Hightower v. Secretary, Department of Corrections et al
Filing
19
ORDER denying the Petition and dismissing case with prejudice; directions to the Clerk. Signed by Judge Timothy J. Corrigan on 6/25/2020. (JND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
NATHAN NAPOLEON
HIGHTOWER, III,
Petitioner,
v.
Case No. 3:17-cv-968-J-32JRK
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I.
Status
Petitioner, an inmate of the Florida penal system, initiated this case with
the help of counsel by filing a Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2254, Doc. 1, and a Memorandum of Law, Doc. 2. He is challenging a
state court (Duval County, Florida) judgment of conviction for burglary of a
dwelling. He is currently serving a twenty-two-year term of incarceration as a
habitual felony offender, with a fifteen-year minimum mandatory as a prison
releasee reoffender. Doc. 1. Respondents have responded. See Doc. 17;
Response.1 Petitioner filed a Reply. See Doc. 18. This case is ripe for review.
II.
Governing Legal Principles
A. Standard of Review
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 & 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
Attached to the Response are numerous exhibits. See Doc. 17-1 through
Doc. 17-6. The Court cites to the exhibits as “Resp. Ex.”
1
2
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 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
state-court 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
3
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 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:
4
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, 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–
2
Coleman v. Thompson, 501 U.S. 722 (1991).
5
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, 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 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).[4] Under the prejudice
prong, [a petitioner] must show that “the errors at trial
3
Wainwright v. Sykes, 433 U.S. 72 (1977).
4
Murray v. Carrier, 477 U.S. 478 (1986).
6
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).
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
7
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.
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 viceversa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As
8
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. 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).
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III.
Petitioner’s Claims and Analysis
A. Ground One
Petitioner argues that the trial court erred in denying his motion to
suppress. Doc. 1 a 5-7. According to Petitioner, trial counsel, on behalf of
Petitioner, sought to suppress evidence of two state eyewitness’, Curtis and
Diane Goodell, pretrial identifications of Petitioner because they were obtained
through impermissibly suggestive means that caused “a substantial likelihood
of irreparable misidentification.” Id. Petitioner asserts that the trial court
violated his constitutional rights when it allowed the state to present such
evidence.
Prior to trial, trial counsel filed an amended motion to suppress Mr. and
Mrs. Goodell’s show-up identifications of Petitioner as one of the individuals
seen breaking into the victim’s home. Resp. Ex. A at 144-49. The crux of
Petitioner’s argument was that while the police officers were still at the scene
of the burglary, the officers told Mr. and Mrs. Goodell that the suspects they
had described to the 911 dispatcher were in custody, suggesting that they
already arrested the correct individuals. Id. at 154. Police then immediately
took the Goodells to the Walmart parking lot where they had Petitioner, Leigh
Pinckney, and Sharenda Freeman waiting in the back of police cruisers. Id. The
police then presented Petitioner to the Goodells while he was still in handcuffs,
and the Goodells identified Petitioner as one of the individuals who they saw
10
break into the victim’s home. Petitioner sought suppression of their
identifications, arguing that the means used to obtain them were unduly
suggestive. In conformance with the parties’ prior agreement, the trial court
heard argument on the motion to suppress during trial and considered proffered
testimony from Mr. and Mrs. Goodell outside the presence of the jury. Resp. Ex.
E at 153-54.
Before the trial court heard this proffered testimony, Mr. Goodell testified
at trial that he and the victim, Don Blanton, are direct neighbors. Id. at 238.
Mr. Goodell explained that on the day of the burglary, he was working in the
yard, his wife was inside, and the victim was at work. Id. at 240. He stated that
he went inside to eat lunch when Mrs. Goodell noticed a man and a woman
walking up the victim’s driveway toward the victim’s front door and a car
parked near the victim’s driveway. Id. at 242, 324. There was a third person in
the driver’s seat of the vehicle. The Goodells explained that the vehicle was a
silver or gray, mid-sized sedan and they could not describe the features of the
driver of the vehicle. Id. However, they did have a clear view of the man and
woman who were walking toward the victim’s front door.
Mr. Goodell described the male as African American, medium build, about
5’10”, medium length hair, and wearing a black shirt and black pants. Id. at
245. Mr. Goodell explained that the female was also African American, about
5’5”, medium build, and wearing black shorts and a black and white blouse. Id.
11
at 245. According to Mr. Goodell, he and his wife then heard “a boom” before his
wife exclaimed that the couple was breaking into the victim’s home. Id. at 245.
Notably, Mrs. Goodell testified that she actually saw the male and female go
inside the victim’s home. Id. at 327.
Mr. Goodell immediately ran outside to document the vehicle’s tag
number while Mrs. Goodell called 911. Id. at 243. He testified that when the
male ran out of the victim’s home, he was carrying a “nine-by-five” object but
Mr. Goodell admitted he could not identify the object. Id. at 246. He stated that
while he was writing down the tag number, the male and female suspects
running from the victim’s home were about fifteen feet away from him. Id. at
247. Mr. Goodell explained that when he saw the two suspects running, nothing
was obstructing his view. Id. The female got into the rear driver’s-side seat of
the vehicle and the male got into the front passenger-side seat. Id. at 247-48.
He provided a description of the vehicle and the tag number to the 911 operator.
Id. He testified that police were on scene approximately five minutes after the
suspects drove away. Id.
Outside the presence of the jury, the state then proffered Mr. Goodell’s
identification testimony. Id. at 249-54. During the proffer, Mr. Goodell testified
that two police officers arrived on scene and entered the victim’s home while
Mr. Goodell stood outside. Id. at 254. According to Mr. Goodell, the two officers
then “in a dramatic fashion” left the scene while telling Mr. Goodell “we got a
12
fix on the car.” Id. Mr. Goodell explained that he interpreted the officers’
statement and actions to mean that they had spotted the suspect vehicle. Id.
The officers then left and told Mr. Goodell to keep a watch on the victim’s home,
but soon returned to pick up Mr. Goodell to take him to a nearby Walmart
parking lot to identify the vehicle and the individuals apprehended from the
vehicle. Id. at 255. The first arrestee that police brought out was a female, she
was not in handcuffs, and Mr. Goodell advised police that he did not recognize
her. Id. at 256. The second individual that police presented for identification
was a male (Petitioner), Mr. Goodell could not recall if he was wearing
handcuffs at the time of the identification. Id. Mr. Goodell advised police that
he did recognize the male; specifically, he testified that he recognized “his build,
his gender, and his attire.” Id. at 256-57. He explained that he was “very sure”
that the male was the one he saw running from the victim’s home. Id. at 257.
He testified that the police then brought out a third individual. Id. He stated
that it was a female and he recognized her build and her attire. Id. He explained
that no one assisted him in identifying the individuals, he made the two
identifications approximately 25 minutes after he saw them running from the
victim’s home, and he recognized the male immediately. Id. at 258.
During the proffer, the trial court inquired whether Mr. Goodell was
identifying Petitioner as the male suspect because he “knew that the police had
caught him in that car that [he] ha[d] identified or [if] [he] actually . . .
13
recognize[d] his build, his gender, his general” appearance as the person he saw
running from the victim’s home. Id. at 277. In response, Mr. Goodell stated, “I’m
going to say part of each. . . .” Id. at 278. Based on that response, the trial court
ruled as follows:
THE COURT: [T]he court’s ruling is going to be that
this witness can tell the jurors only that he went to the
show up and when the man was presented to him, that
he had on similar clothing and a similar build. And
what was the other? Build, gender, clothes.
He can say that. But to the extent that he’s now
told me that he wasn’t really positive identifying him,
and if he hadn’t known he was coming from the car. So
I don’t think that it would be proper to have the witness
testify to the jury that he was positive it was the
defendant.
He doesn’t identify his face. . . .
So therefore - - I still think it’s proper for him to
say that he did go and he saw a man of familiar - - and
you can lead him on this, State. Otherwise it might
come out wrong.
But don’t tell him you’re positive.
Id. at 280-81. In compliance with the trial court’s limiting instruction, Mr.
Goodell then testified before the jury that when he was brought to the Walmart
to identify the apprehended suspects, he identified the male in custody as one
of the offenders because he looked similar to the individual he saw running from
the victim’s home because he recognized the clothing. Id. at 293.
14
Following Mr. Goodell’s trial testimony, the trial court clarified its ruling
on the motion to suppress, finding that the procedure used by the police was not
unduly suggestive. Id. at 309. It also noted that the witness did not make a
positive facial identification, but in an abundance of caution, the trial court
limited the witnesses’ testimony to statements that they recognized that
Petitioner’s clothing and build at the time of the identification was similar to
that of the male offender. Id. at 309-11. The trial court also explained that its
ruling also applied to any pretrial identification by Mrs. Goodell. Id. at 311.
The state then proffered Mrs. Goodell’s identification. Id. at 313. She
testified that she identified Petitioner as one of the offenders because he was
wearing similar clothing and had a similar build. Id. at 315. She also explained
that prior to her identification of Petitioner, she did not discuss any descriptions
with her husband and that she was able to identify Petitioner immediately upon
seeing him. Id. at 315. Upon consideration of that proffer, the trial court again
found that the police procedure was not unduly suggestive, and instead found
that Mrs. Goodell’s identification seemed “even more positive” than her
husband’s, and thus, allowed the witness to testify about similar clothing and
build. Id. at 317. Pursuant to the trial court’s directive, Mrs. Goodell limited her
identification testimony. Id. at 332-35.
As his sole issue on direct appeal, Petitioner, with the help of appellate
counsel, challenged the trial court’s denial of his motion to suppress the
15
Goodells’ identification testimony. Resp. Ex. H. In its answer brief, the state
argued that the identification was not impermissibly suggestive. Resp. Ex. I.
Thereafter, the First District Court of Appeal per curiam affirmed Petitioner’s
judgment and conviction without a written opinion. Resp. Ex. J. Presumptively
an adjudication on the merits, the First DCA’s decision is entitled to deference
under § 2254(d).
In applying such deference, the Court notes that the Supreme Court has
recognized “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).
16
In Biggers, the Supreme Court identified five factors to be considered in
determining whether the identification was reliable. They are: the witness’s
opportunity to view the suspect at the time of the crime, the witness’s degree of
attention, the accuracy of the description of the suspect, the level of certainty of
the identification, and the length of time between the crime and the
identification. See Biggers, 409 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 Goodells’ identification of
Petitioner as the male offender seen breaking into the victim’s home was
reliable. Applying the five Biggers factors: (1) the Goodells viewed the offender
committing the crime; (2) the Goodells’ ability to describe the clothing, build,
and gender supports their degree of attention; (3) while the trial court
prohibited the witnesses from positively identifying Petitioner as the person
they saw committing the crime, they did accurately describe the physical
appearance of the male offender and the vehicle, and those descriptions
matched Petitioner and the car he was apprehended from; (4) Mr. Goodell was
“very sure” that the male he identified at the Walmart was the same male he
saw running from the victim’s home, Resp. Ex. E at 257, and Mrs. Goodell knew
right away that the male she identified in the parking lot was the same man
17
she saw commit the offense, id. at 315; and (5) the Goodells made their
identifications within an hour of the incident.
In consideration of the foregoing, the Court concludes that the state
appellate court’s summary adjudication of this claim was neither contrary to,
nor an unreasonable application of, clearly established federal law. Nor was
the
state
appellate
court’s
adjudication
based
on
an
unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings. As such, Ground One is due to be denied.
B. Ground Two, Ground Three, and Ground Four
In Ground Two, Petitioner argues that trial counsel was ineffective for
failing to adequately argue on the motion for judgment of acquittal that defense
witness Leigh Pinckney’s prior inconsistent statements were not substantive
evidence of Petitioner’s guilt, and that Pinckney’s testimony “exonerated
Petitioner.” Doc. 1 at 8; Doc. 2 at 15. In Ground Three, Petitioner asserts that
trial counsel was ineffective for failing to request a limiting jury instruction
regarding Pinckney’s prior inconsistent statements. Doc. 1 at 9; Doc. 2 at 16.
And in Ground Four, Petitioner claims that trial counsel was ineffective for
failing to object to inadmissible hearsay evidence presented by the state
through Detective Thompson’s rebuttal testimony regarding out-of-court
statements made by Pinckney. Doc. 1 at 10; Doc. 2 at 19-22.
18
Petitioner raised these three issues in his motion for postconviction relief
filed pursuant to Florida Rule of Criminal Procedure 3.850. Resp. Ex. K at 1519. The trial court summarily denied the claims, addressing the issues in
concert as follows:
In Ground Five, Defendant contends that trial
counsel was ineffective for failing to request a jury
instruction stating “the jury could not convict the
defendant based on a prior inconsistent statement.”
(Def.’s Mot. 15.) Defendant also claims counsel was
ineffective for failing “to argue on a motion for
judgment of acquittal that without the prior
inconsistent [statements] of Ms. Pinckney there was
not sufficient evidence for a jury to convict Defendant
or to object to the improper closing argument of the
State that the jury could use Ms. Pinckney’s prior
inconsistent statement to convict the Defendant.”
(Def.’s Mot. 15.) Likewise, in Ground Six, Defendant
contends counsel was ineffective for failing to “make a
best evidence and hearsay objection to the use of oral
testimony regarding the statements of Defendant’s codefendant, Ms. Pinckney, to law enforcement” through
the testimony of Detective E.M. Thompson. (Def.’s Mot.
18.) Defendant maintains the prior inconsistent
identification of Defendant could only be used to
impeach Ms. Pinckney’s testimony, not as substantive
evidence of his guilt.
At trial, Defendant presented the testimony of
Leigh Pinckney, who was in the car with Defendant on
the day of the burglary and had already entered a plea
to a burglary charge. Ms. Pinckney testified that on the
day of the burglary, Defendant never got out of the car
and he never went inside the victim’s house. (Ex. F at
386.) Ms. Pinckney testified that she and the other
female in the car with them - Sharenda Freeman - were
the only ones to enter the victim’s home. (Ex. F at 386.)
According to Ms. Pinckney, Ms. Freeman kicked in the
19
door and stole the laptop. (Ex. F at 386-88.) During his
direct examination, counsel asked Ms. Pinckney about
her prior inconsistent statement to JSO that it was
Defendant who kicked in the door and stole the laptop,
while she remained in the car. Ms. Pinckney explained
that she lied in her first statement to JSO to protect
Ms. Freeman. (Ex. F at 390-391.) Ms. Pinckney further
testified that she was under the influence of drugs and
alcohol when she made the statement to JSO. (Ex. F at
391.)
In response, the State presented the rebuttal
testimony of Detective E.M. Thompson. (Ex. F at 412.)
Detective Thompson testified about Ms. Pinckney’s
prior inconsistent statements. Detective Thompson
also testified that he did not believe Ms. Pinckney was
under the influence of drugs or alcohol at the time she
made the prior inconsistent statements. (Ex. F at 41617.) The State offered the testimony of Detective
Thompson to show that Ms. Pinckney’s trial testimony
was not credible. Through this testimony, the State
demonstrated that Ms. Pinckney made two different
statements concerning material facts, so the jury would
not place great weight on her in-court testimony.
Detective Thompson’s testimony was not being offered
for the truth of the matter asserted, and, as such, his
testimony was not hearsay. See Elmer v. State, 114 So.
3d 198, 202 (Fla. 5th DCA 2012) (“[A] prior inconsistent
statement admitted for impeachment purposes is not
hearsay because it is not being offered for the truth of
the matter asserted.”).
Similarly, during closing arguments, the State
focused on Ms. Pinckney’s trial testimony that she was
high when she gave her statement to JSO, and
Detective Thompson’s statement that he found her to
be coherent at the time. Even if Detective Thompson’s
testimony about Ms. Pinckney’s prior inconsistent
statements was hearsay, or if the State’s comments
during closing arguments were improper, Defendant
was not prejudiced by the testimony. The jury already
20
knew the details of Ms. Pinckney’s prior statement,
because counsel asked Ms. Pinckney to explain them
during direct examination. Moreover, the trial court
cautioned the jury not to consider an attorney’s
statement during closing as evidence. (Ex. F at 419-20.)
The Court need not determine whether counsel
adequately argued a motion for judgment of acquittal
or whether counsel should have requested a limiting
instruction as to Ms. Pinckney’s prior inconsistent
statements, because Defendant cannot demonstrate
prejudice. “A fair assessment of attorney performance
requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. The record shows
that counsel moved for a judgment of acquittal and that
the trial court denied the motion. (Ex. F at 377-78.)
Even if counsel had advocated more strongly for a
judgment of acquittal, there is no reasonable
probability that the trial court would have granted the
motion. See Hunter v. State, 8 So. 3d 1052, 1066 (Fla.
2008) (“A motion for judgment of acquittal should not
be granted by the trial court unless there is no view of
the evidence which the jury might take favorable to the
opposite party that can be sustained under the law.”)
(internal citation and quotation marks omitted).
Likewise, even if counsel had requested the jury
instruction, the Court finds there is no reasonable
probability the outcome of the trial would have been
different. The evidence presented by the State provided
overwhelming evidence of Defendant’s guilt, including
the following: Officers stopped a car that matched the
license plate number reported by two eye witnesses; the
car was stopped a few miles away from the victim’s
house and only minutes after the 911 call was made;
the victim’s laptop computer was discovered in the car;
after officers stopped Defendant’s car he was identified
by two eye witnesses as the man they saw leaving the
21
victim’s house; and Defendant’s co-defendant testified
against him at trial. As the State introduced sufficient
evidence, the question of guilt was properly left to the
jury and the Court finds a jury instruction would not
have affected the outcome of the trial. Accordingly,
Grounds Five and Six are summarily denied.
Resp. Ex. K at 71-74. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. N. 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.
In applying such deference, the Court finds that the state court
adequately determined that Petitioner failed to demonstrate prejudice from
trial counsel’s alleged errors regarding his handling of Pinckney’s prior
inconsistent statements. At trial, Petitioner presented the testimony of codefendant Pinckney who testified that it was her and Freeman who burglarized
the home, while Petitioner stayed in the vehicle. Resp. Ex. E at 387. On direct
examination, Pinckney acknowledged that this version was inconsistent with
her pretrial statement that Petitioner was the one who entered the home and
took the laptop. Id. at 391. She attempted to explain the discrepancy in her
statements by testifying that she was under the influence when she gave the
pretrial statement. Id. On rebuttal, the state presented testimony from
Detective Thompson who confirmed what Pinckney has already testified to, and
22
explained that Pinckney appeared sober and coherent when she issued the
pretrial statement. Id. at 412-17. As such, Petitioner was not prejudiced by
Detective
Thompson’s
alleged
hearsay
testimony
because
Pinckney’s
inconsistent pretrial declarations were already before the jury.
Further, even assuming that trial counsel should have objected or argued
that evidence of this inconsistent pretrial statement did not demonstrate
Petitioner’s guilt, such exclusion would not have affected the other evidence
supporting Petitioner’s culpability. Notably, Petitioner’s other co-defendant,
Freeman, testified at trial that at the direction of Petitioner, she drove
Petitioner and Pinckney to a residential neighborhood where Petitioner and
Pinckney exited the car and walked toward a stranger’s house. Id. at 205.
Freeman stayed in the vehicle until Petitioner and Pinckney ran back to the car
carrying a laptop and demanding that Freeman drive away. Id. at 205-06. A few
minutes later, police pulled her over and she stopped the vehicle in a Walmart
parking lot where she, Petitioner, and Pinckney were arrested. Id. at 207-09.
She explained that Pinckney was not under the influence of drugs or alcohol on
the day of the offense. Id. She stated that she was also facing burglary charges
for her participation in the crime, and that Petitioner and his family threatened
her not to cooperate with police or testify against him. Id. at 210.
Further, Mr. and Mrs. Goodell testified that they witnessed the crime and
that one of the two individuals who went into the house was a male. Id. at 39023
91. Officer D.N. Logan testified that he pulled over a vehicle matching the
description of the car given to the 911 dispatcher. Id. at 352-53. Officer Logan
stated that there was a male in the front passenger seat of the vehicle at the
time of contact and he identified that man as Petitioner. Id. at 355. The victim’s
laptop was also found in the vehicle. Id. at 367.
Considering the weight of the evidence contradicting Pinckney’s trial
testimony, Petitioner cannot demonstrate that but for trial counsel’s alleged
errors, the outcome of his trial would have been different. Thus, 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, Ground Three, and Ground Four are
denied.
C. Ground Five
Petitioner argues that trial counsel was ineffective for failing to object to
the state’s improper closing statements. Doc. 1 at 12. He asserts that the trial
court limited evidence of the Goodells’ identification of Petitioner by only
allowing them to testify that they recognized Petitioner to be one of the
offenders because at the time of the identification, he had the same build,
gender, and clothing. Id. However, according to Petitioner, during closing, the
24
state exceeded the scope of the trial court’s limitation by arguing that the
Goodells “were able to identify the other two people. The only male found in the
car, Mr. Hightower and Miss Pinckney, the two that they saw coming from the
victim’s home.” Id.
Petitioner raised this claim in his Rule 3.850 motion. Resp. Ex. K at 5557. The trial court summarily denied the claim, finding in pertinent part:
In Ground Ten,[] Defendant argues that counsel
was ineffective for failing “to object to improper
comment by the prosecutor that misled the jury and
was also a violation of motion in limine.” (Def.’s Supp.
Mot. 2.) Specifically, Defendant states that during trial,
“the court concluded that the witness Mr. Goodell,
never identified the Defendant in court and ruled that
the witness would be limited to only say that the
clothing, build and gender were similar, that the man
looked similar, but not a positive identification, nor a
facial identification.” (Def.’s Supp. Mot. 3.) Defendant
contends that, despite the trial court’s ruling, “during
closing arguments, the State prosecutor informed the
jury that the witnesses were able to identify the
Defendant.” Defendant reasons that if counsel had
objected to the improper argument, then “this lack of
identification . . . would have created strong doubt
within the minds of the jury.” (Def.’s Supp. Mot. 4.)
During closing arguments, the State argued,
“But [the Goodells] were able to identify the other two
people. The only male found in the car, Mr. Hightower
and Miss Pinckney, the two that they saw coming from
the victim’s home.” (Ex. F at 436.) This argument was
not improper. The trial court denied Defendant’s
motion to suppress and allowed the Goodells to testify
about their out-of-court identifications. The trial court
only limited Mr. Goodell’s testimony so that he could
not testify that he recognized Defendant’s face, and
25
that he recognized Defendant by his build, gender, and
clothing. It was up to the jury to determine whether
these identifications were credible in light of the
discrepancies between Mr. Goodell’s description of
Defendant to the 911 operator and Defendant’s actual
appearance and clothing. Moreover, the trial court
cautioned the jury not to consider an attorney’s
statement during closing arguments as evidence. (Ex.
F at 419-20.) Finally, even assuming the State’s
arguments were excluded, the Court finds that it would
not have created strong reasonable doubt in the minds
of the jurors. As discussed infra in Grounds Five and
Six, there was overwhelming evidence of guilt in this
case. Accordingly, counsel was not deficient for failing
to object during the State’s closing arguments, and
Ground Ten is denied.
Resp. Ex. K at 78-79. The First DCA per curiam affirmed the trial court’s denial
without a written opinion. Resp. Ex. N. 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.
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 Five is denied.
26
D. Ground Six
Petitioner asserts that trial counsel was ineffective for failing to introduce
exculpatory evidence that revealed the shoeprint on the victim’s door, where
Petitioner allegedly kicked the door in, did not match the shoeprint impression
that police took of Petitioner’s shoe. Doc. 1 at 13; Doc. 2 at 25-29. Petitioner
admits that this claim is unexhausted and procedurally barred. Doc. 2 at 27.
However, he attempts to overcome this procedural default by relying on
Martinez v. Ryan, 566 U.S. 1 (2012), and arguing that he can show “cause” to
excuse his default because he did not have counsel when he filed his Rule 3.850
motion. Doc. 2 at 28.
Under Martinez, Petitioner must demonstrate more than the general
assertion that the trial court did not appoint counsel in the initial-review
collateral proceeding. 566 U.S. at 14. Petitioner must “also demonstrate that
the underlying ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has some
merit.” Id. (citations omitted); see also Lambrix v. Sec’y Fla. Dept. of Corr., 851
F.3d 1158, 1164 (11th Cir. 2017). Conversely, his claim is “insubstantial” if “it
does not have any merit or . . . is wholly without factual support.” Id. at 16. For
the reasons that follow, the Court finds that even if Petitioner demonstrates
that his lack of postconviction counsel caused his procedural default, he cannot
27
demonstrate that his underlying ineffective-assistance-of-counsel claim is
substantial in order to establish prejudice under Martinez.
In his Reply, Petitioner argues that he has demonstrated prejudice under
Martinez because “the only evidence that could possibly have led the jury to
convict [Petitioner] is the testimony of his codefendant [Freeman], which was
rebutted by defense witness Pinckney.” Doc. 18 at 9. He argues that “[h]ad trial
counsel presented direct evidence, i.e., the footprint, that refuted and
completely impeached the testimony of Freeman (the State’s witness), there is
zero probability that [Petitioner] would have been convicted.” Id. This argument
is flawed for multiple reasons. First, even if the shoe impression found on the
door did not match Petitioner’s shoe impression,5 such evidence does not prove
that Petitioner did not participate in the burglary. Rather, it merely contradicts
the evidence that Petitioner was the individual who kicked the door during the
course of the burglary. Second, this evidence does not refute the Goodells’
eyewitness testimony that they saw a man and a woman walking up to the
victim’s door and break in. Nor does it refute the evidence that when Petitioner
was apprehended, he was wearing the same clothing and had the same body
type as that of the male who was seen breaking into the victim’s home. Third,
Respondents also argue that it is unclear if shoeprint evidence exists.
See Resp. at 40-41. Petitioner does not offer an argument refuting Respondents’
position, but merely claims that he is entitled to an evidentiary hearing to
attempt to adduce the existence of such evidence. Doc. 18 at 8.
5
28
it does not refute the evidence that the victim’s laptop was found in the car
where Petitioner was a passenger. Fourth, Pinckney’s trial testimony was
severely impeached by her own prior inconsistent statements incriminating
Petitioner. As such, because this claim is unsubstantial and lacks merit,
Petitioner cannot rely on Martinez to excuse the procedural default of this
claim. Likewise, Petitioner has failed to demonstrate that failure to consider
this claim on the merits will result in a fundamental miscarriage of justice.
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
29
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.6
DONE AND ORDERED at Jacksonville, Florida, this 25th day of June,
2020.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C:
Nathan Napoleon Hightower, III
Counsel of Record
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.
6
30
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