Carter v. Secretary, Department of Corrections et al
Filing
37
ORDER granting 23 Motion to dispense with evidentiary hearing; evidentiary hearing scheduled for 5/26/11 is CANCELLED; write of habeas corpus ad testificandum is VACATED; Claim Nine is GRANTED; Writ of habeas corpus will be conditionally GRANTED; clerk shall enter judgment accordingly and close the case. Signed by Judge Gregory A. Presnell on 5/16/2011. (TKW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LAWRENCE F. CARTER,
Petitioner,
v.
CASE NO. 6:09-cv-468-Orl-31KRS
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
This case is before the Court on Respondents' Motion to Dispense With Evidentiary
Hearing (Doc. No. 23) and Petitioner's Response (Doc. No. 33). Respondents assert that the
Court may not hold an evidentiary hearing pursuant to Cullen v. Pinholster, 131 S.Ct 1388
(2011), issued on April 4, 2011 (Doc. No. 23 at 1). Respondents argue that pursuant to
Pinholster, federal district courts may not hold evidentiary hearings in which new evidence
is considered when the claim at issue was adjudicated on the merits in the state court.
In Pinholster, the United States Supreme Court addressed whether habeas review
“under § 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing
before the federal habeas court.” 131 S. Ct at 1398. The Supreme Court held that “review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.” Id.; see also Atkins v. Clarke, No. 10-1870, 2011 WL 1419127, at *2-3
(1st Cir. Apr. 13, 2011) (rejecting the appellant’s claim that adjudication on the merits
requires a full and fair evidentiary hearing held in the state court and finding that under
Pinholster, an evidentiary hearing was not warranted in the federal district court); Jackson
v. Kelly, No. 10-1, 10-3, 2011 WL 1534571, at *12 (4th Cir. Apr. 25, 2011) (noting that
pursuant to Pinholster, when a claim is adjudicated on the merits in the state court, the
federal court is precluded from supplementing the record with facts adduced for the first
time at a federal evidentiary hearing); Diggs v. Secretary, Dept. of Corr., No. 8:10-cv-1235-T33EAJ, 2011 WL 1532165, at *7-8 (M.D. Fla. Apr. 22, 2011) (noting that review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim
on the merits).
The Pinholster Court further stated that its holding did not render § 2254(e)(2)
superfluous. 131 S. Ct. at 1400. The Court noted that “[s]ection 2254(e)(2) continues to
have force where § 2254(d)(1) does not bar federal habeas relief. For example, not all
federal habeas claims by state prisoners fall within the scope of § 2254(d), which applies
only to claims “adjudicated on the merits in State court proceedings.” Id. at 1401. The
Court also stated that “[a]t a minimum, therefore, § 2254(e)(2) still restricts the discretion
of federal habeas courts to consider new evidence when deciding claims that were not
adjudicated on the merits in state court.” (citations and footnote omitted). The “AEDPA’s
statutory scheme is designed to strongly discourage” state prisoners from submitting new
evidence in federal court. Id.
Petitioner asserts that the state court decision was not an adjudication on the merits
under 28 U.S.C. § 2254(d) because the state court denied claim nine for failing to state a
prima facie claim of actual prejudice (Doc. No. 33 at 7). This Court disagrees. Petitioner
raised the claim at issue here in his Rule 3.850 motion for post-conviction relief (App. L).
The state trial court denied the claim on the merits, finding that a reasonable likelihood did
not exist that Maddox's testimony would have produced a different outcome in the case
“given the weight of the other evidence against Defendant and the evidence available to
impeach both Defendant’s testimony and Maddox’s proposed trial testimony - any one of
the three pill bottles contained sufficient weight of hydrocodone to support the conviction
for trafficking and, of course, it is not legal for any member of the general public to possess
any amount of crack cocaine or powder cocaine.”(App. P).1 Because claim nine was denied
on the merits, this Court concludes, pursuant to Pinholster, that an evidentiary hearing is
not appropriate.
Petitioner nevertheless maintains that he is entitled to relief because the state court
decision was contrary to federal law as established in Strickland v. Washington, 466 U.S. 668
(1984) (Doc. No. 33 at 6). Specifically, Petitioner argues that his claim satisfies both the
performance and prejudice prongs of Strickland. Id. Additionally, Petitioner asserts that
the state court decision resulted in an unreasonable determination of the facts in light of
the evidence presented in the state court proceeding. Id. at 9-10. The Court agrees.
Evidence about the testimony of a putative witness must generally be presented in
the form of actual testimony by the witness or an affidavit. Here, Petitioner provided the
1
Although the state court found that any one of the three bottles of hydrocodone
contained sufficient weight to support a conviction for trafficking in hydrocodone,
Petitioner had a valid prescription for one of the bottles of hydrocodone. A valid
prescription is a defense to trafficking in hydrocodone. O’Hara v. State, 964 So. 2d 839
(Fla. 2d DCA 2007). Petitioner alleges that the other two bottles belonged to Maddox,
who had valid prescriptions for both bottles.
3
Court with the affidavit of Maddox (Doc. No. 12, Ex. D), in which he attested that on June
4, 2004, Petitioner picked him up and drove him to Dr. Kahn’s office, where they both had
appointments. Id. After the appointments, both filled their prescriptions. Id. Maddox
attested that he had two prescriptions for hydrocodone, one for 7.5 mg and one for 10 mg.
Id. Maddox also attested that he peeled the prescription labels from the bottles and left the
bottles in the compartment located above the passenger seat in Petitioner’s vehicle. Id.
Finally, Maddox attested that Petitioner received several phone calls from Alvin Hankins
(“Hankins”), who asked for a ride, and soon thereafter Petitioner dropped him off so that
he could pick up Hankins. Id. Maddox stated that he told Petitioner he would submit to
a deposition and would testify on his behalf. Id.
The record reveals that at trial, Investigator Blissett testified that after a search of
Petitioner’s vehicle was conducted, officers found two large pill bottles and one smaller pill
bottle containing hydrocodone (App. B at T 146). One bottle contained Petitioner’s valid
prescription, and the other two were unlabeled. Id. at T 148-49. Petitioner testified on his
own behalf that he had a prescription for hydrocodone. Id. at T 216-19. On crossexamination he testified that one of the pill bottles belonged to a man named James
Maddox. Id. at T 237-38. Petitioner stated that he drove Maddox to the doctor, where
Maddox also received a prescription for hydrocodone. Id. at T 238. Petitioner testified that
Maddox tore the label off of the bottle. Id. at T 239. Petitioner did not know from where
the third pill bottle had come. Id. at T 240-41.
4
Petitioner was convicted of trafficking in more than 28 grams and less than 30
kilograms, of hydrocodone, a first degree felony subject to a twenty-five year mandatory
minimum term of imprisonment. § 893.135(1)(c)(1)(c), Fla. Stat. (2004). Had Maddox
testified at trial consistent with his affidavit, his testimony would serve to exonerate
Petitioner from liability under count one. Thus, in light of the evidence before this Court,
the Court concludes that trial counsel was ineffective for failing to investigate or call
Maddox as a witness at trial. Moreover, counsel’s failure to call Maddox resulted in
prejudice, as there is a reasonable probability that Petitioner would not have been
convicted of trafficking in hydrocodone if there were valid prescriptions for all three bottles
of hydrocodone seized from his vehicle. The Court finds the state court’s determination of
this claim was contrary to, or an unreasonable application of, Strickland and resulted in an
unreasonable determination of the facts in light of the evidence presented.2 See Beck v.
Nooth, No. CV 08-636-KI, 2011 WL 1456164, at *8-11 (D. Or. Apr. 14, 2011) (concluding that
under Pinholster, review pursuant to § 2254(d) is limited to the record that was before the
state court and granting habeas relief because there was a reasonable probability that, had
trial counsel investigated petitioner’s competence and requested a hearing, petitioner
would have been found incompetent and would not have entered the guilty plea).
Petitioner has met his burden under § 2254(d), and habeas relief is warranted.
Accordingly, it is ORDERED AND ADJUDGED as follows:
2
The state court's conclusion that Maddox's testimony would not have produced
a reasonable likelihood of a different outcome is without substantive support.
5
1.
Respondents’ Motion to Dispense With Evidentiary Hearing (Doc. No. 23) is
GRANTED.
2.
The April 4, 2011, Order (Doc. No. 15) is VACATED to the extent that the
Court ordered an evidentiary hearing to be held on claim nine. The evidentiary hearing
scheduled for May 26, 2011, at 9:30 a.m. in Orlando Courtroom 5A is CANCELLED.
3.
The Writ of Habeas Corpus Ad Testificandum, issued by the Court on March
14, 2011 (Doc. No. 17) is VACATED.
4.
Claim Nine of the Petition for Writ of Habeas Corpus filed by Lawrence F.
Carter (Doc. No. 1) is GRANTED to the extent that the Court finds trial counsel to have
rendered ineffective assistance by failing to investigate and call James Maddox as a witness
at trial.
5.
The writ of habeas corpus will be conditionally GRANTED with regard to
claim nine, for the reasons discussed above, within NINETY (90) DAYS from the date of
this Order, unless the State of Florida grants Petitioner a new trial on count one in the state
court consistent with the law.
6.
The Clerk shall enter judgment accordingly and is directed to close this case.
DONE AND ORDERED in Orlando, Florida this 16th day of May, 2011.
Copies to:
OrlP-3 5/16
Lawrence F. Carter
Counsel of Record
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