Knight v. Secretary, Department of Corrections et al
Filing
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OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 6 , filed by Bradley Knight is DENIED, and this case is DISMISSED WITH PREJUDICE. Petitioner is DENIED a Ceritificate of Appealability. The Clerk is directed to enter judgment accordingly and CLOSE this case. Signed by Judge Charlene Edwards Honeywell on 8/29/2013. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BRADLEY KNIGHT,
Petitioner,
v.
CASE NO. 6:11-cv-1484-Orl-36GJK
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondent.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254.
Upon consideration of the amended petition (Doc. No. 6), the Court ordered Respondents
to show cause why the relief sought in the amended petition should not be granted.
Thereafter, Respondents filed a response to the amended petition for writ of habeas corpus
in compliance with this Court’s instructions (Doc. No. 9). Petitioner filed a reply to the
response (Doc. No. 18).
Petitioner alleges four claims for relief in the amended habeas petition. For the
following reasons, the amended petition is denied.
I.
Procedural History
Petitioner was charged with six counts of sexual activity with a child by a person in
a position of custodial authority (counts one, four, six, nine, eleven, and thirteen), six
counts of lewd or lascivious battery (counts two, five, seven, ten, twelve, and fourteen), and
two counts of lewd or lascivious molestation (counts three and eight). A jury found
Petitioner guilty as charged of counts one through eight, eleven, and twelve and not guilty
of counts nine, ten, thirteen, and fourteen. The trial court subsequently dismissed counts
two, three, five, seven, eight, and twelve based on double jeopardy. The trial court
sentenced Petitioner to concurrent twenty-year terms of imprisonment for counts one and
four to be followed consecutively by concurrent twenty-year terms of imprisonment for
counts six and eleven.
Petitioner appealed. The Fifth District Court of Appeal of Florida affirmed.
Petitioner filed a motion to modify sentence pursuant to Rule 3.800(c) of the Florida
Rules of Criminal Procedure. The state court denied the motion.
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. The
Fifth District Court of Appeal of Florida affirmed per curiam.
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
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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. Sec’y 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.” 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).
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B.
Standard for Ineffective Assistance of Counsel
The Supreme Court of the United States 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.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. “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
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.
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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.
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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).
III.
Analysis
A.
Claims One and Four
In claim one, Petitioner asserts that counsel rendered ineffective assistance by failing
to object to various statements made by the prosecutor. Specifically, Petitioner notes the
prosecutor’s statements (1) identifying him as the caller on an audio recording of a
telephone conversation, (2) indicating that Petitioner either had sex with the victim or she
was lying, (3) indicating the prosecutor’s personal belief that there was no way Petitioner
did not have sex with the victim, (4) arguing that the jury’s determination should be clear
that Petitioner had sex with the victim, took advantage of the victim, betrayed the trust of
her family, and exploited the victim during their sexual encounters. Similarly, in claim
four, Petitioner contends that counsel was ineffective for failing to object to statements
made by the prosecutor during closing argument. Petitioner cites to statements in which
the prosecutor referred to him as the person on the audio recording, opined about what the
person on the recording should have said if he was innocent, and asserted that Petitioner
enjoyed engaging in risky sexual behavior.
Petitioner raised these claims in his Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (App. 21 at 4.) The state court determined that the prosecutor’s
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statements were fair comments on the evidence presented and counsel therefore had no
basis to object to the statements. Id.
“To warrant reversal of a verdict[,] prosecutorial misconduct must be so pronounced
and persistent that it permeates the entire atmosphere of the trial.” United States v. Thomas,
8 F.3d 1552, 1561 (11th Cir. 1993) (citing United States v. McLain, 823 F.2d 1457, 1462 (11th
Cir. 1987)). “Specifically, a prosecutor’s remark during closing argument must be both
improper and prejudicial to a substantial right of the defendant.” Id. (citing United States
v. Bascaro, 742 F.2d 1335, 1353 (11th Cir. 1984)). “[A]n attorney is allowed to argue
reasonable inferences from the evidence and to argue credibility of witnesses or any other
relevant issue so long as the argument is based on the evidence.” Miller v. State, 926 So. 2d
1243, 1254-55 (Fla. 2006) (citing Craig v. State, 510 So. 2d 857, 865 (Fla. 1987)).
Review of the prosecutor’s statements support the state court’s denial of these
claims. The prosecutor’s statements addressing the veracity of the victim’s testimony were
premised on the evidence presented at trial. The victim testified that Petitioner was the
person on the audio recording. Thus, the prosecutor was permitted to argue such.
Likewise, the statements concerning the risks taken by Petitioner during the sexual
encounters were reasonable inferences given the victim’s testimony regarding where and
when the encounters occurred. In sum, the statements of which Petitioner complains were
all permissible arguments to be made from the evidence presented. Counsel, therefore, had
no basis to object to the statements nor would such objections have been sustained.
Accordingly, claims one and four are denied pursuant to Section 2254(d).
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B.
Claim Two
Petitioner maintains that counsel rendered ineffective assistance by failing to advise
the trial court that the prosecutor had an improper conversation with the victim during her
testimony. In support of this claim, Petitioner asserts that his sister-in-law heard the
prosecutor during a recess coaching the victim to “‘just remember to say what we told you’
(or something similar).” (Doc. No. 6 at 8.)
Petitioner raised this claim in his Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (App. 21 at 2.) The state court noted that attorneys are permitted
to speak to witnesses during trial under Florida law. Id. (citing Nieves v. State, 739 So. 2d
125, 127 (Fla. 5th DCA 1999)). The state court reasoned that the victim admitted she had
discussed her testimony with the prosecutor and the purported overheard conversation did
not establish improper coaching. Id. The state court further noted that defense counsel had
the victim’s statements to police and the Child Protection Team and her deposition, which
were given before the prosecutor had an opportunity to “coach” the victim. Id. The state
court concluded, therefore, that counsel had no basis to object and no prejudice resulted
therefrom. Id.
Petitioner has not established that the state court’s denial of this claim is contrary
to, or an unreasonable application of, Strickland. Even assuming the prosecutor improperly
coached the victim, defense counsel had the victim’s deposition and statements to police
and the Child Protection Team. Thus, counsel had the opportunity to cross-examine the
victim regarding any inconsistencies in her testimony. More importantly, the jury heard
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an audio recording of a conversation between the victim and Petitioner which
overwhelmingly inculpated Petitioner in the offenses. Petitioner, therefore, has not
demonstrated that a reasonable probability exists that the outcome of the trial would have
been different had counsel advised the trial court about the prosecutor’s purported
improper coaching. Accordingly, claim two is denied pursuant to Section 2254(d).
C.
Claim Three
Petitioner asserts that counsel rendered ineffective assistance by failing to impeach
the victim with her inconsistent statements. Specifically, Petitioner argues that counsel
should have impeached the victim regarding where the first sexual encounter occurred.
Petitioner raised this claim in his Rule 3.850 motion. The state court denied relief
pursuant to Strickland. (App. 21 at 3.) The state court reasoned that counsel did impeach
the victim with her inconsistent statements and the victim admitted that she was confused
about the various sexual encounters with Petitioner. Id. The state court concluded that no
prejudice resulted from counsel’s alleged deficient performance. Id.
The record supports the denial of this claim. Defense counsel questioned the victim
regarding her inconsistent testimony concerning the location of her first sexual encounter
with Petitioner. (App. 1 at 386.) The victim admitted that she initially told a police officer
that the first incident occurred in the loft of Petitioner’s karate studio, whereas she
subsequently said that the first incident actually occurred in a movie theater. Id. The jury,
therefore, heard the victim make inconsistent statements regarding the offenses.
Furthermore, the evidence also included an audio recording of Petitioner and the victim,
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which inculpated Petitioner in the offenses. Thus, no reasonable probability exists that the
outcome of the trial would have been different had counsel further impeached the victim.
Accordingly, claim three is denied pursuant to Section 2254(d).
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. Sec’y Dep’t of Corr.,
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. 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.
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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 Amended Petition for Writ of Habeas Corpus (Doc. No. 6), filed by
Bradley Knight 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 29th day of August, 2013.
Copies to:
OrlP-1 8/29
Counsel of Record
Bradley Knight
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