Riley v. Secretary, Florida Department of Corrections et al
Filing
17
ORDER denying the petition, dismissing the action with prejudice, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 11/15/2019. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
STEVEN MARK RILEY,
Petitioner,
vs.
Case No. 3:17-cv-1090-J-39JRK
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
I.
INTRODUCTION
Petitioner, Steven Mark Riley, challenges his state court
(Duval County) conviction for robbery with a weapon through a
Petition for Writ of Habeas Corpus (Petition) (Doc. 1) pursuant to
28 U.S.C. ' 2254.1
Respondents filed an Answer in Response to
Order to Show Cause (Response) (Doc. 13).2
Petitioner filed a
Petitioner mentions two other offenses, driving on a suspended
license and possession of cocaine, but he is obviously challenging
the robbery conviction in his grounds for relief. Petition at 1.
He pled guilty to the other two offenses.
1
The Court hereinafter refers to the exhibits in the Appendix
(Doc. 13) as "Ex." Where provided, the page numbers referenced
in this opinion are the Bates stamp numbers at the bottom of each
page of the exhibit. Otherwise, the page number on the document
will be referenced.
2
Reply to Respondents' Answer in Response to Show Cause (Reply)
(Doc. 15).
II.
Petitioner
has
evidentiary hearing.
EVIDENTIARY HEARING
the
burden
to
establish
a
need
for
an
See Chavez v. Sec'y, Fla. Dep't of Corr.,
647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears
the burden of establishing the need for an evidentiary hearing
with more than speculative and inconcrete claims of need), cert.
denied, 565 U.S. 1120 (2012).
In this case, the pertinent facts
are
record
fully
precludes
developed
habeas
in
this
relief;
or
therefore,
the
the
record
Court
otherwise
is
able
to
"adequately assess [Petitioner's] claim[s] without further factual
development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir.
2003), cert. denied, 541 U.S. 1034 (2004).
Petitioner has not met
his burden as the record refutes the asserted factual allegations
or otherwise precludes habeas relief.
Thus, the Court finds
Petitioner is not entitled to an evidentiary hearing.
Schriro v.
Landrigan, 550 U.S. 465, 474 (2007).
III.
The
Petition
presents
PETITION
three
grounds
for
habeas
relief;
however, Petitioner, in his Reply at 5, abandons grounds one and
three.
Therefore,
the
Petition
is
before
the
Court
on
the
remaining ground, ground two: the ineffective assistance of trial
2
counsel for failure to object to the jury’s verdict finding
Petitioner guilty of robbery with a weapon because the verdict was
not supported by the evidence at trial.
Petition at 8.
On the
one hand, Petitioner states he did not exhaust this claim, but in
his more recent filing, the Reply, he contends he exhausted this
ground by presenting it in claim four of his amended Rule 3.850
motion.
Reply at 5.
He avers he completed the exhaustion
requirement by appealing the denial of the amended Rule 3.850
motion.
Id.
IV.
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act (AEDPA)
governs a state prisoner's federal petition for habeas corpus.
See 28 U.S.C. ' 2254.
This statute "imposes important limitations
on the power of federal courts to overturn the judgments of state
courts in criminal cases."
(2019) (per curiam).
Shoop v. Hill, 139 S. Ct. 504, 506
The AEDPA statute:
"respects the authority
and ability of state courts and their dedication to the protection
of constitutional rights."
Id.
Therefore, "[u]nder AEDPA, error
is not enough; even clear error is not enough."
Meders v. Warden,
Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir.) (citing
Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per curiam)),
cert. denied, 2019 WL 5150550 (2019).
3
Applying the statute as amended by AEDPA, federal courts may
not grant habeas relief unless one of the claims: "(1)'was contrary
to,
or
involved
an
unreasonable
application
of,
clearly
established Federal law, as determined by the Supreme Court of the
United States,' or (2) 'was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.' 28 U.S.C. ' 2254(d)."
Nance v. Warden, Ga. Diagnostic
Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).
Thus, in order to obtain habeas relief, the state court
decision
must
precedent.
some
unquestionably
conflict
with
Supreme
Court
Harrington v. Richter, 562 U.S. 86, 102 (2011).
fair-minded
jurists
could
agree
decision, habeas relief must be denied.
with
the
lower
If
court's
Meders, 911 F.3d at 1351.
As noted in Richter, unless the petitioner shows the state court's
ruling was so lacking in justification that there was error well
understood and comprehended in existing law beyond any possibility
for fair-minded disagreement, there is no entitlement to habeas
relief.
Burt v. Titlow, 571 U.S. 12, 19-20 (2013).
In undertaking its review, this Court is not obliged "to
flyspeck the state court order or grade it."
1349.
Meders, 911 F.3d at
Indeed, specificity and thoroughness of the state court
decision is not required; even if the state court fails to provide
rationale
or
reasoning,
AEDPA
4
deference
is
due
"absent
a
conspicuous misapplication of Supreme Court precedent."
Id. at
1350 (citation and quotation marks omitted).
Of importance, a state court's finding of fact, whether a
state trial court or appellate court, is entitled to a presumption
of correctness under 28 U.S.C. ' 2254(e)(1).
But, this presumption
of
of
correctness
applies
only
to
determinations of law and fact.
findings
fact,
not
mixed
Brannan v. GDCP Warden, 541 F.
App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the
distinction between a pure question of fact from a mixed question
of law and fact), cert. denied, 573 U.S. 906 (2014).
Where
rejecting
there
a
has
federal
been
claim
one
reasoned
followed
by
state
an
court
judgment
unexplained
order
upholding that judgement, federal habeas courts employ a "look
through" presumption: "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."
Wilson v.
Sellers, 138 S. Ct. 1188, 1192 (2018) (Wilson).
Once a claim is adjudicated in state court and a prisoner
seeks relief in the federal court system, AEDPA's formidable
barrier to habeas relief comes into play, and it is very difficult
for a petitioner to prevail under this stringent standard.
As
such, state-court judgments will not easily be set aside once the
5
Court
employs
this
highly
deferential
intentionally difficult to meet.
standard
that
is
See Richter, 562 U.S. at 102.
Although AEDPA does not impose a complete bar to issuing a writ,
it severely limits those occasions to those "where there is no
possibility
fairminded
jurists
could
disagree
that
the
court's decision conflicts" with Supreme Court precedent.
state
Id.
In
sum, application of the standard set forth in 28 U.S.C. ' 2254(d)
ensures that habeas corpus is a guard against extreme malfunctions
in the state criminal justice systems, and not a mechanism for
ordinary error correction.
Richter, 562 U.S. at 102-103 (citation
and quotation marks omitted).
V.
GROUND TWO
Petitioner raises a claim of ineffective assistance of trial
counsel.
To prevail on his Sixth Amendment claim, Petitioner must
satisfy the two-pronged test set forth in Strickland v. Washington,
466 U.S. 668, 688 (1984), requiring that he show both deficient
performance (counsel's representation fell below an objective
standard of reasonableness) and prejudice (there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different).
See Brewster
v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court
may begin with either component).
6
In order to obtain habeas relief, a counsel's errors must be
so great that they adversely affect the defense.
In order to
satisfy this prejudice prong, the reasonable probability of a
different result must be "a probability sufficient to undermine
confidence in the outcome."
Strickland, 466 U.S. at 694.
The standard created by Strickland is a highly deferential
standard,
requiring
decisions.
a
most
deferential
Richter, 562 U.S. at 105.
review
of
counsel's
Not only is there the
"Strickland mandated one layer of deference to the decisions of
trial counsel[,]" there is the added layer of deference required
by AEDPA: the one to a state court's decision.
at 1303.
Nance, 922 F.3d
Thus,
Given the double deference due, it is a "rare
case in which an ineffective assistance of
counsel claim that was denied on the merits in
state court is found to merit relief in a
federal habeas proceeding." Johnson v. Sec'y,
DOC, 643 F.3d 907, 911 (11th Cir. 2011). And,
for the reasons we have already discussed, it
is rarer still for merit to be found in a claim
that challenges a strategic decision of
counsel.
Nance, 922 F.3d at 1303.
Petitioner
asserts
constitutionally deficient.
his
counsel’s
Petition at 8.
performance
was
He claims trial
counsel was constitutionally ineffective for failure to object to
the jury verdict finding Petitioner guilty of robbery with a weapon
7
because the verdict was not supported by the evidence at trial.
Id.
Respondents contend this claim was not properly raised in the
trial court and is unexhausted.
Response at 20.
Additionally,
Respondents assert Petitioner has not shown cause for his failure
to
raise
the
Petitioner
claim
counters
and
prejudice
this
resulting
assertion
by
therefrom.
stating
he
Id.
adequately
exhausted his claim by presenting it in claim four of his amended
Rule 3.850 motion.
The Court is convinced Petitioner adequately
exhausted his claim of ineffective assistance of counsel raised in
ground two of the Petition by filing the amended Rule 3.850 motion
in the state court system and by appealing the denial of that
motion.
The
record
originally
demonstrates
charged
by
possession of a firearm.
the
following.
information
with
Ex. A at 11.
armed
Petitioner
robbery
was
with
After trial by jury, the
jury returned a verdict finding Petitioner guilty of robbery with
a weapon, a lesser-included offense.
Id. at 49.
In claim 4 of
the amended Rule 3.850 motion, Petitioner raised the following
claim: “Mr. Riley’s guilty verdict was constitutionally unreliable
in violation of the Sixth, Eighth and Fourteenth Amendments,
because the trial court erroneously instructed Mr. Riley’s jury on
the presence of a ‘weapon’.
The jury rendered a verdict that was
8
not consistent with the facts available from the trial of this
matter.”
Ex. L. at 33.
More specifically, Petitioner explains
that his counsel failed to object to the form of the verdict and
the evidence did not support a conviction for robbery with a
weapon:
The form of the verdict in this case was
critically important and the failure of
defense counsel to produce the correct
verdict, or at the least to protect the record
on appeal for any objections to a correct
verdict rises to ineffective assistance of
counsel. During the entire life of this case,
both pre-trial and trial, the only “weapon”
that was recognized was the firearm alleged to
exist by the victim. Ms. Barreras. To allow
a verdict that includes an undefined “weapon”
as being included in the jury’s deliberations
is fundamental error because it is not based
on the trial evidence. By removing the option
of the “weapon”, the jury would have had fewer
options to consider. It is obvious that the
jury rejected the State’s claim that the
Defendant had a firearm because they found the
Defendant guilty of a lesser included offense,
that of possession [of] a “weapon”. But the
trial testimony and record was devoid of any
weapon other than a firearm. [R 049-050.]
Ex. L at 33.
The state responded and set forth the two-pronged Strickland
standard before addressing the grounds for relief.
Id. at 62-64.
The trial court denied the amended Rule 3.850 motion, attaching
and
incorporating
by
reference
the
referenced in the state’s response.
9
exhibits
and
Id. at 182-303.
transcripts
Petitioner
appealed the denial of his amended Rule 3.850 motion raising the
claim that the form of the verdict was fundamental error and
defense counsel’s failure to object to the form of the verdict was
harmful error as ineffective assistance of counsel.
31-34.
Ex. M at ii,
The First District Court of Appeal (1st DCA) per curiam
affirmed the denial of post-conviction relief without explanation.
Ex. P.
The mandate issued on September 6, 2017.
Id.
Of note, in claim 1(e) of the amended Rule 3.850 motion,
Petitioner asserted counsel failed to object to the form of verdict
as well.
Ex. L at 27.
The state, in its response, argued that
the state is entitled to demand a jury instruction on lesser
included crimes, and the evidence included the victim’s testimony
that Petitioner used a gun, or something, during the robbery.
at 73.
Id.
The state averred that an objection would have been
meritless.
Id.
at
74.
Furthermore,
the
state
argued
the
instruction benefitted Petitioner as it allowed the jury to use
its inherent power to pardon Petitioner of a higher crime.
Id.
(citing Sanders v. State, 946 So. 2d 953, 957 (Fla. 2006)).
The
state concluded, “the Defendant has failed to demonstrate either
a legal deficiency, or prejudice to himself, in his attorney’s
failure to object to a necessary lesser-included crime on the
verdict form that was supported by the evidence.”
10
Ex. L at 74.
Petitioner appealed the denial of this ground.
21.
Ex. M at 17-
Again, the state argued the charged lesser included offenses
benefitted Petitioner as the jury could exercise its pardon power.
Id. at 19-20.
The 1st DCA affirmed without comment.
Ex. P.
The 1st DCA’s affirmance of the decision of the trial court
denying the amended Rule 3.850 motion is an adjudication on the
merits entitled to AEDPA deference.
Therefore, the Court will
employ the “look through” presumption.
The Court will “look
through” the unexplained 1st DCA’s decision to the last related
state court decision (the trial court’s decision denying postconviction relief) and will presume the unexplained 1st DCA’s
decision adopted the same reasoning as the trial court.
In
this
regard,
the
state
appropriately
Wilson.
referenced
the
Strickland standard in its response to the amended Rule 3.850
motion.
The Court is convinced that fair-minded jurists could
agree with the trial court’s decision.
Thus, the trial court’s
ruling affirmed by the 1st DCA is entitled to deference.
The
decision is not inconsistent with Supreme Court precedent, and the
state court’s adjudication of this claim is not contrary to or an
unreasonable application of Strickland or based on an unreasonable
determination of the facts.
Petitioner is not entitled to relief
on ground two.
11
Petitioner
has
failed
to
overcome
the
presumption
that
counsel’s performance fell within the wide range of reasonably
professional assistance.
The record shows the victim testified:
He stopped hard. He did like this with
his hands (demonstrating).
I thought he is
going to give me my bag, but I notice he had
something in his hand. He had something in
his hand, and it was a gun or something, and
he put it right here, and he said in my ear,
Bitch, get out of my way.
Ex. C at 33 (emphasis added).
Thereafter, the victim testified
she knew it was a gun, a black gun.
Id. at 34.
The victim said she had bruising to her head, as depicted in
photographs taken shortly after the incident.
Id. at 39.
Susan
Tyler testified the victim demonstrated being hit on her head with
a pistol, making her hand like a pistol and patting her head.3 Id.
at 77.
head.
Ms. Tyler said the victim was bleeding profusely from her
Id. at 79.
The state cross-examined Petitioner about the
bruise behind the victim’s ear and how it came about.
Petitioner denied hitting the victim.
Id. at 128.
Id.
Defense counsel made a motion for a judgment of acquittal.
Id. at 96.
The court denied the motion finding the state proved
a prima facie case.
Id. at 98.
Defense counsel renewed the
Ms. Maria Irene Barreras, the victim, was speaking in Spanish at
the scene.
Ex. C at 77.
At trial, Ms. Barreras had an
interpreter. Id. at 28.
3
12
motion for judgment of acquittal.
the renewed motion.
Id. at 134-35. The court denied
Id. at 135-36.
Defense counsel did not object to the inclusion of the lesser
included offense of robbery with a weapon.
Id. at 139.
She did
request the addition of the lesser offense of robbery by sudden
snatching, which the court agreed to include in the instructions.
Id. at 137-39.
firearm,
The verdict form included armed robbery with a
robbery
with
a
weapon,
robbery,
robbery
by
sudden
snatching with or without a firearm, petit theft, and not guilty.
Ex. A at 49-50.
Defense counsel filed a motion for new trial, arguing the
trial court erred in denying the motion for judgment of acquittal
and the verdict was contrary to the weight of the evidence and to
the law.
Ex. A at 51-52.
The trial court denied the motion.
Id.
at 58.
Notably, the crime of robbery with a weapon “is the next
immediate lesser-included offense of robbery with a firearm.”
Davis v. State, 235 So. 3d 320, 321 (Fla. 2018).
A weapon “is
defined to mean any object that could be used to cause death or
inflict serious bodily harm.”
Ex. C at 187.
See Davis, 235 So.
3d at 321 (referencing Fla. Std. Jury Instr. (Crim) 15.1 Robbery).
In this case, the jury found Petitioner guilty of robbery
with a weapon.
The record includes competent evidence supporting
13
the
jury’s
verdict,
with
evidence
conviction for robbery with a weapon.
presented
to
sustain
the
Of import, the jury could
have exercised its pardon power by convicting Petitioner of the
lesser-included offense.
This pardon power allows the jury to
acquit a defendant of the greater offense while convicting him of
a lesser offense, even though the evidence supports both crimes.
Sanders v. State, 946 So. 2d 953, 957 (Fla. 2006) (recognizing
that failure to instruct on the next immediate lesser included
offense (one step removed from the charged offense) constitutes
reversible error) (citation and quotation omitted).
The jury may
choose to show mercy or leniency and elect not to convict the
defendant of the charged offense, even though the evidence supports
the greater offense.
consequences.”4
“The jury pardon checks the severity of the
Id.
If Petitioner had been convicted or robbery with a firearm, he
apparently would have faced the possibility of punishment of
imprisonment for a term of years not exceeding life imprisonment.
§ 812.13(2)(a), Fla. Stat. See Burgess v. McNeil, 357 F. App’x
206, 207 (11th Cir. 2009) (per curiam) (noting the Florida robbery
statute defines three crimes, two of which are first-degree
felonies, and one of the first-degree felonies is punishable by
life imprisonment), cert. denied, 562 U.S. 848 (2010); Dotel v.
State, 175 So. 3d 830, 832 (Fla. 4th DCA 2015) (robbery with a
firearm carries “a maximum sentence of life”).
The jury found
Petitioner guilty of a first degree felony, but the offense of
robbery with a weapon was punishable by up to thirty years in
prison. Ex. A at 124. Although the state asked for the maximum
sentence, the trial court sentenced Petitioner to eighteen years
in prison. Id. at 132.
4
14
Petitioner has also failed to demonstrate prejudice.
Either
the jury was convinced Petitioner did not possess a firearm during
the robbery, but he possessed a different weapon, or the jury
believed Petitioner possessed a firearm during the offense but
exercised its pardon power and found Petitioner guilty of the
lesser-included offense.
Again, the victim testified Petitioner
had something in his hand, “and it was a gun or something[.]” Ex.
C at 33.
Although Petitioner may be dissatisfied with the outcome of
the sentencing proceeding, the record demonstrates he went to trial
to convince the jury he did not have a firearm.
He was successful
in this regard and avoided the conviction of armed robbery with a
firearm.
Thereafter, he told the court that he was “100 percent”
satisfied with the legal services of defense counsel.
227-28.
prejudice
Ex. D at
Petitioner has neither shown deficient performance nor
under
the
Strickland
standard
of
review.
Thus,
Petitioner is not entitled to habeas relief on ground two of the
Petition.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. 1) is
DENIED.
2.
This action is DISMISSED WITH PREJUDICE.
15
3.
The Clerk shall enter judgment accordingly and close
this case.
4.
If Petitioner appeals the denial of his Petition for
Writ of Habeas Corpus (Doc. 1), the Court denies a certificate of
appealability.
5
Because
this
Court
has
determined
that
a
certificate of appealability is not warranted, the Clerk shall
terminate from the pending motions report any motion to proceed on
appeal
as
a
pauper
that
may
be
filed
in
this
case.
Such
termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 15th day of
November, 2019.
This Court should issue a certificate of appealability only if a
petitioner makes "a substantial showing of the denial of a
constitutional right."
28 U.S.C. ' 2253(c)(2).
To make this
substantial showing, Petitioner "must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong," Tennard v. Dretke, 542
U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further,'" Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)).
Upon due consideration, this Court will
deny a certificate of appealability.
5
16
sa 11/14
c:
Steven Mark Riley
Counsel of Record
17
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