Sherrod v. Secretary, Department of Corrections et al

Filing 42

ORDER dismissing case with prejudice. Signed by Senior Judge Wm. Terrell Hodges on 8/28/2009. (JMJ)

UNITED STATES DISTRICT COURT M ID D L E DISTRICT OF FLORIDA O C A L A DIVISION M E L V IN SHERROD, Petitioner, v. S E C R E T A R Y , DEPARTMENT OF C O R R E C T IO N S , et al., Respondents. C a s e No. 5:05-cv-256-Oc-10GRJ

ORDER DENYING PETITION P e titio n e r initiated this action by executing a Petition for W rit of Habeas C o rp u s pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner challenges his 2003 c o n vic tio n s from the Circuit Court in and for Lake County, Florida. Respondents h a ve filed a response in which they maintain the Petition should be denied with p r e ju d ic e . (Doc. 28). The Petition, the Response to the Petition, the record

s u b m itte d with the Response, and Petitioner's reply demonstrate that an evidentiary h e a rin g is not warranted in this case, and the Court may resolve the Petition on the b a s is of the record. See Habeas Rule 8(a). C o n v ic tio n s and Sentences O n March 21, 2003, Petitioner was charged by Information with burglary of a s tru c tu re , tampering with evidence, resisting an officer without violence, and criminal

m i s c h i e f .1

On March 21, 2003, Petitioner filed a demand for speedy trial and

th e re a fte r, the trial court conducted a hearing on the demand.2 The trial court set the tria l for May 12, 2003. At trial, the jury found Petitioner guilty of burglary of a structure, guilty of e vid e n c e tampering, and guilty of resisting an officer without violence.3 The jury fou n d Petitioner not guilty of criminal mischief. On July 25, 2003, the trial court s e n ten c e d Petitioner as an habitual offender to ten years in prison for the burglary a n d five years concurrent for the evidence tampering.4 Petitioner appealed and his c o u n s e l filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967). T h e Fifth District Court of Appeal per curiam affirmed in an order dated February 24, 2 0 0 4 .5 Mandate issued on March 12, 2004.6 O n or about March 5, 2004, Petitioner filed a motion for post-conviction relief a s s e rtin g five claims of ineffective assistance of trial counsel.7 The state court held a hearing and found that the trial record refuted all of Petitioner's claims.8 In an

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Doc. 31, Ex. B, pg. 7. State v. Sherrod, Lake County case no. 2003CF000494A-02. D o c . 31, Ex. C. D o c . 31, App. A, pg. 228. D o c . 31, App. A, pg. 138. D o c . 31, App. E. D o c . 31, App. F. D o c . 31, App. G. D o c . 31, App. G, H.

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o rd e r dated January 25, 2005, the Fifth District Court of Appeal per curiam affirmed th e denial of relief. Petitioner's Motion to correct illegal sentence was denied and t h e r e a fte r affirmed in an order dated February 8, 2005.9 F e b ru a ry 28, 2005.10 P e titio n e r executed the instant Petition for W r it of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 29, 2005. Petitioner raises four claims of relief: 1 . Ineffective Assistance of Counsel in failing to interview the booking officer; 2 . Trial court error in order denying post-conviction relief because it failed to c o n ta in record attachments of support; 3 . Trial court error in denying Petitioner's request for continuance of the trial; 4 . Trial court issued vindictive sentence. Timeliness of Petition R e s p o n d e n ts concede the Petition is timely filed within the one-year limitation p e rio d provided by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. Exhaustion/Procedural Bars T h e r e are two prerequisites to federal habeas review: (1) "the applicant must h a ve fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated," and (2) "the applicant must have Mandate issued on

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Doc. 31, App. K-M. D o c . 31, App. N.

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p re s e n te d his claims in state court in a procedurally correct manner."1 1 This means th a t "a state prisoner seeking federal habeas corpus relief, who fails to raise his f e d e ra l constitution[al] claim in state court, or who attempts to raise it in a manner n o t permitted by state procedural rules is barred from pursuing the same claim in fe d e ra l court absent a showing of cause for and actual prejudice from the default."1 2 A petition for writ of habeas corpus should not be entertained unless the P e titio n e r has first exhausted his state remedies.1 3 The courts of Florida must be g ive n the opportunity to consider the Petitioner's legal theory of a federal c o n s titu tio n a l deficiency and the factual basis for that theory.1 4 Concerns of comity re q u ire that exhaustion cannot be satisfied by the mere statement of a federal claim i n state court.1 5 The Petitioner must afford the State a full and fair opportunity to a d d re s s and resolve the claim on the merits.1 6 A full and fair opportunity involves th e proper presentation,1 7 and substance of, the federal constitutional claim.1 8

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Upshaw v. Singletary, 70 F.3d 576, 578-579 (11th Cir. 1995) (citations omitted).

Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.) cert. denied, 513 U.S. 1061 (1994) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977)). Castille v. Peoples, 489 U.S. 346, 349, reh'g denied, 490 U.S. 1076 (1989); Rose v. Lundy, 455 U.S. 509 (1982).
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Picard v. Connor, 404 U.S. 270, 277 (1971). Footman v. Singletary, 978 F.2d 1207, 1210-11 (11th Cir. 1992). Id. Castille at 351. Watson v. Dugger, 945 F.2d 367, 371-372 (11th Cir. 1991).

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G e n e ra lly, a federal habeas petition should be dismissed if the petitioner has failed to exhaust state remedies. Additionally, a petitioner must avoid a procedural default b y non-compliance with State substantive or procedural requirements.19 R e s p o n d e n ts contend that Petitioner's claims two and three are not properly e xh a u s te d because Petitioner failed to raise them as federal claims in the state c o u rts . The Court agrees. In his second claim, Petitioner alleges trial court error in th e order denying post-conviction relief because the trial court failed to attach the r e c o r d in support. This claim is not reviewable in a federal habeas proceeding. S p r a d le y v. Dugger, 825 F.2d 1566, 1567 (11 th Cir. 1987)(holding trial court's alleged e rr o rs in the Rule 3.850 proceedings did not state a basis for habeas relief). In his th ird claim, Petitioner alleges trial court error in denying Petitioner's request for c o n tin u a n c e of the trial. Petitioner did not raise a federal due process claim in state c o u rt regarding the denial of his motion for continuance. In order to gain review of an otherwise procedurally defaulted claim, Petitioner m u s t demonstrate both cause excusing the default and actual prejudice from the b a r.2 0 To show cause, Petitioner must establish that the default resulted "from some o b je c tiv e factor external to the defense that prevented [him] from raising the claim a n d which cannot be fairly attributable to his own conduct."2 1 To show prejudice, the

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Colem a n v. Thom p s o n , 501 U.S. 722, 729-30, reh'g denied, 501 U.S. 1277 (1991). Hill v. Jones, 81 F.3d 1015, 1022-23 (11 th Cir. 1996).

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W r ig h t v. Hopper, 169 F.3d 695, 706 (11 th Cir.), cert. denied, 528 U.S. 934 (1999) (citing McCoy v . Newsom e , 953 F.2d 1252, 1258 (11 th Cir 1992)).

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p e titio n e r "must show that `the errors at trial actually and substantially disadvantaged h is defense so that he was denied fundamental fairness."2 2 Additionally, "a federal c o u rt may also grant a habeas petition on a procedurally defaulted claim, without a s h o w in g of cause or prejudice, to correct a fundamental miscarriage of justice."2 3 T h e fundamental miscarriage of justice exception is only available in extraordinary c a s e s upon a showing of `actual innocence' rather than mere `legal innocence.'"2 4 P e titio n e r has not alleged nor demonstrated cause and prejudice, or the fundamental m isc a rria g e exception. The claims do not provided a basis for habeas relief. Standard of Review A fte r the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the ro le of a federal habeas court when reviewing a state prisoner's application pursuant to 28 U.S.C. § 2254 is limited.2 5 Specifically, a federal court must give deference to s tate court adjudications unless the state court's adjudication of the claim is "contrary to , or involved an unreasonable application of, clearly established Federal law, as d e te r m in e d by the Supreme Court of the United States."2 6 Moreover, each c la u s e , "contrary to" and "unreasonable application," provides a separate basis for

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Id.

Fortenberry v. Haley, 297 F.3d 1213, 1222 (11 th Cir. 2002) (per curiam ) , cert. denied, 538 U.S. 947 ( 2 0 0 3 ) (citation om itte d ) . Johnson v. Alabam a , 256 F.3d 1156, 1171 (11 th Cir. 2001), cert. denied, 535 U.S. 926 (2002) ( c ita t io n s om itte d ) ; see also McClesky v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 1470 (1991).
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See W illia m s v. Taylor, 529 U.S. 362, 403-404, 120 S.Ct. 1495, 1518-19 (2000). See 28 U.S.C. § 2254(d)(1).

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re vie w .27 F u rth e rm o re , under § 2254(d)(2), this Court must determine whether the state c o u rt's adjudication resulted in a decision that was based on an unreasonable d e term in a tio n of the facts in light of the evidence presented in the state court p ro c e e d in g .2 8 The AEDPA also directs that the factual findings of the state court are a ffo rd e d a presumption of correctness that can only be rebutted by clear and c o n vin c in g evidence.2 9 This presumption of correctness applies to factual

d e te r m in a tio n s made by both the state trial and appellate courts.3 0 F in a lly , for a state court's resolution of a claim to be an adjudication on the m e rits so that the state court's determination will be entitled to deference for p u r p o s e s of federal habeas corpus review under AEDPA, all that is required is a re je c tio n of the claim on the merits, not an opinion that explains the state court's ra tio n a le for such a ruling.3 1 M e r its of Claims C la im One P e titio n e r alleges ineffective assistance of counsel in failing to interview and
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W e llin g to n v. Moore, 314 F.3d 1256, 1260-61 (11 th Cir. 2002).

See also Van Poyck v. Florida Dept. Of Corr., 290 F.3d 1318, 1321 (11 th Cir. 2002) (per curiam ) ( " [u ]n le s s a state court decision is directly contrary to Suprem e Court case law, we review state court findings o f fact and conclusions of law for reasonableness").
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See 28 U.S.C. § 2254(e)(1). Bui v. Haley, 321 F.3d 1304, 1312 (11 th Cir. 2003).

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W r ig h t v. Secretary for the Dept. of Corrections, 278 F.3d 1245, 1255 (11 th Cir. 2002) cert. denied, 5 3 8 U.S. 906 (2003); see also Peoples v. Cam p b e ll, 377 F.3d 1208, 1227 (11 th Cir. 2004).

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c a ll as a witness the booking officer. Petitioner raised this claim in his motion for p o s t-c o n vic tio n relief executed on March 5, 2004. In Strickland v. W a s h in g to n , 466 U.S. 668 (1984), the United States Supreme C o u rt established a two-part test for determining whether a convicted person is e n title d to relief on the ground that his counsel rendered ineffective assistance: (1) w h e the r counsel's performance was deficient and "fell below an objective standard o f reasonableness"; and (2) whether the deficient performance prejudiced the d e fe n s e . Id. at 687-88. A court must adhere to a strong presumption that counsel's c o n d u c t falls within the wide range of reasonable professional assistance. Id. at 6899 0 . "Thus, a court deciding an actual ineffectiveness claim must judge the re a s o n a b le n e s s of counsel's challenged conduct on the facts of the particular case, vie w e d as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1 4 9 2 , 1497 (11th Cir. 1989). As observed by the Eleventh Circuit Court of Appeals, the test for ineffective a s s is ta n c e of counsel: h a s nothing to do with what the best lawyers would have done. Nor is the test e ve n what most good lawyers would have done. W e ask only whether some re a s o n a b le lawyer at the trial could have acted, in the circumstances, as d e fe n s e counsel acted at trial. Courts also should at the start presume e ffe c tiv e n e s s and should always avoid second guessing with the benefit of h in d s ig h t. Strickland encourages reviewing courts to allow lawyers broad d is c re tio n to represent their clients by pursuing their own strategy. W e are n o t interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

W h ite v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). -8-

U n d e r those rules and presumptions, "the cases in which habeas petitioners can p ro p e rly prevail on the ground of ineffective assistance of counsel are few and far b e tw e e n ." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). U p o n an independent review of the record, the state court's adjudication of P e titio n e r's claim was not contrary to clearly established federal law. After the trial c o u rt inquired as to the nature of the witness' testimony, Petitioner's counsel was a b le to proffer in detail the witness' testimony. 3 2 Counsel for Petitioner tried to s u b p o e n a the witness but was unable to serve him. Further, as the Respondents s ta te in their response, the booking officer's testimony would not have added a n yth in g to the case and the failure to assure that witness' presence at the trial was n o t prejudicial.33 Therefore, this claim is due to be denied. C la im Four In Petitioner's last claim, he alleges the trial court issued a vindictive sentence. Petitioner raised this claim in his motion to correct illegal sentence which was s u m m a rily denied. As the state responded to the claim: A s [Petitioner] indicates continously throughout his motion, he was made a w a re even before he received the written notice which specific enhancement th e State intended to pursue, the habitual felony offender enhancement. A d d itio n a lly, the possible penalties the [Petitioner] was exposed to should n o tic e be filed were discussed at length during the April 23, 2003 hearing, as th e [Petitioner] notes repeatedly in his motion. T h e [Petitioner] also repeatedly mentions that the State was offering him three
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See Doc. 31, App. A, pg. 5. D o c . 28, pg. 11.

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(3 ) years in DOC as a plea offer, and that the court would consider up to 20 ye a rs if the [Petitioner] was found guilty of all counts at trial. The [Petitioner] w a s sentenced to 10 years in DOC at his sentencing on July 25, 2003. Even if Mr. Nacke did not inform the [Petitioner] of the State's plea offer, he was m o re than well aware of what the State's plea offer was, and that it was s ig n ific a n tly less than what he would be exposed to if found guilty at trial and s e n te n c e d as a habitual felony offender. The [Petitioner] does not contend anywhere in his motion that he did not meet th e criteria for being sentenced as a habitual felony offender, or that his s e n te n c e is infirm or illegal in any way. Upon due consideration, this claim is due to be denied. Petitioner has not e s ta b lis h e d that the trial court imposed a vindictive sentence. There is no evidence th a t the trial judge set out to punish Petitioner for not pleading guilty. Conclusion T h e Petition is DENIED. The Clerk is directed to enter judgment dismissing th e Petition with prejudice, terminate any pending motions, and close the file. IT IS SO ORDERED. D O N E AND ORDERED at Ocala, Florida, this 28 th day of August 2009.

c : Melvin Sherrod Counsel of Record

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