Crawford v. Secretary, Florida Department of Corrections et al
Filing
39
ORDER denying 1 petition; dismissing the action with prejudice; instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 3/24/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ZAYNUS CLIFFORD CRAWFORD, III,
Petitioner,
v.
Case No. 3:14-cv-847-J-39PDB
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, AND FLORIDA
ATTORNEY GENERAL,
Respondents.
ORDER
I.
Petitioner
challenges
INTRODUCTION
a
2013
aggravated assault (deadly weapon).
Clay
County
conviction
for
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 thirteen grounds
for habeas relief, but he has abandoned the thirteenth ground, a
claim of ineffective assistance of trial counsel.
23).
See Order (Doc.
In the twelve remaining grounds, Petitioner raises the
following: (1) a claim of denial of due process of law asserting
his Miranda1 warnings were not read to him; (2) a claim of lack of
probable cause to arrest him; (3) a claim of an equal protection
violation
1
based
on
actual
innocence;
(4)
a
Miranda v. Arizona, 384 U.S. 436 (1966).
claim
of
racial
discrimination; (5) a claim of denial of due process of law
asserting
he
acted
in
self-defense;
(6)
a
claim
of
spousal
immunity; (7) a claim of a Brady2 violation based on the state's
alleged
failure
to
disclose
Petitioner's
ripped
shirt
and
scratches; (8) a claim of denial of due process of law based on the
state's constructive amendment of the information by stating that
Petitioner could be found guilty of the lesser included offense of
improper exhibition of a firearm or dangerous weapon; (9) a claim
of
an
improper
jury
instruction
requiring
unanimity,
without
providing room for individual decisions and without giving an Allen
charge; (10) a claim of prosecutorial misconduct; (11) a claim of
judicial misconduct; and (12) a claim of altered transcripts.
Respondents filed an Answer in Response to Order to Show Cause
(Response) (Doc. 24). In support of their Response, they submitted
Exhibits (Doc. 24).3
Petitioner filed a Reply to Respondents'
Answer to Order to Show Cause (Reply) (Doc. 25).
See Order (Doc.
5). Respondents urge this Court to deny the Petition. Response at
8-28.
The Court will address the twelve remaining grounds, See
2
Brady v. Maryland, 373 U.S. 83 (1963).
3
The Court hereinafter refers to the Exhibits 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.
- 2 -
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
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.[4] Id. § 2254(e)(1);
Ferrell v. Hall, 640 F.3d 1199, 1223 (11th
Cir. 2011).
4
"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).
- 3 -
..."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
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), cert. granted, 2017 WL 737820 (U.S.
Feb. 27, 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."
Richter, 562 U.S. at 99; see also Johnson v. Williams, 133 S.Ct.
1088, 1096 (2013).
- 4 -
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
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).
- 5 -
Wilson at 1238; see also Williams, 133 S.Ct. at 1101 (Scalia, J.,
concurring).
III.
PROCEDURAL HISTORY
In the Response at 1-2, Respondents provide a brief procedural
history:
Petitioner was convicted of two offenses
in the Florida Circuit Court for the Fourth
Judicial Circuit in Clay County.[5] (Ex. A.)
Petitioner appealed to the First District,
which per curiam affirmed his conviction on
May 20, 2014. (Ex. B); Crawford v. State, 139
So.3d 303 (Fla. 1st DCA May 20, 2014). The
First District issued its mandate on June 17,
2014. (Ex. B).
On January 11, 2014, Petitioner filed a
state petition for writ of habeas corpus in
the Florida Supreme Court, which that court
transferred to the First District on April 24,
2014, which that court dismissed for failure
to comply with orders of that court on May 29,
2014. (Exs. C, D.)
On September 17, 2014, Petitioner filed a
Petition Alleging Ineffective Assistance of
Appellate Counsel in the First District, which
was denied on the merits on October 21, 2014.
(Ex. E); Crawford v. State, - So.3d -, 2014 WL
5335291 (Fla. 1st DCA Oct. 21, 2014).
5
It is important to note that Petitioner was not convicted of
two offenses. He was tried and convicted of aggravated assault
(deadly weapon). Ex. F at 553. The state nolle prossed count two
of the amended information, the charge of domestic battery. Id. at
562. In the future, Respondents should not rely on the dockets in
preparing the state court procedural history. Instead, they should
reference the actual state court documents to ensure the accuracy
of the information related in the history provided to this Court.
- 6 -
Petitioner has filed no other requests
for
post-conviction
relief.
(Ex.
A.)
Petitioner filed a Petition for Writ of Habeas
Corpus on July 17, 2014. (Doc. 1.)
In his Reply, Petitioner contends that he is actually innocent
of aggravated assault, and his conviction constitutes a miscarriage
of justice.
Reply at 1-2.
IV.
There
are
EXHAUSTION AND PROCEDURAL DEFAULT
prerequisites
to
a
federal
habeas
review.
Respondents assert that Petitioner failed to properly exhaust the
remaining twelve grounds.
Response at 5-27.
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,
- 7 -
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).
Respondents urge this Court to find that all twelve grounds
are procedurally defaulted. The Court is mindful that 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
- 8 -
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
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
and/or
properly
federal constitutional claim to the state courts.
present
these
Any further
attempts to seek post conviction relief in the state courts on
these grounds will be unavailing.
defaulted these claims.
prejudice.
default.
As such, he has procedurally
Therefore, he must demonstrate cause and
First, Petitioner must demonstrate cause for his
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,
- 9 -
706 (11th Cir.), cert. denied, 528 U.S. 934 (1999) (citation
omitted).
show
In order for Petitioner to establish prejudice, he must
that
the
alleged
errors
actually
and
substantially
disadvantaged his defense resulting in a denial of fundamental
fairness.
Id. (citation omitted).
Upon review, the Court finds that Petitioner has not shown
cause and prejudice.
Additionally, he has failed to show that
failure to address these claims on the 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.
Grounds one through twelve are unexhausted and procedurally
defaulted.
The fundamental miscarriage of justice exception is
inapplicable to the case at bar.
Thus, Petitioner is barred from
pursuing grounds one through twelve in federal court.
The Court
will, however, address each ground individually, including the
question of exhaustion and procedural default, and will provide
alternative holdings.
V.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.
Ground One
In his first ground, Petitioner raises a due process claim,
asserting Miranda warnings were not read to him.
Petition at 5.
Respondents
the
urge
this
Court
to
conclude
unexhausted and procedurally defaulted.
that
Response at 5.
claim
is
They base
this assertion on the fact that Petitioner never filed a pretrial
- 10 -
motion to suppress his confession or admission, nor did he raise
the matter on direct appeal.
Id. at 7-8.
Petitioner, in his Reply at 2-3, contends that the First
District Court of Appeal (1st DCA) had the opportunity to address
his claims because the Florida Supreme Court transferred his state
Petition for Writ of Habeas Corpus, Ex. J, to the 1st DCA.
Ex. P.
There is a fundamental weakness in Petitioner's reasoning; the 1st
DCA dismissed the petition for Petitioner's failure to comply with
its order.
Ex. R.
Thus, even if the merits of the petition could
have been considered by the 1st DCA, they were never considered due
to Petitioner's failure to comply with a court order.
Petitioner has not shown cause for his default. "Because [the
petitioner] has failed to establish one element of the cause and
prejudice exception, he cannot show the exception applies. Johnson
v. Singletary, 938 F.2d 1166, 1175 (11th Cir. 1991)(citing Engle v.
Isaac, 456 U.S. 107, 134 n. 43 (1982)), cert. denied, 506 U.S. 930
(1992).
Also,
Petitioner
has
not
met
the
actual
innocence
exception, referred to as the fundamental miscarriage of justice
exception.
Since he has failed to make a colorable showing of
actual innocence, Crawford v. Head, 311 F.3d 1288, 1327 (11th Cir.
2002) (citation omitted), cert. denied, 540 U.S. 956 (2003), the
Court will apply the default to ground one.
Petitioner came to this Court without a final state court
ruling on his claim.
Therefore, the claim raised in ground one is
unexhausted and procedurally defaulted.
- 11 -
Since Petitioner has
failed to show cause and he has failed to make a colorable showing
of actual innocence, the Court will not address the merits of
ground one.
This is not an extraordinary case as Petitioner has
not made a showing of actual innocence rather than mere legal
innocence.
Thus, Petitioner is barred from pursuing this claim in
federal court.
Alternatively, the claim has no merit.
See Response at 8-10.
As recently noted by the Eleventh Circuit,
"Miranda warnings are required only where
there has been such a restriction on a
person's freedom as to render him 'in
custody.'" Oregon v. Mathiason, 429 U.S. 492,
495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977).
To determine whether someone is "in custody,"
we
first
look
at
the
"circumstances
surrounding the interrogation." Thompson v.
Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465,
133
L.Ed.2d
383
(1995).
"Given
those
circumstances," we then consider whether a
"reasonable person [would] have felt he or she
was
not
at
liberty
to
terminate
the
interrogation and leave." Id. The "ultimate
inquiry is simply whether there is a formal
arrest or restraint on freedom of movement of
the degree associated with a formal arrest."
California v. Beheler, 463 U.S. 1121, 1125,
103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983)
(quotation marks omitted).
Cordera v. Sec'y, Fla. Dept. of Corr., 636 F. App'x 552, 555 (11th
Cir. 2016).
Petitioner called the police to his home and the police officer
spoke to him.
He was not "in custody."
Although Petitioner makes
an unsupported by the record allegation that the police blocked the
street, Petition at 5, Petitioner requested the police come to his
- 12 -
home, and he could have walked away from the officers, excused
himself, or declined to answer any questions.
It is noted that
Petitioner did decline to complete a written statement.
He makes
no assertion that he was placed under arrest or threatened with
arrest during the interviews.
Since there was no custodial
interrogation, there is no merit to the claim raised in ground one.
B.
Ground Two
In his second ground, Petitioner contends that he was arrested
without probable cause.
Petition at 7.
Respondents urge this
Court to find that Petitioner has procedurally defaulted this
ground.
Response at 10.
The record demonstrates that Petitioner
did not challenge the existence of probable cause before the trial,
or raise the matter on direct appeal.
unexhausted and procedurally defaulted.
demonstrate cause and prejudice.
As a result, the claim is
Petitioner has failed to
The Court concludes that a
fundamental miscarriage of justice will not result if the Court
declines to address this ground.
In the alternative, the claim has no merit.
The victim, Tali
Crawford, as well as her ten-year-old daughter, M.C., provided a
verbal statement to the police.
Ex. F at 1-3.
Additionally, Ms.
Crawford provided a sworn written statement to the police.
3.
Id. at
"A warrantless arrest is supported by probable cause if the
arresting officer, at the time of arrest, had reasonable grounds to
believe that a felony was being, or had been, committed and that
the person to be arrested participated in that felony." Jarrell v.
- 13 -
Balkcom, 735 F.2d 1242, 1249 (11th Cir. 1984), cert. denied, 471
U.S. 1103 (1985).
See Case v. Eslinger, 555 F.3d 1317, 1327 (11th
Cir.2009)("Probable cause to arrest exists when law enforcement
officials have facts and circumstances within their knowledge
sufficient to warrant a reasonable belief that the suspect had
committed or was committing a crime.") (citation omitted).
Of import, probable cause does not require overwhelmingly
convincing evidence, but simply requires reasonably trustworthy
information.
Id. (citations and quotations omitted).
There was
certainly sufficient information gathered showing a "probability or
chance of criminal activity."
Id. (quoting Illinois v. Gates, 462
U.S. 213, 245 n.13 (1983)).
Therefore, ground two is due to be
denied.
Finally, and alternatively, this claim has been rendered moot
as the jury found Petitioner guilty of aggravated assault (deadly
weapon).
Response at 12.
Petitioner is not entitled to habeas
relief.
C.
Ground Three
In his third ground, Petitioner claims actual innocence.
Petition at 8.
He mentions the Equal Protection Clause of the
Fourteenth Amendment; however, he fails to offer any support for an
equal
protection
claim.
Even
if
Petitioner
had
adequately
presented an equal protection claim, he failed to exhaust such a
claim
in
the
state
court
system.
unexhausted and procedurally defaulted.
- 14 -
Thus
the
claim
would
be
Petitioner has not shown
cause and prejudice or that a fundamental miscarriage of justice
would result.
Upon review, Petitioner's claim of actual innocence "is itself
the constitutional basis of the habeas petition." Trease v. Sec'y,
Dep't of Corr., No. 8:11-cv-233-T-23TBM, 2014 WL 4791996, at *2
(M.D. Fla. Sept. 24, 2014).
See Petition at 8; Reply at 2-3.
Whether a claim of actual innocence constitutes a freestanding
claim
for
habeas
corpus
relief
is
a
question
unresolved by the United States Supreme Court.
that
remains
See McQuiggin v.
Perkins, 133 S.Ct. 1924, 1931 (2013) (recognizing that the issue of
whether a freestanding claim of actual innocence presents a claim
for habeas relief remains unresolved).
In this Circuit, precedent
forbids granting federal habeas relief for freestanding, noncapital claims of actual innocence.
Rozzelle v. Sec'y, Fla. Dep't
of Corr., 672 F.3d 1000, 1010-11 (11th Cir.) (per curiam) (citing
Herrera v. State, 506 U.S. 390, 400 (1993)), cert. denied, 133
S.Ct. 351 (2012).
In Herrera, 506 U.S. at 400, the Supreme Court noted that
"[c]laims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the
underlying
state
criminal
conviction."
The
Supreme
Court
explained:
"[t]his rule is grounded in the principle that federal
habeas courts sit to ensure that individuals are not imprisoned in
violation of the Constitution - not to correct errors of fact."
- 15 -
Id.
Finally, the Supreme Court warned: "[f]ew rulings would be
more disruptive of our federal system than to provide for federal
habeas review of freestanding claims of actual innocence."
Id.
401.
Apparently, Petitioner is raising an actual innocence claim as
the constitutional basis for ground three.
The Eleventh Circuit,
however, has stated, "[f]or what it is worth, our precedent forbids
granting habeas relief based upon a claim of actual innocence,
anyway, at least in non-capital cases."
Jordan v. Sec'y, Dep't of
Corr., 485 F.3d 1351, 1356 (11th Cir.) (citing Brownlee v. Haley,
306 F.3d 1043, 1065 (11th Cir. 2002)) (emphasis added), cert.
denied, 522 U.S. 979 (2007).
Petitioner's underlying conviction is not a capital case.
Therefore, this Court cannot grant habeas relief on Petitioner's
claim of actual innocence; absent an independent constitutional
violation occurring in the underlying state criminal proceeding,
the claim of actual innocence raised in ground three does not state
a ground for federal habeas relief.
See In re: Davis, 565 F.3d
810, 817 (11th Cir. 2009) (per curiam) (discussing freestanding
actual innocence claims); Graddy v. Crews, No. 5:13cv317-WS/GRJ,
2014 WL 5341834, at *3 (N.D. Fla. Oct. 20, 2014) ("a free-standing
claim of actual innocense [sic] is not recognized as a valid claim
for habeas relief").
In sum, it is clear that no federal habeas
relief is available for freestanding, non-capital claims of actual
innocence.
Murrah v. McDonough, 256 F. App'x 323, 325 (11th Cir.
- 16 -
2007) (per curiam) (a certificate of appealability was granted on
the
issue
of
the
trustworthiness
and
effect
of
the
alleged
videotaped witness recantation; however, the Eleventh Circuit found
that
"Murrah's
freestanding
actual
innocence
claim
is
not
cognizable under federal habeas law.").
Petitioner's claim of actual innocence, a freestanding claim,
is not cognizable in this non-capital, federal habeas proceeding.
Thus, based on Circuit precedent, Petitioner is not entitled to
habeas relief on his freestanding claim of actual innocence.
Ground three is due to be denied.
D.
In
his
fourth
Ground Four
ground,
Petitioner
complains
of
racial
discrimination in that he had an all white jury and he is black.
Petition at 10.
Liberally construing the pro se Petition and
assuming Petitioner is attempting to raise a Batson claim, the
claim is unexhausted and procedurally defaulted.
To evaluate an Equal Protection Clause claim concerning the
use of peremptory challenges, there is a three-part process set
forth in Batson v. Kentucky, 476 U.S. 79 (1986):
First, a defendant must make a prima facie
showing that a peremptory challenge has been
exercised on the basis of race. 476 U.S., at
96-97, 106 S.Ct. 1712. Second, if that showing
has been made, the prosecution must offer a
race-neutral basis for striking the juror in
question. Id., at 97-98, 106 S.Ct. 1712.
Third, in light of the parties' submissions,
the trial court must determine whether the
defendant has shown purposeful discrimination.
Id., at 98, 106 S.Ct. 1712.
- 17 -
Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003).
Of course,
"[t]he Equal Protection Clause forbids a prosecutor from striking
potential jurors solely on account of their race."
United States
v. Walker, 490 F.3d 1282, 1290 (11th Cir. 2007) (citing Batson v.
Kentucky, 476 U.S. 79, 86 (1986)), cert. denied, 552 U.S. 1257
(2008). Upon review, Petitioner did not make a Batson challenge at
trial.
The record shows that the prosecutor and defense counsel used
their strikes and exercised their peremptory challenges.
86-197.
Ex. F at
The court inquired: "And Mr. Crawford, again you see now
who we have picked for the jury and your attorneys have exercised
their peremptory challenges.
Id. at 197.
choices?"
You are in agreement with their
Petitioner responded affirmatively.
Id.
Also of note, Petitioner did not attempt to raise a Batson claim on
direct appeal.
Petitioner has procedurally defaulted this ground.
He has not shown cause and prejudice or a fundamental miscarriage
of justice will result if his fourth ground is not addressed on its
merits.
Alternatively,
Petitioner
has
not
established
an
equal
protection violation as he has failed to demonstrate or show
systematic
exclusion
of
black
venire
persons
or
the
use
of
discriminatory criteria to select jurors. As noted by the Eleventh
Circuit:
Discriminatory selection of a jury venire
may also be challenged under the Equal
Protection Clause of the Fourteenth Amendment.
- 18 -
Castaneda v. Partida, 430 U.S. 482, 97 S.Ct.
1272, 51 L.Ed.2d 498 (1977). To establish a
prima facie claim for an equal protection
violation, a petitioner must show (1) that he
or she is a member of a group capable of being
singled out for discriminatory treatment, (2)
that members of this group were substantially
underrepresented on the venire, and (3) that
the venire was selected under a practice
providing an opportunity for discrimination.
Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280.
Cunningham v. Zant, 928 F.2d 1006, 1013 (11th Cir. 1991).
Although Petitioner represents that he is black, a member of
a group capable of being singled out for discriminatory treatment,
and suggests that the members of this group were underrepresented
on the venire because "the jury pool was all white up to juror
number 25[,]" he has completely failed to show that the venire was
selected
under
discrimination.
a
practice
Reply at 6.
providing
an
opportunity
for
On the contrary, he simply states
that he has not been called for jury duty since July 2003, and he
knows of one black female that was told, in 2010 or 2011, that she
was not needed because the number of individuals required were
already there.
Id.
Of import, "the purpose of an equal protection claim is to
determine whether the disparity in the jury venire is the result of
a discriminatory purpose."
U.S. v. Grisham, 63 F.3d 1074, 1081
(11th Cir. 1995) (citation omitted), cert. denied, 516 U.S. 1084
(1996).
This requires that the Petitioner make a prima facie
showing that a discrete group has been intentionally denied the
opportunity to serve on a jury. Petitioner has failed to meet this
- 19 -
burden.
The information provided by Petitioner does not permit an
inference of discriminatory purpose behind the jury selection
process in Clay County.
Moreover, Petitioner has not shown a
statistical disparity sufficient to carry his burden.
Therefore,
his equal protection claim is due to be denied.
E.
Ground Five
In his fifth ground, Petitioner raises a due process claim,
asserting
that
he
acted
in
self-defense.
Petition
at
16.
Petitioner contends that he had a right to defend himself and rely
on the Florida stand your ground law.
Id.
He explains that he
drew his weapon in self-defense as he had been stabbed in the chest
in a previous incident, and he had torn clothing, scratches on his
chest and light bruising from his wife's attack.
that he called the police and had a gun permit.
Id.
He states
Id.
To the extent Petitioner is asserting that there was error in
failing to appropriately apply the stand your ground law to his
case, Petitioner has not presented a claim of constitutional
dimension.
This
interpretation
of
type
a
constitutional error.
state
of
claim
law
by
would
state
involve
courts,
statutory
not
federal
This Court will not reexamine state-court
determinations on issues of state law. See Estelle v. McGuire, 502
U.S. 62, 67-68 (1991).
"This limitation on federal habeas review
is of equal force when a petition, which actually involves state
law issues, is 'couched in terms of equal protection and due
process.'"
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)
- 20 -
(quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir.
1976)).
The federal habeas corpus court will be bound by the Florida
court's interpretation of its own laws unless that interpretation
breaches a federal constitutional mandate.
McCoy v. Newsome, 953
F.2d 1252, 1264 (11th Cir. 1992) (per curiam), cert. denied, 504
U.S. 944 (1992).
§
2254
"was
In sum, the writ of habeas corpus under 28 U.S.C.
not
enacted
to
enforce
State-created
rights."
Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000) (citing
Branan v. Booth, 861 F.2d at 1508), cert. denied, 531 U.S. 1170
(2001).
In this instance, a federal writ of habeas corpus is not
available.
See Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir.
1993); Krasnow v. Navarro, 909 F.2d 451, 452 (11th Cir. 1990).
Alternatively,
Petitioner
failed
ground
trial
process/self-defense
at
to
and
raise
on
this
direct
due
appeal.
Therefore, the claim is unexhausted and procedurally defaulted.
Petitioner has failed to demonstrate cause and prejudice or that a
fundamental miscarriage of justice would occur if this ground is
not reached.
Finally and alternatively, Petitioner apparently contends that
the jury reached the wrong result after it was presented evidence
of self-defense.
The record shows that Petitioner testified that
his wife struck him in the chest, and he thought that he had
possibly been stabbed.
Ex. F at 366-67.
When asked why he thought
that was a possibility, Petitioner explained that he was stabbed in
- 21 -
the heart in 1990 by his aunt.
Id. at 367.
Petitioner attested
that he instinctively reacted to his wife's striking him in the
chest by immediately pulling his gun.
Id.
Also, Petitioner said that he did not have "injuries," but he
clarified this statement by explaining that his definition of
injury does not include scratches.
Williams
testified
that
he
did
not
Id. at 409.
observe
any
Deputy James
injuries
on
Petitioner's body, but Williams admitted that he did not look
underneath Petitioner's shirt or ask Petitioner to remove his
shirt.
Id. at 415-16.
Also of note, Petitioner testified that
after the incident, he called the police.
referred to his concealed weapons permit.
Id. at 371.
He also
Id. at 372.
Certainly of importance, the record demonstrates that the
trial court instructed the jury on self-defense:
An issue in this case is whether the
Defendant acted in self-defense.
It is a
defense to the offense which Zaynus Clifford
Crawford is charged if the show of force to
Tali Crawford resulted from the justifiable
use of deadly force. Deadly force means force
likely to cause death or great bodily harm. A
person is justified in using deadly force if
he reasonably believes that such force is
necessary to prevent imminent death or great
bodily harm to himself or another. However,
the use of deadly force is not justifiable if
you find that Zaynus Clifford Crawford
initially provoked the use of force against
himself, unless the force sojourned [sic] the
Defendant was so great that he reasonably
believed that he was in imminent danger of
death or great bodily harm and had exhausted
every reasonable means to escape the danger
other than using deadly force on Tali
Crawford; or B) In good faith the Defendant
- 22 -
withdrew from physical contact with Tali
Crawford and clearly indicated to Tali
Crawford that he wanted to withdraw and stop
the use of deadly force, but Tali Crawford
continued or resumed the use of force.
Ex. F at 530-31.
The court also instructed the jury on justification for the
use of deadly force and the right to stand your ground under
particular circumstances:
In deciding whether the Defendant was
justified in the use of deadly force, you must
judge him by the circumstances by which he was
surrounded at the time the force was used.
The danger facing the Defendant need not have
been actual; however, to justify the use of
deadly force, the appearance of danger must
have been so real that a reasonably cautious
and
prudent
person
under
the
same
circumstances would have believed that the
danger could be avoided only through the use
of that force.
Based upon appearances, the
Defendant must have actually believed that the
danger was real.
If the Defendant was not engaged in an
unlawful activity and was attacked in any
place where he had a right to be, he had no
duty to retreat and had the right to stand his
ground and meet force with force, including
deadly force if he reasonably believed that it
was necessary to do so to prevent death or
great bodily harm to himself or to prevent the
commission of a forcible felony.
Id. at 531-32 (emphasis added).
With respect to ground five, Petitioner is not entitled to
habeas relief. Petitioner took the stand and testified. The court
properly instructed the jury on self-defense. The jury deliberated
and
found
Petitioner
guilty
of
aggravated
- 23 -
assault,
including
possession of a firearm during the commission of the offense.
at 553.
Id.
This ground is due to be denied.
F.
Ground Six
In the sixth ground of the habeas Petition, Petitioner raises
a spousal immunity claim.
Petition at 19.
He claims that his wife
testified against him in violation of spousal immunity.
Id.
It should be noted that the purpose of a federal habeas
proceeding is review of the lawfulness of Petitioner's custody to
determine whether that custody is in violation of the Constitution
or laws or treaties of the United States. See Coleman v. Thompson,
501 U.S. 722 (1991).
would
be
a
state
dimension.
A violation of a state spousal immunity law
law
claim,
not
a
claim
of
constitutional
As such, this Court does not have jurisdiction to
address the claim, and this claim is due to be denied as it fails
to state a claim of constitutional claim.
In
the
alternative,
procedurally defaulted.
this
ground
is
unexhausted
and
Petitioner failed to object on this basis
at trial, and he failed to raise the issue on direct appeal.
Also
of note, Petitioner failed to demonstrate cause and prejudice for
the default or show that a fundamental miscarriage of justice would
result if the claim is not addressed on its merits.
Alternatively, this claim has no merit.
privilege,
Fla.
Stat.
§
90.504,
does
not
The husband-wife
apply
to
certain
proceedings. For example, there is no husband-wife privilege "[i]n
a criminal proceeding in which one spouse is charged with a crime
- 24 -
committed at any time against the person or property of the other
spouse, or the person or property of a child of either."
Fla.
Stat. § 90.504(3)(b).
In this case, the state charged Petitioner with a crime
against
his
spouse,
Tali
Crawford.
Thus,
the
husband-wife
privilege was inapplicable to the charged offense of aggravated
assault.
Petitioner is not entitled to habeas relief.
G.
Ground Seven
In his seventh ground for habeas relief, Petitioner claims a
Brady
violation
based
on
the
state's
Petitioner's ripped shirt and scratches.
failure
to
disclose
He never raised a Brady
claim before the trial court, and he did not raise this ground on
direct
appeal.
As
procedural defaulted.
a
result,
the
claim
is
unexhausted
and
Petitioner has not shown cause or prejudice
or that a fundamental miscarriage of justice will result if the
Brady claim is not addressed on its merits.
Alternatively, this ground has no merit.
The purported Brady
violation concerned the state's alleged suppression of Petitioner's
ripped shirt, the permit to carry a weapon, and the existence of
scars on his body at the time of trial.
Petition at 21.
evidentiary record refutes Petitioner's claim.
The
Petitioner and his
counsel knew about the ripped shirt, the concealed weapons permit,
and the referenced scars.
None of this evidence was suppressed by
the state.
- 25 -
In particular, the evidence of scars on Petitioner's body was
not withheld or suppressed and was within his personal knowledge.
Petitioner testified that he had been stabbed in the chest in 1990.
Ex. F at 367.
He testified that he suffered a scratch from his
neck to his chest.
Id. at 392.
marks on his chest as well.
He also stated there were red
Id. at 393.
In addition, Petitioner testified that he had a concealed
weapons permit.
Id. at 372.
He also testified about the shirt
being ripped and the buttons being ripped off of the shirt during
the struggle.
Id. at 392-93.
available
the
to
defense
Petitioner's own knowledge.
All of this evidence was readily
and
defense
counsel
and
within
Of import, the record shows that the
ripped shirt was thoroughly discussed prior to trial, and defense
counsel had the opportunity to review the evidence.
33.
Ex. F at 232-
Based on the above, ground seven is due to be denied.
Petitioner is not entitled to habeas relief on this ground.
H.
Ground Eight
Petitioner raises a due process violation claiming the state
made a constructive amendment of the information by stating that
Petitioner could be found guilty of the lesser included offense of
improper exhibition of a firearm or dangerous weapon.
23.
Petition at
Petitioner asserts that after arguments had been made, the
prosecutor told the jury that Petitioner could possibly be found
guilty of improper exhibition of a firearm, adding it at the last
moment as a safety net.
Id.
- 26 -
The Court first recognizes that Petitioner was convicted of a
higher offense, aggravated assault, not improper exhibition of a
firearm or dangerous weapon.
Next, the record reflects that the
main offense and the lesser included offenses were discussed during
the charge conference.
Ex. F. at 426-39.
The court asked the
parties if there was any objection to the lesser included offenses
to aggravated assault.
Id. at 430.
No objections were made.
In fact, the defense requested "both lessers."
Thereafter, the court revisited the matter.
Id.
Id.
Id. at 434.
The
court pointed out that similar cases held "that where there was a
lesser included that could be supported by the evidence that
doesn't involve as an element of deadly force, it is appropriate to
give
the
instruction
exhibition."
Id.
if
requested,
for
example
if
Defense counsel agreed with the court.
improper
Id.
The
court noted that based on Petitioner's testimony, there is a
version of the events, if the jury were to believe him, that would
support the lesser included instruction.
counsel again agreed with the court.
"I'm making that finding, so."
Id.
Id. at 435.
Defense
The court concluded:
Id.
As vetted in the conference, the court instructed the jury on
aggravated assault and the two lesser included offenses, assault
and improper exhibition of a dangerous weapon or firearm.
528-30.
Id. at
The court prefaced its instruction on the lesser included
crimes by stating, "[t]he lesser crimes indicated in the definition
- 27 -
of aggravated assault are: Assault and improper exhibition of a
dangerous weapon or firearm."
The
lesser
included
Id. at 529-30.
offense
doctrine
"is
on
sound
constitutional footing and is available to the government as well
as to defendants."
Fransaw v. Lynaugh, 810 F.2d 518, 529 (5th
Cir.) (citation omitted), cert. denied, 483 U.S. 1008 (1987).
Petitioner's
criminal
case,
the
Petitioner with aggravated assault.
amended
information
In
charged
The record demonstrates that
Petitioner's counsel certainly had notice and an opportunity to
object to the lesser included offenses to aggravated assault being
given in the instructions.
In fact, defense counsel actually
requested that the lesser included offenses be included in the
charge to the jury. Thus, there was no due process violation under
these circumstances as the defense was put on notice of the charges
and agreed to the instruction on "both lessers."
The prosecutor
was certainly not in the wrong for arguing that Petitioner could
possibly be found guilty of improper exhibition of a firearm.
Alternatively, Petitioner failed to exhaust this ground.
He
did not object at trial, and he did not raise the issue on direct
appeal.
Thus, ground eight is procedurally defaulted.
Petitioner
has not shown cause and prejudice and he has not shown that a
fundamental miscarriage of justice will result if the ground is not
addressed on its merits.
- 28 -
I.
Ground Nine
Petitioner, in his ninth ground, claims the court gave an
improper jury instruction requiring unanimity, without providing
room for individual decisions and without giving an Allen charge.
Petition at 25.
instruction
and
Petitioner did not object at trial to the
did
not
raise
the
matter
on
direct
appeal.
Therefore, the claim is unexhausted and procedurally defaulted. He
has failed to demonstrate cause and prejudice, and he has failed to
show that a fundamental miscarriage of justice will result if the
claim is not addressed on its merits.
In the alternative, this ground has no merit.
Apparently
Petitioner is contending that the judge's instructions coerced the
jury into rendering a guilty verdict.
Petition at 25.
In the
Petition, Petitioner complains that by instructing the jury to come
to a unanimous verdict, the court did not give each juror the
freedom to choose to make an individual decision.
Id.
Petitioner
also asserts that the court should have given an Allen charge after
instructing the jury that it must come to a unanimous verdict.6
In considering the issue of whether a court's instruction
violates due process, the Eleventh Circuit provides the following
guidance:
The applicable standard here is whether under
the totality of the circumstances the trial
6
An Allen charge advises jurors to have deference for each
other's views and exhorts the jury to reach a verdict, but it is to
be given only when truly warranted.
- 29 -
judge's instruction to the jury was coercive.
Lowenfield v. Phelps, --- U.S. ----, 108 S.Ct.
546, 550, 98 L.Ed.2d 568 (1988); Jenkins v.
United States, 380 U.S. 445, 446, 85 S.Ct.
1059, 1060, 13 L.Ed.2d 957 (1965) (per
curiam). Courts may not evaluate a single jury
instruction in isolation, but must view it in
light of the overall charge. We must decide
whether the "instruction by itself so infected
the entire trial that the resulting conviction
violates due process." Cupp v. Naughten, 414
U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d
368 (1973); Boyd v. United States, 271 U.S.
104, 107, 46 S.Ct. 442, 443, 70 L.Ed. 857
(1926).
Watson v. State of Ala., 841 F.2d 1074, 1076 (11th Cir.), cert.
denied, 488 U.S. 864 (1988).
Upon review of the jury instructions, it is quite apparent
that the trial court provided the jury with the elements of the
charge against Petitioner, including the requested lesser included
offenses.
proof.
Ex. F at 527-48.
Id.
The court also detailed the burden of
The court instructed: "[w]hatever verdict you render
must be unanimous; that is, each juror must agree to the same
verdict."
Id. at 543.
As noted by Respondents, Petitioner has
confused individual decisions with a unanimous verdict.
See
Response at 22. The verdict must be unanimous, but the trial court
did not suggest, imply, or pressure the jury to return a particular
verdict.
Supreme Court Justice Brown imparted these words of wisdom
concerning the opinions of individual jurors and the goal to reach
a unanimous verdict:
- 30 -
While, undoubtedly, the verdict of the
jury should represent the opinion of each
individual juror, it by no means follows that
opinions may not be changed by conference in
the jury room. The very object of the jury
system is to secure unanimity by a comparison
of views, and by arguments among the jurors
themselves. It certainly cannot be the law
that each juror shou[l]d not listen with
deference to the arguments, and with a
distrust of his own judgment, if he finds a
large majority of the jury taking a different
view of the case from what he does himself. It
cannot be that each juror should go to the
jury room with a blind determination that the
verdict shall represent his opinion of the
case at that moment, or that he should close
his ears to the arguments of men who are
equally honest and intelligent as himself.
There was no error in these instructions.
Allen v. United States, 164 U.S. 492, 501–502 (1896).
The Court is not persuaded by Petitioner's argument that an
Allen charge should have been given.
The record shows that the
court responded to two jury questions, but the jury was never
deadlocked.
An
Allen
charge
was
uncalled
for
under
these
circumstances.
In conclusion, ground nine is due to be denied.
There is no
constitutional violation entitling Petitioner to habeas relief.
J.
In
this
ground,
Ground Ten
Petitioner
complains
of
prosecutorial
misconduct during closing arguments.
Petition at 27.
Reply,
prosecutor
Petitioner
mentions
that
the
In his
injected
his
personal beliefs about the evidence into his argument and he called
the Petitioner a liar.
Reply at 10.
- 31 -
Petitioner contends that the
prosecutor used knowingly false testimony from the victim and the
police officer to make the state's case.
A prosecutorial misconduct claim should be raised on direct
appeal.
Petitioner did not raise a prosecutorial misconduct claim
at trial or on direct appeal.
The claim raised in ground ten is
unexhausted and procedurally defaulted.
Petitioner has not shown
that failure to address the merits of the prosecutorial misconduct
claim will result in a fundamental miscarriage of justice.
Alternatively, the claim is due to be denied.
To the extent
Petitioner is claiming prosecutorial misconduct during closing
argument, attorneys are permitted wide latitude in their closing
arguments.
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; U.S. v. Hope, 608 F. App'x 831, 840 (11th Cir. 2015)
(per curiam), but the prosecutor is entitled to offer the jury his
view of the evidence presented.
In doing so, the prosecutor has
wide latitude in asking the jury to draw all logical inferences
from the evidence presented.
Upon review of the closing argument, the prosecutor's remarks
did
not
deceive
the
jury.
Any
misimpression
left
by
the
prosecutor's statements was corrected by the judge's instructions.
In sum, the prosecutor's comments did not deprive Petitioner of a
fair and impartial trial. Viewing the prosecutor's arguments along
- 32 -
with the court's instructions, the jury was not improperly misled.
As such, Petitioner is not entitled to habeas relief.
With regard to Tali Crawford's testimony, she stated she was
holding her youngest daughter when Petitioner pointed the gun at
her.
Ex. F at 275.
Petitioner's daughter testified that her
mother was holding the younger sister during the course of the
incident and while Petitioner was choking the mother and pointing
the gun at her.
Id. at 312-14.
When asked on direct whether she was afraid the Defendant was
going to shoot her, Tali Crawford stated: "I honestly didn't know
what was going to happen because all of it was unexpected."
at
278.
However,
the
prosecutor
rehabilitate her testimony.
re-called
Ms.
Ex. F
Crawford
to
On rebuttal direct examination, Ms.
Crawford said that when she had the baby in her arms and Petitioner
had the gun pointed at her head, she was scared.
court
overruled
questioning.
defense
counsel's
objection
Id. at 451.
to
this
line
The
of
Id.
Officer Williams testified that when he arrived Ms. Crawford
was calm.
Id. at 326.
No one looked like they had suffered
injuries and rescue was not called.
ripped shirt.
Id. at 327.
Id.
He said Petitioner had a
Officer Williams did not observe any
marks, scratches, or bruises on Petitioner.
Id.
On rebuttal,
Officer Williams testified that Petitioner told him that his wife
was holding the baby during the physical confrontation.
Ex. F at
413-14. Officer Williams further testified that Petitioner said he
- 33 -
pointed the gun at his wife, pushed her against the wall, and told
her he could legally shoot her for attacking him.
Id. at 414.
Officer Williams attested that Petitioner told him he would rather
be shot than give his wife the phone or anything from the home.
Id. at 414-15.
When Petitioner testified, he denied that he told Officer
Williams that his wife was holding the baby the whole time.
Ex. F
at 377. Petitioner also denied telling the officer that he pointed
the gun at his wife.
Id. at 377-78.
Petitioner clarified that he
told the officer he pushed his wife against a window, not a wall.
Id. at 378-79.
Petitioner denied telling the officer that he told
his wife he could legally shoot her for attacking him.
Id. at 379.
The initial arrest report states, in pertinent part:
Tali
said
she
reached
for
his
[Petitioner's] pocket to take the phone and he
pushed her backwards.
She said she was
holding her seven month old child in her arms
at the time. She said he pushed her several
more times and she began to fall backwards.
She grabbed his shirt to keep from falling and
his shirt ripped. She stated Zaynus grabbed
her by the neck and shoved her again and
pulled his handgun from his waistband and
pointed it at her head. She stated they ended
up in the front room and Zaynus pushed her up
against the front window and pointed the gun
at her again and said you know I could shoot
you right know [sic] and get away with it.
Tali said her ten year old daughter,
[M.C.], witnesses [sic] this incident and was
screaming for her dad to stop. She said when
Zaynus was holding her against the front
window she told [M.C.] to take the baby and go
across the street to the neighbor's house.
- 34 -
She said she was finally able to get away and
also went across the street.
Ex. F at 2.
In
the
arrest
report,
Officer
conversation with Petitioner.
Williams
referenced
his
In his report, Officer Williams
noted that Petitioner confirmed that he had an argument with his
wife about the phone, but alleged that Tali punched him in the
stomach and Petitioner responded by pushing her away, but Tali
continued to attack him.
Petitioner "admitted she was holding the
infant child the whole time."
Id.
Petitioner said he was in fear
for his safety and pulled his gun and pointed it at her and told
her to back off.
Id.
"He said she came at him again and he pushed
her again and held her against the wall and told her he could
legally shoot her for attacking him."
Id.
Finally, the report reflects that Petitioner's daughter said
that her mom and dad were pushing each other, and her dad pointed
the gun at her mom, "saying he would shoot her."
Id.
Finally,
Petitioner's daughter told Officer Williams she had to take the
baby from her mother's arms and run across the street.
Id.
Officer Williams conducted an investigation at the scene. Ex.
F at 322.
scene.
He spoke with Tali Crawford and the Petitioner at the
Id. at 326.
Officer Williams said he conducted a thorough
investigation that night and referenced his report.
417-18, 420.
- 35 -
Id. at 327,
In light of all of the above, Petitioner's claim that the
prosecutor used testimony he knew to be false is unsupported by the
record.
The testimony at trial from the victim, the Petitioner's
daughter, and Officer Williams was certainly consistent with the
information gathered in the investigation and memorialized in the
report. Petitioner is not entitled to habeas relief on ground ten.
K.
Ground Eleven
In the eleventh ground, Petitioner raises a claim of judicial
misconduct.
Petition at 30.
As noted by Respondents, Petitioner
complains that the trial court judge did not act on a letter by "a
represented pro se litigant" that did not concern any complaints
about his counsel.
Response at 24.
Petitioner did not exhaust his claim of judicial misconduct in
the state court system.
He did not raise a claim of judicial
misconduct in the trial court, and he did not raise the matter on
direct appeal.
Therefore, the claim of judicial misconduct is
unexhausted and procedurally defaulted.
Petitioner has not shown
that failure to address this ground will result in a fundamental
miscarriage of justice.
Alternatively, the trial court properly did not act on a
letter written by Petitioner when he was represented by counsel.
Response at 25. Petitioner admits that the Respondents are correct
in this regard.
Reply at 10.
- 36 -
Petitioner also contends that the trial judge pressured him to
testify.
The record belies this assertion.
There was some
question as to whether jail calls between Petitioner and his
brother were going to be allowed.
Ex. F at 222-28.
The court
stated it was going to delay its decision, and then said, "[i]f he
wants to testify, which I'm sure he will–-[.]" Id. at 228-29.
This statement does not amount to undue pressure.
The court
reasonably assumed that Petitioner was going to testify after
counsel told the court that it was very concerned about any
introduction of the jail calls.
Ex. F at 223.
Defense counsel
said, "[i]t will affect whether my client testifies and how he
testifies based on the calls."
Id.
After the state rested, the
court asked defense counsel if there were any witnesses that could
be put on other than "your client."
responded in the negative.
Id.
Id. 319.
Defendant counsel
The state announced that it was
willing to stipulate to not using the jail calls if Petitioner
testified that day.
ready to proceed.
Id.
Defense counsel announced that they were
Id. at 320.
After Officer James Williams testified and the state rested,
the defense made a motion for judgment of acquittal.
The court denied the motion.
Id. at 331.
Id. at 329.
At this point, the court
asked defense counsel if Petitioner was going to testify.
Defense counsel responded in the affirmative.
record
shows
that
the
defense
announced
- 37 -
to
Id.
the
Id.
Thus, the
court
that
Petitioner intended to testify after the state stipulated to not
using the jail calls and the court denied the defense motion for
judgment of acquittal.
Immediately thereafter, the court conducted a very thorough
inquiry as to whether Petitioner desired to take the stand, giving
Petitioner
every
opportunity
to
make
his
own
decision
after
receiving advice from counsel and after fully considering his
decision:
THE COURT: Okay.
Mr. Crawford, your
attorney has indicated to me that you do
intend to take the stand and testify in this
case.
THE DEFENDANT: Yes.
THE COURT: All right. And as you heard
me advise the Jury at least a couple times, do
you understand that I told them before and I'm
going to tell them again that if you do not
testify, I'll tell them that's an exercise of
your Constitutional right. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: And you understand that I will
further instruct them that if you chose not to
testify, that they cannot hold that against
you in any way. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: And do you understand that
they can't draw any negative inferences,
nothing of that sort. Do you understand that?
THE DEFENDANT: Yes.
- 38 -
THE COURT: Okay. Now, have you discussed
with your attorneys the decision whether to
testify or not?
THE DEFENDANT: Yes.
THE COURT: And have they answered all the
questions that you had about that?
THE DEFENDANT: Only thing I could think
of at this time.
THE COURT: Okay.
Do you understand if
you do testify, just like any other witness in
the case, the State could cross-examine you
after you testify in response to questions
from your attorney.
THE DEFENDANT: Yes.
THE COURT: Just like any other witness.
THE DEFENDANT: Yes.
THE COURT: Okay. And your attorneys have
advised you of both the risks and the benefits
of testifying and not testifying?
THE DEFENDANT: Yes.
They have.
THE COURT: And do you understand that
your attorneys can make recommendations to
you, but ultimately the decision whether to
testify or not is your decision alone. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: And is it your decision –your own independent decision to testify?
THE DEFENDANT:
Yes.
Ex. F at 331-33 (emphasis added).
- 39 -
It is.
Petitioner also asserts that the court told the jury that the
state did not have to prove the victim was in fear, referencing the
transcript
at
page
absolutely no merit.
458.
459,
lines
14-16.
This
contention
The jury was not in the courtroom.
has
Id. at
This discussion concerning the law took place outside the
presence of the jury.
Id. at 459.
Petitioner claims that the trial court flipped the burden of
proof.
Upon a careful review of the charge to the jury, the Court
finds that is not the case.
The court emphasized that the
presumption of innocence stays with the Defendant, "as to each
material allegation in the information, through each stage of the
trial, unless it has been overcome by the evidence to the exclusion
of and beyond a reasonable doubt."
Ex. F at 538.
thoroughly explained the state's burden of proof.
The court
Id. at 539.
Petitioner is not entitled to habeas relief on ground eleven, his
claim of judicial misconduct.
L.
Ground Twelve
In his twelfth and final ground, Petitioner makes a claim of
altered
transcripts.
Petition
at
33.
He
asserts
that
the
transcripts have been altered, referencing the rebuttal testimony
of Officer James Williams and closing arguments.
Petition at 33.
Once again, Petitioner has failed to exhaust his state court
remedies.
He did not raise this issue on direct appeal.
He could
have sought reconstruction of the record due to purported changes
- 40 -
or omissions in the transcript.
He failed to do so.
Petitioner
has failed to show cause and prejudice or that a fundamental
miscarriage of justice will result.
Alternatively, this ground is without merit.
The court
reporter for the trial, Angela M. Mathis, submits in her Affidavit,
Ex. U, that she has reviewed her stenographic notes of the trial's
rebuttal testimony and closing arguments and compared it to the
transcript of the trial.
She affirms "that it is an accurate
reflection of what occurred at the trial[.]" Id.
As such, ground twelve is due to be denied. Petitioner is not
entitled to habeas relief.
Accordingly, it is
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.7
7
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
- 41 -
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 24th day of
March, 2017.
sa 3/14
c:
Zaynus Clifford Crawford
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.
- 42 -
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