Powell v. Secretary, Department of Corrections et al

Filing 14

ORDER: The Petition for Writ of Habeas Corpus (Doc. No. 1) filed by Johnny Lee Powell is DENIED, and this case is DISMISSED WITH PREJUDICE. Signed by Judge Roy B. Dalton, Jr. on 11/13/2014. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOHNNY LEE POWELL,
Petitioner,
v.

CASE NO. 6:13-cv-525-Orl-37KRS

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254.
(Doc. No. 1.)

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 (Doc. No.
7).

Petitioner filed a reply to the response (Doc. No. 12).
Petitioner alleges four grounds for relief.

For the following reasons, the petition

is denied.
I.

Procedural Background
Petitioner was charged with robbery (count one), trespass after warning (count

two), and petit theft (count three). Prior to trial, the trial court dismissed count three,
and Petitioner entered a plea of guilty to count two. A jury found Petitioner guilty of
count one.

The trial court sentenced Petitioner to a fifteen–year term of imprisonment

as a prison releasee reoffender for the robbery conviction and to time served for the

trespass conviction.

Petitioner appealed, and the Fifth District Court of Appeal of

Florida affirmed per curiam.
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure.
hearing on two claims.

The state court denied two claims and held a

After the hearing, the state court denied the remaining claims.

Petitioner appealed. The Fifth District Court of Appeal 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

holdings of the Supreme Court of the United States “as of the time of the relevant statecourt 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.”
2

Maharaj v. Sec’y, 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.
B.

See Parker, 244 F.3d at 835-36; 28 U.S.C. ' 2254(e)(1).
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

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reasonableness”; and (2) whether the deficient performance prejudiced the defense. 1
at 687-88.

Id.

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.
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).

Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the Supreme Court of the United
States 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.
1In

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III.

Analysis
A.

Claim One

Petitioner asserts that counsel rendered ineffective assistance by failing to obtain
and present the security video from J.C. Penny’s.

In support of this claim, Petitioner

argues that the video would have demonstrated that he abandoned the merchandise after
exiting the store and before store employees attempted to detain him.
Petitioner raised this claim in his Rule 3.850 motion.
evidentiary hearing on the claim.

The state court held an

In denying relief, the state court determined that there

was no evidence that a video existed of the incident, which occurred outside of the store.
(App. U at 136-38.) The state court further noted that counsel had no reason to believe
that store surveillance cameras that were focused on the doors of the store would have
captured images occurring outside the doors or in the parking lot. Id. at 140.

The state

court concluded, therefore, that counsel was not deficient for failing to obtain the
surveillance video.

Id.

The state court’s denial of this claim is supported by the record.

Although a J.C.

Penny’s employee indicated that surveillance video was taken within the store, including
video of the doors, there is no evidence that those videos would have captured the
incident in this case.

The incident occurred outside the store on the sidewalk.

Even

assuming that the incident took place directly in front of the store doors, there is no
indication that cameras inside the store focused on the doors would have recorded the
incident. Petitioner, therefore, has not established that counsel was deficient for failing
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to obtain the surveillance video or that a reasonable probability exists that the outcome
of the trial would have been different had counsel done so.

Accordingly, claim one is

denied pursuant to section 2254(d).
B.

Claim Two

Petitioner contends that counsel rendered ineffective assistance by failing to
request a jury instruction on abandoned property.

Petitioner argues that his theory of

defense was that he abandoned the items taken from J.C. Penny’s prior to the use of force
and thus an abandonment instruction was necessary.
Petitioner raised this claim in his Rule 3.850 motion. The state court denied the
claim after an evidentiary hearing.

(App. U at 140-42.) The state court determined that

there was no showing that the property was abandoned before the force and that counsel
requested three lesser-included jury instructions. Id.
The state court’s denial of this claim is not contrary to, or an unreasonable
application of, Strickland.

At trial, two J.C. Penny’s employees testified that Petitioner

had the items in his hand when they approached him at which time Petitioner told them
that the items belonged to him and a scuffle ensued during which Petitioner dropped the
items.

(App. D at 60-61, 170-72.)

A mall security officer, who arrived after the

altercation began, testified that he observed the bag of items on the ground.

(App. D at

94-96, 99.)
Counsel argued that Petitioner dropped the items when approached by the store

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employees and before force was used.

Counsel requested, and the jury was instructed

on, the lesser-included offenses of resisting a merchant and petit theft.
In light of the evidence presented, Petitioner has not demonstrated that counsel
was deficient for failing to request a special instruction on abandoned property.
Furthermore, he has not shown that a reasonable probability exists that the outcome of
the trial would have been different had such an instruction been requested. The jury
found Petitioner guilty of robbery, rejecting the lesser-included offenses.

Accordingly,

claim two is denied pursuant to section 2254(d).
C.

Claims Three and Four

In claim three, Petitioner asserts that counsel rendered ineffective assistance by
failing to file a pretrial motion to dismiss the robbery charge.

Petitioner also maintains

in claim four that counsel was ineffective for failing to move to suppress the 911recording admitted at trial.
Petitioner raised claims three and four in his Rule 3.850 motion.
summarily denied the claims.

The state court

Petitioner did not appeal the denial of these claims.

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, 842-43 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971).
Specifically, the AEDPA provides, in pertinent part:

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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 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).
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), holding modified by Martinez v. Ryan, 132 S.
Ct. 1309 (2012).

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.”
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Duncan v.

Henry, 513 U.S. 364, 365 (1995) (citing Picard, 404 U.S. at 275-76) (internal quotation marks
omitted).

The Supreme Court of the United States has observed that “Congress surely

meant that exhaustion be serious and meaningful.”
10 (1992).

Keeney v. Tamayo-Reyes, 504 U.S. 1,

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) (“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.”).
Although Petitioner filed an appellate brief on appeal from the denial of his Rule
3.850 motion, he did not appeal the trial court’s denial of claims three and four.
X.)

(App.

Petitioner’s failure to specifically raise these claims in his initial brief on appeal

resulted in the abandonment of the claims.

See Wood v. Tucker, No. 5:10cv200/RS/EMT,

2012 WL 2511428, at *7 n.10 (N.D. Fla. May 31, 2012) (citing Ward v. State, 19 So. 3d 1060,
1061 (Fla. 5th DCA 2009) (en banc) (holding that although state procedural rules do not
require an appellant to file an initial brief on appeal from the summary denial of a Rule
3.850 motion, if an appellant does file an initial brief, the failure to raise certain issues in
the brief results in the abandonment of those claims)); see also Austin v. State, 968 So. 2d
1049 (Fla. 5th DCA 2007) (holding claims not raised in appellate brief were abandoned).

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Thus, these claims are unexhausted and procedurally barred from review by this Court
absent an exception to the procedural default bar.
Procedural default will be excused 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). The Supreme Court of the United States has
also

held

that

if

“a

State

requires

a

prisoner

to

raise

an

ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may
establish cause for a default of an ineffective-assistance claim. . .” when (1) “the state
courts did not appoint counsel in the initial-review collateral proceeding” or (2)
“appointed counsel in the initial-review collateral proceeding, where the claim should
have been raised, was ineffective” pursuant to Strickland.

Martinez, 132 S. Ct. at 1318.

In such instances, the prisoner “must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.”

Id.

Finally, to establish

“prejudice” so as to warrant review of a procedurally defaulted claim, 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).

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The second exception, known as the “fundamental miscarriage of justice,” only
occurs in an extraordinary case, in which a “constitutional violation has probably resulted
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.

United States, 523 U.S. 614, 623 (1998).

Bousley v.

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).
In the instant case, Petitioner has not established either cause or prejudice or actual
innocence to overcome the procedural default of claims three and four.

Accordingly,

claims three and four are procedurally barred from review by this Court.
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.”
U.S.C. ' 2253(c)(2).

28

To make such a showing “the petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

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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.

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 Johnny Lee

Powell 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.

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DONE AND ORDERED in Orlando, Florida, this 13th day of November, 2014.

Copies to:
Johnny Lee Powell
Counsel of Record

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