evidence or eyewitness
testimony linking Petitioner to the inside of the victim's house,
- 35 -
the jury determined that the state presented evidence beyond a
reasonable doubt that Petitioner committed the charged offenses.
Under these circumstances, Petitioner will not prevail on his
claim of ineffective assistance of counsel.
deficient performance or prejudice.
He has failed to show
Indeed, he has failed to
demonstrate that his counsel's performance was so deficient in this
regard that it deprived Petitioner of a fair trial and a reliable
result.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),
cert. denied, 527 U.S. 1025 (1999).
Therefore, Petitioner has
failed to satisfy both prongs of the Stickland test.
As such,
Petitioner has not met his burden of showing that the state court's
resolution
of
this
claim
was
an
unreasonable
controlling Supreme Court precedent.
application
of
Thus, ground seven is due to
be denied.
G.
In
his
eighth
ground
Ground Eight
claiming
ineffective
assistance
of
counsel, Petitioner contends the cumulative errors and omissions of
counsel are sufficient to constitute the ineffective assistance of
counsel under the Sixth Amendment.
Petition at 12.
Since none of
Petitioner's grounds claiming ineffective assistance of counsel
provide a basis for habeas relief, the cumulative effect of these
grounds certainly does not provide any foundation for granting
habeas relief.
- 36 -
When Petitioner presented this ground to the trial court in
ground eight of his post conviction motion, the court rejected it
based on the reasons provided by the state in its response.
The
state, in countering Petitioner's claim that the cumulative errors
and omissions of counsel constitute ineffective assistance of
counsel, fully addressed this claim and said:
In addition to the many compelling
arguments listed above, there is still ample
other
evidence
of
Zisser's
competent
representation in this case. For instance it
was Zisser's office (not Lynn Martins') that
took the depositions of Stephnia [sic] Johnson
Shatera Wilkerson, Detective Bowers, Olivea
Farley-Burke, Alexander Chambers, and William
Jones. It was Zisser who filed the Defense
Requested Jury Instruction #1 in hopes of
overcoming the legal presumptions regarding
the Defendant's guilt in this case. It was
Zisser who filed a Motion for New Trial on
February 22, 2007, and then followed that up
with a lengthy Memorandum of Law in Support of
Motion for New Trial Previously Filed. These
are all hallmarks of an attorney who his [sic]
putting forth a compelling and significant
effort on behalf of a Defendant's case.
While the Defendant may not agree with
the laws and rules of the State of Florida,
Zisser himself is bound to practice within
their confines. He did so in a professional
and adequate fashion throughout the case.
With this in mind, it is evidence that Zisser
complied with the first prong of Strickland
and rebuts the Defendant's contention that
Zisser's "performance was outside the range of
reasonable professional assistance." At this
point, there is no need to even consider the
second prong enunciated in Strickland, but
even so it [is] also clear that the Defendant
has failed to show how Zisser's alleged
deficient performance "prejudiced the defense,
that is, there is a reasonable probability
- 37 -
that the outcome of the proceeding would have
been different, absent counsel's deficient
performance." The above-referenced arguments
clarify that, even if Zisser had done
everything prayed for in the Defendant's 3.850
Motion, there is no reasonable probability
that the outcome would have changed in any
way. Furthermore, there is not a need for the
Court to conduct an evidentiary hearing on the
Defendant's claims as they are conclusively
rebutted by the record and exhibits presented
so far.
Ex. 26 at 129.
The First District Court of Appeal affirmed the
decision per curiam.
Ex. 33.
Upon review, this decision is entitled to deference under
AEDPA. Petitioner is not entitled to relief on ground eight of the
Petition because the state court's decision was not contrary to
clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.
Alternatively,
counsel
claims
are
if
Petitioner's
insufficient
ineffective
individually,
cumulatively does not render them sufficient.
assistance
raising
of
them
Robertson v. Chase,
No. 1:07-CV-0797-RWS, 2011 WL 7629549, at *23 (N.D. Ga. Aug. 12,
2011) (citations omitted), report and recommendation adopted by No.
1:07-CV-797-RWS, 2012 WL 1038568 (N.D. Ga. Mar. 26, 2012), affirmed
by 506 F. App'x 951 (11th Cir. 2013), cert. denied, 134 S.Ct. 93
(2013).
As such, the Court finds the cumulative deficiencies of
counsel claim is without merit:
- 38 -
As set forth above, [Petitioner] has not
demonstrated error by trial counsel; thus, by
definition, [Petitioner] has not demonstrated
that cumulative error of counsel deprived him
of a fair trial. See Yohey v. Collins, 985
F.2d 222, 229 (5th Cir. 1993) (explaining that
because
certain
errors
were
not
of
constitutional dimension and others were
meritless, petitioner "has presented nothing
to cumulate").
Miller v. Johnson, 200 F.3d 274, 286 n.6 (5th Cir.), cert. denied,
531 U.S. 849 (2000).
In this regard, since there were no errors of constitutional
dimension, the cumulative effect of any errors would not subject
Petitioner to a constitutional violation.
286 n.6.
See Miller, 200 F.3d at
Therefore, the Court finds that Petitioner is not
entitled to relief on the basis of this claim of ineffective
assistance of counsel alleging the cumulative errors of counsel.
H.
Ground Nine
In the ninth ground of the Petition, Petitioner claims that
the trial court erroneously denied the motion for judgment of
acquittal on the burglary charge.
Petition at 13.
In support of
this claim, he contends that the evidence presented at trial was
insufficient because it failed to show that he entered the victim's
home.
Id.
On direct appeal, Petitioner claimed that the circuit
court erroneously denied a motion for judgment of acquittal on the
burglary charge.
Ex. 20 at i.
per curiam affirmed.
The First District Court of Appeal
Ex. 23.
- 39 -
Of import, the purpose of a federal habeas proceeding is
review of the lawfulness of Petitioner's custody to determine
whether that custody is in violation of the Constitution or laws or
treaties of the United States.
722 (1991).
See Coleman v. Thompson, 501 U.S.
Therefore, this Court will not reexamine state-court
determinations on issues of state law. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991).
Since this ground presents a state law
claim complaining about a ruling by the trial court, Petitioner is
not entitled to federal habeas corpus relief as there has been no
breach of a federal constitutional mandate.
habeas
corpus
court
will
be
bound
by
Indeed, the federal
the
Florida
court's
interpretation of its own laws unless that interpretation breaches
a federal constitutional mandate. McCoy v. Newsome, 953 F.2d 1252,
1264 (11th Cir. 1992) (per curiam), cert. denied, 504 U.S. 944
(1992).
A claim of trial court error in denying of a motion for
judgment of acquittal presents a state law claim. In order to rise
to the level of a claim of constitutional dimension, the petitioner
must articulate the constitutional theory serving as the basis for
relief.
For
example,
a
petitioner
may
exhaust
a
claim
of
constitutional dimension if it is asserted that the evidence was
insufficient to support the conviction, and as a result of the
deficiency, there was a violation of due process of law.
- 40 -
Apparently, Petitioner is now attempting to raise a claim of
constitutional dimension, a due process deprivation under the
Fourteenth Amendments based on the insufficiency of the evidence to
sustain his conviction for burglary.
Respondents urge this Court
to find that the due process claim is unexhausted and procedurally
defaulted.
is
Response at 69-72.
unexhausted
and
Upon review, the due process claim
procedurally
defaulted
because,
although
Petitioner raised this claim of trial court error on direct appeal,
he failed to present it in the federal constitutional sense.
It is a well accepted axiom that a petition for writ of habeas
corpus should not be entertained unless the petitioner has first
exhausted his state court remedies.
Castille v. Peoples, 489 U.S.
346, 349 (1989); Rose v. Lundy, 455 U.S. 509 (1982).
A procedural
default arises "when 'the petitioner fails to raise the [federal]
claim in state court and it is clear from state law that any future
attempts at exhaustion would be futile.'"
Owen v. Sec'y, Dep't of
Corr., 568 F.3d 894, 908 n.9 (11th Cir. 2009) (quoting Zeigler v.
Crosby, 345 F.3d 1300, 1304 (11th Cir. 2003)), cert. denied, 558
U.S. 1151 (2010).
There are, however, allowable exceptions to the
procedural default doctrine; "[a] prisoner may obtain federal
review of a defaulted claim by showing cause for the default and
prejudice from a violation of federal law."
Martinez v. Ryan, 132
S.Ct. 1309, 1316 (2012) (citing Coleman v. Thompson, 501 U.S. 722,
750 (1991)).
If cause is established, a petitioner is required to
- 41 -
demonstrate prejudice.
petitioner
must
show
In order to demonstrate prejudice, a
"that
there
is
at
least
a
reasonable
probability that the result of the proceeding would have been
different had the constitutional violation not occurred."
Owen,
568 F.3d at 908.
In the alternative, a petitioner may obtain review of the
merits of a procedurally barred claim if he satisfies the actual
innocence "gateway" established in Schlup v. Delo, 513 U.S. 298
(1995). This gateway is meant to prevent a constitutional error at
trial from causing a miscarriage of justice and "'the conviction of
one who is actually innocent of the crime.'" Kuenzel v. Comm'r,
Ala. Dep't of Corr., 690 F.3d 1311, 1314 (11th Cir. 2012) (per
curiam) (quoting Schlup, 513 U.S. at 324), cert. denied, 133 S.Ct.
2759 (2013).
On direct appeal, Petitioner claimed that the trial court
erred
in
denying
the
motion
for
judgment
of
acquittal
when
considering the only competent proof of Petitioner committing the
burglary was the inference of guilt derived from the possession of
recently stolen property and there was a reasonable explanation for
the possession of the property provided by the defense.
13.
Ex. 20 at
Of note, there is no mention in the appellate brief of a
violation of due process of law or a federal constitutional
violation, and there is no reference to cases with decisions
finding a due process violation.
- 42 -
Respondents assert that Petitioner failed to advance his due
process claim in the state court proceedings.
Response at 72-73.
This Court must ask whether the constitutional claim was raised in
the state court proceedings and whether the state court was alerted
to the federal nature of the claim.
32 (2004).
Baldwin v. Reese, 541 U.S. 27,
Upon review, Petitioner failed to fairly present the
substance of a due process claim to the state courts.
Although he
may be attempting to couch his claim in terms of denial of due
process of law, on direct appeal he asked whether the circuit court
erroneously denied the motion for judgment of acquittal on the
burglary charge.
Ex. 20 at 13.
Therefore, the record before the Court supports Respondents'
assertion that Petitioner did not exhaust his federal due process
claim
in
the
state
courts.
Indeed,
the
record
shows
that
Petitioner exclusively relied on state law grounds and cases and he
substantively argued Florida law in his appellate brief.
Of
import, he did not alert the state courts to the federal nature of
his claim.
Since he failed to apprise the state court that the
ruling of which he complained was not only a violation of state
law, but denied him the due process of law guaranteed by the
Fourteenth Amendment, see Zeigler v. Crosby, 345 F.3d 1300, 1307
(11th Cir. 2003) (per curiam) ("It is not enough that all the facts
necessary to support the federal claim were before the state
courts, or that a somewhat similar state-law claim was made.")
- 43 -
(citation omitted), cert. denied, 543 U.S. 842 (2004), the Court
finds
the
due
process
claim
is
unexhausted
and
procedurally
defaulted.
To the extent Petitioner is now trying to raise a due process
claim pursuant to the Fourteenth Amendment of the United States
Constitution, such a claim was not exhausted in the state court
system.
Therefore, the due process claim is procedurally barred
from federal habeas review.
Petitioner has not shown either cause
excusing the default or actual prejudice resulting from the bar.
Also, he has failed to identify any fact warranting the application
of the fundamental miscarriage of justice exception. Petitioner is
not entitled to habeas relief on ground nine.
I.
Ground Ten
In his tenth and final ground, Petitioner claims the circuit
court erroneously permitted the state to excuse a black juror based
upon the criminal record of that juror when the state failed to
excuse another juror, who was white, who also had a criminal
record.
Petition at 13.
The record demonstrates that Petitioner
is a black male and the victim is a black female.
Petitioner raised this ground on direct appeal. Ex. 20 at ii,
25-26.
In his brief, Petitioner claimed that the reason provided
was a pretext, evidenced by the state's failure to challenge a
white juror who had a criminal record.
Id. at 26.
The state, in
responding, first asserted that Petitioner failed to properly
- 44 -
preserve this ground, and alternatively addressed the merits of the
claim asserting that Mr. Epps was not similarly situated to Mr.
Dunstatter.
affirmed.
Ex. 21 at 34-41.
The First District Court of Appeal
Ex. 23.
The United States Supreme Court provides guidance:
When a federal claim has been presented to a
state court and the state court has denied
relief, it may be presumed that the state
court adjudicated the claim on the merits in
the absence of any indication or state-law
procedural principles to the contrary. Cf.
Harris v. Reed, 489 U.S. 255, 265, 109 S.Ct.
1038, 103 L.Ed.2d 308 (1989) (presumption of a
merits determination when it is unclear
whether a decision appearing to rest on
federal grounds was decided on another basis).
Harrington v. Richter, 562 U.S. at 99.
Therefore, under these circumstances, it is presumed that the
First District Court of Appeal adjudicated this claim on its
merits.
Thus, there is a qualifying state court decision pursuant
to AEDPA.
In order to obtain habeas relief, Petitioner must meet
the requirements of 28 U.S.C. § 2254(d):
Federal habeas relief may not be granted
for claims subject to § 2254(d) unless it is
shown that the earlier state court's decision
"was contrary to" federal law then clearly
established in the holdings of this Court, §
2254(d)(1); Williams v. Taylor, 529 U.S. 362,
412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000);
or
that
it
"involved
an
unreasonable
application of" such law, § 2254(d)(1); or
that it "was based on an unreasonable
determination of the facts" in light of the
record before the state court, § 2254(d)(2).
Harrington v. Richter, 562 U.S. at 100.
- 45 -
The state court's decision regarding the peremptory strike of
Mr. Epps was not contrary to or 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.
An explanation follows.
To evaluate an Equal Protection Clause claim concerning the
use of peremptory challenges, there is a three-part process set
forth in Batson v. Kentucky, 476 U.S. 79 (1986):
First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. 476 U.S., at
96-97, 106 S.Ct. 1712. Second, if that showing
has been made, the prosecution must offer a
race-neutral basis for striking the juror in
question. Id., at 97-98, 106 S.Ct. 1712.
Third, in light of the parties' submissions,
the trial court must determine whether the
defendant has shown purposeful discrimination.
Id., at 98, 106 S.Ct. 1712.
Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003).
Petitioner asserts that the reason for striking Mr. Epps was
pretextual, and the trial court erred in failing to critically
evaluate the genuineness of the reasons for the strike.
The
prosecutor struck Mr. Epps, expressing his concern that Mr. Epps
failed to reveal six or seven prior arrests. The record shows that
during voir dire, the court asked whether anyone on the panel had
"ever been arrested."
Ex. 8 at 27.
Mr. Dunstatter, a white male,
responded to that question by saying yes, for a domestic battery
case.
Id. at 28.
Mr. Epps, a black male, indicated to the court
- 46 -
that he had been arrested.
Id. at 27-28.
When the court asked him
to explain, Mr. Epps said "[i]t was a DUI charge."
Epps failed to mention his other arrests.
Id. at 28.
Mr.
The prosecutor brought
these numerous unmentioned arrests to the attention of the court in
making its peremptory challenge to Mr. Epps. The court stated that
it allowed the challenge based on the prior arrests.
Petitioner contends there was a Batson violation, and the
"[t]he Equal Protection Clause forbids a prosecutor from striking
potential jurors solely on account of their race."
United States
v. Walker, 490 F.3d 1282, 1290 (11th Cir. 2007) (citing Batson v.
Kentucky, 476 U.S. 79, 86 (1986)), cert. denied, 552 U.S. 1257
(2008).
Petitioner asserts that the peremptory challenge of Mr.
Epps was exercised on the basis of race; however, the prosecutor
articulated a race-neutral reason for the strike.
"Under Batson,
almost any plausible reason can satisfy the striking party's
burden, as long as the reason is race or gender neutral."
States v. Walker, 490 F.3d at 1293.
United
Moreover, "[c]ourts have
upheld reasons deemed to be superstitious, silly, or trivial, as
long as they are race or gender-neutral."
Id. (citing Purkett v.
Elem, 514 U.S. 765, 768 (1995)).
In the case at bar, the prosecutor stated he was concerned
that Mr. Epps failed to reveal his numerous arrests.
"Unless a
discriminatory intent is inherent in the prosecutor's explanation,
the reason offered will be deemed race neutral."
- 47 -
Hernandez v. New
York, 500 U.S. 352, 360 (1991) (plurality opinion).
Certainly,
this is a genuine, credible non-racial reason that was properly
accepted by the trial judge. In sum, purposeful discrimination was
not shown.
Finally,
upon
a
thorough
review
of
the
record
and
the
applicable law, it is clear that Petitioner is not entitled to
relief on the basis of this claim because the state court's
adjudication of the 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. Therefore, Petitioner is not entitled
to habeas relief on his tenth ground.
Accordingly, 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 accordingly
and close this case.
3.
If Petitioner appeals the denial of his Petition, the
Court denies a certificate of appealability.5
5
Because this Court
This Court should issue a certificate of appealability only
if a petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. § 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
- 48 -
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.
DONE AND ORDERED at Jacksonville, Florida, this 31st day of
August, 2016.
sa 8/18
c:
William Johnson
Counsel of Record
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)).
Upon due consideration, this Court will deny a
certificate of appealability.
- 49 -
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