Lembrick v. Secretary, Florida Department of Corrections et al
Filing
26
ORDER denying the Petition and dismissing case with prejudice; with directions to the Clerk. Signed by Judge Timothy J. Corrigan on 11/7/2018. (JND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
DERWIN LEMBRICK,
Petitioner,
v.
Case No. 3:16-cv-47-J-32JRK
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et. al.,
Respondents.
________________________________
ORDER
I.
Status
Petitioner, Derwin Lembrick, an inmate of the Florida penal system, initiated
this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus
by a Person in State Custody (Doc. 1) on January 13, 2016.1 Lembrick challenges a
2010 state court (Duval County, Florida) judgment of conviction for first degree
murder for which he is currently serving a life term of incarceration. Doc. 1 at 1.
Respondents filed a Response on September 29, 2017. See Doc. 19 (Resp.).2 Lembrick
filed a Reply. See Doc. 25. This case is ripe for review.
Giving Lembrick the benefit of the mailbox rule, the Court finds that his
pleadings were filed on the respective dates Lembrick handed them to prison
authorities for mailing to the Court. See Houston v. Lack, 487 U.S. 266, 276 (1988).
1
Attached to the Response are several exhibits. The Court cites to the exhibits
as “Resp. Ex.”
2
II.
Governing Legal Principals
A. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court remedies that
are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To
exhaust state remedies, the petitioner must “fairly present[]” every issue raised in his
federal petition to the state’s highest court, either on direct appeal or on collateral
review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to
properly exhaust a claim, “state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel
applies to the state collateral review process as well as the direct appeal process.”).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thereby giving the State the “‘“opportunity to
pass upon and correct” alleged violations of its prisoners’
federal rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S.
Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard
v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the necessary
“opportunity,” the prisoner must “fairly present” his claim
in each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting
that court to the federal nature of the claim. Duncan, supra,
at 365-366, 115 S. Ct. 887; O’Sullivan v. Boerckel, 526 U.S.
838, 845, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
2
A state prisoner’s failure to properly exhaust available state remedies results
in a procedural default which raises a potential bar to federal habeas review. The
United States Supreme Court has explained the doctrine of procedural default as
follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner’s conviction and sentence are guided by rules
designed to ensure that state-court judgments are accorded
the finality and respect necessary to preserve the integrity
of legal proceedings within our system of federalism. These
rules include the doctrine of procedural default, under
which a federal court will not review the merits of claims,
including constitutional claims, that a state court declined
to hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[3] supra, at 747–748,
111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. Ct. 2497. A
state court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims if,
among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and
the rule is firmly established and consistently followed. See,
e.g., Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, -, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims from being
heard is not without exceptions. A prisoner may obtain
federal review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law. See
Coleman, 501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be excused
under certain circumstances. Notwithstanding that a claim has been procedurally
defaulted, a federal court may still consider the claim if a state habeas petitioner can
3
Coleman v. Thompson, 501 U.S. 722 (1991).
4
Wainwright v. Sykes, 433 U.S. 72 (1977).
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show either (1) cause for and actual prejudice from the default; or (2) a fundamental
miscarriage of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for
a petitioner to establish cause and prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly attributable to
his own conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258
(11th Cir. 1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct.
2639).[5] Under the prejudice prong, [a petitioner] must
show that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier, 477
U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may receive
consideration on the merits of a procedurally defaulted claim if the petitioner can
establish that a fundamental miscarriage of justice, the continued incarceration of one
who is actually innocent, otherwise would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim. “[I]n an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default.” Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This
exception is exceedingly narrow in scope,” however, and
requires proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
5
Murray v. Carrier, 477 U.S. 478 (1986).
4
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more
likely than not that no reasonable juror would have convicted him’ of the underlying
offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual
innocence must be based on reliable evidence not presented at trial.” Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity
of such evidence, in most cases, allegations of actual innocence are ultimately
summarily rejected. Schlup, 513 U.S. at 324.
B. 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)). To establish
ineffective assistance, a person must show that: (1) counsel’s performance was outside
the wide range of reasonable, professional assistance; and (2) counsel’s deficient
performance prejudiced the challenger in that there is a reasonable probability that
the outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010).
Since both prongs of the two-part Strickland test must be satisfied to show a Sixth
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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.
III.
Analysis
A. Ground One
Lembrick asserts that his trial counsel was ineffective for failing to file a motion
in limine seeking admission of the complete versions of Lembrick’s jail phone calls.
Doc. 1 at 5-6. According to Lembrick, only inculpatory portions of the recordings were
presented at trial, and the compete conversations were necessary to show that
Lembrick was actually explaining that all witnesses needed to testify truthfully. Id.
at 6. Lembrick avers that the portions of the recordings played for the jury misled it
to believe that Lembrick was attempting to tamper with the state witnesses.
Lembrick acknowledges that he did not raise this claim in state court, and thus,
admits it is unexhausted and procedurally defaulted. Doc. 1 at 6-7. However, Lembrick
argues that the Court should excuse this procedural bar because he was not
represented by postconviction counsel during his state postconviction proceedings. See
Doc. 1 at 7 (citing Martinez v. Ryan, 566 U.S. 1 (2012)). To overcome a procedural
default under Martinez, Lembrick must show that his “underlying ineffective
assistance of trial counsel claim is a substantial one, which is to say that [he] must
demonstrate that [his] claim has some merit.” Martinez, 566 U.S. at 14. Conversely,
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his claim is “insubstantial” if “it does not have any merit or . . . is wholly without
factual support.” Id. at 16.
The evidence at issue here involves seven jailhouse phone recordings that were
admitted during Detective Hinton’s trial testimony as state exhibits 62, 63, 64, 65, 66,
67, and 68. Resp. Ex. B at 433. The exhibits were relevant excerpts of the full version
of these recordings. Lembrick’s trial counsel reviewed the exhibits and stipulated to
the excerpts prior to their admittance at trial. Resp. Ex. B at 398-99, 434. During these
recordings, Lembrick attempts to influence witnesses’ testimony, making statements
like “[t]ell him I need for that dude to come and just say something totally different”
or “tell them you were at the store, tell that . . . to say something way different, you
know what I mean?” Resp. Ex. B at 435-36, 442, 445-46, 448. In one excerpt, Lembrick
was heard giving someone the phone number of an unidentified woman and then said,
“tell her ease up” and “you know what I’m saying, something different.” Resp. Ex. B at
450. Detective Hinton testified that the phone number referred to in that specific
excerpt belonged to Ms. Cherrill Wilson. Resp. Ex. B at 452.
Initially, the Court finds that Lembrick’s arguments are ambiguous and “wholly
without factual support.” Notably, Lembrick fails to provide the Court with any
evidence that the complete version of these subject recordings actually contain any
exculpatory statement. Instead, Lembrick requests that the Court accept his
assertions as true and disregard the record evidence showing otherwise.
Further, the only specific statement that Lembrick claims was improperly
omitted from the jail recordings is “that he wanted all prospective witnesses at his
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upcoming trial to tell the truth.” Reply at 4. However, during trial, Lembrick testified
in his own defense. Resp. Ex. B at 468-75. On cross-examination, Lembrick
acknowledged that he made the subject phone calls and confirmed that his voice is
heard on the recordings. Id. at 483-84. Lembrick also admitted that in making those
phone calls, he was requesting that his friends contact Ms. Wilson or Mr. Kinte
Getzen, but asserts that the intent behind his request was merely to inform these
witnesses to “[t]ell the truth basically.” Resp. Ex. B at 486. On re-direct examination,
Lembrick again testified that he was making these jail calls because he wanted these
witnesses to tell the truth. Resp. Ex. B at 519-20. As such, Lembrick, through his own
trial testimony, elicited the single statement that he now claims counsel failed to
adequately produce.
The Court also finds that Lembrick’s claim is “without merit.” Ms. Wilson was
an eyewitness to the murder. Resp. Ex. B at 274-86. At trial, Ms. Wilson testified that
she saw Lembrick drive up to the victim, get out of his vehicle, and engage in a verbal
altercation. Id. at 278-79. She stated that Lembrick began shooting the victim, so she
dropped to the ground behind a white SUV. Id. The victim then fell to the ground a
few feet away. Id. Ms. Wilson explained that she laid on the ground until Lembrick
fled the scene, and then she immediately ran to her aunt’s house and asked her to call
the police. Id. at 279-81. Once police arrived, Ms. Wilson denied witnessing the murder
and declined to offer any helpful information. Resp. Ex. B at 285. A few days later,
however, police re-interviewed Ms. Wilson and advised her that her fingerprints were
found on the white SUV next to where the victim’s body was located. Id. at 184, 286.
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Confronted with this physical evidence, Ms. Wilson told police what happened. Id. at
286. Police presented Ms. Wilson with a photospread and she identified Lembrick as
the individual who pulled the trigger. Id. at 286-88. Ms. Wilson testified that after
Lembrick’s arrest, she went to visit him in jail because she thought they were friends.
Id. at 289. However, Ms. Wilson explained that she later received threats, which
dissolved any loyalty she felt toward Lembrick. Id.
Mr. Getzen also witnessed Lembrick commit the murder. Resp. Ex. B at 37074. Mr. Getzen told police that he was in his house and peeking through his window
blinds, when he saw Lembrick shoot the victim. Resp. Ex. B at 371. Mr. Getzen also
identified Lembrick during a police photospread. Id. at 372. Following Lembrick’s
arrest, Lembrick’s girlfriend came to see Mr. Getzen and coerced him into giving police
a written statement explaining he did not witness any crime. Id. at 373-74. He testified
that he made the written statement because he was scared. Id. at 374.
Even if all seven of these jail call recordings were entirely omitted from trial,
the jury would have still heard eyewitness testimony from Ms. Wilson and Mr. Getzen
that they saw Lembrick murder the victim. The jury would also still consider these
witnesses’ statements that they were, in some fashion, threatened or coerced because
they witnessed the murder. Accordingly, Lembrick cannot demonstrate that but for
counsel’s alleged error, the outcome of trial would have been different. Whether Ms.
Wilson or Mr. Getzen were lying during their trial testimony was a question of
credibility for the jury to determine, and Lembrick’s alleged statement that he wanted
these witnesses tell the truth would not have impacted the jury’s decision. As such,
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Lembrick cannot overcome his failure to exhaust this issue or the resulting procedural
default. He also has failed to identify any fact that would warrant the application of
the fundamental miscarriage of justice exception. Ground One is denied.
B. Ground Two
Lembrick maintains that trial counsel was deficient for advising Lembrick to
testify at trial. Doc. 1 at 8. In support of this assertion, Lembrick contends that trial
counsel’s error prejudiced him because Lembrick: (1) was unable to recall pertinent
information during cross-examination; (2) he admitted to having access to a cellular
telephone that was used as material evidence against him; and (3) he admitted to
making jail phone calls to state witnesses and requesting that they testify to
something different. Id.
Lembrick again admits that this claim is unexhausted and now procedurally
defaulted. Doc. 1 at 9; Reply at 9-14. He requests that the Court excuse this procedural
bar because he was denied collateral counsel. Doc. 1 at 9; Reply at 9-14 (citing
Martinez, 566 U.S. at 14).
Initially, the Court notes that prior to Lembrick’s trial testimony, the trial court
conducted a colloquy with Lembrick, during which Lembrick made the following
statements under oath:
THE COURT:
You can put your hand down. Mr.
Lembrick, the only reason that I’m
asking these questions is the law
suggests I should, just so long as you
know that you have these rights and I’m
going to talk about them in a second.
This reason is this is one of those
decision, one of the few decisions during
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a criminal trial that’s yours and yours
alone. Your attorney has indicated that
it’s your desire to take the witness stand
and testify in your defense; is that
correct?
THE DEFENDANT: Yes, sir.
THE COURT:
All right. And, Mr. Lembrick, do you
understand that during the course of
this trial you have the absolute right to
remain silent and not to testify if you so
choose? Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT:
And you understand that if you chose to
exercise your right to remain silent, I
would have instructed the jury that, as
I did in the opening statements, that no
juror should ever be concerned about the
fact that you chose to remain silent and
did not testify in your own defense, and
not only that, that they couldn’t consider
that in determining their verdict? You
understand that?
THE DEFENDANT: Yes, sir.
THE COURT:
And you feel like you’ve had sufficient
amount of time to discuss this decision
to testify with you attorney; correct?
THE DEFENDANT: Yes, sir.
THE COURT:
And it is your - - after discussion with
your attorney, it is your independent
decision that you choose to testify;
correct?
THE DEFENDANT: Yes, sir.
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Resp. Ex. B at 465-67. Lembrick’s prior sworn statements undermine his current
allegations. This record evidence shows that Lembrick voluntarily and knowingly
made the decision to testify on his own behalf; thus, this claim is without “factual
support.”
Nevertheless, even assuming trial counsel influenced Lembrick’s decision to
testify, Lembrick cannot demonstrate prejudice from this purported error. Along with
the eyewitness testimony from Ms. Wilson and Mr. Getzen discussed in Ground One,
the state presented testimony from Detective Tracy Stapp that she responded to the
crime scene and found six .45 caliber shell casings around the victim’s body. Resp. Ex.
B at 192. An expert in firearms identification testified that all six casings were fired
from the same gun. Id. at 388-93. Ivan Skipper, a long-time friend of Lembrick’s,
testified that he was outside smoking when he saw Lembrick drive into the
neighborhood, park, and get out of the vehicle with a .45 semiautomatic gun. Id. at
239-51. Mr. Skipper testified that Lembrick “cocked the gun” and walked towards the
victim, prompting Mr. Skipper to run away. Id. at 248-49. As he was running away,
Mr. Skipper heard six or seven gunshots. Id.
Detective Hinton, the lead Detective on the case, testified about Lembrick’s cell
phone records. Id. at 420-21. Detective Hinton explained that two calls were placed
from Lemrick’s cell phone at 8:59 p.m. and 9:14 p.m. on the night of the murder. Id. at
424-25. He stated the first 911 call was made a 9:30 p.m. Id. Lembrick then took a
third phone call at 9:45 p.m. Id. Detective Hinton stated that the cell tower that was
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used to complete all of these calls was located where the shooting took place. Id. at
423-24.
Considering this substantial evidence of guilt, Lembrick cannot show that but
for his trial testimony, the outcome of the trial would have been different. Two
eyewitnesses testified that they witnessed Lembrick murder the victim, and another
bystander corroborated evidence that Lembrick was present when the victim was
killed. Further, the cell tower data provides physical support that Lembrick was in
the location where the murder occurred. As such, absent counsel’s supposed error in
advising Lembrick to testify, and assuming Lembrick maintained his right to remain
silent, Lembrick has failed to demonstrate the necessary prejudice under Strickland.
Because this claim is “without merit,” Lembrick cannot overcome this procedural
default. He also has failed to identify any fact that would warrant the application of
the fundamental miscarriage of justice exception. Ground Two is denied.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is DISMISSED WITH
PREJUDICE.
2.
The Clerk of Court shall enter judgment accordingly, terminate any
pending motions, and close this case.
3.
If Lembrick 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
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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.6
DONE AND ORDERED at Jacksonville, Florida, this 7th day of November,
2018.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C:
Derwin Lembrick, #132547
Anne Catherine Conley, Esq.
The 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, 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 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)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
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