Spencer v. Secretary, Department of Corrections et al
Filing
15
ORDER denying 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 3/7/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
BYRON JACOB SPENCER,
Petitioner,
v.
Case No. 3:14-cv-589-J-39PDB
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, AND FLORIDA
ATTORNEY GENERAL,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner Byron Jacob Spencer challenges a 2008 Duval County
conviction
for:
count
one,
armed
robbery;
count
two,
armed
burglary; count three, aggravated battery; count four, aggravated
fleeing or attempting to elude a law enforcement officer; count
five, grand theft auto; and count six, possession of a firearm by
a juvenile delinquent found to have committed a felony act.
See
Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody (Petition) (Doc. 1).
In the Petition, he
raises nine grounds for habeas relief: (1) ineffective assistance
of counsel for failure to object to prosecutorial misconduct during
opening
and
closing
a
arguments
credibility
of
state's
ineffective
assistance
of
when
witness:
counsel
the
state
Warnell
for
bolstered
Brown;
failure
to
the
(2)
the
object
to
prosecutorial misconduct by the state inferring that testimony of
officers was believable because of their status as police officers;
(3) the ineffective assistance of counsel for failure to object to
prosecutorial misconduct in erroneously telling the jury that
Petitioner had consciousness of guilt of a crime that he had
committed
ineffective
before
fleeing
assistance
prosecutorial
or
of
misconduct
in
attempting
counsel
for
deceiving
to
elude;
failure
the
jury
to
(4)
the
object
to
with
a
false
presumption about the victim; (5) the ineffective assistance of
counsel for failure to properly seek to suppress Warnell Brown's
testimony; (6) prosecutorial misconduct for informing the jury that
they could not return a verdict based on a lesser included offense
of fleeing and attempting to elude; (7) ineffective assistance of
counsel for failure to introduce evidence to the jury that may have
allowed for acquittal; (8) a claim that convictions and sentences
for grand theft and robbery violate the proscription against double
jeopardy; and (9) prosecutorial misconduct in informing the jury
that Petitioner had consciousness of guilt of a crime that he had
committed prior to the fleeing and attempting to elude.
Respondents filed an Answer in Response to Order to Show Cause
(Response) (Doc. 12). In support of their Response, they submitted
- 2 -
an Appendix (Doc. 12).1
Petition.
Respondents urge this Court to deny the
Response at 16-54.
As previously referenced, Petitioner raises several grounds of
ineffective assistance of counsel. This Court must be mindful that
in order to prevail on this Sixth Amendment claim, Petitioner must
satisfy the two-pronged 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).
The Court
will address all nine grounds, See Clisby v. Jones, 960 F.2d 925,
936 (11th Cir. 1992), but no evidentiary proceedings are required
in this Court.
II.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic &
Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), petition
1
The Court hereinafter refers to the exhibits 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. The Court will reference the page
numbers assigned by the electronic docketing system where
applicable. Petitioner filed a Notice (Doc. 14) stating that he
did not intend to file a reply. See Order (Doc. 5).
- 3 -
for cert. filed, – U.S. - (U.S. Oct. 14, 2016) (No. 16-6444).
"'The purpose of AEDPA is to ensure that federal habeas relief
functions as a guard against extreme malfunctions in the state
criminal justice systems, and not as a means of error correction.'"
Id. (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).
Under
AEDPA,
when
a
state
court
has
adjudicated the petitioner's claim on the
merits, a federal court may not grant habeas
relief unless the state court's decision was
"contrary to, or involved an unreasonable
application of, clearly established Federal
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). A state court's factual findings
are presumed correct unless rebutted by clear
and convincing evidence.[2] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011).
..."It bears repeating that even a strong case
for relief does not mean the state court's
contrary
conclusion
was
unreasonable."
[Harrington v. Richter, 562 U.S. 86, 101
(2011)] (citing Lockyer v. Andrade, 538 U.S.
63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144
(2003)). The Supreme Court has repeatedly
instructed lower federal courts that an
unreasonable application of law requires more
than mere error or even clear error. See,
e.g., Mitchell v. Esparza, 540 U.S. 12, 18,
124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer,
538 U.S. at 75 ("The gloss of clear error
fails to give proper deference to state courts
2
"This presumption of correctness applies equally to factual
determinations made by the state trial and appellate courts." Pope
v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012)
(quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert.
denied, 133 S.Ct. 1625 (2013).
- 4 -
by conflating error (even clear error) with
unreasonableness."); Williams v. Taylor, 529
U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000) ("[A]n unreasonable application of
federal law is different from an incorrect
application of federal law.").
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253–54 (11th Cir. 2013),
cert. denied, 135 S.Ct. 67 (2014).
In applying AEDPA deference, the first step is to identify the
last state court decision that evaluated the claim on its merits.
See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235
(11th Cir. 2016) (en banc), petition for cert. filed, - U.S. (U.S. Nov. 10, 2016) (No. 16-6855); Marshall v. Sec'y, Fla. Dep't
of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).
Regardless of
whether the last state court provided a reasoned opinion, "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."
Richter, 562 U.S. at 99; see also
Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013).
Where the last adjudication on the merits 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.'" Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S.
at 98). "[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 it is possible fairminded
jurists
could
disagree
that
those
- 5 -
arguments
or
theories
are
inconsistent with the holding in a prior decision of [the] Court."
Richter, 562 U.S. at 102; see also Wilson, 834 F.3d at 1235;
Marshall, 828 F.3d at 1285. To determine which theories could have
supported the state appellate court's decision, the federal habeas
court may look to a state trial court's previous opinion as one
example of a reasonable application of law or determination of
fact; however, the federal habeas court is not limited to assessing
the reasoning of the lower court.
Wilson, 834 F.3d at 1239. As
such,
even when the opinion of a lower state court
contains flawed reasoning, [AEDPA] requires
that [the federal court] give the last state
court to adjudicate the prisoner's claim on
the merits "the benefit of the doubt," Renico
[v. Lett, 449 U.S. 766, 733 (2010)] (quoting
[Woodford v. Visciotti, 537 U.S. 19, 24
(2002)] ), and presume that it "follow[ed] the
law," [Woods v. Donald, ––– U.S. ––––, 135
U.S. 1372, 1376 (2015)] (quoting Visciotti,
537 U.S. at 24).
Wilson at 1238; see also Williams, 133 S.Ct. at 1101 (Scalia, J.,
concurring).
III.
Respondents
Response.
provide
PROCEDURAL HISTORY
a
Response at 2-7.
brief
procedural
in
their
Petitioner does not challenge their
rendition of the procedural history.
IV.
history
Notice (Doc. 14).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In his first ground, Petitioner raises a claim of ineffective
assistance of counsel for failure to object to prosecutorial
- 6 -
misconduct during opening and closing arguments when the state
bolstered the credibility of a state's witness: Warnell Brown.
Petition at 6.
Petitioner exhausted this ground by raising it in
his Motion for Post Conviction Relief (3.850) (Rule 3.850 motion).
Ex. N at 7-12.
The trial court denied relief, id. at 40-41, and
the First District Court of Appeal per curiam affirmed.
Ex. Q.
Initially, the circuit court set forth the applicable twopronged Strickland standard as a preface to addressing the multiple
claims of ineffective assistance of counsel.
Ex. N at 39-40.
The
court also recognized that many of the claims raised in the motion
alleged ineffective assistance of counsel for failure to object to
multiple instances of alleged prosecutorial misconduct. Id. at 39.
The court explained:
In matters related to postconviction
relief due to prosecutorial misconduct, the
Defendant must show "the comments must either
deprive the Defendant of a fair and impartial
trial,
materially
contribute
to
the
conviction, be so harmful or fundamentally
tainted as to required a new trial, or be so
inflammatory that they might have influenced
the jury to reach a more severe verdict than
it would have otherwise.
Id. at 40 (citations omitted).
As noted by Respondents, the circuit court identified the
correct legal standard, referencing Strickland.
It then addressed
the particular allegations raised in ground one concerning the
State Attorney improperly vouching for the truthfulness of the
witness, Warnell Brown. The court noted that Petitioner complained
- 7 -
of two infractions in the state's opening statement: (1) the
statement that the witness has something important to say, and (2)
the statement that the witness is going to be truthful and is going
to tell the truth.
Ex. N at 40.
With regard to the first statement, the court rejected the
argument that it fundamentally tainted the proceedings or deprived
Petitioner of a fair and impartial trial.
Id.
With regard to the
second statement, the court, in reaching its conclusion, undertook
"a full reading" of the statement, considering the statement in
context.
Id.
Once it had done so, the court found "it was a
rhetorical device used by the State to turn the Defendant's own
words spoken to Mr. Brown to 'be true, don't be a snitch.'" Id.
Thus, the court concluded, the statement was not made in isolation,
but rather, as a counterpoint to the Defendant's request to Mr.
Brown to remain "true" to him by not helping the police.
Id.
As
such, the court found the statement did not deprive Petitioner of
a fair and impartial trial, and counsel's performance was not
deficient in failing to object to the prosecutor's statement.
Id.
at 40-41.
The
court
concluded
that
counsel's
performance
was
not
deficient under Strickland and denied the claim raised in the first
ground of the Rule 3.850 motion.
Appeal (1st DCA) affirmed.
The First District Court of
Its adjudication on the merits is
unaccompanied by an explanation. Thus, the Court presumes that the
1st DCA adjudicated the claim on its merits, as there is an absence
- 8 -
of
any
indication
contrary.
or
state-law
procedural
principles
to
the
Now it is Petitioner's burden to show there was no
reasonable basis for the state court to deny relief.
If he fails
to accomplish this task, he cannot prevail on ground one.
Upon review, there is a reasonable basis for the court to deny
relief; therefore, the denial must be given deference.
Response at 18-22.
See
Indeed, deference under AEDPA should be given
to the last adjudication on the merits provided by the 1st DCA.
Given due consideration, its decision is not inconsistent with
Supreme Court precedent, including Stickland and its progeny.
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.
As such, ground one is due to be
denied.
B.
Ground Two
In his second ground, Petitioner contends that his counsel was
ineffective for failure to object to prosecutorial misconduct by
the state inferring that testimony of officers was believable
because of their status as police officers.
Petition at 22.
Petitioner exhausted this ground by raising it in ground two of his
Rule 3.850 motion.
Ex. P at 12-14.
The trial court denied relief,
id. at 41, and the 1st DCA affirmed per curiam.
Ex. Q.
In this ground, Petitioner complains of misconduct during
closing arguments.
The circuit court referenced the alleged
instances of misconduct: the first being the comment,
- 9 -
"[t]hose
were [Officer Moon's] words on the stand[,]" and the second being
the statement, "[y]ou're to rely on what Officer Moon told you."
Ex. N at 41. The circuit court determined that these comments were
proper, and therefore, counsel could not be ineffective for failing
to object to these arguments.
Id. (citing Rogers v. State, 957
So.2d 539, 549 (Fla. 2007) (as modified on denial of rehearing)).
In this instance, the court opined that the State Attorney
"was seeking to correct any perception [sic] the jury may have
regarding his summation of the evidence."
Id.
In fact, the State
Attorney
the
testimony
reminded
the
jury
to
rely
on
of
the
witnesses, like Officer Moon, and to recognize that the State
Attorney's opening statements and comments were not evidence.
Id.
The particular statements at issue were contained in the
following portion of the closing argument:
During
the
course
of
fleeing
or
attempting to elude Byron Spencer drove at a
high speed or any manner demonstrating a
wanton disregard for the safety of persons or
property.
Officer Moon told you that he
remembers his vehicle going between 75 miles
per hour but under 100 miles per hour. Those
were his words on the stand. The judge will
instruct you during the course of this trial
in opening statement if I'm [sic] made any
statements, you're to rely on your memory,
what I say is not evidence. You're to rely on
what Officer Moon told you. He said 75 to 100
miles an hour. Told you that he used the turn
lane and that other cars, I tried to make
notes, members of the jury, other cars took
evasive action.
And that he was taking a
curve at high speeds and that he was using the
turn lane and he was using the shoulder. That
he ran red lights. That he ran stop signs,
one stop sign in particular he said he ran it
- 10 -
almost 70 to 75 miles per hour. All of this
during rush-hour traffic on a week day.
Ex. F at 586-87 (emphasis added).
After reviewing these statements in context, the court held:
In this view, the comments of the State
Attorney during his closing argument were
proper and therefore the absence of an
objection by the Defendant's counsel was not
deficient. Rogers, supra. Furthermore, the
statements,
on
their
face,
did
not
"fundamentally taint" the proceedings or
deprive the Defendant of a fair and impartial
trial."
Walls, at 1167.
As a result, the
Defendant has not adequately alleged a
deficient performance by his counsel and no
relief is warranted. Reaves, supra., [sic].
Ex. N at 41.
Petitioner
credibility
of
contends
the
that
officers
the
by
prosecutor
referring
authorized law enforcement officers."
to
bolstered
them
as
the
"duly
This did not constitute
improper bolstering as the court's instructions themselves referred
to the officers as "duly authorized law enforcement officer[s]."
Ex. F at 632.
Specifically, the court charged the jury with the
following:
To prove the crime of fleeing to elude a
law enforcement officer the State must prove
the
following
three
elements
beyond
a
reasonable doubt, Byron Spencer was operating
a vehicle upon a street or highway in Florida,
number two, a duly authorized law enforcement
officer ordered the defendant to stop or
remain stopped, and number three, Byron
Spencer knowing he had been duly, I'm sorry,
knowing he had been directed to stop by a duly
authorized law enforcement officer willfully
refused or failed to stop the vehicle in
compliance with the order.
- 11 -
Id. at 632-33 (emphasis added).
As previously noted, the circuit court, in its decision
denying the Rule 3.850 motion, recognized the applicable twopronged Strickland standard before addressing the multiple claims
of ineffective assistance of counsel.
Ex. N at 39-40.
The court
found Petitioner did not demonstrate deficient performance. Id. at
41.
Since both prongs of the Strickland test must be met, this
Court need not address the prejudice prong. Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir.) ("Because both parts of the test must
be satisfied in order to show a violation of the Sixth Amendment,
the court need not address the performance prong if the defendant
cannot meet the prejudice prong, . . ., or vice versa."), cert.
denied, 531 U.S. 1017 (2000).
Of importance, the 1st DCA affirmed the decision of the
circuit court in denying this ground, and this Court will presume
that the state court adjudicated the claim on its merits, as there
is an absence of any indication or state-law procedural principles
to the contrary.
Since the last adjudication on the merits is
unaccompanied by an explanation, it is Petitioner's burden to show
there was no reasonable basis for the state court to deny relief.
He has failed in this regard.
Upon review of the entire record, defense counsel did not
perform deficiently.
court
to
deny
There is a reasonable basis for the state
relief;
therefore,
the
denial
must
be
given
deference. The 1st DCA's decision is not inconsistent with Supreme
- 12 -
Court precedent, including Stickland and its progeny.
Thus, 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.
Accordingly, ground two is due to be
denied.
C.
Ground Three
In the third ground, Petitioner raises a claim of ineffective
assistance of counsel for failure to object to prosecutorial
misconduct in erroneously telling the jury that Petitioner had
consciousness of guilt of a crime that he had committed before
fleeing or attempting to elude.
Petition at 19.
Petitioner
exhausted this ground by raising it in ground three of his Rule
3.850 motion.
Ex. N at 14-16.
The trial court denied relief, id.
at 41-42, and the 1st DCA affirmed the circuit court's decision.
Ex. Q.
During closing argument, the prosecutor discussed the elements
of grand theft auto.
Ex. F at 611.
He then stated:
And of course, the flight not just the
crime itself, and the fleeing is a crime but
it's also consciousness of guilt. Why would
he do that high speed chase?
Because he's
afraid of a police officer stopping him in
broad daylight in rush-hour traffic with other
officers around and lots of people? No, he
did it because he knew he was in a stolen car
and he had to get away.
Why else would he
hide in the water? Not because Mr. Brown is
being tased many times, he told you I was
tased once. He didn't say many times.
Id. at 612.
- 13 -
Apparently, Petitioner is contending that his counsel was
ineffective for failing to object to the prosecutor's comment,
during
closing
inferred
from
argument,
that
Petitioner's
consciousness
flight
to
elude
of
guilt
capture.
may
be
Before
addressing this ground, the circuit court succinctly summarized
Petitioner's claim:
In
Ground
Three,
the
Defendant
specifically alleges again that his attorney
was deficient for failing to object to the
prosecutor's
misconduct
during
closing
arguments.
The Defendant finds the State
Attorney's
comments
to
the
jury
are
impermissible where he says, regarding the
elements of Count IV - aggravated fleeing or
attempting to elude a law enforcement officer:
"The flight is not just the crime itself, and
the fleeing is a crime but it's also a
consciousness of guilt." Exhibit C at page[s]
611-612. The Defendant asserts that, in the
absence of jury instructions, it was improper
for the State to infer at the closing argument
that consciousness of guilt can be inferred
from his flight to elude capture.
Ex. N at 41.
The
circuit
court
considered
this
claim
of
ineffective
assistance of counsel and noted that Petitioner failed to reference
any authority for the proposition that there must be a specific
instruction before the panel can infer consciousness of guilt based
Id. at 41-42.
on flight.
The court found it was proper for the
prosecutor to ask the jury to infer consciousness of guilt based on
flight, noting that Florida law provides that evidence of flight is
admissible to infer consciousness of guilt if there is sufficient
evidence
to
demonstrate
that the
- 14 -
defendant
fled
to
avoid
prosecution.
proper
based
Id. at 42.
on
the
Thus, finding the prosecutor's comments
wealth
of
evidence
presented
at
trial
concerning Petitioner's flight to avoid prosecution, the court held
that the related comments during closing argument were entirely
proper, and there was no deficiency on the part of counsel in
failing to object to such proper comments. Id. Finally, the court
determined that the prosecutor's closing argument did not deprive
Petitioner of a fair and impartial trial.
Id.
The circuit rejected Petitioner's claim for relief, finding no
deficient performance by counsel. Id.
Ex. Q.
The 1st DCA affirmed.
Ex.
With regard to this claim of ineffective assistance of
counsel, AEDPA deference should be given to the state court's
decision. The state court's ruling is well-supported by the record
and
by
controlling
case
law,
Strickland
and
its
progeny.
Petitioner raised the issue in his post conviction motion, the
circuit court denied the motion, and the appellate court affirmed.
The Court concludes that 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.
Petitioner is not entitled to habeas relief on ground three.
D.
Ground Four
In ground four, Petitioner raises a claim of ineffective
assistance of counsel for the failure to object to prosecutorial
misconduct in deceiving the jury with a false presumption about the
victim.
Petition at 24.
He exhausted his state court remedies by
- 15 -
raising this ground in his Rule 3.850 motion as ground four.
Ex.
N at 17-19.
The
The circuit court denied this ground.
1st DCA affirmed per curiam.
Petitioner
states
that
Id. at 42.
Ex. Q.
over
the
prosecutor's
objection,
defense counsel was not allowed to use the medical report showing
the victim's prior use of drugs.
78.
Petition at 24; see Ex. F at 174-
Upon review, however, there was much more to the court's
ruling.
The court specifically said that it would not deny the
defense the opportunity to use the information from the report in
cross examination.
Id. at 179.
The court held that, because the
victim admitted using drugs in the past, "I think Mr. Falcon would
be able to at least ask him were you under the influence of
marijuana that night."
Id.
Petitioner also complains that the state "set up a false
presumption" that, as a result of the assault, the victim used
drugs, endearing sympathy for the victim.
review
of
the
closing
concerning
the
victim's
inaccurate.
argument,
drug
use
the
was
Petition at 24.
prosecutor's
neither
Upon
statements
misleading
In pertinent part, the prosecutor said:
You may not like Mr. Thigpen, you don't
have to like Mr. Thigpen, he told you, you
know, no one is asking you to take this man
home to dinner but I committed a crime, I had
cocaine, I like to mix cocaine with my pot and
smoke it. That may offend you and that can
offend you. He even told you in the past did
I try my hand at being a drug dealer? I did,
I tried to sell some pot and I wasn't any good
at it, so I went back to school and got a job.
That may offend you and that certainly can
- 16 -
or
offend you.
No one is asking you to like
someone who has sold drugs, but he was very
honest with you.
. . . .
The last thing I'm going to say about Mr.
Thigpen and I told you, you don't have to like
him but remember the State of Florida did not
choose him, did not choose the officers. This
man (indicating) right here, he chose the
date, he chose the place, he chose the victim,
and on September 7th, he chose when he was
going to run and therefore which officers were
involved.
So if you don't like the victim, you hold
it against this man (indicating) cause he
chose the victim, not the State of Florida.
Ex. F at 607-608, 610.
Attorneys
arguments.
are
permitted
wide
latitude
in
their
closing
Hammond v. Hall, 586 F.3d 1289, 1335 (11th Cir. 2009)
(finding the Georgia court reasonably applied Strickland in denying
a claim of ineffective assistance of counsel because the petitioner
did not establish the action of counsel (failing to move for a
mistrial based on prosecutorial misconduct) outside the wide range
of reasonable professional assistance), cert. denied, 562 U.S. 1145
(2011).
However,
attorneys
should
not
make
"[i]mproper
suggestions, insinuations, or assertions" that are intended to
mislead the jury or appeal to passions or prejudices during closing
arguments. United States v. Hope, 608 F. App'x 831, 840 (11th Cir.
2015) (per curiam).
Here, defense counsel was not ineffective for failure to
object to the prosecutor's remarks. These remarks did not deceive
- 17 -
the jury. Reviewing the state's closing argument, there is nothing
before the Court which suggests that the prosecutor told the jury
that due to the assault on the victim, the victim was led to use
drugs.
In fact, the opposite is true.
The prosecutor painted the
picture of an unsympathetic victim, a drug user and drug dealer,
and asked the jury to follow the law despite the fact that the
victim was both a drug user and dealer, and not a particularly
likeable or admirable victim.
Under these circumstances, defense
counsel's performance cannot be deemed deficient.
Furthermore,
Petitioner was not prejudiced by a lack of an objection because the
prosecutor's comments never inferred that it was the Petitioner's
fault that the victim began to use drugs after the assault.
On this record, Petitioner has failed to carry his burden of
showing that his counsel's representation fell outside that range
of reasonably professional assistance for failing to object to
these statements.
Even assuming deficient performance by his
counsel, Petitioner has not shown prejudice.
Petitioner has not
shown that a reasonable probability exists that the outcome of the
proceeding would have been different if his lawyer had objected or
moved for a mistrial based on the prosecutor's alleged improper
comments.
Petitioner's ineffectiveness claim is without merit
since he has shown neither deficient performance nor resulting
prejudice.
In the alternative, the Court will give deference to the
circuit court's decision that Petitioner failed to demonstrate
- 18 -
deficient performance by counsel.3
Ex. N at 42.
As the Petitioner
failed to demonstrate the deficient performance prong of the
Strickland standard, it is unnecessary to delve into the other
prong of the Strickland standard for this claim.
The 1st DCA
affirmed.
With
regard
to
this
claim
of
ineffective
assistance
of
counsel, AEDPA deference should be given to the state court's
decision. The state court's ruling is well-supported by the record
and
by
controlling
case
law,
Strickland
and
its
progeny.
Petitioner raised the issue in his post conviction motion, the
trial court denied the motion, and the appellate court affirmed.
The Court concludes that 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.
Petitioner is not entitled to habeas relief on ground four.
E.
In
his
fifth
ground,
Ground Five
Petitioner
claims
he
received
the
ineffective assistance of counsel due to counsel's failure to
properly seek to suppress Warnell Brown's testimony.
26.
Petition at
Petitioner raised this issue in ground five of his Rule 3.850
3
The Court is reluctant to rely solely on deference because
the circuit court stated that it could not find any mention of the
victim's drug abuse in the state's closing argument; however, the
court's inability to find the reference is apparently based on
Petitioner's failure to pinpoint the drug references by providing
relevant citations to the transcript of the closing argument. In
an abundance of caution, this Court will give AEDPA deference, in
the alternative.
- 19 -
motion.
Ex. N at 19-25.
The circuit court denied this ground,
finding it failed under the Strickland standard.
Id. at 43.
The circuit court recognized that defense counsel made a
concerted effort to suppress the jailhouse conversations between
Petitioner and witness Brown pre-trial.
Id.
The court denied
counsel's motion to exclude the incriminating statements.
Id.
Although
his
defense
counsel's
efforts
performance was not deficient.
were
Id.
unsuccessful,
Moreover, the suppression
issue was properly preserved and could have been raised on direct
appeal, further evincing effective performance by counsel.
The 1st DCA affirmed this decision.
Ex. Q.
Id.
There is a
reasonable basis for the court to deny relief, and this decision
must
be
given
deference.
The
1st
DCA's
decision
is
not
inconsistent with Supreme Court precedent, and 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.
The record supports the conclusion that counsel's performance
was not deficient.
Defense counsel presented extensive argument
and played the video recording of Brown's conversation with a
police officer.
Ex. D at 138-71.
The court, however, after
conducting a hearing, held that Brown's testimony would be allowed.
Id. at 169-171.
The court said:
All right. At this time let me make a
couple of observations, I guess, for the
record. First, I think this is in the nature
- 20 -
of a motion to suppress which typically by the
rules of contemplated prior to jury selection
but I have, I guess, through consent agreed to
do that today which means we're catching a
little bit of it on the fly.
But at this time, if I understand the
argument of the defense, is that Brown became
an agent of the State and was allowed to
interrogate Spencer after invocation of his
right to counsel. I don't believe there is
any evidence shown first that is sufficient to
show that Brown had been explicitly or
implicitly made to be an agent of the State,
number one.
Number two, I also find that there was no
reasonable expectation of privacy based on the
–- at least the recitation or the knowledge at
this point of Spencer that he was being
videotaped
or
audiotaped
while
in
the
interrogation room.
. . . .
Now, if Mr. Brown testifies otherwise,
then that may not be that compelling a point
to rely to base my ruling on, but as it sits
now that's what it sounds like, is Brown said
Spencer initiated these conversations.
For those reasons and I appreciate you
making the record and I believe I understand
your argument, but at this time I'm going to
deny the motion to suppress or the motion in
limine to prohibit Brown from testifying as to
the statements made by Spencer.
Id.
Defense counsel renewed his objection before his opening
statement and asked for a standing objection.
court granted this request.
When
considering
the
Id. at 197.
The
Id.
claim
of
ineffective
assistance
of
counsel, this Court must try to eliminate the distorting effects of
hindsight, as counseled to do so in Strickland, 466 U.S. at 689.
- 21 -
The record shows defense counsel filed a motion, presented argument
and the recording, renewed his objection, and asked for a standing
objection to the introduction of Brown's testimony.
He did not
prevail on his motion, however, he renewed his objection.
Under
these circumstances, counsel's performance was not deficient and
Petitioner is not entitled to habeas relief.
F.
Ground Six
In his sixth ground for habeas relief, Petitioner raises a
claim of prosecutorial misconduct for informing the jury that they
could not return a verdict based on a lesser included offense of
fleeing and attempting to elude.
He exhausted this claim by
raising it in his Rule 3.850 motion.
Ex. N at 25-27.
court denied this claim.
affirmed.
Id. at 42-43.
The circuit
The state appellate court
Ex. Q.
This claim has no merit. The prosecutor, in closing argument,
told the jury that the judge would give instructions on lesser
included offenses.
Ex. F at 588-90.
He explained:
Now, members of the jury, the court will
instruct you as to what they call lesser
included offenses. Basically what each one of
those offenses are are crimes where elements
are not included. But the judge will tell you
that you are to find and you are to return a
verdict on the crime, the highest crime
charged that the State's proven.
Id. at 588.
The prosecutor argued that the state had proven the
highest crime charged beyond a reasonable doubt.
Id. at 589.
He
urged the jury to find that the state proved the highest crime
- 22 -
charged: fleeing or attempting to elude a law enforcement officer.
Id.
The record shows that the court did instruct the jury on the
main and lesser included offenses.
Id. at 629-633.
Within the
charge, the court specifically instructed:
In considering the evidence you should
consider the possibility that although the
evidence may not convince you that the
defendant committed the main crimes of which
he is accused, there may be evidence that he
committed other acts that would constitute
lesser included crimes.
Therefore, if you
decide that the main accusations have not been
proved beyond a reasonable doubt, then you
will next need to decide if the defendant is
guilty of any lesser included crime.
The
lesser included crime indicated in the
definition of fleeing to elude a law
enforcement officer are fleeing to elude under
one statute and fleeing to elude under a
second statute.
Id. at 631.
In addressing the claim of prosecutorial misconduct, the
circuit
court
found
that
"[a]ny
misimpression
left
by
the
prosecutor's statements was corrected by the judge's instructions."
Ex. N at 42-43.
Thus, the court concluded that the record refuted
the Petitioner's claim that the prosecutor's comments deprived him
of a fair and impartial trial.
Id.
Finally, finding that
Petitioner based his claim of jury confusion on mere speculation,
the court rejected Petitioner's claim of prosecutorial misconduct
and denied relief.
The 1st DCA affirmed.
- 23 -
Ex. Q.
As noted by Respondents, the prosecutor is entitled to offer
the jury his view of the evidence presented.
Response at 42.
In
doing so, the prosecutor has wide latitude in asking the jury to
draw all logical inferences from the evidence presented.
Viewing
the
prosecutor's
arguments
along
with
the
instructions, the jury was not improperly misled.
Id.
court's
As such,
Petitioner is not entitled to habeas relief.
Deference under AEDPA should be given to the state court's
decision.
Petitioner raised the issue, and the appellate court
affirmed.
The state court's adjudication of this claim is not
contrary to or an unreasonable application of constitutional law,
or based on an unreasonable determination of the facts. Therefore,
Petitioner is not entitled to habeas relief on this ground.
G.
Ground Seven
In his seventh ground, Petitioner raises another claim of
ineffective assistance of trial counsel.
Petitioner claims his
counsel was ineffective for failure to introduce evidence to the
jury that may have allowed for acquittal.
Petition at 39.
He
raised this ground in his Rule 3.850 motion.
Ex. N at 27-31.
The
circuit
court
affirmed.
rejected
this
claim,
and
the
appellate
court
Id. at 43-44; Ex. Q.
Again, the circuit court applied the Strickland standard to
the Petitioner's claim of ineffectiveness of counsel. Ex. N at 3940.
After applying this standard, the court found that Petitioner
failed to satisfy the prejudice prong.
- 24 -
The court opined:
The Defendant has failed to allege
sufficiently that, but for the photographs,
there was a reasonable probability that the
result of the proceeding would have been
different absent the deficient performance.
In this case, the State proved the Defendant's
guilt by his attempted escape and his
admissions to the police and Mr. Brown.
Additionally,
the
victim,
Mr.
Thigpen,
identified the Defendant as his assailant. In
light of this, the record conclusively refutes
the Defendant's allegations that he was
prejudiced by the absence of the photographs
from the record. It is improbable that, but
for the photographs, there would have been a
different
result
with
the
photographs
available to the jury.
No relief is
warranted.
Ex. N at 44 (citations and internal quotations omitted).
The record shows that counsel referenced photographs of the
interior of the house to show that the perpetrator did not take the
contents of the victim's home.
But, counsel did not introduce
these photographs into evidence.
The jury inquired about the
photographs, but since they had not been admitted into evidence,
the court did not send the photographs back to the jury.
The record reflects that the prosecutor did not contend that
contents of the house were taken, other than the key to the
victim's car.
The prosecutor argued in closing about the robbery:
"[t]he judge will tell you that [the] State must prove that Byron
Spencer took keys, car keys from the person or custody of John
Thigpen."
Ex. F at 579.
With respect to burglary, the prosecutor
said that Petitioner had the intent to commit an offense inside the
- 25 -
house because he was after money, decided to take the car keys, and
took the car keys.
Id. at 583.
Even assuming arguendo counsel's performance was deficient,
Petitioner
has
not
established
Strickland's prejudice prong.
prejudice,
Ex. N at 44.
failing
to
meet
Petitioner has failed
to show "that it was 'reasonably likely' that, but for counsel's
deficient performance, the result of the proceeding would have been
different."
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).
As such, ground seven is due to be denied.
Petitioner is not entitled to habeas relief and the Petition is due
to be denied.
Petitioner is not entitled to relief on ground seven of the
Petition, the claim of ineffective assistance of trial counsel.
Deference, under AEDPA, should be given to the state court's
decision.
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.
In sum, ground
seven, Petitioner's claim of ineffective assistance of counsel, is
due to be denied.
H. Ground Eight
In his eighth ground, Petitioner claims that his convictions
and sentences for armed robbery and grand theft violate the
proscription against double jeopardy.
Petition at 44.
In the
Petition, Petitioner asserts that "[g]rand theft is a lesser
- 26 -
included offense of Robbery, therefore[,] the court is not lawful
when it sentences an accused to sentences arising from the same
transaction - because it is double jeopardy."
Id. at 46.
He
exhausted this claim by raising it in his Rule 3.850 motion in
ground eight.
ground.
Ex. N at 31-33.
Id. at 44-45.
The circuit court denied this
The 1st DCA affirmed.
Ex. Q.
Of import, the Double Jeopardy Clause "provides that no person
shall 'be subject for the same offense to be twice put in jeopardy
of life or limb.'
U.S. Const., Amdt. 5."
509 U.S. 688, 695-96 (1993).
United States v. Dixon,
The Clause protects against a second
prosecution for the same offense after acquittal, against a second
prosecution for the same offense after conviction, and it protects
against multiple punishments for the same offense.
Garrett v.
United States, 471 U.S. 773, 777-78 (1985); Brown v. Ohio, 432 U.S.
161 (1977).
It is the protection against multiple punishments for
the same offense which is at issue in this case.
Although the Blockburger[v. U.S., 284 U.S. 299 (1932)] sameelements test (inquiring whether each offense contains an element
not contained in the other) is a rule of statutory construction
barring subsequent punishment or prosecution if the offenses are
considered to be the same offense, it is not controlling if there
is an apparent indication of contrary legislative intent. Boler v.
State, 678 So.2d 319, 321 (Fla. 1996) (citing Albernaz v. United
States, 450 U.S. 333, 340 (1981)).
In this regard, "legislative
intent is the dispositive question" when addressing a double
- 27 -
jeopardy issue.
Id.
Clause
more
does
no
(citation omitted).
than
prevent
the
"[T]he Double Jeopardy
sentencing
court
from
prescribing greater punishment than the legislature intended."
Missouri v. Hunter, 459 U.S. 359, 366 (1983). See Jones v. Thomas,
491 U.S. 376, 381-82 (1989); Ohio v. Johnson, 467 U.S. 493, 499
(1984) ("the sentencing discretion of courts is confined to the
limits established by the legislature").
In
Valdes
v.
State,
3
So.3d
1067,
1069-70
(Fla.
2009)
(footnote omitted), the Florida Supreme Court succinctly set forth
this concept:
The most familiar concept of the term
"double jeopardy" is that the Constitution
prohibits subjecting a person to multiple
prosecutions, convictions, and punishments for
the same criminal offense. The constitutional
protection against double jeopardy is found in
both article I, section 9, of the Florida
Constitution and the Fifth Amendment to the
United States Constitution, which contain
double
jeopardy
clauses.
Despite
this
constitutional
protection,
there
is
no
constitutional prohibition against multiple
punishments for different offenses arising out
of the same criminal transaction as long as
the Legislature intends to authorize separate
punishments. See Hayes v. State, 803 So.2d
695, 699 (Fla. 2001) ("As the United States
Supreme Court explained in Brown v. Ohio, 432
U.S. at 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d
187 (1977), where multiple punishments are
imposed at a single trial, 'the role of the
constitutional
guarantee
against
double
jeopardy is limited to assuring that the court
does not exceed its legislative authorization
by imposing multiple punishments arising from
a single criminal act.'"); Borges v. State,
415 So.2d 1265, 1267 (Fla. 1982) ("The Double
Jeopardy Clause 'presents no substantive
limitation on the legislature's power to
- 28 -
prescribe multiple punishments,' but rather,
'seeks only to prevent courts either from
allowing
multiple
prosecutions
or
from
imposing multiple punishments for a single,
legislatively defined offense.'") (quoting
State v. Hegstrom, 401 So.2d 1343, 1345 (Fla.
1981)). As we recognized in Gordon v. State,
780 So.2d 17 (Fla. 2001):
The
prevailing
standard
for
determining the constitutionality of
multiple convictions for offenses
arising from the same criminal
transaction
is
whether
the
Legislature "intended to authorize
separate punishments for the two
crimes." M.P. v. State, 682 So.2d
79, 81 (Fla. 1996); see State v.
Anderson, 695 So.2d 309, 311 (Fla.
1997) ("Legislative intent is the
polestar that guides our analysis in
double jeopardy issues...."). Absent
a clear statement of legislative
intent
to
authorize
separate
punishments for two crimes, courts
employ the Blockburger test, as
codified in section 775.021, Florida
Statutes
(1997),
to
determine
whether separate offenses exist. See
Gaber v. State, 684 So.2d 189, 192
(Fla.1996) ("[A]bsent an explicit
statement of legislative intent to
authorize separate punishments for
two crimes, application of the
Blockburger
'same-elements' test
pursuant to section 775.021(4) ...
is the sole method of determining
whether multiple punishments are
double-jeopardy
violations.")
(footnote omitted).
Gordon, 780 So.2d at 19–20 (footnote omitted).
- 29 -
The two statutes at issue are 812.13, Fla. Stat. (count one),
and 812.014, Fla. Stat. (count five).4
Ex. A at 92.
Count one
required proof that Petitioner robbed the victim of his car keys
using a firearm inside the victim's home, and count five required
proof that the Petitioner, outside of the home, took the victim's
property, his car.
Count one of the fourth amended information charged: that "on
September 5, 2007, in the County of Duval and the State of Florida,
[Petitioner] did carry a firearm, and did unlawfully by force,
violence assault, or putting in fear, take money or other property,
to-wit: keys, the property of John Thigpen, from the person or
custody
of
John
Thigpen,
with
the
intent
to
permanently
or
temporarily deprive John Thigpen of the money or other property,
and during the commission of the aforementioned robbery the said
Byron Jacob Spencer did actually possess a firearm, contrary to the
provisions of Section 812.13(2)(a) and 775.087(2)(a)1, Florida
Statutes."
Ex. A at 92.
Count five charged "on or between the September 5, 2007 and
September 7, 2007, in the County of Duval and the State of Florida,
[Petitioner] did knowingly obtain or endeavor to obtain or use a
motor vehicle, the property of John Thigpen, with intent to either
temporarily or permanently deprive John Thigpen of a right to the
property or benefit therefrom, or with the intent to appropriate
4
Chapter 812 of the Florida Statutes addresses theft,
robbery, and related crimes.
- 30 -
the property to his own use or to the use of any person not
entitled
thereto,
contrary
to
812.014(2)(c)6, Florida Statues."
the
provisions
of
Section
Ex. A at 92.
The trial court instructed the jury, in pertinent part:
To prove the crime of robbery the State
must prove the following four elements beyond
a reasonable doubt, number one, Byron Spencer
took the car keys from the person or custody
of John Thigpen; number two, force, violence,
assault or putting in fear was used in the
course of the taking; number three, the
property taken was of some value; number four,
the taking was with the intent to permanently
or temporarily deprive John Thigpen of his
right to the property or any benefit from it.
In the course of the taking means that
the act occurred prior to, contemporaneous
with or subsequent to the taking of the
property. And that the act and the taking of
the property constitute a continuous series of
acts or events.
In order for a taking of property to be
robbery it is not necessary that the person
robbed be the actual owner of the property.
It is sufficient if the victim has the custody
of the property at the time of the offense.
The taking must be by the use of force or
violence or by assault so as to overcome the
resistance of the victim or by putting the
victim in fear so that the victim does not
resist.
The law does not require that the
victim of robbery resist to any particular
extent or that the victim offer any physical
resistance if the circumstances are such that
the victim is placed in fear of death or great
bodily harm if he or she does resist.
But
unless prevented by fear there must be some
resistance to make the taking one done by
force or violence.
In order for a taking by force, violence
or putting in fear to be robbery it is not
- 31 -
necessary that the taking be from the person
of the victim.
It is sufficient if the
property is taken under the actual control of
the victim so that it cannot be taken without
the use of force, violence or intimidation
directed against the victim.
Ex. F at 621-23.
Later on in the instructions, the court charged:
To prove the crime of grand theft auto
the State must prove the following two
elements beyond a reasonable doubt, number
one, Byron Spencer knowingly and unlawfully
obtained, used, endeavored to obtain or
endeavored to use the vehicle of John Thigpen,
number two, he did so with the intent to
either temporarily or permanently deprive John
Thigpen of his right to the property or any
benefit from it.
If you find the defendant guilty of theft
you must determine by your verdict whether the
property taken was a motor vehicle.
Id. at 633.
In denying this ground of the post conviction motion, the
circuit court relied on the Florida Supreme Court's decision in
Hayes v. State, 803 So.2d 695, 697 (Fla. 2001), finding "where
there is geographic and temporal separation in the taking of
separate property, including a motor vehicle, from one victim, the
defendant may be convicted of both armed robbery of that separate
property and grand theft of a motor vehicle without violating the
prohibition against double jeopardy."
See Ex. N at 44-45.
In
Hayes, the Florida Supreme Court first noted that Hayes entered the
victim's residence and robbed the victim of his keys to his motor
vehicle, as well as other household items.
- 32 -
Hayes, 803 So.2d at
704.
The "robbery was complete."
Id.
the home and stole the motor vehicle.
Thereafter, Hayes exited
Id.
The court concluded:
Although there was only a single victim in
this case, and there were no intervening acts,
we find that the robbery of various items from
inside the residence was sufficiently separate
in time, place and circumstances from Hayes'
theft of the motor vehicle parked outside the
victim's residence to constitute distinct and
independent criminal acts.
Id. The court distinguished a case where a motor vehicle was taken
at knifepoint, with the victim immediately outside of his vehicle.
Id.
The circuit court, in denying Petitioner's claim that double
jeopardy
principles
were
violated,
looked
for
evidence
of
separation of time, place, or circumstances between the armed
robbery and the grand theft.
Ex. N at 44.
The court found
distinct and independent criminal acts: first, the robbery of the
victim's car keys in the victim's home, and then second, outside
the home, the taking of the motor vehicle.5
court found no double jeopardy violation.
Id. at 44-45.
Id. at 45.
The
The 1st DCA
affirmed.
There is a qualifying state court decision and AEDPA deference
is warranted.
decision
5
that
The adjudication of the state court resulted in a
involved
a
reasonable
application
of
clearly
Since there are two or more distinct criminal acts when the
defendant commits a robbery inside the home and takes the victim's
car keys, and then exits the home and takes the vehicle, the
"prohibition against double jeopardy does not prohibit multiple
convictions and punishments[.]" Hayes, 803 So.2d at 700.
- 33 -
established federal law, as determined by the United States Supreme
Court.
Therefore, Petitioner is not entitled to relief on ground
eight 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.
"[R]obbery is not a degree of theft nor is theft a degree of
robbery[.]" McKinney v. State, 66 So.3d. 852, 856 (Fla. 2011) (per
curiam) (citation and internal quotations omitted), cert. denied,
565 U.S. 989 (2011). Each independent crime requires an element of
proof that the other does not, with robbery requiring a show of
force, violence, assault or putting in fear, and grand theft
requiring the property taken be of a certain value, or be an
automobile in this instance.
Id. at 857.
to be imposed for these violations.
Separate sentences are
See Stoddard v. Sec'y, Dep't
of Corr., 600 F. App'x at 703-704 ("In the context of multiple
punishments, the purpose of double jeopardy is simply to ensur[e]
that the total punishment did not exceed that authorized by the
legislature.
Therefore, in enforcing the federal double-jeopardy
guarantee, we must examine the various offenses for which a person
is
being
punished
to
determine
whether,
as
defined
by
the
legislature, any two or more of them are the same offense. In
effect,
we
ask
whether
the
- 34 -
offenses
are
sufficiently
distinguishable to permit the imposition of cumulative punishment."
(footnote, citations and internal quotations omitted)).
The offenses charged in counts one and five constitute two
distinct criminal acts, codified in separate statutes.
There is
not a "single, legislatively defined offense," McKinney, 66 So.3d
at 854 (citation and quotation omitted), and one is not wholly
subsumed by the other.
jeopardy violation.
Id. at 857.
Therefore, there is no double
As such, ground eight is due to be denied.
I.
Ground Nine
In his ninth and final ground, Petitioner raises a claim of
prosecutorial misconduct in informing the jury that Petitioner had
consciousness of guilt of a crime that he had committed prior to
the fleeing and attempting to elude.
Petition at 48.
Petitioner
raised this ground in his Rule 3.850 motion, Ex. N at 33-35, but
the circuit court held that this claim could not be raised in a
Rule 3.850 motion.
Id. at 45.
More particularly, the court said:
"Because a prosecutorial misconduct claim
may and should be raised on direct appeal, it
is not a cognizable claim for purposes of rule
3.850." McCray v. State, 933 So.2d 1226, 1227
(Fla. 1st DCA 2006)[.] Also, "[t]o the extent
that the allegations challenged the factual
basis and sufficiency of the evidence, such
claims cannot be raised in a Rule 3.850
motion, especially where (as occurred in the
instant case) a direct appeal was taken."
Betts v. State, 792 So.2d 589, 590 (Fla. 1st
DCA 2001). No relief can be granted on this
claim under Rule 3.850.
Ex. N at 45.
The 1st DCA affirmed.
- 35 -
Ex. Q.
Respondents assert that Petitioner failed to properly exhaust
this ground because he did not fairly present it to the state
courts. Response at 51. In addressing the question of exhaustion,
this Court must ask whether Petitioner's claim was properly raised
in the state court proceedings:
Before seeking § 2254 habeas relief in
federal court, a petitioner must exhaust all
state court remedies available for challenging
his conviction. See 28 U.S.C. § 2254(b), (c).
For a federal claim to be exhausted, the
petitioner must have "fairly presented [it] to
the state courts." McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005). The Supreme
Court has suggested that a litigant could do
so by including in his claim before the state
appellate court "the federal source of law on
which he relies or a case deciding such a
claim on federal grounds, or by simply
labeling the claim 'federal.'" Baldwin v.
Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158
L.Ed.2d 64 (2004). The Court's guidance in
Baldwin "must be applied with common sense and
in light of the purpose underlying the
exhaustion requirement"—namely, giving the
state courts "a meaningful opportunity" to
address the federal claim. McNair, 416 F.3d at
1302. Thus, a petitioner could not satisfy the
exhaustion requirement merely by presenting
the state court with "all the facts necessary
to support the claim," or by making a
"somewhat similar state-law claim." Kelley,
377 F.3d at 1343–44. Rather, he must make his
claims in a manner that provides the state
courts
with
"the
opportunity
to
apply
controlling legal principles to the facts
bearing upon (his) [federal] constitutional
claim." Id. at 1344 (quotation omitted).
Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir.
2012), cert. denied, 133 S.Ct. 875 (2013).
- 36 -
There
Respondents
are
urge
prerequisites
this
Court
procedurally defaulted.
to
a
to
federal
find
that
Response at 51-53.
habeas
ground
review.
nine
is
The doctrine of
procedural default requires the following:
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, supra, at 747–748, 111 S.Ct.
2546; Sykes, 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
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).
Procedural
defaults
may
be
excused
under
certain
circumstances; "[a] petitioner who fails to exhaust his claim is
- 37 -
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default or a fundamental miscarriage of justice from
applying the default."
Lucas, 682 F.3d at 1353 (citing Bailey v.
Nagle, 172 F.3d 1299, 1306 (11th Cir. 1999) (per curiam)).
The
fundamental miscarriage of justice exception is only available in
extraordinary cases upon a showing of "'actual' innocence" rather
than mere "'legal' innocence."
Johnson v. Alabama, 256 F.3d 1156,
1171 (11th Cir. 2001) (citations omitted), cert. denied, 535 U.S.
926 (2002).
Petitioner did not fairly present this federal constitutional
claim to the state courts.
Any further attempts to seek post
conviction relief in the state courts on this ground will be
unavailing.
He has procedurally defaulted this claim.
he must demonstrate cause and prejudice.
demonstrate cause for his default.
Therefore,
First, Petitioner must
This cause has to result from
an objective factor external to the defense, and that factor had to
prevent Petitioner from raising his constitutional claim which
cannot be fairly attributable to his own conduct.
Wright v.
Hopper, 169 F.3d 695, 706 (11th Cir.), cert. denied, 528 U.S. 934
(1999) (citation omitted).
In order for Petitioner to establish
prejudice, he must show that the alleged errors actually and
substantially disadvantaged his defense resulting in a denial of
fundamental fairness.
Id. (citation omitted).
- 38 -
Here, Petitioner has made no attempt to show cause and
prejudice.
Notice (Doc. 14).
Upon review, the Court finds that
Petitioner has not shown cause and prejudice. Additionally, he has
failed to show that failure to address this claim on its merits
would result in a fundamental miscarriage of justice.
The Court
finds this is not an extraordinary case as Petitioner has not made
a showing of actual innocence rather than mere legal innocence.
Ground nine is unexhausted and procedurally defaulted.
The
fundamental miscarriage of justice exception is inapplicable to the
case at bar.
Thus, Petitioner is barred from pursuing ground nine
in federal court.
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.6
6
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
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
- 39 -
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 7th day of
March, 2017.
sa 2/23
c:
Byron Jacob Spencer
Counsel of Record
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.
- 40 -
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