Timmons v. Secretary, Department of Corrections et al
Filing
20
ORDER denying 1 Petition for writ of habeas corpus and dismissing case with prejudice. The Clerk of the Court is directed to enter judgment in accordance with this Order and close the case. The Court denies a certificate of appealability. Signed by Judge Marcia Morales Howard on 9/15/2017. (HMJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
CHRISTOPHER TIMMONS,
Petitioner,
v.
Case No. 3:14-cv-767-J-34JRK
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS, et al.,
Respondents.
____________________________________
ORDER
I. Status
Petitioner Christopher Timmons, an inmate of the Florida penal system, initiated
this action on June 24, 2014, by filing through counsel, a Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus by a Person in State Custody (Petition; Doc. 1). In the Petition,
Timmons challenges a 2003 state court (Duval County, Florida) judgment of conviction
for first degree murder. On May 6, 2016, Respondent Secretary for the Florida
Department of Corrections submitted a response in opposition to the Petition. See
Respondent’s Answer in Response to Order to Show Cause and Petition for Writ of
Habeas Corpus (Response; Doc. 9) with exhibits (Resp. Ex.). Timmons filed a reply and
an amended reply on December 27, 2016. See Petitioner’s Amended Reply to State’s
Response to Petition for Writ of Habeas Corpus (Amended Reply; Doc. 16). 1 This case
is ripe for review.
1
Timmons filed his original reply to the Petition (Doc. 15) on December 27, 2016. However, he filed an
amended reply because he inadvertently failed to include Exhibit A with his original reply.
II. Procedural History
On December 5, 2002, a grand jury returned an indictment charging Timmons with
the first degree murder of Raul Cruz Valentin (victim). Resp. Ex. A at 19. Timmons
proceeded to trial, and a jury found him guilty of first degree murder on August 14, 2003.
Id. at 78-79. On September 3, 2003, the state trial court sentenced Timmons to life
imprisonment with a twenty-five year minimum mandatory term of imprisonment. Id. at
86-91. Timmons appealed, Id. at 97, and on January 28, 2005, the First District Court of
Appeal (First DCA) per curiam affirmed Timmons’s judgment and sentence without
opinion. Resp. Ex. J. The First DCA denied Timmons’s motion for rehearing and written
opinion, Resp. Ex. L, on March 7, 2005, and issued its mandate on March 23, 2005.
Resp. Ex. M; Timmons v. State, 895 So. 3d 1072 (Fla. 1st DCA 2005).
On November 29, 2005, Timmons filed a pro se petition for writ of habeas corpus
alleging ineffective assistance of appellate counsel with the First DCA (State Habeas
Petition; Resp. Ex. P). The First DCA denied the State Habeas Petition on the merits
without opinion on December 30, 2005. Resp. Ex. Q. On December 27, 2005, prior to the
ruling on the State Habeas Petition, Timmons filed a pro se motion to allow credit for
county jail time pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. Resp. Ex.
N. The state trial court denied the motion on January 10, 2006. Resp. Ex. O.
On March 8, 2006, Timmons, through counsel, filed a motion for post-conviction
relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure (3.850 Motion) raising
ten claims of ineffective assistance of counsel. Resp. Ex. T at 1-26. The state trial court
held an evidentiary hearing on May 20, 2011, on grounds four, seven, eight, and nine of
the 3.850 Motion. Resp. Ex. U. Thereafter, the state trial court denied the 3.850 Motion
2
on April 11, 2013. Id. Timmons appealed, see Resp. Ex. V, and the First DCA per curiam
affirmed the state trial court’s denial of the 3.850 motion without opinion on March 28,
2014. Resp. Ex. Y. The First DCA issued its mandate on April 15, 2014. Resp. Ex. Z;
Timmons v. State, 134 So. 3d 957 (Fla. 1st DCA 2014).
III. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to establish the
need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla. Dep’t of Corr., 647 F.3d
1057, 1060 (11th Cir. 2011). “In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted); Jones
v. Sec’y, Fla. Dep’t of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016). “It follows that if
the record refutes the applicant’s factual allegations or otherwise precludes habeas relief,
a district court is not required to hold an evidentiary hearing.” Schriro, 550 U.S. at 474.
The pertinent facts of this case are fully developed in the record before the Court.
Because this Court can “adequately assess [Timmons’s] claim[s] without further factual
development,” Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary
hearing will not be conducted.
IV. 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). “‘The
purpose of AEDPA is to ensure that federal habeas relief functions as a guard against
3
extreme malfunctions in the state criminal justice systems, and not as a means of error
correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)). As such, federal
habeas review of final state court decisions is “‘greatly circumscribed’ and ‘highly
deferential.’” Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011)).
The first task of the federal habeas court is to identify the last state court decision,
if any, that adjudicated the claim on the merits. See Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), cert. granted, Wilson v. Sellers,
137 S. Ct. 1203 (2017); 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.” Harrington v. Richter,
562 U.S. 86, 99 (2011); see also Johnson v. Williams, 568 U.S. 289, 301, 133 S. Ct. 1088,
1096 (2013). 2 Thus, the state court need not issue an opinion explaining its rationale in
order for the state court’s decision to qualify as an adjudication on the merits. See Richter,
562 U.S. at 100; Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1255 (11th Cir.
2002).
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars relitigation
of the claim, unless the state court’s decision (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “was based on an unreasonable
2
The presumption is rebuttable and may be overcome “when there is reason to think
some other explanation for the state court’s decision is more likely.” Richter, 562 U.S. at
99-100; see also Williams, 568 U.S. at 301-04, 133 S. Ct. at 1096-97. However, “the
Richter presumption is a strong one that may be rebutted only in unusual circumstances.”
Williams, 133 S. Ct. at 1096.
4
determination of the facts in light of the evidence presented in the state court proceeding.”
28 U.S.C. § 2254(d); Richter, 562 U.S. at 98. The Eleventh Circuit has explained:
First, § 2254(d)(1) provides for federal review for claims of
state courts' erroneous legal conclusions. As explained by the
Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000), § 2254(d)(1) consists of two
distinct clauses: a “contrary to” clause and an “unreasonable
application” clause. The “contrary to” clause allows for 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.” Id. at
413, 120 S. Ct. at 1523 (plurality opinion). The “unreasonable
application” clause allows for 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.
Second, § 2254(d)(2) provides for federal review for claims of
state courts' erroneous factual determinations. Section
2254(d)(2) allows federal courts to grant relief only if the state
court's denial of the petitioner's claim “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). The Supreme Court has not yet defined §
2254(d)(2)'s “precise relationship” to § 2254(e)(1), which
imposes a burden on the petitioner to rebut the state court's
factual findings “by clear and convincing evidence.” See Burt
v. Titlow, 571 U.S. ---, ---, 134 S. Ct. 10, 15, 187 L.Ed.2d 348
(2013); accord Brumfield v. Cain, 576 U.S. ---, ---, 135 S. Ct.
2269, 2282, 192 L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.’”[ 3] Titlow, 571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct. 841, 849, 175
L.Ed.2d 738 (2010)).
3
The Eleventh Circuit has previously described the interaction between § 2254(d)(2) and
§ 2254(e)(1) as “somewhat murky.” Clark v. Att’y Gen., Fla., 821 F.3d 1270, 1286 n.3
(11th Cir. 2016); see also Landers, 776 F.3d at 1294 n.4; Cave v. Sec’y, Dep’t of Corr.,
638 F.3d 739, 744-47 & n.4, 6 (11th Cir. 2011); Jones v. Walker, 540 F.3d at 1277, 1288
n.5.
5
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016); see also Daniel v. Comm’r, Ala.
Dep’t of Corr., 822 F.3d 1248, 1259 (11th Cir. 2016). Notably, the Supreme Court has
instructed that “[i]n order for a state court's decision to be an unreasonable application of
[that] Court's case law, the ruling must be ‘objectively unreasonable, not merely wrong;
even clear error will not suffice.’” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017)
(quoting Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (internal quotation
marks omitted)). Also, deferential review under § 2254(d) generally is limited to the record
that was before the state court that adjudicated the claim on the merits. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (regarding § 2254(d)(1)); Landers v. Warden, Att’y
Gen. of Ala., 776 F.3d 1288, 1295 (11th Cir. 2015) (regarding § 2254(d)(2)).
Where the state court’s 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). Thus, “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 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. Wilson, 834 F.3d at 1239; see
also Butts v. GDCP Warden, 850 F.3d 1201, 1204 (11th Cir. 2017). However, in Wilson,
6
the en banc Eleventh Circuit stated that the federal habeas court is not limited to
assessing the reasoning of the lower court. 4 834 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,135 U.S. 1372, 1376 (2015)] (quoting Visciotti, 537
U.S. at 24).
Id. at 1238; see also Williams, 133 S. Ct. at 1101 (Scalia, J., concurring). Thus, “AEDPA
erects a formidable barrier to federal habeas relief for prisoners whose claims have been
adjudicated in state court.” Titlow, 134 S. Ct. at 16 (2013). “Federal courts may grant
habeas relief only when a state court blundered in a manner so ‘well understood and
comprehended in existing law’ and ‘was so lacking in justification’ that ‘there is no
possibility fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). “If this standard is difficult to meet, that is because it was meant to
be.” Richter, 562 U.S. at 102.
V. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective assistance of
counsel. That right is denied when a defense counsel’s performance falls below an
objective standard of reasonableness and thereby prejudices the defense.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521
(2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)).
4
Although the Supreme Court has granted Wilson’s petition for certiorari, the “en banc
decision in Wilson remains the law of the [Eleventh Circuit] unless and until the Supreme
Court overrules it.” Butts, 850 F.3d at 1205 n.2.
7
To establish deficient performance, a person challenging a
conviction must show that “counsel’s representation fell below
an objective standard of reasonableness.” [Strickland,] 466
U.S. at 688, 104 S. Ct. 2052. A court considering a claim of
ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of
reasonable professional assistance. Id., at 689, 104 S. Ct.
2052. The challenger’s burden is to show “that counsel made
errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must demonstrate “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id., at 694, 104 S. Ct.
2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at
693, 104 S. Ct. 2052. Counsel’s errors must be “so serious as
to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id., at 687, 104 S. Ct. 2052.
Richter, 562 U.S. at 104.
Notably, there is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward, 592 F.3d at 1163. Since both prongs of the twopart Strickland test must be satisfied to show a Sixth Amendment violation, “a court need
not address the performance prong if the petitioner cannot meet the prejudice prong, and
vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As
stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so, that course should be
followed.” 466 U.S. at 697.
Finally, “the standard for judging counsel’s representation is a most deferential
one.” Richter, 562 U.S. at 105. “Reviewing courts apply a ‘strong presumption’ that
counsel’s representation was ‘within the wide range of reasonable professional
8
assistance.’” Daniel, 822 F.3d at 1262 (quoting Strickland, 466 U.S. at 689). “When this
presumption is combined with § 2254(d), the result is double deference to the state court
ruling on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v.
Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
“The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that determination
was unreasonable - a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123 (2009) (quotation marks omitted). If there is “any reasonable argument that
counsel satisfied Strickland’s deferential standard,” then a federal court may not disturb
a state-court decision denying the claim. Richter, 562 U.S. at 105.
As such,
“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010).
VI. Findings of Fact and Conclusions of Law
In the Petition, Timmons asserts nine constitutionally ineffective assistance of
counsel claims. Timmons exhausted these claims by raising them in his 3.850 motion.
See Resp. Ex. T. The state trial court denied Timmons’s claims in a lengthy opinion. See
Resp. Ex. U. The First DCA affirmed without written opinion. See Resp. Exs. Y, Z.
The Court affords the state court decision the deference it is due under §2254(d).
See Butts, 850 F.3d at 1204 (citing Richter, 562 U.S. at 100). Because reviewing the
state trial court’s decision denying relief leads to the same conclusion under §2254(d) as
reviewing the First DCA’s affirmance, the Court will review the state trial court’s written
9
explanation for its rejection of Timmons’s claim. 5 See Butts, 850 F.3d at 1204 & 1205,
n.2. Applying the deference the Court owes state courts under AEDPA, the Court asks
“whether any fairminded jurist could agree with the state trial court’s decision denying
[Timmons] habeas relief.” Id. at 1205 (citations omitted). “If some fairminded jurists could
agree with the state court’s decision, although others might disagree, federal habeas relief
must be denied.” Id. (quotations and citation omitted).
A. Ground One
As Ground One, Timmons contends that his trial counsel was ineffective for failing
to object to an improper jury instruction on self-defense. Timmons asserts that the
instruction provided to the jury on aggravated battery was “extremely misleading,
improperly shifted the burden of proof, and had the effect of negating Mr. Timmons’[s]
sole defense.” Petition at 11.
The state trial court denied the claim, stating:
Defendant argues that counsel was ineffective because he
failed to object to the jury instruction on aggravated battery.
Defendant claims the instruction improperly shifted the burden
to him to establish the victim was attempting to commit
aggravated battery and thus Defendant was justified to use
deadly force to defend himself. For support, Defendant cites
Montijo v. State, 61 So. 3d 42 (Fla. 5th DCA 2011). In that
case, the court found fundamental error in an instruction that
provided: “To prove the crime of Aggravated Battery, two
elements must be proven beyond a reasonable doubt.” Id. at
427. The Court finds no conflict with Montijo. In Montijo, the
issue was whether the jury instruction improperly shifted the
burden to the defendant to prove aggravated battery beyond
a reasonable doubt. Id. at 425. That instruction did not clarify
that the state had that burden. Id. at 426. In the instant case,
5
Where “it does not matter to the result, and to avoid any further complications if the
United States Supreme Court disagrees with [the] Wilson decision,” the federal habeas
court may apply § 2254(d) by deferring to “the more state-trial-court focused approach.”
Butts, 850 F.3d at 1204.
10
when charging the jury, the Court stated: “To prove the crime
of aggravated battery, the State must prove the following two
elements beyond a reasonable doubt.” (Ex. D. at 850-51.)
Moreover, the printed jury instruction used identical language.
(Ex. E.) Defendant is thus unable to demonstrate that counsel
was ineffective for failing to object to this instruction. His
grounds for the objection are mistaken. Defendant is not
entitled to relief.
Resp. Ex. U at 201. The First DCA affirmed.
After a review of the record and the applicable law, the Court finds that Timmons
fails to meet his burden that there was no reasonable basis for the state appellate court
to deny relief. The state appellate court's adjudication of this claim was not contrary to
clearly established federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceedings. Timmons is not entitled
to relief on ground one.
B. Ground Two
As Ground Two, Timmons contends that trial counsel was ineffective for failing to
call Michael Winegar as a witness at trial. Winegar previously lived with Timmons and the
victim. Timmons alleges that Winegar’s testimony would have corroborated his selfdefense claim. Id.
The state trial court held an evidentiary hearing regarding this claim and noted the
following exchange between the prosecutor and Timmons in its order denying the claim:
Q: And you said that Mr. Winegar observed
altercations between yourself and [the victim] on previous
occasions; is that correct?
A: Yes, sir.
Q: Any fists between the two of you?
11
A: [The victim] took me outside one time and put me up
against the wall, but I don’t think [Mr. Winegar] went outside
with us. We went outside to, quote, resolve the issue so if we
did get into a fight we didn’t destroy the property inside the
apartment?
Q: Is that a no?
A: [Mr. Winegar] didn’t see [the victim] put his hands on
me. No, sir.
Resp. Ex. U at 190; 244. Further, the state trial court noted that Timmons’s trial counsel
testified that “after interviewing Micheal Winegar, he believed the ‘witness was not that
helpful’ because the witness could testify at best only that the victim ‘bullied’ Defendant.”
Id. at 191; 268 (citation omitted). Timmons’s trial counsel also “testified that [Winegar] told
him, ‘that he knew of no specific incidents of violence that he either witnessed or heard
about where the [victim] had actually done anything violent towards [Timmons]” and
“‘despite considerable’ effort by counsel and his investigator he could not locate Winegar
when it came time for trial.” Id. The state trial court concluded:
counsel’s reasons for not calling Michael Winegear as a
witness [not only were] sound trial strategy, but also that
counsel’s reasons were also valid because the witness was
not available for trial. As such, Defendant fail[ed] to
demonstrate that counsel’s performance was deficient or that
counsel’s failure to call Winegear prejudiced the outcome of
the proceedings.
Resp. Ex. U at 191. The First DCA affirmed.
The Court defers to the state trial court’s decision and concludes that it and the
state appellate court’s affirmance are neither contrary to nor an unreasonable application
of Strickland, and they did not rely on an unreasonable determination of the facts in light
12
of the evidence presented in the state court proceedings. Timmons is not entitled to relief
on ground two.
C. Ground Three
As Ground Three, Timmons contends that trial counsel was ineffective for failing
to introduce evidence of his unmedicated bipolar condition and voluntary intoxication in
order to rebut the State’s evidence regarding his demeanor at the time of the shooting or
shortly thereafter. Timmons states that the prosecutor used witnesses’ testimony that
Timmons appeared “calm and cool” at the time of the shooting or shortly thereafter to
demonstrate that Timmons killed the victim with premeditation. Petition at 16. Timmons
asserts that Dr. Krop would have rebutted the other witnesses’ testimony by testifying that
“although Mr. Timmons may have appeared calm, cool, and collected, he may have been
in a dissociative state in which his appearance masked the fact that he was in substantial
distress.” Petition at 16.
The state trial court denied relief stating:
At the evidentiary hearing, Defendant testified that he suffers
from “Manic Depressant Bipolar Disorder.” (Ex. F. at 9.) He
further testified that he did not take his prescribed medication
regularly and that he had not taken his medication for a week
before he killed the victim. (Ex. F. at 10-11.) Moreover,
Defendant stated that in the hours leading up to the shooting,
he drank “about 10 to 12 beers over the course of an hour,
hour and a half.” (Ex. F. at 11.) Defendant testified that he
informed his counsel of these facts. (Ex. F. at 11-12.) On
cross-examination, however, Defendant revealed that his
drinking was voluntary and that he neglected to take his
prescribed medication. (Ex. F. at 16-17.) At the hearing, trial
counsel testified that his strategy was to avoid the potential
problem that using Defendant’s bipolar condition could create:
I described the potential problem of putting in
evidence about his bipolar condition if he wasn’t
taking his medication as he was suppose[d] to.
13
The real problem was, there wasn’t any
evidence that he acted in any way other than
what was described. That was the evidence. Mr.
Timmons was the one that called the police. Mr.
Timmons stayed at the apartment and waited for
the police. He complied with all their commands
and requests. He was cooperative and told them
what happened. To some extent it doesn’t really
matter whether he did that under the influence
of some kind of intoxicant or not or because he
was or wasn’t taking medication. Those were
the facts and (Ex. F. at 42-43.) Counsel went on the say that his strategy
was based on the theory that Defendant was justified in using
deadly force as he acted in self-defense:
When someone acts like Mr. Timmons did; it’s
clear, at least arguably from a defense point of
view; that what he did, he did in his own mind of
justification. He thought that he was justified in
using the force the way he did because of
whatever circumstances surrounded the
situation. The fact that he called police, that he
waited for them, that he cooperated with them,
that he was upfront with them about everything
concerning the case certainly showed, at least
arguably, that in his own mind that he was acting
in self defense. Of course that’s not the ultimate
legal issue that has to be resolved by the jury,
but I think it is important evidence for them to
consider.
....
We mounted a self defense defense. That was
what we put forward, and we tried to
demonstrate that the circumstances were such
surrounding Mr. Timmons and his own
appreciation of them that the constant bullying
and threats that he had endured caused him to
think that his only way of being able to save
himself in the situation was to use deadly force.
And that was what our defense was.
(Ex. F. at 43-44.)
14
The Court finds that counsel’s argument that it was his
strategy not to present evidence of Defendant’s involuntary
intoxication and unmedicated bipolar condition was credible
and that this strategy was reasonable.
Resp. Ex. U at 198-199. The First DCA affirmed.
The Court defers to the state trial court’s decision and concludes that it and the
state appellate court’s affirmance were neither contrary to nor an unreasonable
application of Strickland, and they did not rely on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. Timmons is not
entitled to relief on ground three.
D. Ground Four
As Ground Four, Timmons contends that trial counsel was ineffective for failing to
introduce evidence of his unmedicated bipolar condition and voluntary intoxication in
order to support his claim of self defense. Timmons asserts that the evidence, specifically
Dr. Krop’s testimony, would have established that “he had an enhanced sense of danger
that he was facing from [the victim] at the time of the shooting.” Petition at 17.
In denying this claim, the state trial court considered Dr. Krop’s testimony at the
evidentiary hearing and determined it could have supported only a voluntary intoxication
defense. Then the state trial court recognized that the Florida state Legislature had “all
but eliminated the defense of voluntary intoxication.” Resp. Ex. U at 200. Further, the
state trial court found Timmons’s trial counsel’s testimony during the evidentiary hearing
“credible and that his trial strategy was reasonable in light of the circumstances of this
case.” Id. at 201. The First DCA affirmed.
15
After a review of the record and the applicable law, the Court finds that the state
court's adjudications of this claim were 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. Timmons is not entitled to relief on ground four.
E. Ground Five
As Ground Five, Timmons contends that trial counsel was ineffective for failing to
object to improper cross-examination of him by the prosecutor regarding why he did not
leave the apartment rather than remain at the apartment to shoot the victim. Timmons
argues that the prosecutor’s questions were improper because they were contrary to the
law regarding the duty to retreat in one’s own home when attacked by a co-occupant. He
believes the questions “indicated to the jury that he was required to retreat from his home.”
Petition at 20. Specifically, the prosecutor questioned Timmons at trial as follows:
Q: His back was turned to you, and you could have
walked – how many feet is it from the back of his chair out the
front door?
A: About ten feet.
Q: So you could have continued to walk out that front
door and he never would have even known?
A: He would have seen me walk past him, yes, ma’am.
Q: And you would have gotten away safe?
MR. BUZZELL: Objection, that calls for a conclusion.
THE COURT: Sustained.
Q: Do you think that you would have gotten away safe?
16
A: I have no idea if he had a weapon on him at that time
or not.
...
Q: Did you do everything reasonable within your own
means consistent with your safety to put out any danger that
you thought that you were in?
A: I would say reason had nothing to do with it, I didn’t
have time for reason.
Q: Why didn’t you just stay in your bedroom?
A: On second thought, I probably should have.
Q: Why didn’t you just walk out the door?
A: I was going to bed.
Q: No, when you walked down the hall with the
shotgun, why didn’t you just creep on right outside the door?
A: The thought never crossed my mind.
Resp. Ex. F at 815-16, 820.
The state trial court denied this claim, stating:
The privilege of non-retreat is granted only to the extent that
one may “meet force with force,” and only if “necessary to
prevent death or great bodily harm to himself.” Weiand, 732
So. 2d at 1057.[ 6] Notably, the justifiable use of deadly force
instruction requires the jury to judge the defendant “by
circumstances by which he was surrounded at the time the
force was used.” Fla. Std. Jury Instr. (Crim.) 3.04(d) (2002).
The State’s questions were, therefore, relevant to illustrate the
circumstances surrounding Defendant at the time he shot the
victim. They were relevant to establish whether Defendant
acted reasonably under those circumstances, whether
Defendant was meeting force with force, and whether his
actions were necessary to prevent imminent death or harm to
himself. Thus, the State’s questions regarding why Defendant
did not choose to leave the home were proper.
6
Weiand v. State, 732 So. 2d 1044 (Fla. 1999).
17
Moreover, in closing, counsel articulated the correct standard
to the jury:
[Y]ou have to judge the person by the
circumstances by which he was surrounded at
the time the force was used. “The danger facing
him need not be actual.” In other words, in this
case the danger would have been actual if, for
example, [the victim] had a gun and it was
prominently displayed. “However, if the
appearance of danger was so real that a
reasonably cautious person would believe the
danger could be avoided only through the use
of force, then under those appearances and
circumstances a person may be justified in
using deadly force.”
I suggest to you that’s exactly the situation we
have here.
The accused is not required to flee his or her
own home, even if it’s a co-occupant who is
threatening. They have the lawful right to stand
their ground and meet force with force, even to
the extent, if necessary, to . . . use force likely to
cause death or great bodily harm, if it was
necessary to prevent that from happening to
them.
(Ex. D. at 871-872.)
Counsel was not ineffective for falling to object to the State’s
proper questions about Defendant’s duty to retreat. Any
objection would have been futile because the questions were
proper. Defendant fails to demonstrate that counsel’s
performance was outside the parameters of reasonably
effective assistance. He also fails to demonstrate how
counsel’s alleged omission prejudiced the outcome of the
proceedings. Defendant is not entitled to relief.
Resp. Ex. U at 184-85. The First DCA affirmed.
The Court defers to the state trial court’s decision and concludes that it and the
state appellate court’s affirmance were neither contrary to nor an unreasonable
18
application of Strickland, and they did not rely on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. Thus, Timmons is
not entitled to relief on ground five.
F. Ground Six
As Ground Six, Timmons contends that trial counsel was ineffective for failing to
object to the prosecutor’s improper closing statements regarding Timmons’s duty to
retreat before using force against the victim. Specifically, the prosecutor stated:
He could have walked right out that door. I believe the
testimony is there is about nine feet from the end of the couch
to the door. No one was watching what he was doing. Even
he said that. No one was watching what he was doing. He
could have walked right out that front door. And I submit to
you if someone is so afraid that they are going to get their ass
kicked or that they are going to get killed, their immediate
response would be to save their own life, and they wouldn’t
linger as they tried to steady a long shotgun in a small hallway
to get just the right shot.
....
There was no force at all put upon defendant. None
whatsoever. The defendant cannot use – justify the use of
deadly force likely to cause death or great bodily harm unless
he used every reasonable means within his power and
consistent with his own safety to avoid the danger before
resorting to that force. He could have walked right out that
front door. If you believe that [the victim] was getting ready to
kill him, he still could have walked out that door. He didn’t use
every reasonable means to protect his own safety before he
took the life of another person.
Resp. Ex. F at 899-900, 903.
The state trial court denied relief on the claim finding that “the state [did] not cause
confusion regarding the duty to retreat by arguing generally that the defendant had not
acted reasonably under the circumstances.” Resp. Ex. U at 186. It summarized the
19
testimony of three witnesses and that of Timmons regarding the circumstances
surrounding the shooting of the victim. Based on the evidence, the state trial court
concluded that
The State’s comments during closing arguments were proper
comments on the eyewitnesses’ and Defendant’s trial
testimony. The State made reasonable inferences by arguing
that Defendant could have left the apartment before shooting
the victim and that Defendant was not justified in using deadly
force when he shot the victim. Defense counsel was not
ineffective for failing to object to the State’s proper arguments.
Resp. Ex. U. at 189. The First DCA affirmed.
The Court defers to the state trial court’s decision, and concludes that it and the
state appellate court’s affirmance were neither contrary to nor an unreasonable
application of Strickland, and they did not rely on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. Timmons is not
entitled to relief on ground six.
G. Ground Seven
As Ground Seven, Timmons contends that trial counsel was ineffective for failing
to object to an improper definition of premeditation during closing arguments. Timmons
asserts that the prosecutor “improperly indicated that time alone was sufficient to
establish premeditation and reflection.” Petition at 22. With regard to premeditation, the
prosecutor made the following statements:
The jury instruction tells us that killing with premeditation is
killing after consciously deciding to do so. You heard Mr.
Timmons. He said he walked down the hall - - and I asked him
on cross-examination, “Did you intend to kill him?” And he said
that yes, he did, that he aimed that gun, aimed it to the kill
zone and intended to kill him and knew that it was going to kill
him. He knew what a 12 gauge shotgun was going to do, and
he knew that if he shot him right there it was going to kill him.
20
And I asked him, “Did you have time to think about that?” And
he said, “Yes.”
The law does not fix the exact period of time that must pass
between the formation of the premeditated intent to kill and
the killing. Let’s talk about that a little bit. The defense attorney
just got up here and said that Mr. Dovi had his timing wrong,
that it couldn’t possibly be ten minutes. That because he was
high on heroin, he’s wrong and the defendant and what his
statement says is right.
And I submit to you that even if you believe what the
defendant told you, it’s still sufficient time for first degree
premeditated murder. All it takes is the time to form the intent
and the reflection to decide to go through with what it is that
you intended to do.
....
The period of time must be long enough to allow reflection by
the defendant. The premeditated intent to kill must be formed
before the killing.
....
The defendant admitted that he walked down the hall, took off
the – walked down the hall, saw [the victim], took off the
shotgun before he placed it to his shoulder, then he aimed
where he was going to shoot, and then he blasted him away.
Ladies and gentlemen, that time alone is sufficient to prove
premeditation and a reflection. He knew what he was going to
do. He wanted to do it.
Resp. Ex. F. at 894-897, 907.
After citing the standard jury instruction for premeditation, the state trial court noted
that “[a] prosecutor’s comments on premeditation, which are largely identical to the
standard jury instruction on premeditation, are not objectionable.” Resp. Ex. U at 191192. It also noted that there was some discrepancy between the testimony of the
witnesses regarding the time that elapsed between the disagreement between Timmons
21
and the victim and when Timmons returned to the living room to shoot the victim. Id. at
192-93. Nevertheless, the state trial court concluded:
The consensus among the eyewitnesses was that Defendant
was gone from the living room more than long enough to
consciously and with reflection decide to shoot the victim.
Defendant’s testimony also demonstrated enough time to
allow the State to argue – according to the jury instruction –
that Defendant’s decision to kill the victim was a conscious
one accompanied by sufficient reflection as to the nature of
the intended act and its consequences.
The State properly based its closing argument on the law of
premeditation and there was sufficient evidence to support
that argument. Defendant is unable to demonstrate that the
Court would sustain an objection by his counsel in light of the
facts and the purpose of a closing argument. Counsel was not
deficient for failing to object and this omission did not change
the outcome of the trial.
Resp. Ex. U at 194. The First DCA affirmed.
The Court defers to the state trial court’s decision and concludes that it and the
state appellate court’s affirmance were neither contrary to nor an unreasonable
application of Strickland, and they did not rely on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. Timmons is not
entitled to relief on ground seven.
H. Ground Eight
As Ground Eight, Timmons contends that trial counsel was ineffective for failing to
object and move for a mistrial when the prosecutor, during his closing argument,
incorporated William Mitts’s testimony that the state trial court had previously instructed
the jury to disregard. The state trial court denied the claim stating:
William Mitts testified that he had a conversation with
Defendant while they were both incarcerated in the Duval
County Pre-Trial detention Facility. (Ex. D. at 657-58, 664.)
22
He testified that during this conversation the Defendant
admitted to shooting the victim. (Ex. D. at 664-71.) Thereafter,
the following exchange occurred between the State and Mitts:
Q: So when he told you that he shot his
roommate, what is it that you said?
....
A: “I still don’t believe you,” is what I said
to him.
Q: And what did he say in response to
you?
A: Again, he talked about, “It’s a matter of
self-respect, he crossed the line,” and that he
had in fact done it.
Q: And what was his demeanor when he
was telling you that?
A: My interpretation of his demeanor is a
job well done, a load lifted.
(Ex. D. at 670-71.) Defense counsel objected to this last
statement as nonresponsive and an inappropriate testimony
regarding the witness’s interpretations. (Ex. D. at 671-72.)
The Court sustained the objection and instructed the jury to
disregard the last response. (Ex. D. at 673.) Thereafter the
State clarified the question for the witness:
Q: Now Mr. Mitts, when I ask you this
question, I don’t want you to tell me what your
interpretation of what he was saying meant to
you, I just want you to tell me what he – how he
said it to you. Okay? When he said this to you,
how did he say it to you, without your
interpretation of it?
A: In a calm, collected manner.
(Ex. D. at 673-674.)
The portion of the State’s closing argument that Defendant
finds objectionable and alleges incorporates the stricken
23
statement by Mitts begins immediately after the State read the
definition of premeditation to the jury:
The defendant was calm, cool, and collected.
He called 911 like he was ordering pizza. “Yeah,
this is 717 Mallard Cove. I shot and killed
someone. Raul Valentin. Shot him with a
shotgun.” Very satisfied with himself. Job done.
He had taken care of business.
(Ex. D. at[ ] 898-99.)
Florida law recognizes that “in closing argument, counsel is
permitted to review the evidence and fairly discuss and
comment upon properly admitted testimony and logical
inferences from that evidence.” Conahan v. State, 844 So. 2d
629, 640 (Fla. 2003) (citing Mann v. State, 603 So. 2d 1141,
1143 (Fla. 1992)). Courts gives both parties wide latitude
during closing arguments. Rivera v. State, 840 So. 2d 284,
286-87 (Fla. 5th DCA 2003). Furthermore, a comment made
during closing argument may be inappropriate when viewed
alone, but when considered within the context of the entire
closing argument and the record, it may be a fair argument.
Id.
During the trial, the State questioned Officer Thomas, one of
the officers at the scene, about Defendant’s demeanor at the
time of the arrest:
Q: What was his demeanor or attitude
when he made those statements to you?
A: With us he was cooperative.
Q: Did he appear calm in any way?
A: Yes, sir, he appeared to be calm at
that point.
(Ex. D. at 584.) The jury also heard testimony from Stephen Dovi regarding
Defendant’s actions after the shooting:
A: He said, “Don’t touch him.” And I said,
“Well I have to help him, we have to help him
somehow.” And he said, “I’m going to call the
police.” And he went to the phone, sat down on
24
the floor Indian style, picked up the phone and
dialed 911.
Q: Did you hear any of the conversation
that he had with the police?
A: Yes, ma’am.
Q: What did you hear?
A: “This is Christopher Timmons. I just
killed my roommate with a shotgun. Apartment
228. White T-shirt.” It was only his side of the
conversation, obviously, and I just left.
(Ex. D. at 406-07.) Finally Angela Bascom testified that when
the officers led Defendant out of the apartment after the
shooting, Defendant “had a smug look on his face” and was
smiling at her. (Ex. D. at 484.)
Defendant claims the State improperly reiterated William
Mitts’s improper comments to the jury regarding that witness’s
interpretation of Defendant’s demeanor at the time the
witness discussed the shooting with Defendant while both
were incarcerated at the jail, not immediately after the
shooting. Counsel’s failure to object to the State’s comments
was not unreasonable. Defendant’s claim takes the State’s
argument out of context. The State did not refer to Mitts during
the closing argument. Rather, the State was describing
Defendant’s demeanor immediately after the shooting to
support its argument that the murder was premeditated.
Without William Mitts’s stricken statement, the State still had
sufficient evidence to support its closing argument.
Defendant is unable to demonstrate counsel’s omission fell
below reasonable standards. What’s more, Defendant fails to
demonstrate that there was a reasonable probability that the
outcome of the proceeding would have been more favorable
but for counsel’s omission.
Resp. Ex. U at 194-97. The First DCA affirmed.
The Court defers to the state trial court’s decision and concludes that it and the
state appellate court’s affirmance were neither contrary to nor an unreasonable
25
application of Strickland, and they did not rely on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. Timmons is not
entitled to relief on ground eight.
I. Ground Nine
As Ground Nine, Timmons contends that “[e]ven if the Court concludes that none
of the aforementioned claims warrant federal habeas relief, on their own, it should
concluded (sic) that the cumulative effect of trial counsel’s deficient conduct deprived Mr.
Timmons of his right to a fair trial.” Petition at 24.
“The cumulative error doctrine provides that an aggregation of non-reversible
errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a
denial of the constitutional right to a fair trial, which calls for reversal.” United States v.
Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (internal quotation marks omitted). The
Eleventh Circuit addresses “claims of cumulative error by first considering the validity of
each claim individually, and then examining any errors that [it] find[s] in the aggregate
and in light of the trial as a whole to determine whether the appellant was afforded a
fundamentally fair trial.” Morris v. Sec'y, Dep't of Corr., 677 F.3d 1117, 1132 (11th Cir.
2012).
Because the Court has determined that none of Timmons’s individual claims of
error or prejudice have merit, Timmons’s cumulative error claim cannot stand. See United
States v. Taylor, 417 F.3d 1176, 1182 (11th Cir. 2005) (“[There being no error in any of
the district court’s rulings, the argument that cumulative trial error requires that this Court
reverse [the defendant's] convictions is without merit.”). Thus, Timmons is not entitled to
relief on ground nine.
26
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Timmons seeks issuance of a certificate of appealability, the undersigned opines
that a certificate of appealability is not warranted. This Court should issue a certificate of
appealability only if the petitioner makes “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing, Wright
“must demonstrate that reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller–El v.
Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where a district court has rejected a petitioner's constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See Slack, 529 U.S. at 484.
However, when the district court has rejected a claim on procedural grounds, the
petitioner must show that “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, this Court will deny a certificate of appealability.
Therefore, it is now
27
ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH
PREJUDICE.
2. The Clerk of the Court is directed to enter judgment denying the Petition and
dismissing this case with prejudice.
3. If Timmons appeals the denial of the Petition, the Court denies a certificate of
appealability. Because this Court has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination shall serve
as a denial of the motion.
4. The Clerk of the Court is directed to close this case and terminate any pending
motions.
DONE AND ORDERED at Jacksonville, Florida, this 15th day of September, 2017.
sflc
c:
Counsel of Record
28
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