Curry v. Secretary, Florida Department of Corrections et al
Filing
24
ORDER denying the Petition and dismissing case with prejudice; directions to the clerk. Signed by Judge Timothy J. Corrigan on 10/28/2019. (JND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JAMES C. CURRY,
Petitioner,
v.
Case No. 3:16-cv-1487-J-32MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et. al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner, James C. Curry, 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. See Doc. 1. Petitioner challenges a state court (Clay
County, Florida) judgment of conviction for armed robbery. Id. at 1. He is currently
serving a twenty-five-year term of incarceration. Id. Respondents filed a Response.1
See Doc. 19. Petitioner filed a Reply. See Doc. 22. This case is ripe for review.
II. Governing Legal Principals
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a
state prisoner’s federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic
Respondents also filed several exhibits to their Response. See Doc. 18. The
Court cites to the exhibits as “Resp. Ex.”
1
& Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct.
1432 (2017). “‘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, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See Marshall v.
Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). 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 Harrington v. Richter, 562 U.S. 86, 100
(2011). Where the state court’s adjudication on the merits is unaccompanied by an
explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that
the unexplained decision adopted the same reasoning. But
the State may rebut the presumption by showing that the
unexplained affirmance relied or most likely did rely on
different grounds than the lower state court’s decision, such
as alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the record
it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner’s claims on the merits, a federal
court cannot grant habeas relief unless the state court’s adjudication of the claim was
“contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
2
court proceeding,” 28 U.S.C. § 2254(d)(1), (2). A state court’s factual findings are
“presumed to be correct” unless rebutted “by clear and convincing evidence.” Id. §
2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that statecourt decisions be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks
omitted). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks omitted). “It bears repeating that
even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (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 (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 (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) (internal citations
modified).
B. Exhaustion/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
3
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).
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).
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,
4
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,[2] supra, at 747–748,
111 S. Ct. 2546; Sykes,[3] supra, at 84–85, 97 S. Ct. 2497. A
state court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims if,
among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and
the rule is firmly established and consistently followed. See,
e.g., Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, -, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims from being
heard is not without exceptions. A prisoner may obtain
federal review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law. See
Coleman, 501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). 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 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,
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).[4] Under the prejudice prong, [a petitioner] must
show that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
2
Coleman v. Thompson, 501 U.S. 722 (1991).
3
Wainwright v. Sykes, 433 U.S. 72 (1977).
4
Murray v. Carrier, 477 U.S. 478 (1986).
5
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).
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.
6
C. Ineffective Assistance of Trial 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
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.
“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.
7
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). “Reviewing courts apply a ‘strong
presumption’ that counsel’s representation was ‘within the wide range of reasonable
professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262
(11th Cir. 2016) (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).
III. Analysis
A. Ground One
Petitioner contends that trial counsel was ineffective for failing to inform the
trial court that the state committed a Brady5 violation by withholding evidence of
Petitioner’s wallet prior to trial. See Doc. 1 at 4. According to Petitioner, the police
obtained Petitioner’s wallet at the time of Petitioner’s arrest and they failed to provide
the wallet and its contents to trial counsel during discovery. Petitioner maintains that
the wallet contained a receipt that would have supported an alibi defense that he was
5
Brady v. Maryland, 373 U.S. 83 (1963).
8
not at the Food Lion at the time of the robbery, but was instead making a purchase at
an Exxon gas station. Petitioner further argues that trial counsel was ineffective for
failing to request a Richardson6 hearing when the state used Petitioner’s wallet to
bolster its case during closing arguments and refute Petitioner’s defense of
misidentification.
Petitioner raised this claim in his Florida Rule of Criminal Procedure 3.850
motion for postconviction relief. Resp. Ex. J at 28-34. Following an evidentiary hearing
in which Petitioner was represented by postconviction counsel, the trial court denied
these claims, finding in pertinent part:
Defendant avers he received ineffective assistance
when counsel failed to object and request a Richardson
hearing when it became apparent the State withheld
material evidence. Specifically, Defendant alleges he told
counsel he had his wallet when he was arrested and his
wallet contained a receipt that would prove he was not the
perpetrator of the robbery. [FN2 Due to passage of time,
evidence in this case has been destroyed.] The Court
conducted an evidentiary hearing on this claim.
“[I]t is within the province of the finder of fact ‘to rely
upon the testimony found by it to be worthy of belief and to
reject such testimony found by it to be untrue’. . . .” Smith v.
State, 697 So. 2d 991, 992 (Fla. 4th DCA 1997). Accordingly,
after an evidentiary hearing, a trial court may find trial
counsel’s testimony more credible than a defendant’s
testimony and assertions. Thomas v. State, 838 So. 2d 535,
540-41 (Fla. 2003). A trial court’s credibility determination
will be upheld on appeal if supported by competent,
substantial evidence. Monestime v. State, 88 So. 3d 204, 204
(Fla. 3d DCA 2011); Schofield v. State, 67 So. 3d 1066, 1072
Fla. 2d DCA 2011).
At the evidentiary hearing, Mr. Wright (trial counsel)
6
Richardson v. State, 246 So. 2d 771 (Fla. 1971).
9
testified that Defendant failed to mention any alibi as the
defense was developing. Originally, Defendant told Mr.
Wright he went to the Exxon gas station before going to
Club Christopher but stayed outside while his friend
Rodney Williams made a purchase. Mr. Wright had no notes
reporting that Defendant told him he entered the Exxon or
purchased anything. Defendant did tell Mr. Wright he saw
someone outside the gas station and had a conversation.
(Ex. D.)
Later, Mr. Wright and Defendant viewed the
evidence photos depicting the wallet. Mr. Wright testified
Defendant still did not mention a receipt or anything that
could be construed as an alibi. Defendant eventually
mentioned Mike the Exxon employee, but the story
involving Mike was different from Defendant’s original
story. (Ex. D.) At trial, Defendant testified that he went to
Exxon after leaving Club Christopher; that he met Mike at
the Exxon, where he purchased a candy bar; and that there
should be a video of his presence at the Exxon. [FN3 It is
troubling that Defendant would present this version of
events to the jury but fail to testify about the receipt that
would exonerate him.] (Ex. C at 253-60; 270-78.) Based on
the jury’s verdict, they rejected this version of events.
Further, there was a great deal of evidence against
Defendant, including: the large amount of cash found in the
bag he was carrying (which matched the amount of money
stolen from Food Lion within $50.00); the gun which
matched the witnesses’ description of the weapon
brandished by the robber; eyewitness identification; and the
Food Lion video showing a man in camouflage shorts like
those Defendant was wearing when apprehended. (Ex. C at
103-11; 126-30; 146-51; 169; 185-98; 212; Ex. E.)
The Court finds Mr. Wright’s testimony more credible
than Defendant’s testimony and written assertions that he
told counsel about Mike and the receipt. It follows that no
Brady violation occurred. Defendant has failed to meet his
burden under Strickland. Claim [Two] is denied.
Resp. Ex. N at 150-51. The First District Court of Appeal per curiam affirmed the
trial court’s denial without a written opinion. Resp. Ex. W. To the extent that the First
10
DCA affirmed the trial court’s denial on the merits, the Court will address the claim
in accordance with the deferential standard for federal court review of state court
adjudications.
As to Petitioner’s Brady claim, Petitioner must prove that (1) the government
possessed evidence favorable to the defense; (2) Petitioner did not possess the evidence
and could not have obtained it with any reasonable diligence; (3) the government
suppressed the favorable evidence; and, (4) the evidence was material in that a
reasonable probability exists that the outcome of the proceeding would have been
different had the evidence been disclosed to the defense. United States v. Neufeld, 154
F. App’x 813, 818 (11th Cir. 2005) (citation omitted); LeCroy v. Sec’y Fla. Dep’t of Corr.,
421 F.3d 1237, 1268 (11th Cir. 2005) (citation omitted); Chandler v. Moore, 240 F.3d
907, 915 (11th Cir. 2001) (citation omitted).
The record supports the state court’s conclusion that this did not amount to a
Brady violation. Indeed, Petitioner had multiple opportunities to identify or mention
this evidence during his trial testimony. At trial, Petitioner testified that on the night
of the robbery, he, Rodney Williams, and another individual named Black were
together. Resp. Ex. B at 253. He stated that Williams asked Petitioner for a “favor,”
explaining that Williams needed Petitioner to deliver a package to someone waiting
in the Home Depot parking lot. Id. Petitioner testified that Williams then dropped
Petitioner off at the Exxon store while Williams and Black advised Petitioner that they
were going to a liquor store. Id. at 253-55. Petitioner stated that he went into the
Exxon, bought a candy bar, and spoke with the Exxon cashier for a while. Resp. Ex. C
11
at 254-55. He stated that Williams and Black then picked Petitioner back up, but they
were dressed differently. Id. at 255. Petitioner testified that Williams then handed
Petitioner a black shoulder bag to deliver to Home Depot. Id. at 255. Petitioner
explained that he took the bag and as he began walking to Home Depot, he got stopped
by police. Id. at 258. According to Petitioner, when he was apprehended, he had his
wallet on him, and his “identification” fell out of his pocket and an officer then put the
“identification” in his pocket. Resp. Ex. C at 283-84. Petitioner stated that he has not
seen his “identification” since the apprehension. Id. at 284.
Petitioner also had multiple opportunities to tell trial counsel about this wallet
or receipt prior to trial. Trial counsel testified at the evidentiary hearing that prior to
trial, he reviewed a crime scene photo that depicted Petitioner’s wallet. Resp. Ex. Q at
399-400. He explained that when he reviewed the photo with Petitioner, Petitioner
never mentioned having stored an Exxon receipt in the wallet or any other evidence
supporting an alibi defense. Id. at 400. Rather, trial counsel testified that during
pretrial discussions, Petitioner told trial counsel that Williams, not Petitioner, went
into the Exxon store to buy cigarettes while Petitioner waited outside of the store. Id.
at 409. As such, trial counsel explained that he could not have had an Exxon employee
testify or provide evidence of the Exxon security footage because it too would not have
supported an alibi defense. Id. at 109-10.
Petitioner also cannot demonstrate a reasonable probability that the outcome
of his trial would have been different had the alleged receipt been admitted at trial.
At the evidentiary hearing, Petitioner testified that he was given the black bag
12
containing a Target bag, the stolen money, and a gun prior to his trip to the Exxon.
Resp. Ex. Q at 381. At trial, however, Petitioner testified that he was given the bag
containing evidence of the robbery after his Exxon trip. The trial court highlighted
this contradiction at the evidentiary hearing and asked Petitioner to clarify; however,
Petitioner only compounded this confusion by responding that the eyewitnesses’ trial
testimony regarding the time of the robbery was wrong. Id. at 411-12. Nevertheless,
Petitioner admitted at the evidentiary hearing that at the time he was apprehended,
he was wearing camouflage shorts that matched the shorts depicted in the Food Lion
surveillance footage of the perpetrator at the time of the offense. Id. at 383. The
surveillance footage of the robbery was played for the jury during eyewitness Heather
Deloach’s trial testimony. Resp. Ex. B at 104-11. Also, as the state court noted, when
Petitioner was apprehended, he was carrying a bag containing a large amount of cash
(which matched the amount of money stolen from Food Lion within $50.00) and the
gun which matched the witnesses’ description of the weapon brandished by the robber.
Having reviewed the record, the Court finds that the state presented substantial
evidence of Petitioner’s guilt.
As such, while the state may have had possession of Petitioner’s wallet,
Petitioner clearly knew about the wallet and/or its contents (i.e., receipt). He knew
that the police took possession of the wallet at the time of his arrest. Petitioner does
not allege that the state suppressed evidence of the wallet or its contents after his
arrest or withheld it from him, and Petitioner cannot demonstrate that the wallet or
its contents were material. Finding no Brady violation, it follows that there can be no
13
meritorious claim of ineffective assistance of counsel for failure to investigate and raise
a Brady claim.
As to Petitioner’s Richardson claim, “[a] Richardson hearing is held to
determine whether the State committed a discovery violation in contravention of the
Florida Rules of Criminal Procedure and, if so, whether the non-compliance resulted
in prejudice to the defendant’s ability to prepare for trial.” Cisneros v. McNeil, No.
8:05-cv-762-T-27TGW, 2008 WL 1836368, at *5 (M.D. Fla. Apr. 23, 2008). To support
his contention that the state committed a discovery violation, the only evidence
Petitioner references is the following statement made during the state’s closing
argument: “Here’s the bag. Here’s his cigarettes and lighter right with the stuff from
the bag. He testified twice that he was smoking cigarettes. And here’s a wallet right
with the bag with everything. He testified he had his wallet. And here’s his gun. It’s
all right there together.” Resp. Ex. C at 327.
Initially, whether this statement
amounted to a discovery violation is a question of state law, and thus, the Court defers
to the state court’s determination that trial counsel was not deficient for failing to
object. See Huddleston v. Sec’y Dep’t of Corr., No. 8:16-cv-76-T-02AAS, 2019 WL
339225, at *5 (M.D. Fla. Jan. 28, 2019) (holding that [w]hile the issue before the court
is one of ineffective assistance, a question cognizable on federal habeas review, the
underlying issue of whether a discovery violation occurred under Florida law and
whether counsel should have objected and moved for a Richardson hearing is a
question of state law” that binds the court). In any event, given the substantial
evidence of Petitioner’s guilt, Petitioner cannot demonstrate prejudice under
14
Strickland.
In sum, upon thorough review of the record and the applicable law, the Court
concludes that the state court’s decision to deny Petitioner’s claim was neither
contrary to nor an unreasonable application of Strickland, and it is not based on an
unreasonable determination of the facts in light of the evidence presented to the state
court. See 28 U.S.C. § 2254(d). Ground One is denied.
B. Ground Two
Petitioner contends that trial counsel was ineffective for failing to file a motion
to suppress or object to the state’s illegally obtained out-of-court identification
evidence. Doc. 1 at 11. According to Petitioner, the police identification procedures
were unduly suggestive and intentionally arranged to guarantee that eyewitnesses
Heather Deloach, Matthew Hearra, and Janice Hawks would identify Petitioner as
the robber.
Petitioner raised this claim in his Rule 3.850 Motion. Resp. Ex. J at 43-45. The
trial court summarily denied the claim, finding in relevant part:
Defendant argues counsel should have moved to
suppress law enforcement’s “impermissibly suggestive outof-court identification procedures” and failed to object to
Deloach’s in-court identification as tainted by the out-ofcourt procedures. Defendant further avers that police
misstated facts and advised Deloach they had recovered a
camouflage shirt and a Target bag. He also alleges that the
eyewitnesses talked to several officers prior to providing a
statement; and the store manager was allowed to view the
videotape of the robbery and discuss it with the witnesses
before police conducted the show-up. Finally, he takes issue
with the fact that two of the eyewitnesses did not get a good
look at his face and no one mentioned his moles.
15
A show-up is recognized as a suggestive identification
procedure, but is not invalid unless law enforcement
increases the suggestiveness of the confrontation, or the
procedure gives rise to a substantial likelihood of
misidentification. Jenkins v. State, 96 So. 3d 1110, ii 12
(Fla. 1st DCA 2012). Factors to be considered when
determining whether the procedure resulted in a
substantial likelihood of misidentification are: the witness’s
opportunity to view the suspect during the crime; the
witness’s degree of attention; the accuracy of the witness’s
description of the suspect; the level of certainty of the
witness; and the length of time between the crime and the
show-up. Perez v. State, 648 So. 2d 715, 719 (Fla. 1995).
Defendant’s allegations are speculative and
unsupported. After review of the record, the Court finds no
error in police or witness conduct; or in the show-up
procedure. (Ex. C at 95-155; Exs. E, F.) Moreover, at trial,
counsel thoroughly cross-examined the witnesses about
their identification of Defendant; any conversations with
other witnesses; their statements; and any information
given to the witnesses about the evidence. (Ex. C at 95-155.)
Through this cross-examination before the jury, counsel
challenged the witnesses’ identification of Defendant.
Hence, Defendant cannot demonstrate he was prejudiced by
counsel’s failure to file a motion to suppress. Claim Six is
denied.
Resp. Ex. N at 153-54. The First DCA per curiam affirmed the trial court’s summary
denial without a written opinion. Resp. Ex. W. To the extent that the First DCA
affirmed the trial court’s denial on the merits, the Court will address the claim in
accordance with the deferential standard for federal court review of state court
adjudications.
In applying such deference, the Court will provide context to Petitioner’s claim.
Heather Deloach, Janice Hawks, and Matthew Hearra were working at the Food Lion
at the time of the armed robbery. Resp. Ex. B at 143-44. As the three employees were
16
closing the store, a man walked toward Deloach from the back of the store and asked
to see Hearra. Id. at 99-101. Deloach took the man to the back office where Hearra and
with Hawks were closing up. Id. Upon entering the office, the man pulled out a gun
and told Hearra to start filling the Target bag he was holding with cash. Id. The man
also pointed the gun at Deloach and Hawks and told them to get on their knees. Id. at
102-29. Hawks testified that the assailant was a tall black male about six feet tall and
wearing camouflage clothes. Id. at 146. Hawks stated that she had an opportunity to
see the gun the man was holding because she was less than a foot away from the gun
and it was eye level to her. Id. Once the man left, Hawks called police and gave them
a description of the man. Id. at 151. Hawks stated the police then brought Petitioner
to the store to be identified. Id. She testified that “it was hard for me to recognize him
because, like I sa[id], all I seen was the gun. I didn’t really look at him at all.” Id.
However, Hawks did confidently identify the gun that was used. Id. at 152.
Deloach testified that the man police brought to the store for identification was
the same man who robbed the store. Id. at 110-11. She did note, however, that at the
time she identified him, he was wearing a different shirt than the one he was wearing
at the time of the robbery. Id. On cross-examination, trial counsel attempted to
discredit Deloach’s positive identification by eliciting contradictory deposition
testimony regarding the color of the assailant’s shoes. Id. at 114-15.
Hearra testified at trial that he only got a glimpse of the assailant during the
robbery, but remembered his clothing. Id. at 125. The robber was within a foot of
Hearra as he put the money into the Target bag, and he was able to get a good view of
17
the assailant’s gun. Id. at 128. Further, according to Hearra, he, Deloach, and Hawks
did not speak to one another before the police arrived and police then separated the
witnesses before they gave their statements to police. Id. at 137. Hearra testified that
he identified the same person the police brought back to the store as the person who
robbed them. Id. at 130. On cross-examination of Hearra, trial counsel challenged
Hearra’s testimony by eliciting statements that Hearra did not see the man’s teeth or
facial hair, and he acknowledged that the man was wearing a hat during the robbery.
Id. at 130-32.
The trial court recognized that there is “a due process check on the admission
of eyewitness identification, applicable when the police have arranged suggestive
circumstances leading the witness to identify a particular person as the perpetrator of
a crime.” Perry v. New Hampshire, 565 U.S. 228, 232 (2012). An out-of-court
identification is subject to exclusion if the identification procedure was unduly
suggestive such that it created a substantial risk of misidentification. Neil v. Biggers,
409 U.S. 188, 199 (1972). In determining whether an identification violates due
process, a court undertakes a two-part analysis. “First, we must determine whether
the original identification procedure was unduly suggestive . . . . If we conclude that
the identification procedure was suggestive, we must then consider whether, under
the totality of the circumstances, the identification was nonetheless reliable.” Cikora
v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988) (citing Biggers, 409 U.S. at 199). The
trial court also cited to the five factors the Supreme Court has identified to be
considered in determining whether the identification was reliable. See Biggers, 409
18
U.S. at 199. In Manson v. Brathwaite, 432 U.S. 98 (1977), the United States Supreme
Court
stated
that
absent
“a
very
substantial
likelihood
of
irreparable
misidentification,” the identification of a suspect by a witness is evidence for the jury
to weigh. Id. at 116.
Under the totality of the circumstances, the witnesses’ identification was
reliable. Applying the five factors: (1) all witnesses saw Petitioner during the crime;
(2) the witnesses ability to affirmatively describe Petitioner’s clothing and the gun
supports their degree of attention; (3) the witnesses positively and accurately
described Petitioner’s appearance; (4) while Hawk and Hearra had a difficult time
identifying Petitioner’s face, they were confident about their identification of
Petitioner’s gun and the clothing he was wearing; and (5) the witnesses made their
identification within hours of the incident. Accordingly, counsel was not deficient for
failing to file a motion to suppress these identifications. Further, Petitioner cannot
demonstrate prejudice as trial counsel adequately cross-examined these witnesses
regarding their identifications, see Resp. Ex. B at 114-15, 130-32, and the state
presented sufficient evidence of Petitioner’s guilt.
Upon thorough review of the record and the applicable law, the Court concludes
that the state court’s decision to deny Petitioner’s claims was neither contrary to nor
an unreasonable application of Strickland, and it is not based on an unreasonable
determination of the facts in light of the evidence presented to the state court. See 28
U.S.C. § 2254(d). Ground Two is denied.
19
C. Ground Three
Petitioner asserts that trial counsel was ineffective for failing to object when
the trial court departed from its required neutrality and gave “tips to the state.” Doc.
1 at 13. According to Petitioner, during sidebar, the trial court advised the state how
to lay the proper predicate for admitting the Target bag into evidence. Id. Petitioner
also appears to argue that trial counsel should have objected when the trial court
refused to allow the jury to have a copy of the transcript during deliberations, because
when the state indicated it was in favor of providing the transcript, the trial court
informed the state that it was “asking for trouble.” Petitioner further asserts that trial
counsel was ineffective for failing to ensure that the jury was provided with a copy of
Deloach’s trial testimony or a readback when it requested the transcript during
deliberations.
Petitioner raised these issues in his Rule 3.850 motion. Resp. Ex. J at 21-28.
When addressing Petitioner’s allegations regarding the trial court improperly “giving
tips” to the state, the trial court summarily denied these claims as follows:
Defendant argues that counsel erred when he failed
to object when the Court gave “tips to the State” and did not
remain impartial. Defendant provides four specific
examples of the Court’s tips to the State: 1) The judge
advised the jury that all of the evidence received during trial
would be available for review during deliberations; 2) The
Court refused to receive a bag into evidence until the State
laid a proper foundation for its receipt and then assisted the
State in laying the proper foundation; 3) The Court, when
denying the jury’s request to have a transcript of the trial
testimony, advised the State it would be “asking for trouble”
if the request was granted; and 4) The Court erred by
denying the jury’s request for a transcript or a rereading of
the State’s key witness’s testimony and “sustaining an
20
objection counsel never made.”
The Court has reviewed all of the disputed issues and
finds no improper exchanges between the Court and the
State, (Ex. C at 165-66; 172-73; 368-72.) Claim One is
denied.
Resp. Ex. N at 149-50. When summarily denying Petitioner’s allegation regarding trial
counsel’s failure to ensure that the jury was provided with a copy of Deloach’s trial
testimony when it requested it during deliberations, the trial court found in relevant
part:
Defendant alleges counsel should have ensured the
jury was allowed to have crucial testimony read back to
them upon request.
To the extent Defendant argues the Court erred in
denying the jury’s request for a transcript of Deloach’s
testimony or to have it read back to them, this argument is
procedurally barred and should have been raised on direct
appeal. Harvey v. Dugger, 656 So. 2d 1253 (Fla. 1995);
Cherry v. State, 659 So. 2d 1069 (Fla. 1995).
Defendant’s argument that counsel should have
ensured that the testimony was reread to the jury also fails.
Counsel was asked to confer with Defendant about whether
Deloach’s testimony should be read to the Court. Defendant
decided that he did not want a portion of the testimony to
be given to the jury. (Ex. C at 368-72.) Hence, Defendant
cannot meet either prong of Strickland. Claim Seven is
denied.
Resp. Ex. N at 7. The First DCA per curiam affirmed the trial court denial of both of
these grounds without issuing a written opinion. Resp. Ex. W. To the extent that the
First DCA affirmed the trial court’s denial on the merits, the Court will address these
claims in accordance with the deferential standard for federal court review of state
court adjudications.
21
Petitioner cannot show deficient performance by counsel because trial counsel
had no grounds to object to the trial court allegedly “giving tips” to the state regarding
the admission of the Target bag. In context, it is clear from the record that the trial
court was simply ensuring that the parties followed the rules of evidence. See Resp.
Ex. B at 172. As to the jury’s requests to view portions of the trial transcript during
deliberations, the trial court was exercising its authority and discretion in presiding
over a jury trial. See Resp. Ex. C at 368-72.
Further, when the jury requested
Deloach’s trial testimony, the trial court asked trial counsel whether he objected. Id.
at 370-71. After conferring with Petitioner, trial counsel advised the trial court that
they objected to the jury receiving a portion of the trial transcript. Id. at 371. Petitioner
cannot overcome the presumption that trial counsel’s decision to object or not object
was strategic. Not only will the Court refrain from second-guessing counsel’s strategic
decisions, but Petitioner fails to suggest how he was specifically prejudiced by these
alleged errors. Instead, Petitioner’s claim, as presented in the Petition, is too general
and conclusory to support a claim for federal habeas relief. See Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot
support an ineffective assistance of counsel claim).
Upon thorough review of the record and the applicable law, the Court concludes
that the state court’s decision to deny these claims because Petitioner had not shown
deficient performance by his counsel or prejudice is neither contrary to nor an
unreasonable application of Strickland, and it is not based on an unreasonable
22
determination of the facts in light of the evidence presented to the state court. See 28
U.S.C. § 2254(d). Ground Three is denied.
D. Ground Four
Petitioner contends that trial counsel was ineffective for failing to object and
move to strike the jury panel when the trial court mistakenly informed the venire
during jury selection that Petitioner was facing additional charges other than the
single armed robbery charge for which he was being tried. Doc. 1 at 16-17. According
to Petitioner, the trial court improperly informed the jury that Petitioner was also
facing a charge for possession of less than twenty grams of cannabis, a charge that the
state was not proceeding on.
Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. J at 40-43. The
trial court summarily denied the claim as follows:
Defendant avers counsel failed to object or move to
strike the jury panel when the Court began reading the
information prior to knowing the State was only proceeding
on Count One. Hence, inadvertently, the venire heard that
Defendant also faced a charge of possession of less than
twenty grams of cannabis. (Ex. C at 11-12.)
The Court gave counsel an opportunity to confer with
Defendant and lodge an objection to moving forward.
Defendant agreed to continue with trial. (Ex. C at 67.) As
the record reflects Defendant agreed to go forward with
trial, he cannot now complain that counsel provided
ineffective assistance for failing to lodge an objection to the
venire. Claim Five is denied.
Resp. Ex. N at 152-53. The First DCA per curiam affirmed the trial court’s summary
denial without a written opinion. Resp. Ex. W. To the extent that the First DCA
affirmed the trial court’s denial on the merits, the Court will address the claim in
23
accordance with the deferential standard for federal court review of state court
adjudications.
At the beginning of jury selection, the trial court inadvertently began reading
the original Information that contained the armed robbery count and an additional
count for possession. Resp. Ex. A at 12. As the trial court was reading, the state
requested a sidebar that was conducted off the record. Id. The trial court then
instructed the panel that there had been an amended Information. Id. After
questioning the jurors but before the parties began challenges, the trial court clarified
that during the side bar, trial counsel did not object to the trial court’s misstatement
of the charges but asked that trial counsel confer with Petitioner just to clarify his
understanding. Id. at 67. Following a discussion with Petitioner, trial counsel
represented to the trial court that Petitioner was fine with the trial court’s correction
of the error. Id. 67-68.
The trial court promptly corrected its mistake, gave both trial counsel and
Petitioner an opportunity to object to the trial court’s corrective action, and trial
counsel and Petitioner agreed to go forward with the jury pool. The reasonableness of
counsel’s actions may be substantially influenced by the client’s own actions, and
Petitioner’s agreement with trial counsel’s decision not to object to the misstatement
indicates that counsel’s presumed strategic decision not to move to strike the jury
panel was reasonable. See, e.g., Price v. Sec’y Dep’t of Corr., 558 F. App’x 871, 872-73
(11th Cir. 2014) (holding that it was not an unreasonable application of clearly
established federal law for the Florida courts to conclude that defendant could not
24
argue that counsel had been ineffective for failing to strike a juror that the defendant
had approved); Kelley v. State, 109 So. 3d 811, 812 (Fla. 1st DCA 2013) (“Thus, it
follows that a defendant who, like Appellant, personally affirms his acceptance of the
jury panel will not be heard to complain in a postconviction motion that his counsel
was ineffective for allowing a biased juror to serve on his jury.”).
Accordingly, after a review of the record and the applicable law, the Court
concludes that the state court’s adjudication of the claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceedings. Ground Four is
due to be denied.
E. Ground Five
Petitioner argues that trial counsel was ineffective for failing to locate,
interview, investigate, or call an exculpatory witness during trial. Doc. 1 at 17-20.
Petitioner asserts that prior to trial, he advised counsel to call Food Lion employee
Dean Herbert as a witness, because Herbert would have testified that Petitioner was
a regular customer of Food Lion, that the three eyewitnesses had served Petitioner in
the past, and that the three eyewitnesses had spoken with coworkers about the
incident the day after the robbery. Petitioner contends that Herbert’s testimony would
have corroborated Petitioner’s misidentification defense and shown that the three
eyewitnesses recognized Petitioner during the initial identification, but connected him
to the robbery only because they relied on the police’s false assertion that Petitioner
25
was wearing the same shirt that the robber was wearing when they apprehended him.
Petitioner raised this issue in his Rule 3.850 motion. Resp. Ex. J at 48-50. The
trial court conducted an evidentiary hearing on this Ground, during which it heard
testimony from Herbert and trial counsel. Resp. Ex. Q. Thereafter, the trial court
denied the issue as follows:
Defendant avers counsel should have located and
called Dean, a Food Lion employee, as an exculpatory
witness at trial. This claim was heard at the evidentiary
hearing.
“‘[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been
considered and rejected and counsel’s decision was
reasonable under the norms of professional conduct.’”[]
Beasley v. State, 18 So. 3d 473, 782-83 (Fla. 2009). As long
as an attorney has considered and rejected alternative
courses of action, tactical or strategic choices do not
constitute deficient conduct on the part of the attorney.
Bolin v. State, 41 So. 3d 151, 159 (Fla. 2010) (citing Henry
v. State, 948 So. 2d 609 (Fla. 2006)); see Kenon v. State, 855
So. 2d 654, 656 (Fla. 1st DCA 2003) (finding that “absent
extraordinary circumstances, strategic or tactical decisions
by trial counsel are not Claims for ineffective assistance of
counsel claims.”). Even if a defendant proves that counsel’s
performance was deficient under Strickland, he must
establish the prejudice prong as well. Henry v. State, 948
So. 2d 609, 617 (Fla. 2006).
Dean Herbert testified that he knew Defendant as a
regular Food Lion customer. (Ex. D.) When questioned
about why he did not investigate Herbert as a potential
defense witness, Mr. Wright testified that the witnesses to
the robbery did not recognize Defendant. Further, Herbert’s
recognition of Defendant would not have strengthened the
defense because Herbert was not working on the night of the
robbery. While Mr. Wright recognized that it was not as
likely that someone would rob a place he frequents, he did
not want to open the door for the counterargument that a
person might be more likely to rob a place he knew well. (Ex.
26
D.) Hence, it was a reasonable strategic decision by counsel
not to investigate Herbert and present his testimony.
Defendant has not met his burden under Strickland,
therefore Claim Eight is denied.
Resp. Ex. N at 154-55. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. W. To the extent that the First DCA affirmed the
trial court’s denial on the merits, the Court will address the claim in accordance with
the deferential standard for federal court review of state court adjudications.
The record belies Petitioner’s assertion that Herbert was a viable defense
witness. During the evidentiary hearing, trial counsel testified that Herbert would
have been outside the scope of his defense strategy prior to trial, because Herbert was
not an eyewitness working the night of the robbery. Resp. Ex. Q at 403. He also
testified that it likely would not have mattered if someone could testify that Petitioner
was a regular customer at Food Lion. Id. at 407. Herbert’s evidentiary hearing
testimony supports trial counsel’s conclusion. Herbert testified that he was not at the
Food Lion at the time of the robbery and that he only learned about it the following
day. Id. at 363. Herbert explained that he recognized Petitioner’s photo in the
newspaper the day after the robbery and stated that the “only thing he said about the
matter” was that he knew Petitioner to be a regular customer and recalled that he
made that statement to other coworkers, though he could not remember who he told.
Id. He further explained that had he been called as a witness, the only testimony he
would be able to offer is that he had seen Petitioner in the Food Lion on prior occasions
but admitted that other coworkers did not recognize him as a regular customer. Id. at
364. As such, counsel made a reasonable strategic decision to not call Herbert as a
27
witness. In any event, during trial, Petitioner testified that he knew all of the victims
because he was a daily Food Lion customer. Resp. Ex. C at 279. As such, any testimony
from Herbert regarding Petitioner’s recurrent customer status at Food Lion would
have been cumulative.
Upon thorough review of the record and the applicable law, the Court concludes
that the state court’s decision to deny Petitioner’s claim is neither contrary to nor an
unreasonable application of Strickland, and it is not based on an unreasonable
determination of the facts in light of the evidence presented to the state court. See 28
U.S.C. § 2254(d). Applying AEDPA deference, Ground Five is denied.
F. Ground Six
Petitioner contends that trial counsel was ineffective for failing to object to the
state’s use of a peremptory challenge to strike juror number 2, one of the only two
black jurors in the jury pool, and the trial court’s failure to conduct the requisite threestep analysis for race-based peremptory challenges under Batson v. Kentucky, 476
U.S. 79 (1986). Doc. 1 at 20-21.
To add context to Petitioner’s claim, the Court summarizes the events that give
rise to this allegation. During jury selection, the following exchange occurred between
trial counsel and prospective juror number 2, Ms. Matthews, and prospective juror Mr.
Bingham:
MR. WRIGHT: All right. Well okay – okay. Mr. – let’s see
here – Mr. Bingham, do you think that identifying somebody
from a different race is more difficult than identifying
somebody from your own race?
PROSPECTIVE JUROR [Mr. Bingham]: Yes.
28
MR WRIGHT: Okay. Ms. Matthews, do you agree or
disagree?
PROSPECTIVE JUROR [Ms. Matthews]: I agree.
Resp. Ex. A at 62. After this questioning, the trial court gave each party ten
peremptory strikes. Id. at 68. The following exchange then occurred:
MS. ZIMA: The state would strike number 2, Ms.
Matthews.
...
MR. WRIGHT: Judge, with regard to Ms. Matthews, I would
object based upon her race, if there’s a race-neutral reason.
THE COURT: Agreed. The juror was black and we need a
race-neutral reason.
MS. ZIMA: Yes, Your Honor. Ms. Matthews specifically
stated that cross-racial identification is more difficult than
intraracial identification, so she has obviously prejudged
that issue. That is a huge issue in this case. And it’s a raceneutral issue because Mr. Bingham also said it, and he’s
white, and I’m going to strike him too.
THE COURT: The court finds that it is a sufficient raceneutral reason to excuse that juror.
Id. at 71-72. After the parties agreed on the six jury members, the trial court gave each
party one peremptory challenge to choose the alternate juror. Id. at 73. Each party
immediately used their challenges on the next two jurors and by default, Mr. Bingham
was deemed the one alternate juror. Id. at 73; Resp. Ex. B at 74. Trial counsel did not
make a second objection regarding his Batson challenge prior to the jury being sworn
in. Resp. Ex. B at 75-76.
29
On direct appeal, Petitioner, with the benefit of counsel, filed an initial brief
pursuant to Anders v. California, 386 U.S. 738 (1967), representing that no good faith
argument of reversible error could be made. Resp. Ex. D. Petitioner then filed a pro se
initial brief raising the following issue: “The trial court erred in overruling counsel’s
objection to the invalid race neutral rationale given in support of the peremptory strike
of Ms. Joyce Matthews (African-American venire person).” Resp. Ex. E. The First DCA
affirmed Petitioner’s judgment and sentence without a written opinion. Resp. Ex. F.
Petitioner then raised the current ineffective assistance of trial counsel claim
in his Rule 3.850 motion. Resp. Ex. J at 36-40. The trial court declined to consider this
claim on the merits and denied it, finding in relevant part:
Defendant complains that counsel failed to object
when the trial court failed to properly investigate, pursuant
to Melbourne [v. State, 679 So. 2d 759 (Fla. 1996)], the
State’s strike of one of two African-Americans in the venire.
When a substantive claim is considered on direct
appeal, a defendant is procedurally barred from re-raising
it in subsequent collateral proceedings by couching it in
terms of ineffective assistance of counsel. Dennis v. State,
109 So. 3d [680, 692] (Fla. 2012) (citing Arbelaez v. State,
775 So. 2d 909, 919 (Fla. 2000) (finding defendant may not
attempt to relitigate claims raised on direct appeal by
couching them in terms of ineffective assistance of counsel)).
Here, the State’s strike of the potential African-American
juror was specifically considered on direct appeal. As this
claim is procedurally barred, Claim Four is denied.
Resp. Ex. N at 152. The First DCA per curiam affirmed the summary denial without
a written opinion. Resp. Ex. W.
Respondents assert that because the trial court denied this claim of ineffective
assistance of counsel based on an independent and adequate state procedural bar, the
30
Court should also reject it as procedurally barred. Resp. at 25. However, the cases that
the trial court cited to support its procedural bar are distinguishable from the
procedural facts of this case. Notably, those courts found that a claim of ineffective
assistance of counsel was procedurally barred because the underlying issue supporting
the claim was raised on direct appeal as a claim of trial court error and denied on the
merits. See Dennis, 109 So. 3d at 692 (holding that claim of ineffective assistance of
counsel for failing to object to testimony that improperly bolstered other witnesses’
testimony was procedurally barred because it was raised on direct appeal as a claim
of fundamental error and was rejected on the merits); Arbelaez, 775 So. 2d at 919
(holding claim raised and rejected on direct appeal was procedurally barred on
collateral review). In this action, it is unclear if the First DCA actually adjudicated the
merits of Petitioner’s pro se challenge on direct appeal to the state’s use of a
peremptory strike on Ms. Matthews. Trial counsel’s failure to renew his objection prior
to accepting the jury and the jury being sworn may not have preserved the issue for
appellate review, and the First DCA did not issue a written opinion explaining its
reasoning when it affirmed Petitioner’s judgment and sentence. See, e.g., Zack v.
State, 911 So. 2d 1190, 1204 (Fla. 2005) (finding that because trial counsel did not
renew his objection to the state’s peremptory challenge prior to the jury being sworn
in, the issue was deemed abandoned); Joiner v. State, 618 So. 2d 174, 1776 (Fla. 1993);
but see Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th DCA 2001) (finding on
direct appeal that objection made in close proximity to the jury being sworn, but not
immediately before, was sufficient to preserve for appeal trial court’s refusal to strike
31
jurors for cause). Therefore, the procedural bar imposed by the trial court when
denying this claim of ineffective assistance of counsel is not “firmly established and
consistently followed,” and the Court is not required to defer to the state court’s finding
that this claim is procedurally barred. See Williams v. Alabama, 791 F.3d 1267, 1273
(11th Cir. 2015) (noting that “[u]nder § 2254(d), AEDPA’s deferential standard of
review is limited to claims that have been ‘adjudicated on the merits’ in state court.”).
As such, the Court will address the claim de novo. Id. (citing Cone v. Bell, 566 U.S.
449, 472 (2009)) (explaining that “[i]f the state court did not reach the merits of a
petitioner’s claim based on some ground that is not adequate to bar federal review, we
must review the claim de novo”).
In Sneed v. Florida Department of Correction, 496 F. App’x 20, 26 (11th Cir.
2012), the Eleventh Circuit discussed the purviews of a Batson challenge:
Batson requires a court to undertake a three-step
analysis to evaluate equal protection challenges to a
prosecutor’s use of peremptory challenges. 476 U.S. at 9698; McGahee v. Alabama Dep’t of Corr., 560 F.3d 1252, 1256
(11th Cir. 2009). First, a defendant must make a prima facie
showing of purposeful discrimination based upon a
prohibited ground. Batson, 476 U.S. at 96-97. A prima facie
case is established where a defendant shows that “he is a
member of a cognizable racial group and that the relevant
circumstances raise an inference that the prosecution has
exercised peremptory challenges to remove from the venire
members of his race.” Bui v. Haley, 321 F.3d 1304, 1313
(11th Cir. 2003) (quotation and alterations omitted). Upon
such a showing, the burden of proof shifts to the State to
provide a race-neutral explanation for excluding the jurors.
Batson, 476 U.S. at 97. Finally, in light of the parties’
submissions, the trial court has the duty to determine if the
defendant established purposeful discrimination. Id. at 98.
32
Sneed, 496 F. App’x at 26. If presented with this question on direct appeal, the Court
might question the trial court’s decision to overrule trial counsel’s objection to the
state’s use of a peremptory strike on Ms. Matthews. However, not only is the Court
without sufficient information to decide this constitutional claim in terms of trial court
error, Petitioner only presents it to the Court as a collateral claim of ineffective
assistance of trial counsel. Indeed, as the Eleventh Circuit has held, “[a]lthough a
successful Batson claim generally requires automatic reversal on direct appeal, see
Rivera v. Illinois, 556 U.S. 148, 161 (2009), the same is not true on collateral review.”
Price v. Sec’y Fla. Dep’t of Corr., 548 F. App’x 573, 576 (11th Cir. 2013). Notably, “the
law of this circuit [is] that an ineffective assistance of counsel claim based on a failure
to object to a structural error at trial requires proof of prejudice” and deficient
performance under Strickland. Id. (quoting Pruvis v. Crosby, 451 F.3d 734, 742 (11th
Cir. 2006)).
The record reveals that trial counsel raised appropriate objections to the
striking of Ms. Matthews. Following trial counsel’s objection, the interaction between
the parties and the trial court appears to follow the three-step analysis under Batson.
The state revealed the reasons why it wished to strike the juror, and Petitioner never
provided the trial court with any evidence tending to discredit the persuasiveness of
the prosecutor’s stated reasons for striking the juror. While Petitioner argues that the
state’s failure to also strike Mr. Bingham supports his claim, he cannot refute the
record evidence that the state used its final peremptory strike before getting to Mr.
Bingham or that trial counsel may have made a strategic decision to use his final
33
peremptory strike on the juror before Mr. Bingham. As such, Petitioner has not
established deficient performance under Strickland. See Sneed, 196 F. App’x at 26
(finding trial counsel not deficient “where, upon being challenged, the [s]tate revealed
that it wished to strike [] juror because two prosecutors had seen her sleeping during
the jury selection process, and the trial court then moved onto the next juror” showed
Batson’s three-step process followed).
In any event, even assuming that trial counsel was deficient, Petitioner has not
shown prejudice. Mr. Bingham was an alternate juror who did not participate in the
jury’s deliberations. Resp. Ex. C at 365; see, e.g., Carter v. Kemna, 255 F.3d 589, 593
(8th Cir. 2001) (finding state court’s decision to deny Batson challenge regarding
alternate juror was reasonable, because “if no alternate deliberates on the verdict, a
court could reasonably believe the improper exclusion of an alternate juror is not a
structural error [as] it is clear the error never affected the makeup of the petit jury
that decided to convict the defendant”). Further, and of more import, Petitioner has
not shown that had counsel pursued his objection, his challenge would have ultimately
been successful, nor has he shown a reasonable probability that had Ms. Matthews
served on his jury, the outcome of his trial would have been different. See Price, 548
F. App’x at 576 (holding that the petitioner not prejudiced by trial counsel’s failure to
make Batson objection, because “‘there is no evidence that an African American juror
would have seen the evidence any differently than the white jurors seated on the jury.’
. . . As the district court noted, race was not the central theme of this case, and did not
play a significant role.”); Sneed, 496 F. App’x at 27 (holding that the petitioner failed
34
to demonstrate prejudice under Strickland because he “has not shown that, had
counsel objected, his challenge would have been successful, nor is it clear that the
second prospective black juror being on the jury would have carried a reasonable
probability of changing the outcome of the trial.”) (citation omitted). Notably,
considering the substantial evidence of guilt presented at trial, Petitioner cannot show
a reasonable probability that he would have been found not guilty. See United States
v. Ball, No. 8:03-cv-2699-T-23MSS, 2007 WL 1017574, at *6 (M.D. Fla. Mar. 30, 2007)
(holding that petitioner failed to establish prejudice from counsel’s failure to make
Batson challenge because overwhelming evidence of guilt refuted the petitioner’s
assertion that another jury might have reached a different result). Consequently,
Ground Six is denied.
Accordingly, it is
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED and this case is DISMISSED WITH
PREJUDICE.
2.
The Clerk of Court shall enter judgment accordingly, terminate any
pending motions, and close this case.
3.
If Petitioner appeals this Order, the Court denies a certificate of
appealability. Because the Court has determined that a certificate of appealability is
not warranted, the Clerk shall terminate from the pending motions report any motion
35
to proceed on appeal as a pauper that may be filed in this case. Such termination shall
serve as a denial of the motion.7
DONE AND ORDERED at Jacksonville, Florida, this 28th day of October,
2019.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C:
James C. Curry, #J32897
Thomas H. Duffy, 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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