Reed v. Secretary, Department of Corrections et al
Filing
22
ORDER denying petition for writ of habeas corpus and dismissing case with prejudice. A Cetificate of Appealablity is denied. The Clerk of the Court is directed to enter judgment accordingly and close this case. Signed by Judge Mary S. Scriven on 10/19/2011. (AJM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DANIEL REED,
Petitioner,
v.
CASE NO. 6:09-cv-1083-Orl-35GJK
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C.
section 2254 (Doc. No. 1).
Upon consideration of the petition, the Court ordered
Respondents to show cause why the relief sought in the petition should not be granted.
Thereafter, Respondents filed a response to the petition for writ of habeas corpus in
compliance with this Court=s instructions and with the Rules Governing Section 2254
Cases in the United States District Courts (Doc. No. 11).
Petitioner filed a reply to the
response (Doc. No. 19).
Petitioner alleges five claims for relief in his habeas petition: (1) the trial court
abused its discretion by denying his second motion for continuance; (2) trial counsel
rendered ineffective assistance by failing to object to the principal jury instruction; (3) trial
counsel rendered ineffective assistance by failing to investigate and uncover witnesses;
(4) trial counsel rendered ineffective assistance by failing to depose and call Charline
Joseph as a witness; and (5) trial counsel rendered ineffective assistance by failing to
impeach Agent Carlies.
For the following reasons, the petition is denied.
I.
Procedural History and Facts Adduced at Trial
Petitioner was charged by information with two counts of delivery of 3, 4 -
Methylenedioxy Methamphetamine (AMDMA@ or Aecstasy@).
At trial, Agent James
Carlies testified that for approximately five months, he and another agent conducted an
undercover investigation at Cleo=s, a strip club.
Agent Carlies said that on July 29,
2004, during the course of the investigation, he was approached by Charline Joseph
(AJoseph@), a dancer at Cleo=s, who told him that someone in Cleo=s was selling ecstasy
for $14 a pill.
Agent Carlies stated that he asked Joseph if the ecstasy was good, to
which she responded that she would purchase one and try it out. Agent Carlies testified
that Joseph left him and subsequently returned two to three minutes later with a pill in
her hand which she told Agent Carlies she would take.
Agent Carlies said that he told
Joseph that he wanted to purchase two of the ecstasy pills after she told him that the pill
was working.
Agent Carlies testified that he then watched Joseph walk to a pool table and have
a conversation with Petitioner.
Agent Carlies stated that he saw a hand exchange
between Joseph and Petitioner after which Joseph returned to Agent Carlies and gave
him two pills and said they were $14 each. Agent Carlies gave Joseph $40, and she
walked back to Petitioner and another hand exchange occurred. Agent Carlies said
that Joseph returned to him again with $12 in change, which he told her she could keep.
Agent Carlies testified that later in the evening, Joseph told him that she would
introduce him to the man who sold her the pills and she proceeded to introduce him to
Petitioner.
According to Agent Carlies, he told Petitioner that he wanted to purchase
more pills and Petitioner gave him his cellular phone number, which Agent Carlies
programmed into his cellular phone before leaving Cleo=s.
Agent Carlies stated that he called Petitioner on August 2, 2004, at the number
Petitioner had given him and told Petitioner he wanted to buy fifty pills.
Petitioner
agreed to sell pills to Agent Carlies for $10 each. Agent Carlies testified that he called
Petitioner back on August 3, 2004, and Petitioner told him at that time he only had twenty
pills.
Agent Carlies said that he called Petitioner again that same day, told Petitioner he
wanted to buy five pills, and the two agreed to meet at Cleo=s.
Agent Carlies testified that he went to Cleo=s that night and waited for Petitioner,
but he left after Petitioner failed to show up. Agent Carlies said that he called Petitioner
after leaving Cleo=s, and Petitioner, who was in Cleo=s, asked him where he was.
Agent
Carlies testified that he returned to Cleo=s and purchased five ecstasy pills from
Petitioner in the bathroom for $70.
A substance analyst testified that the seven pills
provided to the Florida Department of Law Enforcement by Agent Carlies were tested
and were ecstasy.
The jury found Petitioner guilty as charged.
to concurrent twelve-year terms of imprisonment.
The state court sentenced Petitioner
Petitioner appealed, and the Fifth
District Court of Appeal of Florida affirmed per curiam.
Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850. The state court denied the motion. Petitioner appealed,
and the Fifth District Court of Appeal of Florida affirmed per curiam.
3
II.
Legal Standards
A.
Standard of Review Under the Antiterrorism Effective Death Penalty
Act (AAEDPA@)
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 Aclearly established Federal law,@ encompasses only
the holdings of the United States Supreme Court Aas of the time of the relevant
state-court decision.@ Williams v. Taylor, 529 U.S. 362, 412 (2000).
A[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 Acontrary 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.
4
Even if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was Aobjectively unreasonable.@
Id.
Finally, under ' 2254(d)(2), a federal court may grant a writ of habeas corpus if
the state court=s decision Awas 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 Afell below an objective standard of
reasonableness@; and (2) whether the deficient performance prejudiced the defense. 1
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. AThus, a
court deciding an actual ineffectiveness claim must judge the reasonableness of
1
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.
5
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, Athe 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).
III.
Analysis
A.
Claim One
Petitioner asserts that the state trial court erred by denying his second motion to
continue the trial.
Petitioner maintains that he was denied his right to counsel based on
the trial court=s denial of his motion to continue.
Respondents contend that this claim is
procedurally barred from review as it was not raised as a federal claim in the state
courts.
One procedural requirement set forth in the AEDPA precludes federal courts,
absent exceptional circumstances, from granting habeas relief unless the petitioner has
6
exhausted all means of available relief under state law.
28 U.S.C. ' 2254(b); O=Sullivan
v. Boerckel, 526 U.S. 838, 842-43 (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 thatB
(A)
the applicant has exhausted the remedies available in the
courts of the State; or
(B)
(i)
there is an absence
corrective process; or
(ii)
of
available
State
circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C. ' 2254(b)(1).
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 Afairly
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.@
7
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 ACongress 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.
Id.; see also Henderson v. Campbell, 353 F.3d 880, 898 n.25 (11th Cir. 2003) (ABoth 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
Acause@ for the default and actual Aprejudice@ resulting from the default.
ATo 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 Aprejudice,@ 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 Afundamental miscarriage of justice,@ only
occurs in an extraordinary case, in which a Aconstitutional violation has probably resulted
8
in the conviction of one who is actually innocent.@
(1986).
Murray v. Carrier, 477 U.S. 478, 496
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
Ashow 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, A>[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).
In the instant case, Petitioner raised this claim on direct appeal in the state court,
and the Florida Fifth District Court of Appeal affirmed per curiam.
However, Petitioner
did not raise the claim as a federal constitutional issue, and he only cited state law in
support of the claim. Thus, claim one is procedurally barred from review by this Court
as it was not exhausted in the state court and would be clearly barred if raised in the
state court.
Thus, absent an exception to the procedural default bar, claim one is
barred from review by this Court.
Petitioner has failed to demonstrate either cause or
prejudice to overcome the procedural default.
demonstrated that he is actually innocent.
Furthermore, Petitioner has not
Accordingly, claim one is procedurally
barred from review by this Court.
Alternatively, the Court notes that the claim would be denied pursuant to Section
2254(d) if it were not procedurally barred.
Florida courts have held:
There are few rights more fundamental than the right of an accused
to present witnesses in his or her own defense. See Chambers v.
Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed.2d 297 (1973). In
order to prevail in a motion for continuance, the defendant must show: (1)
prior due diligence to obtain the witnesses= presence; (2) that substantially
favorable testimony would be forthcoming; (3) that the witnesses were
available and willing to testify; and (4) that the denial of the continuance
9
caused material prejudice. See United States v. O'Neill, 767 F.2d 780,
784 (11th Cir. 1985); Smith v. State, 762 So. 2d 929, 931 (Fla. 4th DCA
2000), review denied, 786 So. 2d 1188 (Fla. 2001).
Jenkins v. State, 872 So. 2d 388, 389-90 (Fla. 4th DCA 2004).
Likewise, the Supreme
Court of the United States has held that A[t]he matter of continuance is traditionally within
the discretion of the trial judge, and it is not every denial of a request for more time that
violates due process even if the party fails to offer evidence or is compelled to defend
without counsel.@
Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (citing Avery v. Alabama,
308 U.S. 444 (1940)).
The Court further stated:
There are no mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented
to the trial judge at the time the request is denied.
Id. (citing Nilva v. United States, 352 U.S. 385 (1957)).
In the instant case, the record establishes that defense counsel moved to
continue the trial a second time in April 2005, and he renewed the motion on the date the
trial began, April 26, 2005.
(App. B at 6.) Defense counsel noted that he sought the
continuance because he had just recently entered an appearance in the case, had
recently received the discovery, and wanted to take the deposition of a witness.
6-7.
Id. at
The trial court denied the motion, reasoning that counsel had entered an
appearance in the case in February, the case had been continued prior to counsel=s
appearance, and a continuance had been granted in March to allow counsel to prepare
for the trial in April.
Id. at 7-8. The trial court further reasoned that the case was not
complex and the person that defense counsel wanted to depose, Charline Joseph, was
not a State witness and would have been able to assert her Fifth Amendment privilege
against self-incrimination.
Id. at 8.
10
Petitioner has not demonstrated that the trial court=s denial of his motion to
continue was either contrary to, or an unreasonable application of, clearly established
federal law.
As discussed more fully in claim four infra, there is no evidence that
Joseph either could have provided exculpatory testimony or would have been willing to
waive her right to remain silent if called as a witness.
Moreover, Petitioner has not
demonstrated that the denial of the continuance resulted in material prejudice. The
case was not complex, and defense counsel ably challenged the State=s case through
cross-examination of the State=s witnesses.
Thus, this claim is denied as it is
procedurally barred and otherwise without merit pursuant to Section 2254(d).
B.
Claim Two
Petitioner asserts that trial counsel rendered ineffective assistance by failing to
object to the principal jury instruction.
In support of this claim, Petitioner contends that
the information did not charge him as a principal, and as such, he could not be convicted
as a principal. Petitioner maintains that charging the principal jury instruction served to
amend the information.
Petitioner raised this claim in his Rule 3.850 motion. The state court denied the
claim, reasoning that the evidence warranted giving the principal jury instruction.
(App.
O at 6-7.) The state court concluded that it was proper to give the principal instruction
and counsel had no basis on which to object to the instruction.
Id. at 7.
The Supreme Court of Florida has held that A[u]nder Florida law, a person who is
charged in an indictment or information with commission of a crime may be convicted on
proof that she aided or abetted in the commission of such crime.@ State v. Larzelere,
979 So. 2d 195, 215 (Fla. 2008) (citing State v. Roby, 246 So. 2d 566, 571 (Fla. 1971)).
11
Thus, under Florida law, Aif an information charges a defendant with a substantive crime,
. . . and the proof establishes only that he was feloniously present, aiding, and abetting in
the commission of the crime, a verdict of guilty as charged should be sustained.@
Watkins v. State, 826 So. 2d 471, 474 (Fla. 1st DCA 2002) (citing Roby, 246 So. 2d at
571, and Jacobs v. State, 184 So. 2d 711, 715 (Fla. 1st DCA 1966)).
In the instant case, the information charged Petitioner with the substantive offense
of delivery of ecstasy in violation of Section 893.03(1)(a)(1), Florida Statutes.
Moreover, the evidence admitted at trial established that on July 29, 2004, Petitioner
gave Joseph two ecstasy pills in exchange for $28, and Joseph in turn gave the pills to
Agent Carlies. Thus, pursuant to Florida law, the state court properly gave the jury the
principal jury instruction.
Petitioner has not cited any Florida law, nor is this Court
aware of any such law, requiring the information or indictment to charge that the
defendant committed an offense as a principal.
As such, the Court cannot conclude
that counsel was deficient for failing to object to the principal jury instruction or that
prejudice resulted from counsel=s failure to do so.
Accordingly, this claim is denied
pursuant to Section 2254(d).
C.
Claims Three and Five
In claim three, Petitioner contends that trial counsel rendered ineffective
assistance by failing to investigate and uncover witnesses.
In support of this claim,
Petitioner asserts that counsel failed to take efforts to locate witnesses at Cleo=s who
could have testified that Agent Carlies consumed alcohol nightly during the investigation.
Petitioner further argues that counsel failed to review the voice mail messages that
Agent Carlies left for himself, documenting his observations, during the course of the
12
investigation.
Finally, Petitioner maintains that had counsel investigated, he would
have learned that Cleo=s plays loud music, which would have undermined Agent Carlies=
testimony that he left voice mail messages to document what he observed.
Similarly, in
claim five, Petitioner asserts that trial counsel rendered ineffective assistance by failing
to investigate and impeach Agent Carlies. Specifically, Petitioner argues that if counsel
had investigated, he would have known that Agent Carlies had charged twenty seven or
more drug related offenses during the course of the five-month investigation and had
consumed alcohol during the investigation.
Petitioner raised these claims in his Rule 3.850 motion, and the state court denied
relief pursuant to Strickland. The state court first reasoned that the trial court, at the
conclusion of trial, asked Petitioner if counsel failed to investigate anything that Petitioner
had requested him to do, and Petitioner responded negatively and affirmed that he was
satisfied with counsel=s representation.
(App. O at 8.) The state court further noted
that counsel in fact cross-examined Agent Carlies regarding the noise in Cleo=s.
Id.
Finally, the state court determined that Petitioner=s allegation that if counsel had
investigated departmental records, he may have discovered evidence that Agent Carlies
engaged in unprofessional behavior, was speculation and insufficient to demonstrate
either deficient performance or prejudice.
Id. at 3.
As an initial matter, the Court notes that Petitioner has failed to offer any evidence
establishing that witnesses were available who would have testified that Agent Carlies
consumed alcohol during the investigation. Likewise, there is no evidence that anything
contained in Agent Carlies= investigation voice mail messages or departmental records
would have refuted Agent Carlies= testimony.
13
These contentions are purely
speculation.
See, e.g., Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)
(ASpeculation is insufficient to carry the burden of a habeas corpus petitioner as to what
evidence could have been revealed by further investigation.@).
Moreover, the trial court asked Petitioner if counsel failed to investigate or pursue
anything that he had requested, and Petitioner responded negatively.
Petitioner clearly
would have been aware at the time of trial of the matters he now asserts counsel should
have investigated and presented at trial.
Petitioner, however, did not bring these
matters to the trial court=s attention.
Petitioner also has failed to demonstrate that a reasonable probability exists that
the outcome of the trial would have been different if counsel had further investigated and
presented such evidence, assuming it existed.
As discussed above, Agent Carlies
testified that he observed Joseph talk to Petitioner and make a hand exchange, after
which she returned to him and gave him two pills.
Agent Carlies then gave Joseph $40,
and she walked back to Petitioner at which time another hand exchange occurred.
Joseph returned to Petitioner and offered to give him $12, the change from the sale.
Agent Carlies= testimony and identification of Petitioner as the perpetrator of the
first transaction was supported by Agent Carlies= subsequent testimony that he actually
spoke to Petitioner later that night and obtained his phone number so that he could
purchase more pills. As a result, Agent Carlies was able to contact Petitioner and
arrange to purchase additional ecstasy pills.
Petitioner has not explained how the
number of drug charges that resulted from the five-month investigation, whether the
music was loud in the club, whether Agent Carlies left voice mail messages while in the
club, and whether Agent Carlies consumed alcohol would have refuted Agent Carlies=
14
identification of Petitioner as the perpetrator in light of the fact that Agent Carlies testified
that Petitioner gave him his phone number and thereby arranged the second drug
transaction at a later date with Petitioner. In other words, even assuming that Agent
Carlies had been impeached concerning his investigative methods or his behavior at
Cleo=s, such evidence still would not have refuted his testimony that Petitioner gave him
his telephone number, and as a result, Agent Carlies later called Petitioner and
purchased additional ecstasy pills from him. In sum, the Court concludes that Petitioner
has failed to establish that the state court=s denial of these claims is either contrary to, or
an unreasonable application of, Strickland.
Accordingly, claims three and five are
denied.
D.
Claim Four
Petitioner asserts that counsel rendered ineffective assistance by failing to
depose and call Charline Joseph as a witness.
Petitioner maintains that Joseph would
have testified that Petitioner was not the person who sold ecstasy to her.
Petitioner raised this claim in his Rule 3.850 motion, and the state court denied
relief pursuant to Strickland.
(App. O at 7-8.)
The state court first reiterated that
Petitioner told the trial court that he was satisfied with counsel and denied that counsel
failed to investigate anything he requested. Id. at 7. The state court further reasoned
that if Joseph had agreed to testify as Petitioner alleged she would, she would have been
waiving her Fifth Amendment right to remain silent and could have been charged with
delivery of ecstasy.
Id.
The state court noted that the State had not offered Joseph
immunity to testify.
Id.
As such, the state court concluded that counsel was neither
deficient for failing to call Joseph nor was Petitioner prejudiced by counsel=s failure to do
15
so.
Id. at 8.
A[E]vidence about the testimony of a putative witness must generally be presented
in the form of actual testimony by the witness or an affidavit.
A defendant cannot simply
state that the testimony would have been favorable; self-serving speculation will not
sustain an ineffective assistance claim.@
(7th Cir. 1991) (footnotes omitted).
United States v. Ashimi, 932 F.2d 643, 650
Hence, the Apetitioner must first make a sufficient
factual showing, substantiating the proposed witness testimony.@ Percival v. Marshall,
No. C-93-20068 RPA, 1996 WL 107279, at *3 (N.D. Cal. Mar. 7, 1996).
ASuch evidence
might be sworn affidavits or depositions from the potential witnesses stating to what they
would have testified.@ Id.
Petitioner has failed to present evidence of actual testimony or any affidavit from
Joseph demonstrating that she would have offered exculpatory testimony.
Thus,
Petitioner has not made the requisite factual showing as to this purported witness.
Petitioner=s self-serving speculation will not sustain a claim of ineffective assistance of
counsel.
Furthermore, Petitioner has not demonstrated that the state court=s determination
is contrary to, or an unreasonable application of, clearly established federal law.
As
noted by the state court, in order for Joseph to exculpate Petitioner by testifying that he
was not the man who sold her ecstasy, she would have had to admit her own culpability.
Given that there is no indication Joseph had been provided immunity to testify, it is highly
improbable that she would have waived her right to remain silent if called as a witness.
As such, in the absence of any evidence that Joseph would have offered exculpatory
testimony, the Court concludes that Petitioner has failed to establish that counsel was
16
deficient for failing to depose or call her as a witness or that a reasonable probability
exists that Petitioner would have been found not guilty had Joseph been called as a
witness.
Accordingly, claim four is denied pursuant to Section 2254(d).
Any of Petitioner=s allegations not specifically addressed herein have been found
to be without merit.
V.
Certificate of Appealability
This Court should grant an application for certificate of appealability only if the
Petitioner makes Aa substantial showing of the denial of a constitutional right.@
U.S.C. ' 2253(c)(2).
28
To make such a showing Athe petitioner must demonstrate that
reasonable jurists would find the district court=s assessment of the constitutional claims
debatable or wrong.@
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca
v. Secretary Department of Corrections, 568 F.3d 929, 934 (11th Cir. 2009). When a
district court dismisses a federal habeas petition on procedural grounds without reaching
the underlying constitutional claim, a certificate of appealability should issue only when a
petitioner shows Athat jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.@ Id.; Lamarca,
568 F.3d at 934.
However, a prisoner need not show that the appeal will succeed.
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner has not demonstrated that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong.
Moreover,
Petitioner cannot show that jurists of reason would find this Court's procedural rulings
debatable.
Petitioner has failed to make a substantial showing of the denial of a
17
constitutional right.
Thus, the Court will deny Petitioner a certificate of appealability.
For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1.
The Petition for Writ of Habeas Corpus (Doc. No. 1) filed by Daniel Reed is
DENIED, and this case is DISMISSED WITH PREJUDICE.
2.
Petitioner is DENIED a Certificate of Appealability.
3.
The Clerk of the Court is directed to enter judgment accordingly and close
this case.
DONE AND ORDERED in Orlando, Florida, this 19th day of October 2011.
Copies to:
OrlP-1 10/19
Counsel of Record
Daniel Reed
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?