Williams v. Secretary Department of Corrections et al
Filing
17
ORDER denying 1 Petition for writ of habeas corpus filed by Troy Williams. The clerk is directed to close the case and mail the attached order to Petitioner at his updated mailing address. See Dkt. 16. Signed by Judge William F. Jung on 6/28/2019. (JHA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TROY WILLIAMS,
Petitioner,
v.
Case No. 5:17-cv-309-Oc-02PRL
SECRETARY, Department of Corrections,
and FLORIDA ATTORNEY GENERAL,
Respondents.
__________________________________/
ORDER
On July 5, 2017, the Court received Petitioner Williams’s petition under 28
U.S.C. § 2254 for writ of habeas corpus by a person in state custody. Dkt. 1. He
seeks relief from a 2012 Florida state court conviction. Id. at 1. Respondents have
filed a response in opposition, Dkt. 11, and Petitioner has filed a reply, Dkt. 13.
The Court finds that no hearing is necessary and DENIES the petition.
BACKGROUND
On August 21, 2012, a jury in the Circuit Court of the Fifth Judicial Circuit,
in and for Marion County, found Petitioner guilty of one count of lewd and
lascivious conduct and one count of lewd and lascivious battery on a child. Dkt.
12-2 at 8; see also Dkt. 12-1 at 127. Petitioner was sentenced to incarceration of
seven and a half years, and ten years of probation. Dkt. 12-2 at 1, 11-12.1
Through counsel, Petitioner moved for a judgment of acquittal and arrest of
judgment that was denied. Dkt. 12-1 at 133. He argued that there was no evidence
presented as to the venue or dates for the lewd and lascivious conduct. This was
also the sole issue raised in his appeal. Dkt. 12-5 at 44. The District Court of
Appeal for the Fifth District of Florida (5th DCA) per curiam affirmed the
judgment. Dkt. 12-5 at 62.
Petitioner then filed a pro se habeas petition in the Fifth DCA alleging
ineffective assistance of appellate counsel. Dkt. 12-5 at 65-76. The Fifth DCA
denied the petition, Dkt. 12-5 at 106, and subsequent motion for rehearing, id. at
114. Petitioner next filed a pro se 3.850 motion for postconviction relief in the
circuit court, raising eight grounds for ineffective assistance of trial counsel. Dkt.
12-5 at 132-52. The postconviction court denied some of the grounds and ordered
the State to respond to the remaining grounds. Dkt. 12-5 at 165. The court held an
1
It appears that Petitioner has since been released from the custody of the Florida Department of
Corrections. Dkt. 16. This does not moot the habeas petition. See, e.g., Pollard v. United States, 352 U.S.
354, 358 (1957) (finding lawfulness of sentence was not moot because the “possibility of consequences
collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits”);
see also Spencer v. Kemna, 523 U.S. 1, 9-12 (1998) (noting that the Supreme Court has presumed the
effect of collateral consequences sufficient to create an Article III case or controversy in several
situations, including where a convict who had already served his time challenges the imposed sentence).
2
evidentiary hearing on the remaining grounds (grounds II and VII here) before
denying them. Dkt. 12-6 at 76.
Petitioner’s counsel on the appeal of the 3.850 denial filed an Anders brief.2
Dkt. 12-7 at 51. Petitioner filed a pro se brief for the appeal. Dkt. 12-7 at 66. The
Fifth DCA per curiam affirmed. Dkt. 12-8 at 41-42. Petitioner then filed a pro se
successive motion for postconviction relief raising two additional grounds for
relief. Dkt. 12-8 at 46-51. The postconviction court denied the motion, finding it
successive and procedurally barred. Dkt. 12-8 at 58. The Fifth DCA per curiam
affirmed. Dkt. 12-8 at 94-95. Petitioner then timely filed the instant petition.
Petitioner raises ten grounds for relief, all premised on ineffective assistance
of trial counsel: (1) counsel failed to challenge the police’s warrantless arrest of
Petitioner in a residence; (2) counsel did not object to the prosecution’s use of
recorded testimony of the victim’s stepfather; (3) counsel did not investigate a
possible exculpatory witness; (4) counsel did not move for a bill of particulars to
narrow the timeframe of offending conduct; (5) counsel did not challenge the
location or venue of an offending act; (6) counsel did not challenge the credibility
of the victim; (7) counsel did not explore a possible ulterior motive of the victim or
his stepfather; (8) counsel did not object to incomplete jury instructions; (9)
counsel did not seek a preliminary hearing; and (10) cumulative error.
2
Anders v. California, 386 U.S. 738 (1967).
3
LEGAL STANDARD
This petition is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). AEDPA “establishes a highly deferential standard for
reviewing state court judgments,” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764,
768 (11th Cir. 2003) (citation omitted), that does not allow relief for a state court
conviction on a claim “‘that was adjudicated on the merits in the State court
proceedings’ unless the state court’s decision was ‘(1) . . . contrary to, or involved
an unreasonable application of, clearly established Federal law as determined by
the Supreme Court of the United States; or (2) . . . based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,’” Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir.
2016) (quoting 28 U.S.C. § 2254(d)).
“Clearly established Federal law” means holdings of the U.S. Supreme
Court “as of the time of the relevant state-court decision.” Id. at 1288-89 (citation
omitted). “Contrary to” requires a state court conclusion “opposite to that reached
by [the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable
facts.” Id. at 1289 (citations omitted) (alterations in original). The “unreasonable
application” clause applies only “if the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreasonably applies that
4
principle to the facts of the prisoner’s case.” Id. (citation omitted) (alterations in
original).
A state court’s factual determination, meanwhile, “is not unreasonable
merely because the federal habeas court would have reached a different conclusion
in the first instance.” Id. (citation omitted). AEDPA “requires federal habeas courts
to presume the correctness of state courts’ factual findings unless applicants rebut
this presumption with ‘clear and convincing evidence.’” Id. (citation omitted). This
is a “demanding but not insatiable standard, requiring proof that a claim is highly
probable.” Id. (citation and internal quotation marks omitted).
Counsel is ineffective under the Sixth Amendment if “(1) counsel's
performance was deficient; and (2) the deficient performance prejudiced the
defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d
1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). But in the habeas context, “[t]he 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) (citation and internal
quotation marks omitted). “If there is ‘any reasonable argument that counsel
satisfied Strickland’s deferential standard,’ then a federal court may not disturb a
5
state-court decision denying the claim.” Hittson v. GDCP Warden, 759 F.3d 1210,
1248 (11th Cir. 2014) (citation omitted).
DISCUSSION
Respondents argue that claims one, eight, and ten are procedurally defaulted,
and that Petitioner’s ineffective assistance of counsel claims are without merit. The
Court finds that a hearing is unnecessary, see Turner v. Crosby, 339 F.3d 1247,
1274-75 (11th Cir. 2003), and will handle the issues in turn.
Claim I.
Warrantless Arrest of Petitioner in a Residence
Petitioner raised this claim in his second motion for postconviction relief,
which the state court denied because it was successive and procedurally barred.
Dkt. 12-8 at 58. The Fifth DCA per curiam affirmed. Dkt. 12-8 at 94-95. To avoid
default of federal claims, (1) “the applicant must have 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 presented his claims in
state court in a procedurally correct manner.” Upshaw v Singletary, 70 F. 3d 576,
578-79 (11th Cir. 1995).
Because at this stage Petitioner is unable to present his claims to the state
court, the grounds are procedurally defaulted. See, e.g., Crosby v. Crosby, No.
502cv129OC10GRJ, 2005 WL 1126563, at * 2 n.15 (M.D. Fla. May 5, 2005)
(citing Tafero v. State, 561 So.2d 557 (Fla. 1990) for proposition that “additional
6
claims of ineffective assistance of counsel cannot be raised in a successive motion
for post conviction relief where ineffectiveness was raised and addressed in the
first motion”); Allen v. Sec’y, DOC, No. 2:12-CV-644-FTM-29CM, 2016 WL
762648, at *5 (M.D. Fla. Feb. 24, 2016), aff’d, 767 F. App’x 786 (11th Cir. Apr. 3,
2019) (“Petitioner cannot return to state court to present this claim because Florida
procedural rules preclude a second, untimely Rule 3.850 motion absent certain
extenuating circumstances that are not present in this case.”); see also Frazier v.
State, 898 So.2d 1183, 1183-84 (Fla. 3d DCA 2005) (barring as successive claims
that could have and should have been made in previous post-conviction motion).
“[A] state prisoner seeking federal habeas corpus relief, who fails to raise his
federal constitution claim in state court, or who attempts to raise it in a manner not
permitted by state procedural rules, is barred from pursuing the same claim in
federal court absent a showing of cause for and actual prejudice from the default.”
Alderman v. Zant, 22 F. 3d 1541, 1549 (11th Cir. 1994) (citation omitted).
“Cause exists if there was ‘some objective factor external to the defense [that]
impeded counsel’s efforts to comply with the State’s procedural rule.’” Mize v.
Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (citation omitted). It is not enough that
a prisoner is pro se. Harmon v Barton, 894 F.2d 1268, 1274 (11th Cir. 1990).
Actual prejudice requires Petitioner to show that there is at least a reasonable
7
probability that the result of the proceeding would have been different. Henderson
v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
To establish cause, Petitioner states that he “was unaware of this serious
constitutional rights violation until conducting research for the initial brief for the
appeal of the first Rule 3.850 motion.” Dkt. 13 at 2-3. He further emphasizes his
lack of familiarity in the legal system. Id. at 3. This is insufficient. Nor can
Petitioner establish prejudice because an unconstitutional arrest cannot plausibly
affect the result of trial. For example, Plaintiff does not specify any evidence that
could have been suppressed following any unconstitutional arrest.
Yet “[w]here, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral proceeding, there
was no counsel or counsel in that proceeding was ineffective.” Martinez v. Ryan,
566 U.S. 1, 17-18 (2012). This exception applies only where (1) a state requires a
prisoner to raise ineffective-trial-counsel claims at the initial-review stage of a state
collateral proceeding and precludes those claims during direct appeal; (2) the
prisoner did not comply with state rules and failed properly to raise ineffectivetrial-counsel claims in his state initial-review collateral proceeding; (3) the prisoner
did not have counsel (or his appointed counsel was ineffective by not raising
8
ineffective-trial-counsel claims) in that initial-review collateral proceeding; and (4)
failing to excuse the prisoner’s procedural default would cause the prisoner to lose
a ‘substantial’ ineffective-trial-counsel claim. Arthur v. Thomas, 739 F.3d 611, 629
(11th Cir. 2014). “A defaulted claim is substantial if the resolution of its merits
would be debatable among jurists of reason.” Duffy v. Sec’y, Dep’t of Corr., 729 F.
App’x 669, 670 (11th Cir. 2018) (citation omitted).
And although a defendant cannot typically raise ineffective assistance of
trial counsel claims on direct appeal in Florida, Rigg v. Warden, Blackwater River
Corr. Facility, 685 F. App’x 812, 815-16 (11th Cir. 2017) (citing Reynolds v.
State, 99 So.3d 459, 474 (Fla. 2012)); Ellerbee v. State, 87 So.3d 730, 739 (Fla.
2012), Petitioner did raise a number of ineffective assistance of counsel claims in
his state initial-review collateral proceeding. In any event, there is no indication on
the record that not excusing the procedural default would cause the prisoner to lose
a “substantial” ineffective-trial-counsel claim. Arthur, 739 F.3d at 629.
Petitioner claims that when officers arrested Petitioner at his residence
without a warrant, they had to first enter his yard through a closed perimeter fence.
Dkt. 1 at 7. They entered “for the sole purpose of taking [Petitioner] into custody.”
Id. But it is not clear whether police actually entered Petitioner’s dwelling when
they arrested him, see Moore v. Pederson, 806 F.3d 1036, 1039 (11th Cir. 2015),
and courts have upheld seemingly more intrusive conduct than opening a clasped
9
but unlocked fence, see, e.g., United States v. Holmes, 143 F. Supp. 3d 1252, 1254
(M.D. Fla. 2015), aff’d, No. 17-15404, 2019 WL 2293167 (11th Cir. May 29,
2019) (finding no Fourth Amendment violation where police entered fenced
property with “No Trespassing” sign and then unlocked screen door onto enclosed
front porch).
Furthermore, though Plaintiff argues that his trial counsel “was negligent at
protecting his rights guaranteed under the Fourth Amendment,” id. at 8, Petitioner
does not specify what trial counsel should have done. As mentioned above,
Petitioner does not direct the Court to any illegally obtained evidence that could
have been suppressed. See Bradley v. Nagle, 212 F.3d 559, 565 (11th Cir. 2000).
And a Fourth Amendment violation during arrest does not by itself warrant habeas
relief. See McDougald v. Houston Cty. Sheriff's Office, No. 1:16-CV-838-MHT,
2017 WL 3015886, at *1 (M.D. Ala. June 14, 2017), report and recommendation
adopted, No. 1:16CV838-MHT, 2017 WL 3015810 (M.D. Ala. July 14, 2017)
(collecting cases).
Petitioner does not establish cause or prejudice, and this is not a substantial
claim.
Claim II.
Use of Stepfather’s Recorded Testimony at Trial
Petitioner next claims that trial counsel was deficient for not objecting to the
prosecution’s use of recorded testimony of the stepfather of the victim. Petitioner
10
brought this claim in his first 3.850 motion, and the postconviction court held an
evidentiary hearing on the issue.
In its order denying the motion, the postconviction court noted that,
according to the State’s motion to perpetuate the stepfather’s testimony, the
stepfather was on active duty in the military and was set to be deployed. Dkt. 12-6
at 78. The trial court granted the motion to perpetuate the testimony, and the
testimony was perpetuated. Id. A week before trial the State notified the defense
that the stepfather would be available to testify at trial, but, after discussing the
matter with Defendant, trial counsel decided it would be in Defendant’s best
interest to play the recorded testimony. Id.
The postconviction court then noted counsel’s evidentiary hearing testimony
that “it was best to play the recorded testimony because [the witness’s] perpetuated
testimony was not as harmful as they had anticipated and there would be no
surprises if the recorded testimony was played for the jury,” and that, if called to
testify at trial, the witness “would have had an advantage of being prepared for the
questions he would be asked on cross-examination.” Id. at 78-79. The
postconviction court determined that this was a “reasonable trial strategy” and that
trial counsel was not “ineffective.” Id. at 79.
The Court cannot find that the postconviction court’s determination was
unreasonable. To the extent that the postconviction court rested its determination
11
solely on deficient performance, the Court finds de novo that Petitioner does not
establish prejudice. See Ferrell v. Hall, 640 F.3d 1199, 1226 (11th Cir. 2011)
(citations omitted). Indeed, though Petitioner complains in broad strokes about the
practice of perpetuating testimony in general, he fails to demonstrate any adverse
effects of the use of recorded testimony in this case. This vague and conclusory
allegation is insufficient for relief. See Tejada v. Dugger, 941 F.2d 1551, 1559
(11th Cir. 1991).
Petitioner argues, for example, that the stepfather and the victim lived in the
same home, and that the recording would give them “an opportunity to collaborate
stories, etc., based off of the examination and cross-examination of the state
witness taken in advance,” notwithstanding invocation of the rule of sequestration.
Dkt. 1 at 11. Petitioner also argues that between the time any testimony is recorded
and trial, new evidence might be discovered that could adjust the strategy for
cross-examination. Petitioner also suggests that perpetuating testimony “affords the
prosecution an unfair advantage in the preparation of their case.” And lastly,
though the defense did have an opportunity to cross-examine the witness,
Petitioner complains that the cross-examination was not as rigorous as it could
have been at trial. Id. at 12.
But again, he does not substantiate his general complaints with the
perpetuation of testimony with any concrete indication that the decision to accept
12
the perpetuated testimony was deficient or that he suffered prejudice.3 This is
especially so in light of the risks of live testimony that counsel had considered. The
Court cannot find the postconviction court’s determination unreasonable on this
record.4
Claim III.
Failure to Investigate Exculpatory Witness
Petitioner next claims that “[w]hile [Petitioner] was visiting the family
residence, an exchange had taken place between [the victim] and [the victim’s
stepfather] over the matter of [the victim] attempting to climb into bed with an
adult friend . . . that was temporarily residing with the [victim’s] family as she
slept on the couch in the family living room. This event evidently disturbed her so
much that she had to inform [the stepfather].” Dkt. 1 at 16. Petitioner argues that
this may establish an ulterior motive and impeach the credibility of the victim. Id.
Trial counsel did not investigate the matter.
The State’s case did not rely solely on the stepfather’s testimony that he had walked in on Petitioner
holding the victim in the air in the bedroom, not in “your usual horsing around embrace.” Dkt. 12-3 at 70.
In addition to the victim’s testimony, the State also presented evidence of a DNA sample recovered from
the victim’s boxer shorts.
4
Petitioner also argues that defense counsel’s decision to use the recorded his testimony, over his
objection, effectively violated his Sixth Amendment right to cross-examination. This claim, which was
also presented to the state courts as an ineffective assistance of counsel claim rather than a discrete
confrontation clause claim, Dkt. 12-5 at 139-41; Dkt. 12-7 at 90-98; see also Dkt. 12-5 at 38-47, is likely
defaulted. In any event, Petitioner sets forth no authority to support his argument. Petitioner was able to—
and, through counsel, did—cross-examine the stepfather when the testimony was perpetuated. Dkt. 12-3
at 72-80. Additionally, Petitioner fails to cite authority stating that the decision to use perpetuated
testimony over live—seemingly a trial management decision—is a fundamental one afforded to a
defendant. See McCoy v. Louisiana, 138 S. Ct. 1500 (2018); see also Boone v. Crews, No. 4:11CV327RH/CAS, 2014 WL 3349466, at *9 (N.D. Fla. July 8, 2014) (finding habeas relief unwarranted where
trial counsel did not object to perpetuated testimony and defendant was absent from the deposition).
3
13
The postconviction court found no hearing necessary in determining that the
claim was without merit. Dkt. 12-5 at 159. The court deemed it relevant that
Petitioner acknowledged counsel had made the “strategic decision” not to
investigate an incident that was not reported to authorities. Counsel further advised
that the incident was irrelevant and inadmissible in the instant case. Petitioner also
neglected to mention the possible witness when the trial court asked him at trial,
“While we are sitting here . . . is there anything else in this case that you want
you[r] lawyers to do for you or call any other witnesses, anything else you want
them to do at this time?” Id.
The postconviction court was not unreasonable in finding that trial counsel
was not deficient under Strickland. See Wiggins v. Smith, 539 U.S. 510, 521-22
(2003) (“[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.”). The connection of the alleged incident to
Petitioner—and its basis for any ulterior motive to fabricate testimony—is unclear
from the record.5 Insofar as the postconviction court did not reach the question of
In a later ground, Petitioner suggests that “it is plausible that [the victim] made these allegations to
possibly reduce or escape harsh punishment that was pending as a result of his attempted misconduct with
[the adult friend].” Dkt. 1 at 34. Such vague speculation does not render the postconviction court’s
determination unreasonable.
5
14
prejudice, the Court finds de novo that there is no reasonable probability the result
would have been different had trial counsel investigated the matter.
Claim IV.
Statement of Particulars to Narrow the Timeframe
Petitioner complains that the date ranges for the conduct charged (February
13, 2008 to November 19, 2009 for the lewd and lascivious conduct and June 1,
2009 to November 19, 2009 for lewd and lascivious battery) were long enough to
deprive him an opportunity to prepare his defense, “including establishing a
potential alibi or witness.” Dkt. 1 at 20. Trial counsel did not move for a bill of
particulars.
The postconviction court seems to have rested its denial of the claim on the
absence of prejudice. Dkt. 12-5 at 161. The postconviction court reasoned that, to
establish prejudice, Petitioner “must demonstrate that a motion for a statement of
particulars would have been granted,” and that “[b]ecause the granting of a motion
for a statement of particulars is discretionary, Defendant cannot show that it would
have been granted.” Id.
“The purpose of a bill of particulars is merely to give the defendant notice of
the particular acts relied upon by the state to establish the crime charged, that the
defendant may be fully advised of the nature and cause of the accusation against
him, and that he may have an opportunity to prepare his defense.” Middleton v.
State, 76 So. 785, 787 (1917). The Florida Rules of Criminal Procedure require an
15
information to state as accurately as possible the time and place of the commission
of the offense charged. Fla. R. Crim. P. 3.140(d)(3). Counsel can move for a
statement of particulars if the time and date stated are too indefinite for counsel to
prepare a defense. Fla. R. Crim. P. 3.140(n).
But Petitioner does not state with any specificity how counsel’s failure to
request a statement of particulars prevented him from presenting an alibi defense.
He has not, for example, presented the Court with evidence of an alibi defense for
the dates at issue that he was unable to advance at trial. See Enriquez v. Sec’y,
Dep’t of Corr., No. 2:14-CV-85-FTM-38MRM, 2015 WL 4775457, at *13-14
(M.D. Fla. Aug. 13, 2015), aff’d, 662 F. App’x 650 (11th Cir. 2016). The victim
also apparently testified about some of the incidents at issue in a pre-trial
deposition, see e.g., Dkt. 12-3 at 26, 35, which could have provided Defendant
notice of the relevant dates, see Enriquez, 2015 WL 4775457, at *14; see also
Damron v. Florida, No. 8:07-cv-2287-T-30TBM, 2009 WL 1514269, at *3 (M.D.
Fla. May 29, 2009) (statement of particulars would not have made a difference in
preparing a defense where the victim described incidents of sexual battery in a
deposition before trial).
The Court finds both that the postconviction court’s determination that there
was no prejudice was not unreasonable and that there was no deficient
performance.
16
Claim V.
Challenging the Location of an Offending Act
Petitioner complains that on cross-examination of the victim, defense
counsel did not inquire into the location where one of the relevant incidents
occurred and did not attempt to investigate the location to establish venue. Dkt. 1
at 23-24. Though, according to Petitioner, defense counsel did challenge venue, he
did so outside the presence of the jury, and, so Petitioner argues, had counsel
challenged venue in the presence of the jury the verdict would have been different.
Dkt. 1 at 24-25.
The postconviction court observed that the defense at trial was the State’s
“rushed and careless investigation.” Dkt. 12-5 at 162. Specifically, the responding
deputy did not take any photographs of the victim’s home, did not go into the
victim’s bedroom, and did not go to “the other location to take photographs or look
at the area.” Id. The deputy further did not speak with the other children at the
home or ask if there were any other adults present that night. Id. More relevant to
Petitioner’s claims, trial counsel argued in closing argument that the State: “didn’t
go out to the fishing place where this occurred, realize there’s a lot of people
hanging out here, this is a boat ramp, there’s a canoe stand here, there’s picnic
tables, this is a park. It doesn’t make sense. Didn’t bother to do any of that.” Id. at
164. In finding no prejudice, the Court concluded:
Even though Counsel did not conduct the investigation as
specifically as [Petitioner] claims she should have, the fact that
17
the State did not investigate those very same things was
presented multiple times to the jury. Furthermore, the
information that could have been gleaned from the
investigation, the proximity of picnic tables, a boat ramp
and the lack of a specific location - was presented to the jury.
Id. The Court finds that this determination was not unreasonable, and that
Petitioner fails to show deficient performance. See Wiggins, 539 U.S. at 521-22.
Claim VI.
Challenging the Victim’s Credibility
Petitioner next argues that trial counsel failed to effectively challenge the
credibility of the victim with the victim’s prior inconsistent statements made
during the discovery deposition and his inability to recall details about one of the
incidents. Dkt. 1 at 27. Specifically, according to Petitioner, during the deposition
the victim stated that Petitioner “picked him up by his ankles with two hands, held
him upside down, and was able to then remove his clothing, or, at least expose his
genitals to perform a sex act on him,” but at trial the victim stated he was unable to
remember much about it. Id. Petitioner reasons that “[a]ny normal person would
reason that if [someone] had actually, truthfully, experienced such a wild event” he
would not forget. Id.
The postconviction court began by noting that trial counsel did in fact
attempt to discredit the victim’s testimony during closing argument with, among
other things, the very inability to recall details that were testified to in the
deposition. Dkt. 12-5 at 156-57. Counsel even suggested the improbability of the
18
event. Id. at 157. The topic also appears to have been effectively addressed—
without spending too much time on a potentially incriminating line of inquiry—on
cross-examination. Dkt. 12-3 at 34-35. It is unclear what else Petitioner seeks, or
how any additional cross-examination would have affected the result of the
proceeding.
The Court finds that the postconviction court’s determination was not
unreasonable. If the postconviction court’s ruling was limited to either the
performance or prejudice prong, the Court nonetheless finds that neither is satisfied
under de novo review.
Claim VII. Investigation into Ulterior Motives
Petitioner next argues that trial counsel was ineffective for failing to
investigate another potential ulterior motive: Petitioner refused a request from the
victim’s stepfather for a loan of $1,800. Dkt. 1 at 33. Petitioner suggests that
perhaps the victim had “been influenced or [coerced] into making the allegations
of sexual misconduct or sexual battery” by the scorned stepfather. Dkt. 1 at 33-34.
The postconviction court found no meritorious Strickland claim after an
evidentiary hearing on the matter. Dkt. 12-6 at 79. Defense counsel actually did
investigate the matter: Counsel testified that they explored the possible motive at
the stepfather’s deposition but that the stepfather did not seem upset about the
money and that they determined it was a “nonissue.” Id. One of the attorneys
19
further testified that she believed the better strategy was to proceed with the
defense that the victim had fabricated the allegations, to which Petitioner agreed.
Id. at 80.
This is a matter of trial strategy, and the postconviction court’s finding of no
deficient performance was not unreasonable. The Court further finds that Petitioner
cannot establish prejudice.
Claim VIII. Incomplete Jury Instructions
Like Claim I, Petitioner raised this ground for the first time in his second
motion for postconviction relief. Petitioner claims that:
the document containing the incomplete jury instruction was
included in the record on appeal provided to the petitioner to
help him prepare the initial brief of the appeal of his denied
3.850 motion. This document was not included with the record
on appeal following the direct appeal. Thus, the incomplete jury
instructions could not be discovered until preparing the initial
brief of the denial of the first 3.850 motion.
Dkt. 13 at 25. The postconviction court found that this did not constitute good
cause for failing to raise the claims in the prior motion. Dkt. 12-8 at 58. The Fifth
DCA per curiam affirmed the postconviction court’s denial of the motion. Dkt. 128 at 94-95. For the reasons discussed in Claim I, Petitioner has defaulted on this
claim. He is moreover unable to establish cause and prejudice or that this is a
substantial claim.
20
Petitioner complains that sections of the physical jury instructions provided
to the jury during deliberations were crossed out. Dkt. 12-1 at 117-18. This
included the following instructions relating to witness credibility:
Has the witness been offered or received any money, preferred treatment or
other benefit in order to get the witness to testify?
Had any pressure or threat been used against the witness that affected the
truth of the witness’ testimony?
Has the witness been convicted of a [felony] [misdemeanor involving
[dishonesty][false statement]]?
Does the witness have a general reputation for [dishonesty] [truthfulness]?
Dkt. 12-1 at 117. The instruction relating to a defendant’s decision not to testify
was also crossed out. Dkt. 12-1 at 118. The trial court did not read these portions to
the jury. Dkt. 12-4 at 116.
Prior to charging the jury, the court discussed these instructions with defense
counsel and the prosecution. Dkt. 12-4 at 66. The court removed the instruction
about defendant not testifying because Petitioner had testified, Dkt. 12-4 at 11, and
the removed credibility instructions were inapplicable. Petitioner’s counsel did not
object and, in fact, suggested that some of the instructions should be removed. Id.
at 67.
Even assuming that trial counsel knew the instructions provided to the jury
included the crossed-out portions, Petitioner does not establish that such marks
somehow inculpated Petitioner or improperly influenced the jury, much less that
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trial counsel was deficient for failing to object. Though Petitioner notes that
“witness credibility was the fundamental and only basis for the jury to make a
decision” and that the victim “experienced much difficulty recalling statements he
had made during [his] discovery deposition, even stating during trial, that he was
unable to remember the details as to what he testified earlier during [his]
deposition,” Dkt. 1 at 38, the jury both heard and was provided with instructions
relating to a witness’s memory and inconsistent statements, Dkt. 12-1 at 117; Dkt.
12-4 at 116. Indeed, none of the removed instructions related to memory.
Petitioner does not establish cause or prejudice, and this is not a substantial
claim.
Claim IX.
A Preliminary Hearing
Petitioner next argues that though the information in his case was not filed
for more than 21 days after his arrest, thus entitling him to an adversarial
preliminary hearing, trial counsel did not request a hearing. Dkt. 1 at 40. A hearing,
Petitioner reasons, would have allowed for the victim’s statements “to be recorded
in court proceedings fresh after the initial report and arrest had been made.” Id.
The postconviction court seemed to analyze Petitioner’s claim as one for a
probable cause hearing at a first appearance, not necessarily an adversarial
preliminary hearing. Dkt. 12-5 at 160-61; compare Fla. R. Crim. P. 3.133(a) with
(b). Yet there would still be no basis for trial counsel to think that the victim would
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make statements at any hearing that are either exculpatory to Petitioner or so
inconsistent with future trial testimony as to further impeach his credibility. See
Weary v. Cain, No. CIV.A. 10-1793, 2011 WL 7416509, at *11 (E.D. La. Apr. 21,
2011), report and recommendation adopted, 2012 WL 601862 (E.D. La. Feb. 22,
2012), aff’d, 587 F. App’x 797 (5th Cir. 2014) (finding no ineffective assistance of
counsel for failure to request preliminary hearing that, under state law, provided
for cross-examination); see also Wilson v. Ala. Dep’t of Corr., No. 2:12-CV02952-RDP-HG, 2013 WL 3479788, at *4 (N.D. Ala. July 10, 2013).
Again, Petitioner is not entitled habeas relief on such conjecture. The
postconviction court’s finding of no prejudice was not unreasonable. The Court
further finds that counsel was not deficient in not requesting a preliminary hearing.
Indeed, there may very well have been strategic reasons for not seeking such an
adversarial hearing and, in any event, it was not deficient performance for counsel
to find that such a hearing was not beneficial to the defense.
Claim X.
Cumulative Error
Petitioner lastly claims cumulative error, a ground that was presented for the
time in the appeal of the first Rule 3.850 motion that was per curiam affirmed. Dkt.
12-7 at 119-20. Even assuming that the claim is itself not defaulted, some of the
underlying grounds Petitioner now brings are defaulted, and Petitioner cites no
authority for the proposition that a cumulative error claim provides an avenue to
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bypass the procedural bar. See Taylor v. Dunn, No. CV 14-0439-WS-N, 2018 WL
575670, at *39 (S.D. Ala. Jan. 25, 2018), certificate of appealability denied, No.
18-11523-P, 2018 WL 8058904 (11th Cir. Oct. 5, 2018), cert. denied, 2019 WL
1083183 (U.S. May 13, 2019) (citations omitted) (“[The petitioner] may not
circumvent the procedural bar by repackaging these improper claims under the
heading of ‘cumulative error.’ If the underlying claims are procedurally barred
(which they are), then the cumulative error claim based on those underlying claims
likewise fails as a matter of law.”).
Furthermore, neither the Supreme Court nor the Eleventh Circuit has
explicitly recognized the cumulative error doctrine for ineffective assistance of
counsel. See Collins v. Buss, No. 3:09CV117/LAC/EMT, 2011 WL 4832536, at
*21 (N.D. Fla. July 18, 2011), report and recommendation adopted, 2011 WL
4832534 (N.D. Fla. Oct. 12, 2011), aff’d, 507 F. App’x 915 (11th Cir. 2013); see
also Forrest v. Fla. Dep’t of Corr., 2009 WL 2568185, at *4 (11th Cir. Aug. 21,
2009). And, in any event, the record before the Court is devoid of error or
ineffective assistance of counsel, at least to such a level as to make out a claim. See
Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Habeas
relief on Petitioner’s final claim is unwarranted.
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CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant,” and if a certificate is issued “the court
must state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Proceedings for
the United States District Courts. The decision to issue a certificate of
appealability requires “an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). A COA may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner “satisfies
this standard by demonstrating that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 327 (citation omitted).
The Court finds that Petitioner does not establish this requirement. The
Court decides not to issue a certificate of appealability in the matter.
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CONCLUSION
The Court DENIES Petitioner’s petition with prejudice. Dkt. 1. The Clerk is
directed to enter judgment accordingly, terminate any pending motions, and close
the file.
DONE AND ORDERED at Tampa, Florida, on June 28, 2019.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
Petitioner, pro se
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