White v. Secretary of Department of Corrections et al
Filing
56
OPINION AND ORDER. The Petition for Habeas Relief filed by William Melvin White 1 is DENIED. The Clerk of the Court shall enter judgment accordingly and close this case. This Court should grant an application for certificate of appealability on ly if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, a Certificate of Appealability is DENIED in this case. Signed by Judge Charlene Edwards Honeywell on 3/11/2014. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLIAM MELVIN WHITE,
Petitioner,
v.
CASE NO. 6:07-cv-1834-Orl-37DAB
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
/
ORDER
This case is before the Court on the Petition for Habeas Corpus Relief (Doc. No.
1), filed by William Melvin White.
Pursuant to the instructions of the Court,
Respondents filed a response (Doc. No. 20) to the Petition for Writ of Habeas Corpus,
arguing that the petition should be dismissed as time-barred. After allowing the parties
to take a deposition and to file further arguments on the matter, the Court entered an
Order (Doc. No. 42) finding that the AEDPA period was equitably tolled from
September 26, 2007, through November 19, 2007, and that the petition was timely filed.
Respondents thereafter filed a response to the merits of Petitioner’s claims (Doc.
No. 48), and Petitioner filed a reply to the response (Doc. No. 53).
hereinafter, the habeas petition will be denied.
As discussed
I.
STATEMENT OF THE FACTS
The facts adduced at trial, as set forth by the Supreme Court of Florida, are as
follows:
White was a member of a Kentucky chapter of the Outlaws, a
motorcycle gang, but was visiting the Orlando chapter. A group of the
Outlaws, accompanied by some girl friends, visited an Orlando nightclub
where they met Gracie Mae Crawford. Gracie Mae accompanied some of
the Outlaws back to their Orlando clubhouse. Soon after returning to the
clubhouse, White retired to a bedroom with his girl friend. Sometime
thereafter White was called by Richard DiMarino who stated that
Crawford liked blacks and that they had to teach her a lesson. White
dressed and went into the kitchen area where he joined DiMarino and
Guy Ennis Smith in severely beating Crawford. Whether DiMarino or
White led the assault is unclear, but one witness testified of White's hitting
Crawford with his fist and knocking her to the floor. After the beating,
DiMarino and White placed Crawford in the middle of the front seat of
White's girl friend's car. White started driving but along the way stopped
the car and DiMarino drove the car to the end of a deserted road. (The
victim, White and DiMarino had done a lot of drinking that evening, but
White's girl friend testified that he knew what he was doing.) After they
stopped the car, DiMarino and White pulled Crawford from the car,
passed her over a barbed wire fence, and laid her on the ground. White
then straddled her, took out his knife, stabbed her fourteen times and slit
her throat. He handed the knife to DiMarino who also cut her throat.
Crawford died as a result of the wounds inflicted upon her.
While leaving the area White and DiMarino ran out of gas at the
Seaworld parking lot and were later identified by Seaworld security
guards who had given them gas. White and DiMarino went back and
picked up the body of the deceased and thereafter discarded it at a
different place. The body was discovered that afternoon.
White v. State, 415 So. 2d 719, 720 (Fla. 1982).
2
II.
Procedural History
Petitioner was charged by indictment with first degree murder. Ex. A-8 at 1376.1
On October 30, 1978, the jury found Petitioner guilty as charged of first degree murder.
See Ex. A-9 at 1582. Following the penalty phase, the jury unanimously recommended
death, and Judge Frederick T. Pfeiffer sentenced Petitioner to death. Id. at 1638.
On direct appeal, Petitioner raised nine claims. Ex. A-12. The Supreme Court of
Florida affirmed the conviction and sentence on April 1, 1982. White v. State, 415 So. 2d
719 (Fla. 1982). The Supreme Court of the United States denied Petitioner’s petition for
writ of certiorari. White v. Florida, 459 U.S. 1055 (1982).
On October 14, 1983, Petitioner filed a motion to vacate judgment and sentence,
which he later amended and supplemented.2 Ex. E-6 at 475. The trial court held an
evidentiary hearing on the matter and ultimately considered twenty-one claims. Ex. E-8
at 1062.
The trial court denied the motion, finding that none of the claims was
meritorious.
1References
to the record will be made by citing to the particular volume and
page of the advanced appendix. For example, “Ex. A-1 at 1” refers to page one of the
volume labeled Exhibit A-1.
2While
the motion was pending in the trial court, Petitioner filed a habeas
petition with the Supreme Court of Florida, arguing that he was entitled to relief based
on Hitchcock v. Dugger, 481 U.S. 393 (1987), because the standard jury instructions given
at his trial restricted mitigating circumstances to those set forth in the sentencing
statute. The trial court stayed further proceedings in the postconviction motion until
final disposition of the habeas petition. The Supreme Court of Florida denied the
petition. White v. Dugger, 523 So.2d 140, 140 (Fla. 1988). The Supreme Court of the
United States denied Petitioner’s petition for writ of certiorari. White v. Dugger, 488 U.S.
871 (1988).
3
On appeal, Petitioner raised eight claims, see Ex. E-12, and the Supreme Court of
Florida affirmed the trial court’s judgment denying relief as to Petitioner’s guilt phase
claims but reversed the trial court’s judgment denying relief as to the Petitioner’s
sentence based on the Hitchcock claim. White v. State, 729 So. 2d 909 (Fla. 1999). The case
was remanded with directions that the trial court conduct a new sentencing proceeding
before a jury.
On November 17-19, 1999, the trial court conducted a new penalty phase at
which the State and Petitioner presented evidence to the jury. On November 19, 1999,
the jury, by a vote of ten to two, recommended that the trial court impose the death
penalty. Ex. F-17 at 327. The trial court subsequently conducted a hearing pursuant to
Spencer v. State, 615 So. 2d 688 (Fla. 1993).3 After hearing all of the evidence, the trial
court followed the jury’s recommendation and sentenced Petitioner to death. Ex. F-17
at 484. The trial court found four aggravating factors: (1) Petitioner was previously
convicted of another felony involving the use or threat of violence to the person; (2) the
capital felony was committed while Petitioner was engaged in the commission of a
kidnapping; (3) the capital felony was especially heinous, atrocious, or cruel; and (4) the
capital felony was committed to disrupt or hinder the enforcement of laws. In
3A
Spencer hearing occurs after the jury has recommended a sentence but before
the judge imposes a sentence. Kormondy v. Sec'y, Florida Dept. of Corr., 688 F.3d 1244,
1271 (11th Cir. 2012). The purpose of a Spencer hearing is as follows: “a) give the
defendant, his counsel, and the State, an opportunity to be heard; b) afford, if
appropriate, both the State and the defendant an opportunity to present additional
evidence; c) allow both sides to comment on or rebut information in any presentence or
medical report; and d) afford the defendant an opportunity to be heard in person.” Id.
4
mitigation, the court found one statutory mitigator and several nonstatutory
circumstances.
On appeal, Petitioner raised five claims. Ex. F-19. The Supreme Court of Florida
affirmed the sentence of death on April 4, 2002. White v. State, 817 So. 2d 799 (Fla. 2002).
The Supreme Court of the United States denied Petitioner’s petition for writ of
certiorari. White v. Florida, 537 U.S. 699 (2002).
On December 16, 2003, Petitioner filed a motion to vacate judgment and
sentence, raising twelve claims. Ex. H-1 at 1. The trial court held an evidentiary
hearing as to the second part of claim five. After the hearing, the trial court entered an
order on August 1, 2005, denying Petitioner’s request for postconviction relief. Ex. H-2
at 213.
Petitioner appealed the denial and raised nine claims. Ex. H-5. The Supreme
Court of Florida affirmed the denial of the postconviction motion. White v. State, 964 So.
2d 1278 (Fla. 2007).
III.
GOVERNING LEGAL PRINCIPLES
Because Petitioner filed his petition after April 24, 1996, this case is governed by
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353
F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential standard
of review of state habeas judgments,” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001),
in order to “prevent federal habeas ‘retrials’ and to ensure that state-court convictions
are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002);
5
see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas
court’s evaluation of state-court rulings is highly deferential and that state-court
decisions must be given the benefit of the doubt).
A.
Standard of Review Under the AEDPA
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court unless the adjudication of the claim:
(1)
resulted in a decision that 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)
resulted in a decision that 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). The phrase “clearly established Federal law,” encompasses only the
holdings of the United States Supreme Court “as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court
decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate
independent considerations a federal court must consider.” Maharaj v. Secretary for
Dep’t. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was
discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835
(11th Cir. 2001):
Under the “contrary to” clause, a federal court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the United
States Supreme Court] on a question of law or if the state court decides a
case differently than [the United States Supreme Court] has on a set of
materially indistinguishable facts. Under the ‘unreasonable application’
6
clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the United States
Supreme Court’s] decisions but unreasonably applies that principle to the
facts of the prisoner's case.
If the federal court concludes that the state court applied federal law incorrectly, habeas
relief is appropriate only if that application was “objectively unreasonable.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if
the state court’s decision “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” A determination of a
factual issue made by a state court, however, shall be presumed correct, and the habeas
petitioner shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
B.
Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to
relief on the ground that his counsel rendered ineffective assistance: (1) whether
counsel’s performance was deficient and “fell below an objective standard of
reasonableness”; and (2) whether the deficient performance prejudiced the defense.5 Id.
at 687-88. A court must adhere to a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Id. at 689-90. “Thus, a
5In
Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court
clarified that the prejudice prong of the test does not focus solely on mere outcome
determination; rather, to establish prejudice, a criminal defendant must show that
counsel’s deficient representation rendered the result of the trial fundamentally unfair
or unreliable.
7
court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of
counsel’s conduct.” Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective
assistance of counsel:
has nothing to do with what the best lawyers would have done. Nor is
the test even what most good lawyers would have done. We ask only
whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial. Courts also should at the
start presume effectiveness and should always avoid second guessing
with the benefit of hindsight. Strickland encourages reviewing courts to
allow lawyers broad discretion to represent their clients by pursuing their
own strategy. We are not interested in grading lawyers’ performances; we
are interested in whether the adversarial process at trial, in fact, worked
adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under
those rules and presumptions, “the cases in which habeas petitioners can properly
prevail on the ground of ineffective assistance of counsel are few and far between.”
Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
IV.
MERITS OF THE PETITION
A.
Claim One
1.
Petitioner’s Allegations and the Disposition of this Claim by the State Courts
Petitioner claims that, at the guilt phase of the trial, the State offered testimony in
violation of Brady4 and Giglio.5 It appears that Richard DiMarino, Petitioner, and Guy
4Brady
v. Maryland, 373 U.S. 83 (1963).
5Giglio
v. United States, 405 U.S. 150 (1972).
8
Ennis Smith were all indicted for the murder of Gracie Mae Crawford.6 According to
Petitioner, DiMarino went to trial separately and was convicted of a lesser charge, and
he agreed to testify against Petitioner and Mr. Smith in order to receive a benefit from
the State.7 Petitioner states that DiMarino’s reasons for agreeing to testify were not fully
disclosed by the State and that, during the trial, the State elicited information from
DiMarino that was false. Petitioner also mentions that a statement by Ann Hicks was
withheld from his trial counsel. In the statement, Hicks allegedly told detectives that the
victim stated that she feared the Outlaws because she knew they had recently killed
another woman. See E-12 at 40. The victim mentioned several individuals in the
Outlaw gang that she feared, and Hicks wrote down those names; however, there was
no mention of Petitioner, and he was not listed.
Petitioner argued in his first motion for postconviction relief that the State failed
to disclose evidence that would have impeached the credibility of DiMarino. Ex. E-6 at
491-92.
The undisclosed evidence included that charges were dropped (or
compromised to no additional time of incarceration), that the State agreed not to pursue
enhanced penalties for any pending charges, and that the State paid DiMarino’s fiancé
6Petitioner
had the nickname “Snivelhead,” Richard DiMarino had the nickname
“Dino,” and Guy Ennis Smith had the nickname “Wolf.” See Ex. A-2 at 283; Ex. A-3 at
405, 416, 465, 477, 482. These individuals were all members of the “Outlaws” gang, see
Ex. A-2 at 294-98, Ex. A-3 at 406-08, and they were identified by these nicknames
during trial. The victim also went by the name “Rose.” Ex. A-3 at 410, 474.
7Richard
DiMarino will be referred to as “DiMarino.” His brother, John
DiMarino, who will be mentioned in this Order, will be referred to as “John DiMarino.”
9
$1000 to enable her to move to the State where DiMarino would be incarcerated.
Petitioner cited to Giglio and Brady.
The trial court held an evidentiary hearing on the postconviction motion and
denied this claim. The trial court found, in relevant parts, as follows:
[D]efense counsel conducted an excellent cross-examination of DiMarino.
White’s attorney showed the jury that DiMarino had much to gain by his
testimony. Defense counsel brought out that DiMarino lied when it was
to his benefit, that he obtained a better sentencing deal via his testimony,
that he would be kept safe from the Outlaws and that his girlfriend and
child would be taken care of. Even though some of the details of the
agreement were not presented to the jury, counsel more than sufficiently
acquainted the jury with the fact that there was an agreement between
DiMarino and the State and counsel introduced most of the agreement’s
major components. The additional material of which Defendant now
complains would not have added to DiMarino impeachment.
Consequently, this court finds there is no reasonable probability that this
evidence, if it had been presented at trial, would have changed the
outcome.
See E-8 at 1068-69.
As to Hicks’ statement, the trial court found that this evidence did
not meet the test for materiality. Her “statement indicated that the victim was afraid of
certain members of the Outlaws, which she listed by name. Allegedly Defendant’s
name was not on that list.
Merely because the victim was allegedly unafraid of
Defendant, does not mean that he did not kill her. There is simply no possibility that
this evidence would have altered the outcome of the trial, especially in light of
DiMarino’s testimony.” Id. at 1069.
Petitioner raised this issue on appeal of the denial of his postconviction motion.
As to the State’s failure to disclose details of the deal with DiMarino, the Supreme Court
of Florida agreed with the trial court’s analysis regarding the materiality of the evidence
10
and found “that the cumulative effect of the State’s failure to disclose the [evidence did]
not undermine our confidence in the jury’s conviction.” White v. State, 720 So. 2d 909,
913 (Fla. 1999). The Supreme Court of Florida did not find any error under Brady or
Giglio. As to the State’s failure to disclose the statement of Hicks, the Supreme Court of
Florida agreed with the trial court’s analysis regarding the materiality of this evidence.
2.
Analysis of Brady Claim
Initially, the Court notes that Petitioner merely alleges in the instant habeas
petition that DiMarino “agreed to testify . . . in order to receive a benefit from the state”
and that the reasons for his decision to testify were not fully disclosed to his counsel as
required by Brady. See Doc. No. 1 at 5. Petitioner provided no further facts or legal
argument in support of his claim. In an abundance of caution, the Court will review the
more specific factual and legal argument raised by Petitioner in the state courts with
regard to this matter.
Here, Petitioner claims that the State did not meet its Brady obligations in failing
to disclose the following:
(1) the State agreed not to seek enhanced punishment
although DiMarino qualified as a habitual offender and to drop other charges; (2) a
$1,000 payment to DiMarino’s wife (girlfriend) to enable her to move to the State where
DiMarino would be incarcerated; and (3) the statement of Hicks. See E-6 at 492.
“Brady requires the state to disclose material exculpatory evidence in its
possession. The duty to disclose required by Brady includes the disclosure of evidence
that may be used for impeachment purposes and evidence that may be used to attack
the thoroughness and even the good faith of the investigation[.]” Consalvo v. Secretary
11
for Department of Corrections, 664 F.3d 842, 844-45 (11th Cir. 2011) (quotation omitted)
(citations omitted). To obtain relief on his Brady claim, Petitioner must “establish (1) the
government possessed evidence favorable to him; (2) the defendant did not possess the
evidence and could not have obtained it with reasonable diligence; (3) the government
suppressed the favorable evidence; and (4) the evidence was material.” Lamarca v.
Sec'y, Dep't of Corr., 568 F.3d 929, 941 (11th Cir. 2009) (quotation omitted). “Evidence
would be material if it is reasonably probable that a different outcome would have
resulted if the government had disclosed the evidence. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Ferguson v. Sec'y for the
Dep't of Corr., 580 F.3d 1183, 1205–06 (11th Cir.2009) (quotations and citation omitted).8
With respect to the State’s agreement with DiMarino and the payment to
DiMarino’s girlfriend, the trial court found, and the state supreme court affirmed, that
this evidence was not material.
Petitioner’s counsel conducted a thorough cross-
examination of DiMarino, and counsel showed the jury that DiMarino had much to gain
by his testimony. Petitioner’s counsel brought out many matters regarding the benefits
provided to DiMarino and his propensity to tell lies.
8Giglio
is closely related and dictates that the presentation of known false
evidence violates due process and is ‘incompatible with rudimentary demands of
justice.’” Consalvo, 664 F.3d at 845. Further, as will be discussed, Giglio requires a Brecht
analysis; however, “no Brecht analysis is needed for Brady violations, for the Supreme
Court has held that a showing of materiality under Brady necessarily establishes actual
prejudice under Brecht. Trepal v. Sec'y, Florida Dept. of Corr., 684 F.3d 1088, 1112 (11th
Cir. 2012). In particular “a Brady error cannot be harmless under Brecht because ‘a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different’ necessarily entails the conclusion that the
suppression must have had ‘substantial and injurious effect or influence in determining
the jury's verdict.’” Id. at 1113 (quotation omitted) (citation omitted).
12
DiMarino admitted that he was “prone to tell lies” and that he only told the truth
when it “suits his fancy.” See A-3 at 505-06. In addition, DiMarino testified that he
received a substantial sentencing benefit and immunity as a result of his testimony. Id.
at 506-07, 527; A-4 at 664-65. Further, DiMarino and his girlfriend had been threatened,
and the State agreed to send DiMarino to a prison out-of-state and to “take care of”
DiMarino’s child and girlfriend. Id. at 508, 516-18; A-4 at 664. It was also revealed that
DiMarino had been arrested numerous times and convicted of between 5 and 10
felonies. A-4 at 657-58, 674. The jury was informed that the felonies included robbery,
rape, kidnapping, carrying a concealed weapon, the murder charge in the instant case, a
drug charge, and disorderly conduct charges. Id. at 675.
Clearly, the jury was aware that DiMarino had entered into an agreement with
the State, which involved a substantial sentencing benefit, immunity, and the State
taking care of DiMarino’s girlfriend and child. The jury was also aware that DiMarino
had been convicted of multiple felonies and was prone to tell lies.
Any omissions regarding DiMarino's agreement with the State had, at most, a
very slight effect on the jury's verdict.
Here, Petitioner has not shown that it is
reasonably probable that a different outcome would have resulted with the disclosure
of these other matters. Consequently, the Court finds that Petitioner has failed to
demonstrate materiality under Brady.
Likewise, Petitioner has not shown that it is reasonably probable that a different
outcome would have resulted with the disclosure of Hicks’ statement (i.e., that it was
material). Merely because the victim did not fear Petitioner did not mean that he did
13
not murder her. In fact, the victim correctly predicted her own death at the hands of the
Outlaws, a gang to which Petitioner belonged. Thus, the admission of this statement
could have actually harmed Petitioner, not helped him.
In addition, there was testimony that Petitioner was not a member of the
Orlando chapter of the Outlaws; rather, he was a member of the Louisville chapter of
the Outlaws and was “just visiting” the Orlando chapter. See Ex. A-2 at 294; Ex. A-4 at
607.
Consequently, Petitioner’s exclusion from Hicks’ list may not have been
significant, particularly when it is not clear how well Petitioner and the victim knew
each other prior to the murder. As a result, the significance of this matter is highly
speculative.
Under the circumstances, the Court finds that the state court's rejection of this
issue does not reflect an unreasonable determination of the facts, nor was it contrary to,
or an unreasonable application of, federal law.
3.
Analysis of Giglio Claim
Petitioner argues that DiMarino testified falsely and that the State was aware of
the false testimony. Doc. No. 1 at 5. Petitioner provided no specifics in support of this
claim; however, in the reply, Petitioner states that DiMarino “lied about his and the
Petitioner’s relative culpability and that he had been an active confidential informant
for the State of Florida at the time of the Petitioner’s trial.” Doc. No. 53 at 18.
In Giglio, the Supreme Court held that, when the prosecution solicits or fails to
correct known false evidence, due process requires a new trial when “the false
testimony could in any reasonable likelihood have affected the judgment of the jury.”
14
405 U.S. at 154 (quotation and citation omitted) (ellipsis omitted). “Giglio error is a
species of Brady error that occurs when the undisclosed evidence demonstrates that the
prosecution's case included perjured testimony and that the prosecution knew, or
should have known, of the perjury.” Ventura v. Attorney Gen., Fla., 419 F.3d 1269, 127677 (11th Cir. 2005) (quotation and citation omitted).
A habeas petitioner must
establishing the following: “(1) the prosecutor knowingly used perjured testimony or
failed to correct what he subsequently learned was false testimony; and (2) such use
was material, i.e., that there is any reasonable likelihood that the false testimony could
have affected the judgment.” Guzman v. Sec'y, Dept. of Corr., 663 F.3d 1336, 1348 (11th
Cir. 2011) (quotation omitted) (citation omitted) (ellipsis omitted).
“The Giglio materiality standard is `different and more defense-friendly’ than the
Brady materiality standard.” Trepal v. Sec'y, Florida Dept. of Corr., 684 F.3d 1088, 1108
(11th Cir. 2012).
As to Brady violations, “the defendant must show a reasonable
probability the result would have been different, but for Giglio violations, the defendant
has the lighter burden of showing that there is any reasonable likelihood that the false
testimony could have affected the jury's judgment. The Brady materiality standard is
substantially more difficult for a defendant to meet than the ‘could have affected’
standard under Giglio.” Id. (quotation and citation omitted). Further, since Giglio error
is trial error, when considering a Giglio claim, relief can be granted only when “(1) the
petitioner establishes that a Giglio error occurred, and (2) that error had ‘substantial and
injurious effect or influence in determining the jury's verdict.’ Brecht [v. Abrahamson],
507 U.S. [619], 637 [1993].” Id. at 1112.
15
DiMarino stated at trial that he, Petitioner, Guy Enis Smith (“Wolf”) and the
victim were in the kitchen.9 A-3 at 476-77. He and Petitioner did not like certain
comments made by the victim, and, as a result, DiMarino admitted that he and
Petitioner “smacked” the victim in the face. Id. Petitioner and Wolf continued to “beat
up [the victim] pretty bad,” and, a short time later, DiMarino, Petitioner, and the victim,
who was still alive, left the house and drove to a deserted road where they all exited the
vehicle. Id. at 477-87. DiMarino and Petitioner then helped the victim get over a fence,
where she fell down and was “laying on the ground face up.” Id. at 487-90. Petitioner
pulled out his knife, straddled the victim, and then stabbed her repeatedly. Id. at 490.
DiMarino admitted that he and Petitioner both cut the victim’s throat. Id. at 491-92.
DiMarino’s testimony implicated himself in the murder and showed that he was
actively involved in the victim’s murder.
DiMarino also admitted that he knew Detective Jim Holloman and that he had
known Detective Holloman “for some time prior to the” crime. Id. at 509. DiMarino
denied being a confidential informant, but Petitioner’s counsel introduced deposition
testimony of Detective Holloman in which the detective stated that DiMarino was a
confidential informant. Id. at 514. In response, DiMarino stated that he had “done
something” for Detective Holloman but that he actually “ran a skam [sic]” on the
detective. Id. at 515. DiMarino stated that he “tricked” the detective in order to “make
9The
kitchen was inside a house located on Surfside Way in Orange County,
Florida. Ex. A-2 at 280-81. The house served as clubhouse for the Outlaws. Ex. A-3 at
406. The house belonged to Joseph Watts (“Wildman”), a member of the Orlando
chapter of the Outlaws, and Julie, his girlfriend or wife. Ex. A-2 at 297.
16
money.” Id.
Clearly, the jury was aware that DiMarino was some kind of informant
for law enforcement.
Petitioner has not shown conclusively that perjury occurred. Further, he has not
shown that the prosecutor suborned perjury. Moreover, if any falsities in DiMarino's
testimony had any effect at all upon the jury's verdict, it was very slight. Assuming
without deciding that DiMarino’s testimony was improper, it certainly did not have, as
the Brecht test requires, “a substantial and injurious effect or influence in determining
the jury's verdict.” Brecht, 507 U.S. at 623. Even assuming arguendo that Petitioner
could establish a Giglio violation, it was harmless.
Accordingly, Petitioner is not
entitled to habeas relief.
Under the circumstances, it cannot be said the decision of the state courts with
regard to this matter was contrary to, or involved an unreasonable application of,
clearly established federal law, or resulted in a decision 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).
B.
Claim Two
Petitioner asserts that newly discovered evidence exculpates him from the
murder. Petitioner states that Frank Marasa, a member of the Outlaws, heard DiMarino
state, the day after the victim’s murder, that he had to “get rid of a girl last night.”
According to Petitioner, DiMarino was holding a woman’s wig at the time he made this
statement.
17
This claim was raised in the motion for postconviction relief filed by Petitioner
after his resentencing. The trial court found that the claim was procedurally barred.
According to the trial court, Petitioner “failed to explain why his proposed witness,
Frank Marasa, could not have been discovered by diligent efforts either prior to trial, in
preparation of his 1983 postconviction motion, or through an amendment to his 1983
postconviction motion.” Ex. H-2 at 217. The trial court also found that Petitioner did
not prevail on either prong of the newly discovered evidence test. Id.
The Supreme Court of Florida found that newly discovered evidence claims
could be raised in successive postconviction motions but that the alleged evidence did
not meet either prong of the newly discovered evidence test. White, 964 So. 2d at 1285.
The function of a federal habeas corpus court is to redress constitutional errors,
not to relitigate state criminal cases.
Herrera v. Collins, 506 U.S. 390, 401 (1993).
Consequently, “[c]laims of actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding.” Id. at
400. A claim of actual innocence is not normally used as a freestanding basis for habeas
relief, but rather as a reason to excuse the procedural default of an independent
constitutional claim. Id. at 404. Nevertheless, in Herrera, the Supreme Court assumed,
“for the sake of argument in deciding this case, that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the execution of a
defendant unconstitutional, and warrant federal habeas relief if there were no state
avenue open to process such a claim.” Id. at 417.
18
The Eleventh Circuit Court of Appeals in Mize v. Hall, 532 F.3d 1184, 1195 (11th
Cir. 2008) discussed the standard of review:
The Supreme Court, of course, has never decided what the precise burden
of proof for a freestanding actual innocence claim would be. However,
the Court has indicated that it would necessarily be more difficult to
establish a freestanding actual innocence claim than it is to establish actual
innocence under the fundamental miscarriage of justice exception to the
procedural default doctrine. See House v. Bell, 547 U.S. 518, 126 S. Ct. 2064,
2087, 165 L.Ed.2d 1 (2006). To satisfy this lesser standard (which itself
applies “only in the extraordinary case,” House, 126 S. Ct. at 2077), Mize
would have to demonstrate that “it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable
doubt.” Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 867, 130 L.Ed.2d
808 (1995). In other words, he would have to show it is probable that,
given the new evidence, no reasonable juror would have convicted him.
Petitioner’s new evidence does not establish freestanding actual innocence. As
discussed above, DiMarino testified that he struck the victim in the kitchen, that he
helped take the victim to the deserted area where she was killed, that he helped her
over the fence, and that he cut her throat. DiMarino’s alleged statement to Marasa the
day after the murder that “he had to get rid of a girl last night” was not inconsistent
with DiMarino’s trial testimony and does not exculpate Petitioner.
Further, DiMarino’s brother, John DiMarino, testified that he spoke with
DiMarino the day after the murder and that DiMarino told him that “he had to take care
of some business the night before, which was the girl you mentioned. I know her by
Rose, don’t remember her real name.” Ex. A-4 at 605. John DiMarino also stated that
DiMarino told him that he (DiMarino) “had slit her throat and stabbed her.” Id. at 605.
Thus, the jury heard evidence that DiMarino made a statement the day after the murder
regarding “taking care of business” as it related to the victim and slitting her throat.
19
Under the circumstances, Marasa’s statement was cumulative of the testimony of John
DiMarino. As a result, the Court concludes that it is not probable that no reasonable
juror would have convicted Petitioner based on Marasa’s statement. Upon the record,
Petitioner fails to meet the “extraordinarily high” threshold that a freestanding claim of
actual innocence must have.
Moreover, Petitioner does not adequately explain the delay in discovering this
evidence.
It does not appear that he had been in any manner precluded from
discovering this evidence over the many years between his conviction and the filing of
his second motion for postconviction relief. Thus, Petitioner has not shown that this
claim was pursued with due diligence or that, in fact, it was new evidence, as opposed
to old evidence only recently discovered because of a lack of due diligence.
Under the applicable AEDPA standards, Petitioner is not entitled to habeas
relief.
The ruling of the state courts on Petitioner’s claim regarding his newly
discovered evidence/actual innocence was not contrary to, or an unreasonable
application, of clearly established federal law.
Nor was the ruling based on an
unreasonable determination of the facts.
C.
Claim Three
Petitioner argues that his constitutional rights were violated when a juror at
resentencing was struck based solely on the fact that English was not her primary
language.
This claim was raised in the motion for postconviction relief filed by
20
Petitioner after resentencing (claim eight).10 Ex. H-1 at 35. The trial court denied the
claim because the juror indicated that “her feelings about the appropriateness of the
death penalty would interfere with her ability to participate as a part of the jury that
would make the sentencing decision and that she did not believe she could do it.” Ex.
H-2 at 227. On appeal, the Supreme Court of Florida affirmed, determining that to “the
extent that White raises a substantive claim on this juror’s excusal, that claim is
procedurally barred because it should have been raised on direct appeal.” White, 964
So. 2d at 1290.11
The federal court must dismiss those claims or portions of claims that either (1)
have been explicitly ruled procedurally barred by the highest state court considering
the claims, or (2) are not exhausted but would clearly be barred if returned to state
court. Thus, "[f]ederal courts are precluded from addressing claims that have been held
to be procedurally defaulted under state law. In addition, federal courts may not
address claims that have not been presented in state court if the state court would have
found the claims to be procedurally defaulted . . . ." Tower v. Phillips, 7 F.3d 206, 210
(11th Cir. 1993).
10Petitioner
also argued in a separate claim (claim seven) in his postconviction
motion that counsel was ineffective for agreeing to strike a prospective juror because
English was not her primary language. Ex. H-2 at 26. In the present case, Petitioner did
not argue that counsel was ineffective with regard to this matter.
11The
Supreme Court of Florida also found “that counsel was not ineffective
because the prospective juror clearly stated on the record that she did not think that she
could follow the law were she to serve on the jury.” White, 964 So. 2d at 1290.
21
This claim is procedurally barred because the Supreme Court of Florida so
determined in its opinion affirming the denial of Petitioner’s motion for postconviction
relief. There are two exceptions to the procedural default bar. First, a petitioner may
overcome a procedural default by showing “both ‘cause’ for the default and actual
‘prejudice’ resulting from the default.” Henderson v. Campbell, 353 F.3d 880, 892 (11th
Cir. 2003). The second exception, known as the “fundamental miscarriage of justice,”
only “occurs in an extraordinary case, where a constitutional violation has resulted in
the conviction of someone who is actually innocent.” Id.
In the present case, Petitioner has neither alleged nor shown either cause or
prejudice that would excuse the default. Likewise, Petitioner has neither alleged nor
shown the applicability of the actual innocence exception. A review of the record
reveals that the Petitioner is unable to satisfy either of the exceptions to the procedural
default bar. Therefore, this claim is denied.
Alternatively, this claim is denied on the merits. The record refutes the assertion
that Ms. Fuentes (the prospective juror) was struck solely on the basis that she was
having language difficulties. During voir dire, she indicated that she believed that life
in prison was more severe punishment than a death sentence. Ex. F-1 at 91-92. Fuentes
stated that her feelings about the appropriateness of the death penalty would interfere
with her ability to make a sentencing decision and that she did not believe she could
make a decision regarding a death sentence. Id. at 93. Fuentes also stated that she was
a “Christian person” and that “my beliefs would be because one of the commandments
is thou should not kill somebody. This guy killed somebody. The law here in this
22
world is different. Right, you kill, we have to kill you.” Id. at 97. When asked if she
would have the courage to “stick by her vote” no matter what, Fuentes stated “Well, I
don’t know what to say.” Id. at 95.
“The test for determining juror competency is whether a juror can lay aside any
bias or prejudice and render a verdict solely on the evidence presented and the
instructions on the law given by the court. A juror must be excused for cause if any
reasonable doubt exists as to whether the juror possesses an impartial state of mind.”
Ault v. State, 866 So. 2d 674, 683 (Fla. 2003) (citations omitted). Moreover, an individual
may not serve as a juror in a capital case if his or her views on the death penalty
“prevent or substantially impair the performance of his or her duties as a juror in
accordance with the juror's instructions or oath.” Fernandez v. State, 730 So.2d 277, 281
(Fla. 1999).
In the present case, the record reveals Fuentes did not think she could follow the
law were she to serve on the jury. Further, her views on the death penalty would have
prevented or substantially impaired her ability to act in accordance with the
instructions of the court and her oath as a juror. Her remarks cast a broad shadow of
doubt on her ability to be fair and impartial. As a result, her dismissal was proper, and
this claim is without merit.12
12In
addition, Petitioner has failed to demonstrate that the decision of the state
courts in rejecting this claim was contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme Court of the United
States.
23
D.
Claim Four
Petitioner claims that counsel was ineffective for failing to call Joseph Watts and
Mark Markham as witnesses during the resentencing proceedings. Petitioner states that
Watts would have testified that DiMarino had confessed the murder to him, and he
would have supported the evidence of Petitioner’s alcoholism and impaired mental
state. Petitioner states that Markham was his co-defendant in the Tennessee homicide
case, and he would have testified that, while Petitioner was present, Petitioner did not
participate in the killing.13 Petitioner raised this claim in his motion for postconviction
relief, filed after resentencing (claims three and five).
The trial court denied the Watts issue because of the following: the issue was
speculative; the testimony would have been consistent with DiMarino’s testimony and
cumulative to other evidence; and it was unlikely that the testimony would have
resulted in a recommendation of life.
Ex. H-2 at 219.
The trial court denied the
Markham issue because of the following: counsel had investigated Markham; counsel
did not believe Markham was credible; counsel believed that calling more “Outlaws” as
witnesses would be damaging to the defense; and counsel made the decision to present
Markham’s testimony at the Spencer hearing. Id. at 222-24. On appeal, the Supreme
Court of Florida affirmed, determining that Watts’ testimony was consistent with
DiMarino’s testimony at the guilt and resentencing phases of the trial and that Watts
13As
previously discussed, one of the aggravating factors was that Petitioner was
previously convicted of another felony involving the use or threat of violence to the
person. Petitioner was convicted of the second degree murder of Jim Valentino in
Tennessee.
24
was described by counsel as unpredictable and uncontrollable. White, 964 So. 2d at
1286. The Supreme Court of Florida also found that resentencing counsel made a
reasonable, tactical decision after full investigation not to call Markham before the jury.
Id. at 1287-88.
1.
Testimony of Watts
According to Petitioner, “Watts’ testimony was that Richard DiMarino had
confessed the murder to him,” and his testimony “would have cast a shadow on the
State’s theory of the case that William White had killed [the victim] by impeaching
DiMarino’s testimony regarding their respective roles and by demonstrating the
likelihood that DiMarino directed and conducted the killing of [the victim].” Doc. No.
53 at 25-26.
The proposed testimony of Watts would have been consistent with DiMarino’s
proposed testimony and cumulative to other evidence presented at the resentencing
proceeding.
At the resentencing proceeding, DiMarino testified that he drove the
vehicle that took the victim to the location where she was murdered, that he assisted the
victim to the area where she was murdered, that he slit the victim’s throat (after
Petitioner had done so), and that he was convicted of third degree murder for his
involvement in the crime.
See Ex. F-7 at 919, 922, 924, 930, 958.
Further, John
DiMarino’s 1978 guilt phase testimony was published to the jury, and John DiMarino
testified that the day after the murder his brother, DiMarino, told him that “he had to
take care of some business the night before,” that “he had slit her throat and stabbed
her,” and that Petitioner “drinks a lot.” Id. at 1058, 1061.
25
In addition, it does not appear that Watts’ testimony would have been
beneficial because, at the Spencer hearing, Watts testified that he believed DiMarino’s
motivation for telling him that he had killed the victim was “to brag.” Ex. F-16 at 133.
Watts specifically described DiMarino as wanting “to brag, you know. He thought he
was Mr. Everybody.” Id. DiMarino’s propensity to brag casts doubt as to the credibility
of his statement to Watts, and it is unlikely that this testimony would have changed the
outcome of the jury’s sentencing recommendation. Moreover, Watts never testified
(and Petitioner has never so indicated) that DiMarino stated that Petitioner did not
participate in the murder or that Petitioner did not inflict the fatal wound and other
wounds.
Further, Petitioner’s counsel, Chandler Muller, testified at the evidentiary
hearing on the motion for postconviction relief that he did not call Watts as a witness
because “he was totally unpredictable and uncontrollable.” Ex. H-1 at 151. Muller was
also concerned about presenting the testimony of witnesses, i.e., members of the
Outlaws, “who the prosecution might be able to paint in an extremely unsympathetic
light.” Id. at 152. Co-counsel, Bryan Park, testified that it was his opinion (and that of
Mr. Muller) that the more “Outlaws” they called as witnesses, the more damaging it
would be to the defense. Ex. H-2 at 204. According to Park, “there was the chance of
[Petitioner] getting dirty just by association.” Id.
As a result, Petitioner has failed to advance a persuasive argument that the
failure to call Watts was an unreasonable decision by counsel or that this decision can
be construed as conduct outside the wide range of professional representation.
26
Additionally, in light of the discussion above, it is apparent that Petitioner has failed to
demonstrate prejudice.
The testimony of Watts would have been cumulative and
would not have been beneficial. Further, it is apparent that this testimony would not
have changed the outcome of the proceedings. Therefore, this issue is without merit.
2.
Testimony of Markham
According to Petitioner, Markham would have testified that, while Petitioner
was present during the Tennessee homicide, Petitioner “did not participate in the
killing and only helped Markham in getting rid of the body.” Doc. No. 53 at 26.
Markham testified at the Spencer hearing.
He stated that he committed the
Tennessee homicide and that, while Petitioner was present, Petitioner did not
participate in the killing; rather, Petitioner only assisted Markham in getting rid of the
body. Ex. F-16 at 110-12.
Muller was well-aware of Markham, and he carefully considered whether to
present him as a witness during the jury portion of the resentencing. Chris Cox, an
investigator working on the case with Muller, met with Markham prior to resentencing,
and Cox and Muller discussed the details of the meeting. Ex H-1 at 113, 124, 178.
Muller himself also met with Markham and discussed the specifics of the Tennessee
homicide. Id. at 118. Muller even listed Markham as a potential witness, arranged for
him to travel down to Florida for the resentencing trial, and kept Markham around
during the proceedings. Id at 120, 131, 167-68.
Ultimately, after thorough investigation and consideration, Muller decided that
“it would help Mr. White to have Mr. Markham’s testimony for probably a host of
27
reasons in front of the Judge” and not the jury. Id. at 136. Muller was “worried” about
Markham: “The reason I didn’t call Mr. Markham, something bothered me and I can’t,
you know my best recollection is that it was because he was going to get up there and
say he shot this guy and that there was the plea colloquy. And my focus in this case
was all the stuff that Mr. White went through in his life, and, you know, the other
evidence that we presented at trial.”
Id. at 140.
Muller was also concerned that
Markham’s testimony would conflict with the autopsy report and his plea. Id. at 118.
In particular, Markham stated that he alone shot the victim; however, the autopsy
report did not reflect any gunshot wounds, only stabbing wounds. Id.
Ultimately, Muller “didn’t want to focus” on the Tennessee homicide; instead,
his focus at resentencing was to present the mitigating circumstances of Petitioner’s
“horrible” childhood. Id. at 116-17. Muller reiterated that “I wanted the Judge to hear
what [Markham] had to say, but I didn’t want the jury to.” Id.
Park testified that he met with Markham and that Cox had a lot of contact with
Markham. Id. at 192, 197. Markham was concerned about having to answer questions
unrelated to the Tennessee homicide and being badgered on cross-examination. Ex. H2 at 203-04. Park was also concerned about having too many Outlaws testify because
Petitioner could get “dirty just by association.” Id. at 204.
It was reasonable trial strategy for counsel not to present the testimony of
Markham to the penalty-phase jury, but to instead present his testimony at the Spencer
hearing. Muller thoroughly investigated this matter, and he did not believe Markham
would make a good witness. Moreover, Muller wanted to focus on other mitigating
28
evidence and not on the Tennessee homicide. Muller arranged for Markham to come to
Florida to testify, and Markham would have been available if needed. Ultimately,
Muller decided not to present Markham’s testimony to the jury. Muller’s strategic
decision not to present Markham’s testimony after a full investigation was reasonable,
and there has been no showing that counsel acted in any manner deficiently with
regard to this matter. Further, there has been no showing of prejudice.
Under the circumstances, as to both of these issues, Petitioner has not shown that
the state court determinations have resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States, or resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceedings. Thus, Petitioner is not entitled to relief with regard to these
issues.
V.
CONCLUSION
The Court finds that the claims raised in the instant petition are without merit
and must be denied with prejudice.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Petition for Habeas Relief filed by William Melvin White (Doc. No. 1)
is DENIED.
2.
The Clerk of the Court shall enter judgment accordingly and close this
case.
29
3.
This Court should grant an application for 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). Petitioner has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, a Certificate of Appealability is DENIED in this case.
DONE AND ORDERED in Orlando, Florida, this 11th day of March, 2014.
Copies to:
OrlP-2 3/11
Counsel of Record
30
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