Slattery v. Secretary, Department of Corrections et al

Filing 22

OPINION AND ORDER. The Petition for Writ of Habeas Corpus 1 filed by Kevin Slattery is DENIED, and this case is DISMISSED WITH PREJUDICE. Petitioner is DENIED a Certificate of Appealability. The Clerk is directed to enter judgment accordingly and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 6/11/2012. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KEVIN SLATTERY,
Petitioner,
CASE NO. 6:10-cv-232-Orl-36DAB
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. 10). Petitioner was provided an opportunity to file a reply to the
response but did not do so.
Petitioner alleges one claim for relief in his habeas petition. 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 aggravated battery with

a deadly weapon. The charges stemmed from the stabbing of a husband and wife, Charles

and Virginia Dunson, in their home. A jury trial was conducted.
At trial, Charles Shelton, Petitioner’s co-defendant, testified that Virginia and
Charles Dunson’s home was known as a “drug house.” Petitioner and Debra Shelton1 had
been living in the home with the Dunsons.
Charles Dunson testified that on the date of the incident he was in his bedroom
when he heard Virginia Dunson call out to him and frantically say, “Kevin, why are you
doing that?” Charles Dunson said he walked out of his bedroom at which time Charles
Shelton grabbed him by the neck and prevented him from going to his wife. Charles
Dunson, however, was able to see Petitioner repeatedly stabbing Virginia Dunson, who
was partially lying on a chaise lounge. Charles Dunson subsequently freed himself from
Charles Shelton’s grasp and attempted to aid his wife. According to Charles Dunson, at
that point Petitioner stopped stabbing Virginia Dunson, approached him (Charles Dunson),
and proceeded to stab him seven times, resulting in him suffering several defensive
wounds to his hands. Charles Dunson said that Virginia Dunson was able to escape while
he was being stabbed. Charles Dunson testified that he did not possess a gun at the time
of the incident.
Kathy Charles, who was at the Dunson’s home in a bedroom at the time of the
incident, testified that Petitioner, Charles Shelton, Virginia Dunson, and herself had been
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Debra Shelton had cancer at the time of the incident and had been prescribed pain
medication as a result. The testimony at trial established that someone, either Virginia
Dunson, Charles Shelton, or Petitioner, had used or stolen some of Debra Shelton’s pain
medication. Charles Shelton was Debra Shelton’s son. He was charged as a principal in
this case and entered a plea.
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consuming drugs prior to the incident. She stated that Petitioner left the Dunson’s home,
but he later returned at which time Charles Shelton let him into the house. After letting
Petitioner into the home, Charles Shelton returned to the bedroom and told Kathy Charles
that Petitioner wanted to speak with Virginia Dunson. Kathy Charles said that the
Dunsons were in their bedroom when Petitioner returned and the house was very quiet
until she heard Virginia Dunson scream and say “Kevin don’t.”
According to Kathy Charles, Charles Shelton initially prevented her from leaving
the bedroom. When she was able to exit the bedroom, Kathy Charles observed Petitioner
standing over and repeatedly stabbing Virginia Dunson, who was on the floor. Kathy
Charles stated that Charles Dunson attempted to stop Petitioner from further stabbing
Virginia Dunson, but Charles Shelton pulled him off Petitioner. Kathy Charles testified
that she saw Petitioner stab Charles Dunson when he tried to stop Petitioner. She further
stated that Virginia Dunson was able to escape from the house. Kathy Charles said that she
did not observe anyone with a gun in his or her hand and that she did not see anything in
Virginia Dunson’s hands during the incident. Charles Shelton likewise testified that he did
not see a gun or hear a gunshot at the time of the incident.
A paramedic testified that Virginia Dunson had numerous stab wounds and
lacerations, including on her hands, back, and the back of her head. A police investigator
testified that he observed a trail of blood on the road leading away from the victims’ house
toward an intersection. It was determined that the blood trail was left by Virginia Dunson
when she fled. Investigators found a gun in a holster approximately five feet from the
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shoulder of the road on the opposite side from the blood trail and approximately fifteen
to twenty feet away from the blood trail. No blood was located near the gun. Sergeant
William Clark, the crime scene investigator, processed the gun and did not detect any
blood on the weapon.
Petitioner testified that he had been at the Dunson’s residence on the date of the
incident helping repair their well. Petitioner stated that he left the residence but later
returned at which time he called for Virginia Dunson. Petitioner said she exited her
bedroom, went into the kitchen, and removed chicken from the refrigerator and began to
cut it. Petitioner testified that he mentioned to Virginia Dunson that Debra Shelton was
missing some pain medication she had been prescribed. According to Petitioner, in
response to his statement, Virginia Dunson became irate and said Debra Shelton owed her
money for crack cocaine.
Petitioner said he then was hit from behind with a barstool and Virginia Dunson
called for Charles Dunson to come out of the bedroom with his gun. Petitioner maintained
that Virginia Dunson sat on his butt and pinned him face-down to the floor by placing a
barstool across his neck and back. Petitioner testified that he was not aware if Virginia
Dunson still had a butcher knife in her hand and therefore he took out his knife and began
swinging.
Evidence was admitted establishing that Virginia Dunson had more than ten stab
wounds and multiple defensive wounds on her hands. Petitioner stated that his knife was
in a holster on his side and two hands were required to open the knife. Petitioner later
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testified, however, that the blade was loose so the knife would snap open.
Petitioner said that he freed himself from Virginia Dunson and subsequently
observed Charles Dunson exit the bedroom with a gun and fire one shot. Petitioner
testified that he grabbed Charles Dunson’s arm, causing Dunson to drop the gun, and
Petitioner cut him a few times. Petitioner maintained that he was in fear of his life when
Virginia Dunson hit him from behind and that he had heard Charles Dunson say prior to
the incident that he had a gun.
In rebuttal, Sergeant William Clark testified that he did not observe any food
preparation in the kitchen, any evidence of gun shots in the house, or a butcher knife in the
kitchen or area of struggle when he processed the crime scene.
The state court instructed the jury on the defense of justifiable use of force (selfdefense). The state court, however, instructed the jury on the forcible-felony exception to
the self-defense instruction despite defense counsel’s objection. The jury found Petitioner
guilty as charged. The state trial court sentenced Petitioner to a fifteen-year term of
imprisonment for count one and to a consecutive five-year term of imprisonment for count
two.
Petitioner appealed his convictions. Petitioner argued inter alia that the trial court
violated his right to a fair trial by instructing the jury on the forcible-felony exception to
self-defense. The Fifth District Court of Appeal of Florida initially found that the trial court
committed fundamental error by instructing on the forcible-felony exception.

The

appellate court, however, vacated the order and certified a question to the Supreme Court
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of Florida. Thereafter, the Supreme Court of Florida addressed the issue of the forciblefelony exception in Martinez v. State, 981 So. 2d 449, 454 (Fla. 2008). The Supreme Court of
Florida subsequently remanded the instant case to the Fifth District Court of Appeal for
reconsideration in light of Martinez. On remand, the Fifth District Court of Appeal of
Florida affirmed per curiam with citation to Martinez.
II.

Legal Standard
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
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
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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.” Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the
state court’s decision “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” A determination of a factual issue
made by a state court, however, shall be presumed correct, and the habeas petitioner shall
have the burden of rebutting the presumption of correctness by clear and convincing
evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
III.

Analysis
Petitioner’s sole claim is that the trial court committed fundamental error by

instructing the jury on the forcible-felony exception to the self-defense instruction. In
support of his claim, Petitioner maintains that the forcible-felony exception instruction was
not applicable in the case and improperly negated his defense. As such, he maintains that
his rights to a fair trial and due process were violated.
The Eleventh Circuit Court of Appeals has held that a federal court’s role on habeas
review of a state law jury instruction is
to determine whether any error or omission in the jury charge was so
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prejudicial as to amount to a violation of due process. In making that
determination, we do not judge portions of the jury charge, or even the entire
charge, standing alone. A defendant's right to due process is not violated
unless an erroneous instruction, when viewed in light of the entire trial, was
so misleading as to make the trial unfair.
Agan v. Vaughn, 119 F.3d 1538, 1545 (11th Cir. 1997) (citations omitted).
Pursuant to Florida law, the forcible-felony exception to self-defense is not
applicable unless the defendant was engaged in an independent forcible-felony. See
Martinez v. State, 981 So. 2d 449, 454 (Fla. 2008) (“[F]or the forcible-felony instruction to
apply, there must be an independent forcible-felony other than the one which the
defendant claims he or she committed in self-defense.”). Thus, for the forcible-felony
exception to be applicable, the defendant must have been engaged in another independent
forcible-felony, such as burglary or aggravated battery. See, e.g., Marshall v. State, 604 So.
2d 799, 803 (Fla. 1992) (concluding that forcible-felony exception to self-defense was
applicable to felony murder or third degree murder where the underlying felonies were
burglary and aggravated battery). When “the challenged jury instruction involves an
affirmative defense, as opposed to an element of the crime, fundamental error only occurs
where a jury instruction is ‘so flawed as to deprive defendants claiming the defense . . . of
a fair trial.’” Martinez, 981 So. 2d at 455 (quoting Smith v. State, 521 So. 2d 106, 108 (Fla.
1988)).
In Martinez, the trial court erroneously instructed the jury on the forcible-felony
exception. Id. Nevertheless, the Supreme Court of Florida determined that the erroneous
forcible-felony instruction did not deprive the defendant of a fair trial. Id. In so ruling, the
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Court reasoned that self-defense was not the only strategy pursued by the defendant, and
thus, the forcible-felony instruction did not deprive the defendant of his sole defense. Id.
at 456. The Martinez Court further reasoned that the forcible-felony instruction did not
deprive the defendant of a fair trial because his claim of self-defense was extremely weak.
Id. The Court noted that the victim had multiple stab wounds to her body, whereas the
defendant had only one small cut on his finger. Id. The Court further noted that the victim
was stabbed in the back. Id. Thus, the Martinez Court concluded that even if the forciblefelony exception had not been read to the jury, the likelihood that the jury would have
found Petitioner not guilty based on self-defense was minimal at best. Id.
In the instant case, the Fifth District Court of Appeal of Florida per curiam affirmed
Petitioner’s conviction with a citation to Martinez. There is no question that the forciblefelony instruction was not applicable in this case pursuant to Florida law. Moreover,
unlike the facts in Martinez, in the instant case, self-defense was Petitioner’s sole defense.
Thus, the Fifth District Court of Appeal presumably determined that no fundamental error
occurred based on the erroneous instruction because Petitioner’s claim of self-defense was
so weak that there was no possibility that a jury would have found him not guilty based
on self-defense absent the erroneous forcible-felony instruction.
After reviewing the evidence presented by Petitioner in support of his claim of selfdefense, the Court cannot conclude that 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.” Petitioner’s claim of self-defense is not rational and is not supported by the
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evidence.
Petitioner testified that he was hit from behind with a barstool at which time
Virginia Dunson pinned him to the floor on his stomach with the barstool on his neck and
back and her weight on his lower body. Despite his upper and lower body being pinned
face-down to the floor, Petitioner maintained that he was able to remove a knife from a
holster at his waist and swing it in such a manner as to inflict numerous wounds to
Virginia Dunson, remarkably including stab wounds to the back of her head and to her
back. Furthermore, Petitioner amazingly did not suffer a single wound during the
altercation. Likewise, all of the witnesses, including Petitioner’s co-defendant, testified that
no one had a gun during the incident, nor did anyone hear a gun discharge. Although
there was a firearm found by investigators on the road leading away from the victims’
home, the gun was in a closed holster, did not have any blood on it, and was found
approximately fifteen feet from the blood trail left by Virginia Dunson.2

No one

corroborated any of Petitioner’s testimony nor did the physical evidence support his claim
of self-defense. Finally, the evidence established that the victims suffered numerous
injuries from multiple stab wounds. Thus, Petitioner’s self-defense argument was weak,
and he was not deprived of his right to a fair trial. Cf. Fields v. State, 988 So. 2d 1185 (Fla.
2

The Court notes that from Petitioner’s testimony, Charles Dunson fired the shot
after Petitioner had stabbed Virginia Dunson. The other witnesses testified that Virginia
Dunson left the house when Petitioner began to stab Charles Dunson. Thus, Virginia
Dunson would have had to retrieve the gun that Charles Dunson allegedly dropped before
she escaped the home. If she had done so, given the testimony concerning the amount of
blood left at the scene, it would have been incredible that the gun did not have blood on
it, if in fact Virginia Dunson had carried it.
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5th DCA 2008) (distinguishing Martinez and concluding that the defendant was deprived
of a fair trial based on erroneous forcible-felony instruction when no inconsistencies existed
in the defendant’s self-defense testimony, the defendant suffered severe injuries, and at
least one witness corroborated his testimony). For these reasons, the Court concludes that
Petitioner has not demonstrated that the state court’s denial of this claim is contrary to or
an unreasonable application of 2254(d) or an unreasonable determination of the facts in
light of the evidence.
Any of Petitioner’s allegations not specifically addressed herein have been found to
be without merit.
IV.

Certificate of Appealability
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). To make such a showing "the 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 "that 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.
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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 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 Kevin Slattery

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 11th day of June, 2012.

Copies to:
OrlP-1 6/11
Counsel of Record
Kevin Slattery

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