Larzelere v. Secretary, Department of Corrections et al
Filing
32
ORDER denying 5 Amended petition for writ of habeas corpus filed by Virginia Gail Larzelere; case dismissed with prejudice; certificate of appealability is DENIED. Signed by Judge Gregory A. Presnell on 8/18/2011. (TKW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
VIRGINIA GAIL LARZELERE,
Petitioner,
-vs-
Case No. 6:09-cv-775-Orl-31KRS
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
/
ORDER
This case is before the Court on Petitioner’s amended petition for habeas corpus
relief pursuant to 28 U.S.C. section 2254 (Doc. No. 5). Upon consideration of the amended
petition, the Court ordered Respondents to show cause why the relief sought therein
should not be granted. Thereafter, Respondents filed a response in compliance with this
Court's instructions and with the Rules Governing Section 2254 Cases in the United States
District Courts (Doc. No. 15). Petitioner filed a reply (Doc. No. 23) to the response.
Petitioner alleges eight claims for relief in her habeas petition:
1) the State
“unconstitutionally amended” the indictment “thru [sic] jury instruction and closing
argument” (claim one); 2) she received ineffective assistance of trial counsel (claims two,
four, and six); 3) she received ineffective assistance of appellate counsel (claim three); 4)
the prosecutor used perjured testimony (claim five); 5) “the combination of procedural and
substantive error deprived” her of a fair trial (claim seven); and 6) the preponderance of
evidence did “not equate [to] a conviction” (claim eight).
I.
Statement of the Facts
The facts adduced at trial, as set forth by the Supreme Court of Florida, are as
follows:
The appellant was married to Norman Larzelere (the victim), a dentist,
and she worked as the office manager for his dentistry practice. On March
8, 1991, at approximately one o'clock in the afternoon, a masked gunman
came into the victim's dental office, chased the victim, shot him with a
shotgun, and fled. The victim died within a short time after being shot. At
the time of the shooting, a dental assistant, a patient, and the appellant were
in the office.
The appellant and her adult son, Jason Larzelere,FN1 were charged
with the victim's murder. The State's theory was that the appellant and Jason
conspired to kill the victim to obtain approximately $2 million in life
insurance and $1 million in assets. Jason and the appellant were tried
separately. The appellant was tried first.
FN1. Jason Larzelere was adopted by the victim after he and the appellant
were married.
The State presented the following evidence at the appellant's trial.
Two men testified that they had affairs with the appellant during her
marriage to the victim and that the appellant asked them to help her have her
husband killed. Two other witnesses, Kristen Palmieri and Steven Heidle,
were given immunity and testified to a number of incriminating actions and
statements made by the appellant and Jason regarding the murder.
Specifically, their statements reflected that the night before the murder the
appellant sent Jason to a storage unit to pick up documents, which included
the victim's will and life insurance policies; that the appellant told Jason after
the murder, “Don't worry, you'll get your $200,000 for taking care of
business”; that the appellant told both witnesses that Jason was the gunman
and that he “screwed up . . . he was supposed to be there at 12:30, but he was
a half hour late, so [the dental assistant] and a patient were there. That's why
I had to fake a robbery.”; that the appellant directed the two witnesses to
2
dispose of a shotgun and a .45 handgun by having them encase the guns in
concrete and dump them into a creek; and, that, in the days following the
murder, Jason and the appellant reenacted the murder, with Jason playing
the role of the gunman and the appellant playing the role of the victim. With
Heidle's assistance, police recovered the guns from the creek but were unable
to conclusively determine whether the shotgun was the murder weapon.
Additional testimony reflected that the appellant gave several
conflicting versions of the murder to police, with differing descriptions of the
gunman and the vehicle in which he left. The patient who was present at the
time of the murder heard the victim call out just after he was shot, “Jason, is
that you?”
It was further established that over the six-year period preceding the
murder, the appellant obtained seven different life insurance policies on the
victim and that within the six months preceding his death, the appellant
doubled the total amount payable on his life from over $1 million to over $2
million. Although the victim assisted in obtaining these policies, it was
shown that the appellant was the dominant motivator in securing the
policies. In addition, evidence was introduced to show that the appellant
gave false information and made false statements to obtain the policies (in
securing the policies she falsely represented to several insurance agents that
pre-existing policies had been cancelled, did not exist, or were being replaced
by the new policy). Further, soon after the victim's death, the appellant filed
a fraudulent will, which left the victim's entire estate to the appellant. The
fraudulent will was prepared on the same date one of the largest insurance
policies on the victim's life became effective.
In her defense, the appellant presented evidence in an attempt to show
that her inconsistent versions of the murder were due to her state of mind
due to the distress of having just lost her husband; that the victim assisted in
obtaining all of the insurance policies; that the appellant's lovers did not
think she was serious about having her husband killed; that Heidle and
Palmieri were not believable and perjured themselves; and that Heidle and
Palmieri were unable to obtain incriminating statements from the appellant
after they had been requested to do so by police.
Larzelere v. State, 676 So. 2d 394, 398-99 (Fla. 1996).
I.
Procedural History
3
Petitioner and Jason Larzelere were charged by indictment with first degree murder.
(Appendix A at 4.) A jury trial was held, and Petitioner was found guilty as charged.1 Id.
at 436. Following the penalty phase, the jury recommended death by a vote of seven-tofive. Id. at 446. The trial judge found two factors in aggravation (cold, calculated, and
premeditated and committed for financial gain) but found no statutory mitigating factors,
although ceratin nonstatutory mitigating factors were found. Finding that the two
aggravating factors outweighed the relatively minor mitigating evidence, the trial judge
sentenced Petitioner to death. Id. at 1273-97. Petitioner filed a direct appeal with the
Supreme Court of Florida, which affirmed her conviction and sentence of death. See
Larzelere v. State, 676 So. 2d 394 (Fla. 1996).
Petitioner next filed a motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850 with the state trial court and later filed an amended motion for
postconviction relief, raising fourteen claims in total. (Appendix H at 389-517.) The state
trial court entered an order denying some of the claims and scheduling the remaining
claims for an evidentiary hearing. Id. at 667-713.2 Petitioner was then allowed to submit
two additional claims (XV and XVI). An evidentiary hearing was held, and the trial court
entered an order denying claims IB, ID, II (paragraphs 3, 4, and 5), IIIB (new evidence of
1
Following Petitioner’s trial, Jason Larzelere was tried and acquitted of all charges.
2
In particular, claims IC; IE; II paragraphs 5 (experts), 6, 7, and 8; IIIB (dual
representation, limiting visitors, and preventing procurement of new counsel); IIIC; IVB
(except paragraphs j, hh and xx); IVC paragraph 8 (CCP); V (incompetent mental health
exam), and VI-XIII were denied. An evidentiary hearing was scheduled as to the
remaining claims.
4
monetary interests), IIID, IIIE, IVB (paragraphs j, hh, and xx), XIV, XV, and XVI, and
granting a new penalty phase proceeding based on claims IVC (pargraphs 7, 9, and 10) and
V (provided inadequate and false background information). Id. at 3343-81.
The State appealed the ruling and Petitioner cross-appealed and filed a state petition
for a writ of habeas corpus. The Supreme Court of Florida affirmed the trial court’s order
denying relief relative to Petitioner’s conviction, affirmed the trial court’s order insofar as
it vacated her death sentence and remanded for a new sentencing proceeding before a jury,
and denied the petition for a writ of habeas corpus. See State v. Larzelere, 979 So. 2d 195
(Fla. 2008). The State subsequently determined that it would not seek a death sentence,
and, on August 1, 2008, the trial court sentenced Petitioner to life imprisonment with the
possibility of parole after twenty-five years. (Appendix N.)
II.
Legal Standards
A.
Standard of Review Under the Antiterrorism Effective Death Penalty Act
(“AEDPA”)
Pursuant to the AEDPA, federal 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
5
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’ 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.
Even if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was “objectively unreasonable.”3 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
3
In considering the “unreasonable application”inquiry, the Court must determine
“whether the state court's application of clearly established federal law was objectively
unreasonable.” Williams, 529 U.S. at 409. Whether a state court's decision was an
unreasonable application of law must be assessed in light of the record before the state
court. Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685,
697 n. 4 (2002) (declining to consider evidence not presented to state court in determining
whether its decision was contrary to federal law).
6
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.4 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 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
4
In 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
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).
C.
Exhaustion and Procedural Default
One procedural requirement set forth in the AEDPA precludes federal courts, absent
exceptional circumstances, from granting habeas relief unless the petitioner has exhausted
all means of available relief under state law. 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526
U.S. 838, 842-22 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). Specifically, the AEDPA
provides, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted unless it
appears that–
(A)
the applicant has exhausted the remedies available in the
courts of the State; or
(B)
(I)
there is an absence of available State corrective process;
or
(ii)
circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
8
Thus, a federal court must dismiss those claims or portions of claims that have been
denied on adequate and independent procedural grounds under state law. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). In addition, a federal habeas court is precluded from
considering claims that are not exhausted but would clearly be barred if returned to state
court. Id. at 735 n.1 (stating that if the petitioner failed to exhaust state remedies and the
court to which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred, there is a
procedural default for federal habeas purposes regardless of the decision of the last state
court to which the petitioner actually presented his claims).
In order to satisfy the exhaustion requirement, a state petitioner must “fairly
presen[t] federal claims to the state courts in order to give the State the opportunity to pass
upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513
U.S. 364, 365 (1995) (citing Picard, 404 U.S. at 275-76) (internal quotation marks omitted).
The petitioner must apprise the state court of the federal constitutional issue, not just the
underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d
732 (11th Cir. 1998). The United States Supreme Court has observed that “Congress surely
meant that exhaustion be serious and meaningful.” Keeney v. Tamayo-Reyes, 504 U.S. 1, 10
(1992). Furthermore, the Court explained:
[c]omity concerns dictate that the requirement of exhaustion is not satisfied
by the mere statement of a federal claim in state court. Just as the State must
afford the petitioner a full and fair hearing on his federal claim, so must the
petitioner afford the State a full and fair opportunity to address and resolve
the claims on the merits.
9
Id.; see also Henderson v. Campbell, 353 F.3d 880, 898 n.25 (11th Cir. 2003) (“Both the legal
theory and the facts on which the federal claim rests must be substantially the same for it
to be the substantial equivalent of the properly exhausted claim.”).
Procedural default will be excused only in two narrow circumstances. First, a
petitioner may obtain federal review of a procedurally defaulted claim if he can show both
“cause” for the default and actual “prejudice” resulting from the default. “To establish
‘cause’ for procedural default, a petitioner must demonstrate that some objective factor
external to the defense impeded the effort to raise the claim properly in the state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To establish “prejudice,” a petitioner
must show that there is at least a reasonable probability that the result of the proceeding
would have been different. Henderson, 353 F.3d at 892 (citations omitted).
The second exception, known as the “fundamental miscarriage of justice,” only
occurs in an extraordinary case, where a “constitutional violation has probably resulted in
the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986).
Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States,
523 U.S. 614, 623 (1998). To meet this standard, a petitioner must “show that it is more
likely than not that no reasonable juror would have convicted him” of the underlying
offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, “‘[t]o be credible,’ a claim of
actual innocence must be based on [new] reliable evidence not presented at trial.” Calderon
v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).
III.
Analysis
10
A.
Claims One and Five
Petitioner alleges in claim one that the State “unconstitutionally amended” the
indictment “thru jury instruction and closing argument” and in claim five that the
prosecutor used perjured testimony. In claim one, she states that the trial court improperly
allowed “a conspiracy instruction,” that she was never charged with a conspiracy, and that
this “constructive amendment to the indictment” was improper. In claim five, she states
that the State used perjured testimony from Mr. Heidle and mentions that the State
acknowledged that Mr. Heidle had lied during closing arguments.
Claims one and five were raised in Petitioner’s motion for postconviction relief and
were found to be procedurally barred.5 Thus, claims one and five are procedurally barred
in this Court.
In the present case, Petitioner has not shown either cause or prejudice that would
excuse the default. Likewise, Petitioner has neither alleged nor shown the applicability of
the actually innocent exception. The entire record has been reviewed, and the Court
concludes that Petitioner is unable to satisfy either of the exceptions to the procedural
default bar. Therefore, claims one and five are denied.
B.
Claims Two, Four, and Six
Petitioner contends that she received ineffective assistance of counsel because of the
following: 1) trial counsel, Jack Wilkins, was impaired during trial because he consumed
large amounts of alcohol and drugs (claim two); 2) Mr. Wilkins labored under conflicts of
5
Claim one was raised as claim XVI, and claim five was raised as part of claim I.
11
interest (claim four); and 3) Mr. Wilkins engaged in criminal activities during his
representation of Petitioner (claim six). These claims were raised in Petitioner’s motion for
postconviction relief and were denied. The Supreme Court of Florida affirmed the denial.
1.
Claim Two
Petitioner states that Mr. Wilkins was impaired during trial because he consumed
large amounts of alcohol and drugs during the trial. Whether Mr. Wilkins in fact used
alcohol or drugs and whether he was imparied during Petitioner's trial was far from settled
in the state postconviction proceedings.
Petitioner’s sister, Jeanette Lee Atkinson, testified at the evidentiary hearing that she
observed Mr. Wilkins drinking in his office during trial and that Mr. Wilkins “smelled like
alcohol” after coming out of a bond hearing. (Appendix H at 6027-28.) However, Ms.
Atkinson did not report the matter to Petitioner. Id. at 6059. DorrieJean Muller, a court
observer who was interested in writing a book about the case and observed the entire trial,
testified that she smelled alcohol on Mr. Wilkins one time after a lunch break; however, she
did not notice a decline in Mr. Wilkins’ performance. Id. at 6075-78, 6086-87.
Patsy Antley, Petitioner’s sister, testified that she went to lunch with Mr. Wilkins
during the trial and that he consumed three to four drinks of straight liquor; however, she
did not report his drinking to anyone. Id. at 6129-30, 6133-34. Gladys Jackson, who worked
for Mr. Wilkins as an officer manager, bookkeeper, and receptionist, testified that Mr.
Wilkins consumed alcohol in his office; that he was a social, not heavy, drinker; and that,
during Petitioner’s trial, he probably had a drink at the office on a Friday afternoon. Id. at
12
5582-88.
Leslie Hess, who was the second-chair prosecutor, testified that he and Dorothy
Sedgwick, the lead prosecutor, noticed that, at one point during the trial, Mr. Wilkins
smelled of alcohol. Id. at 6096. He and Ms. Sedgwick decided to watch Mr. Wilkins
carefully; however, they did not notice any “substandard performance,” and Mr. Hess
noted that it was only on one day that he smelled alcohol. Id. at 6097-98. He did not bring
the matter to the court’s attention because he did not believe that “just smelling something”
meant that there would be an effect on the trial. Id. at 6098-99.
Ms. Sedgwick testified that she smelled alcohol on Mr. Wilkins’ breath one time after
lunch during the trial. Id. at 6473-74. She discussed the matter with Mr. Hess, and they
decided to watch Mr. Wilkins very closely. Id. at 6475. She did not notice any deficiencies
in his performance on that or any other day during trial. Id. at 6509.
Dennis Harris, who had been represented by Mr. Wilkins in a state court criminal
proceeding, stated in an affidavit and deposition that Mr. Wilkins told him that he was
using methamphetamine during 1991 through 1992; that Mr. Wilkins also informed him
that he was using cocaine during this time-frame; that Mr. Wilkins admitted using drugs
before visiting him at the jail; and that he never saw Mr. Wilkins using or buying drugs.
Id. at 3052-53, 3323, 3359-60.6
6
Another individual, Ronald Bilberry, Jr. stated in a handwritten affidavit that he
regularly supplied Mr. Wilkins with cocaine up to the time of Petitioner’s trial. Id. at 325359. He also stated that he regularly provided Mr. Wilkins with methamphetamine after
Petitioner’s trial. However, it appears that the trial court did not allow Petitioner to
supplement the record with this affidavit. See id. at 3321-24 (Trial Court’s Order of June 15,
13
Kimberly Fletcher, who had a dating relationship with Mr. Wilkins at the time of the
trial, testified that Mr. Wilkins was a heavy drinker but that he would never drink during
a trial. Id. at 6491-94. John R. Howes, co-counsel representing Petitioner at trial, testified
that he did not observe Mr. Wilkins drink during breaks in Petitioner’s trial; that he never
saw Mr. Wilkins drink more than three drinks in one sitting; and that he never saw Mr.
Wilkins drink to the point that it affected him. Id. at 5454-5458. He never saw Mr. Wilkins
consume alcohol during Petitioner’s trial, and he never had any concerns about Mr.
Wilkins’ ability to pursue the legal issues in the case. Id. at 5519-5523.
Mr. Wilkins testified that, during Petitioner’s representation, he occasionally had a
drink in his office. Id. at 5696. He stated that he never drank alcohol during Petitioner’s
trial, although he usually had a glass of wine with dinner. Id. at 5825. He also never drank
to the point of being hungover the next morning or where someone might smell alcohol on
his breath the next morning. Id.
The Court notes that “[u]nder Strickland the fact that an attorney used drugs is not,
in and of itself, relevant to an ineffective assistance claim. The critical inquiry is whether,
for whatever reason, counsel's performance was deficient and whether that deficiency
prejudiced the defendant.” Berry v. King, 765 F.2d 451, 454 (5th Cir. 1985). Here, the
prosecutors testified that, although they smelled alcohol on Mr. Wilkins on one occasion,
they watched Mr. Wilkins closely and he was not intoxicated during the trial. Petitioner
was unable to present any credible evidence to the contrary, and there was insufficient
2004).
14
evidence to support Petitioner's claim that her representation was deficient because Mr.
Wilkins was intoxicated during the course of the trial.
Further, this claim suffers a fatal flaw: Petitioner failed to argue in any definitive
way how she was prejudiced. To prevail on this claim, Petitioner must show that she was
prejudiced by her attorney's conduct. See Strickland, 466 U.S. at 668. Here, Petitioner does
not cite to one specific fact or instance which, as a result of counsel's errors, would have
undermined the outcome of her trial. Thus, there has been no showing that counsel acted
deficiently with regard to this matter or that she sustained prejudice. As such, the state
court's rejection of this claim was not contrary to, nor did it involve an unreasonable
application of, clearly established Supreme Court precedent, nor was it based upon an
unreasonable determination of the facts in light of the evidence presented.
2.
Claim Four
Petitioner states that Mr. Wilkins labored under conflicts of interest based on several
matters: a) there was a dual representation of Petitioner and Jason Larzelere; b) there was
“dual representation of [Petitioner in] the criminal . . . and civil cases”; c) there was
“misdealing with clients’ monies”; d) counsel was convicted of tax evasion; e) counsel
failed to hire trial experts; f) counsel abused alcohol and drugs; and g) counsel engaged in
illegal activities that eventually caused him to resign from the Florida Bar.
“In order to establish an ineffective assistance of counsel claim arising from an
alleged conflict of interest, a defendant ‘must demonstrate that an actual conflict of interest
adversely affected his lawyer's performance.’” Lightbourne v. Dugger, 829 F.2d 1012, 1023
15
(11th Cir. 1987) (quoting Oliver v. Wainwright, 782 F.2d 1521, 1524 (11th Cir. 1986)). A
potential, speculative, or hypothetical conflict is insufficient. Cuyler v. Sullivan, 446 U.S.
335, 350 (1980). The mere possibility of a conflict of interest “is insufficient to impugn a
criminal conviction.” Cuyler, 446 U.S. at 350. Thus, the petitioner must show that his
attorney had an actual conflict of interest and that this conflict adversely affected the
attorney’s performance. The Eleventh Circuit Court of Appeals in Smith v. White, 815 F.2d
1401, 1404 (11th Cir. 1987), set forth the following analysis:
We will not find an actual conflict [of interest] unless appellants can
point to specific instances in the record to suggest an actual conflict or
impairment of their interests . . . . Appellants must make a factual showing
of inconsistent interests and must demonstrate that the attorney made a
choice between possible alternative courses of action, such as eliciting (or
failing to elicit) evidence helpful to one client but harmful to the other. If he
did not make such a choice, the conflict remained hypothetical.
(citations omitted); see also Cuyler 446 U.S. at 348 (holding that the petitioner must point to
specific instances in the record that "demonstrate that an actual conflict of interest
adversely affected his lawyer's performance.”).
a.
Issue a
According to Petitioner, there was a conflict of interest as a result of the dual
representation of her and Jason Larzelere. At trial, Petitioner was represented by two
attorneys, Mr. Wilkins and Mr. Howes; both attorneys also represented Jason Larzelere in
his criminal case. The trial judge extensively advised and questioned Petitioner about the
potential for conflict resulting from the dual representation, after which the trial judge
made a specific finding that Petitioner knowingly and intelligently waived the right to raise
16
any apparent or possible conflicts. (Appendix C at 635-55.) After being fully advised by
the trial court as to the potential conflict, Petitioner clearly stated that she wanted both Mr.
Howes and Mr. Wilkins to represent her and that she was willing to waive any claims of
conflict.
Later, in particular after the jury recommended a sentence of death, Petitioner
sought to revoke the waiver and requested new counsel. Id. at 6576. The trial judge found
that no conflict of interest (or other basis) existed to warrant discharge of counsel. Id. at
6609-11. Additionally, the trial court found that Petitioner’s claims were meritless and that
there had been no showing of ineffective or incompetent counsel that would warrant
discharging counsel. Id. at 6611.
Under the circumstances, the trial judge properly denied Petitioner’s request to
discharge counsel. First, Petitioner did not show that she was prejudiced by the dual
representation, particularly since her sentence of death was later overturned. Moreover,
the trial judge conducted a hearing on the matter and specifically found that Petitioner’s
claims were meritless and that counsel was competent with regard to her assertions.
Finally, it is apparent that there was a valid waiver of any conflict that might have arisen
out of the representation by both attorneys. See McCorkle v. United States, 325 F. App’x 804,
807 (11th Cir. 2009) (a waiver is valid if the defendant was aware of the conflict of interest,
realized the conflict could affect the defense, and was aware of the right to obtain other
counsel).
b.
Issue b
17
Petitioner states that there was “dual representation of [Petitioner in] the criminal
. . . and civil cases.“
Although not clearly articulated, Petitioner appears to argue that a
conflict arose because Mr. Wilkins allegedly represented Petitioner’s sister, Jeanette
Atkinson, at the same time he was representing Petitioner.
Petitioner has not provided any evidence that Mr. Wilkins represented Ms. Atkinson
during the time he represented Petitioner in her criminal case. Ms. Atkinson testified at the
evidentiary hearing that she became involved with Mr. Wilkins due to his representation
of Petitioner in her criminal case; in particular, she signed the fee agreement regarding Mr.
Wilkins’ representation of Petitioner and physically handled matters that Petitioner could
not. (Appendix H at 6013, 6047.) Petitioner had waived her rights to certain insurance
proceeds and named Ms. Atkinson as the “next contingent person in order for [Mr.
Wilkins] to take the case.” (Appendix H at 6013.) According to Ms. Atkinson, Mr. Wilkins
agreed that his fees, costs, and expenses for his representation of Petitioner in her criminal
case would be payable “contingent” on the insurance proceeds being paid out. Id.
However, Ms. Atkinson acknowledged that Mr. Wilkins received a 1991 Nissan Pathfinder
and $17,000 as part of the representation agreement.7 Id. at 6014.
After Mr. Wilkins was retained to represent Petitioner, Ms. Atkinson hired attorney
John Stidham’s law firm to handle the insurance matter, the child custody case (involving
the two youngest Larzelere children), and the probate of Dr. Larzelere’s estate. Id. at 6015,
7
The $17,000 came from when Petitioner turned in another vehicle under the Lemon
Law and received the Pathfinder. Apparently, the difference in value between the turnedin vehicle and the Pathfinder was $17,000. Id. at 6014.
18
6047-48, 6244-46. Mr. Wilkins had referred Mr. Stidham to Ms. Atkinson. Id. at 6247.
However, Mr. Wilkins later suggested that the insurance matter be transferred to another
law firm in order to get the insurance money faster and because there was a concern about
the same lawyers handling all these matters at once. Id. at 6015-16, 6048. As a result, the
insurance matter was transferred to attorney Kent Lilly.8 Id. at 6016.
Clearly, Mr. Wilkins’ involvement with Ms. Atkinson did not amount to a
representation by Mr. Wilkins of Ms. Atkinson. Petitioner has not shown that there was
a conflict of interest or that Mr. Wilkins’ involvement with Ms. Atkinson adversely affected
counsel’s performance.
c.
Issue c
Petitioner also mentions that Mr. Wilkins was involved in financial misdealings and
implies that he was under financial pressure during his representation of Petitioner.
However, Ms. Jackson, Mr. Wilkins’ office manager, testified that, although the office
account was “running low” during Petitioner’s trial, they managed to pay all of the
expenses to keep the office running. Id. at 5609-10. She did not recall ever telling Mr.
Wilkins that a requested action in the case could not be done because of insufficient funds.9
Id. at 5619.
Petitioner has not demonstrated that Mr. Wilkins was under any financial pressure
8
Only the insurance matter went to Mr. Lilly. Id. at 6048-49.
9
Ms. Jackson did state that, aside from a “small advance” from Mr. Stidham, who
was handling the insurance matter, and a 1991 Pathfinder, no money was received for
Petitioner’s case. Id. at 5606-07.
19
during the time of her trial or that Mr. Wilkins was involved in any financial misdealings
with regard to her case. As a result, there has been no showing of a conflict of interest with
regard to this matter.
d.
Issue d
Petitioner vaguely asserts that the “tax evasion” charges against Mr. Wilkins created
a conflict of interest. However, Mr. Wilkins testified at the evidentiary hearing that he was
not aware of the federal investigation at the time he represented Petitioner. Id. at 5876-77.
Petitioner has not provided any evidence supporting her assertion that any tax evasion
charges pending against Mr. Wilkins created a conflict of interest.
e.
Issue e
Petitioner next states that counsel failed to hire experts. This issue is without merit.
Petitioner has not shown that the failure to hire expert witnesses was due to financial
conflicts or was the result of a conflict of interest. Ms. Jackson testified that, although
money may have been low, the operating expenses were always met. Mr. Wilkins testified
that he did not seek indigency status for costs and expenses because his employment
contract for taking Petitioner’s case contained payment provisions for those types of costs
and expenses. Id. at 5797-99. Moreover, assuming he had wanted to hire any experts, Mr.
Wilkins stated that he would have petitioned the trial court to pay the expert fees. Id. at
5802. Further, Mr. Wilkins testified to his reasons for not hiring experts, namely that he did
not believe it would have assisted the defense of “a foiled robbery attempt.” Id. at 5814-17.
20
In particular, he stated “[t]here were no areas that I felt needed an expert witness.” Id. at
5773. This was reasonable trial strategy, and Petitioner has not shown that the failure to
hire experts adversely affected her case.
Petitioner also has not proven that Mr. Wilkins failed to hire experts because of a
financial conflict resulting from the fee arrangement and his personal financial problems
or that Mr. Wilkins had an interest in not hiring experts based on financial concerns.
Consequently, there has been no showing of a conflict of interest with regard to this issue.
f.
Issue f
Petitioner stated that a conflict of interest occurred because of his abuse of alcohol
and drugs. Mr. Wilkins’ use of alcohol and drugs was discussed previously, and there has
been no showing of a conflict of interest with regard to this issue.
g.
Issue g
Petitioner mentions that Mr. Wilkins was engaged in illegal activities that eventually
caused him to resign from the Florida Bar. However, Petitioner has not demonstrated that
Mr. Wilkins’ involvement in “illegal activities” during the time of her trial (including his
eventual disbarment and prosecution for tax evasion) created an actual conflict of interest.10
Aside from conjecture, Petitioner presents no evidence that these illegal activities created
a conflict of interest in her case.
10
Mr. Wilkins testified that he was convicted of twelve counts of money laundering,
one count of obstruction of justice, one count of income tax evasion, and two counts of
perjury. Id. at 5817. Petitioner also presented evidence that Mr. Wilkins was asked by the
Florida Bar to respond to a complaint during Petitioner’s trial, id. at 6174-75, 6183-85, and
that Mr. Wilkins subsequently resigned from the Florida Bar. Id. at 6187.
21
The Court further finds that, with regard to all of these issues, Petitioner has not
pointed to specific instances in the record that demonstrate that an actual conflict of interest
adversely affected her lawyer's performance. As such, the state court's rejection of this
claim was not contrary to, nor did it involve an unreasonable application of, clearly
established Supreme Court precedent, nor was it based upon an unreasonable
determination of the facts in light of the evidence presented.
3.
Claim Six
Petitioner states that Mr. Wilkins engaged in criminal activities during his
representation of her.
The Court discussed this claim in part with regard to claim four. As discussed, Mr.
Wilkins testified that he was unaware of the federal investigation at the time of Petitioner’s
trial, and Ms. Jackson testified that the office’s ongoing operating expenses were always
covered. Ms. Jackson also testified that there was no impropriety with any financial
matters relating to Petitioner’s case. Id. at 5615. The evidence showed that Mr. Wilkins had
no knowledge of the federal charges, that his office operating expenses were being met
during his representation of Petitioner, and that there was no indication of any financial
pressure on Mr. Wilkins or that he engaged in any financial misdealing with regard to
Petitioner’s case. Thus, Petitioner has not shown that counsel acted deficiently with regard
to this matter or that she sustained prejudice. Consequently, the state court's rejection of
this claim was not contrary to, nor did it involve an unreasonable application of, clearly
established Supreme Court precedent, nor was it based upon an unreasonable
22
determination of the facts in light of the evidence presented.
C.
Claim Three
Petitioner alleges that she received ineffective assistance of appellate counsel
because counsel failed to argue on direct appeal that the State unconstitutionally amended
the charge in the indictment through jury instructions and closing argument. This claim
was raised in Petitioner’s petition for writ of habeas corpus, which was denied.
It is well established that a defendant has the right to effective counsel on appeal.
Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984). The standard for analyzing
ineffective assistance claims is the same for trial and appellate counsel.
Matire v.
Wainwright, 811 F.2d 1430, 1435 (11th Cir. 1987). The Eleventh Circuit has applied the
Supreme Court's test for ineffective assistance at trial to guide its analysis of ineffective
assistance of appellate counsel claims. Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991).
According to Petitioner, the trial court’s reading of a conspiracy instruction and the
State’s closing argument referencing the instruction impermissibly expanded the grounds
on which she could be convicted from the charges set forth in the indictment. The trial
judge gave the conspiracy instruction because the standard principal-by-hire instruction
used the term co-conspirator: “Now, over at the principal instruction, I have done some
research on this, and I’m concerned that we’re using the term co-conspirator in that
instruction, and yet but for the instruction that was earlier given, included the definition
of conspiracy, there is no definition as it relates to this instruction of the elements of
conspiracy.” (Appendix C at 5771.) The instruction provided, in part, as follows:
23
If the defendant paid or promised to pay another person or persons
to commit a crime, the defendant must be treated as if she had done all of the
things the person who received or was promised the payment did if, one, the
defendant knew what was going to happen, two, she made or promised the
payment in exchange for the commission, or promised to the [sic] commit the
crime or to help commit the crime, and three, the crime was committed by a
co-conspirator.
To be a principal, the defendant does not have to be present when the
crime is committed.
In considering the application of this above described instruction on
principals to this case, the elements of the limited definition of criminal
conspiracy that you must determine have been proven beyond a reasonable
doubt are that, one, the intent of the defendant and of the co-conspirator, was
that the offense that was the object of the conspiracy, to wit, first degree
murder, would be committed, and two, in order to carry out the intent, the
defendant and the co-conspirator agreed, conspired, combined, or
confederated to cause said offense to be committed, either by them or one of
them, or by some other co-conspirator.
It is not necessary that the agreement, conspiracy, combination, or
confederation to commit that offense be expressed in any particular words,
nor that words passed between the defendant and co-conspirator.
It would not be necessary that the defendant do any act in the
furtherance of the offense conspired.
It is a defense to a charge of criminal conspiracy that a defendant, after
conspiring with one or more persons to commit the offense that was the
object of the alleged conspiracy, persuaded the alleged co-conspirators not
to do so, or otherwise prevented commission of the offense that was the
object of the conspiracy.
Id. at 5897-98.
The indictment charged both Petitioner and Jason Larzelere with the murder of
Norman Larzelere. (Appendix A at 4.) Under Florida law,
a person is a principal in the first degree whether he actually commits the
24
crime or merely aids, abets or procures its commission, and it is immaterial
whether the indictment or information alleges that the defendant committed
the crime or was merely aiding or abetting in its commission, so long as the
proof establishes that he was guilty of one of the acts denounced by the
statute.
State v. Roby, 246 So. 2d 566, 571 (Fla. 1971). Further, “[i]n order to be guilty as a principal
for a crime physically committed by another, one must intend that the crime be committed
and do some act to assist the other person in actually committing the crime.” Staten v. State,
519 So. 2d 622, 624 (Fla. 1988). In addition, “[i]n order to convict the aider-abettor it is not
necessary to show that the principal perpetrator was convicted of the same crime, nor is
it even necessary to show that he was convicted at all.” Potts v. State, 430 So. 2d 900, 902
(Fla. 1982).
In the present case, Petitioner could have been convicted as charged based on the
State proving beyond a reasonable doubt that she intended that Dr. Larzelere be murdered
and that she did some act to assist the person who actually killed him. Consequently, the
jury instructions were proper and correctly presented the charges against Petitioner to the
jury. The instructions were not a constructive amendment to, or fatal variance from, the
indictment. As a result, appellate counsel was not ineffective for failing to argue this claim
on direct appeal. As noted by the Supreme Court of Florida, “[t]his Court would not have
found any error in the trial court’s instructions or the State’s closing argument had the
claim been raised on appeal.” Larzelere, 979 So. 2d at 216.
The Court also notes that Petitioner’s appellate counsel submitted an initial brief
which was comprehensive, thorough, and well-argued. The Court finds that appellate
25
counsel's decision not to pursue this other claim was consistent with reasonable appellate
strategy that, under the deferential standard of review articulated in Strickland, should not
be second-guessed.
Under the circumstances, it cannot be said that the state court's denial of this claim
was contrary to, or involved an unreasonable application of, clearly established federal law
or was based on an unreasonable determination of the facts in light of the evidence. As a
result, Petitioner is not entitled to federal habeas relief on this claim.
D.
Claim Seven
Petitioner argues that “the combination of procedural and substantive errors
deprived” her of a fair trial. This claim was raised in Petitioner’s state habeas petition and
was denied.
Because Petitioner has failed to establish that the violations she alleges were indeed
errors, they cannot support a cumulative error claim. See United States v. Murray, 154 Fed.
App’x. 740 (11th Cir. 2005). Arguments that are inadequate individually are no more
adequate collectively. Thus, it cannot be said that the denial of this claim by the Florida
courts was contrary to any Supreme Court decision so as to warrant relief under the
AEDPA.
E.
Claim Eight
Petitioner asserts that the preponderance of evidence did “not equate [to] a
conviction.” It does not appear that this claim was raised in the state courts. As such, it
should be denied as procedurally barred since Petitioner has not demonstrated the
26
applicability of the exceptions to the procedural bar.
However, in an abundance of caution, the Court will address the merits of this
claim. The standard of review in a federal habeas corpus proceeding when the claim is that
the petitioner has been convicted on insufficient evidence was articulated in Jackson v.
Virginia, 443 U.S. 307 (1979), and described as follows:
[W]hether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. This familiar standard gives full
play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.
Id. at 319. Although the facts as they exist in the record may support opposing inferences,
a federal habeas court must presume that the jury resolved such conflicts in favor of the
prosecution and against the defendant. See Heath v. Jones, 863 F.2d 815, 820 (11th Cir. 1989).
Here, looking at all the evidence in a light most favorable to the State and with every
reasonable inference construed in favor of the verdict, there is ample evidence to support
Petitioner’s conviction. Steven Heidle and Kristen Palmieri were given immunity and
testified to numerous incriminating actions and statements made by Petitioner and Jason
Larzelere. For example, on the morning of the murder, at the request of Petitioner, Mr.
Heidle and Jason Larzelere retrieved documents, including the victim’s will and life
insurance policies, from a storage unit. (Appendix C at 1757-61, 3046-53.) After the
murder, Petitioner told Jason Larzelere that “he would receive his $200,000 for taking care
of business as soon as the insurance money came in.” Id. at 1770, 3151. In addition,
27
Petitioner told both witnesses that Jason Larzelere was the gunman and that, because he
(Jason Larzelere) was late to the scene, Petitioner had to “fake the robbery.” Id. at 1772-73,
3187, 4280. Petitioner told Ms. Palmieri that a patient at the office during the murder heard
the victim screaming “Jason,” and Petitioner herself heard the victim call Jason’s name. Id.
at 4281. After the murder, Jason Larzelere and Petitioner reenacted the murder, with Jason
Larzelere acting as the gunman and Petitioner playing the role of the victim. Id. at 4281-82.
Further, Petitioner directed Mr. Heidle and Ms. Palmieri to dispose of a shotgun and a .45
handgun by encasing the weapons in concrete and dumping them in a creek. Id. at 3165-84,
4183-95.
Norman Lee Karn, who had an affair with Petitioner during her marriage with the
victim, testified that Petitioner specifically mentioned that she wanted “[h]er husband to
be killed.” Id. at 2041. Ronnie Lee Hayden also heard Petitioner mention that she wanted
her husband murdered. Id. at 2072-75. Philip Langston, who also had an affair with
Petitioner during her marriage with the victim, testified that Petitioner told him that “she
had to get rid of” her husband, that she “had to have [her husband] killed,”that she was
willing to pay fifty thousand dollars to do so, and that she asked him if knew anyone who
could do that. Id. at 2096-97
Emma Lombardo, Petitioner’s dental assistant, was in the dental office at the time
of the shooting and heard Petitioner, who was also in the office, scream immediately after
the shooting: “Jason? Is that you, Jason?” Id. at 2420-21. Hilda Levezinho, a patient of the
victim, was in the dental office at the time of the shooting and, after the shooting, heard the
28
victim state, “Where are you Jason?” Id. at 2145. The victim mentioned that name “a
couple of times.”
Id.
David Gamell, an investigator with the Edgewater Police
Department, stated that Petitioner told him that she had shouted out “Jason” after the
shooting. Id. at 4677-83.
It was further established at trial that Petitioner had obtained
several different life insurance policies on the victim and that she had provided false
information to obtain the policies. Id. at 2769-80. Moreover, Petitioner filed a fraudulent
will, which left the victim’s entire estate to Petitioner. Id. at 3894-3904, 3907-08, 3950-75.
In light of the evidence presented at trial, the Court concludes that the evidence,
when viewed in a light most favorable to the State and after resolving all conflicts in favor
of the prosecution, mandates the denial of Petitioner's claim. See Machin v. Wainwright, 758
F.2d 1431, 1435 (11th Cir. 1991) (the federal habeas court must presume that conflicting
inferences to be drawn from the evidence were resolved by the trier of fact in favor of the
prosecution). The Court determines that a rational trier of fact could have found the
essential elements of this crime beyond a reasonable doubt. Merely because the evidence
provides some support to Petitioner's theory does not warrant the granting of habeas
corpus relief. See Wilcox v. Ford, 813 F.2d 1140, 1143-44 (11th Cir. 1987); Martin v. State of
Alabama, 730 F.2d 721, 724 (11th Cir. 1984) ("[t]he simple fact that the evidence gives some
support to the defendant does not demand acquittal.").
Accordingly, this Court concludes that the evidence, when viewed in a light most
favorable to the State, and resolving all conflicts in favor of the prosecution, mandates the
denial of this claim. See Shaw v. Boney, 695 F.2d 528, 531 n.6 (11th Cir. 1983). Under the
29
Jackson standard, there was sufficient evidence to support the jury's verdict, and this claim
is denied.11
Any of Petitioner's allegations not specifically addressed herein have been found to
be without merit.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Amended Petition for Writ of Habeas Corpus (Doc. No. 5) filed by
Virginia Gail Larzelere is DENIED, and this case is DISMISSED WITH PREJUDICE.
2.
The Clerk of the Court shall enter judgment accordingly and is directed to
close this case.
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
11
Further, Petitioner has failed to demonstrate that the adjudication of the claim
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.
Likewise, Petitioner has not shown that the adjudication of the claim 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.
30
constitutional right.12 Accordingly, a Certificate of Appealability is DENIED in this case.
DONE AND ORDERED in Chambers in Orlando, Florida, this 18th day of August,
2011.
Copies to:
OrlP-2 8/18
Counsel of Record
Virginia Gail Larzelere
12
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases In the United States
District Courts,
The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant. Before entering the final order,
the court may direct the parties to submit arguments on whether a certificate
should issue. If the court issues a certificate, the court must state the specific
issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2). If
the court denies a certificate, a party may not appeal the denial but may seek
a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22. A motion to reconsider a denial does not extend the time to
appeal.
31
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