Kaler v. State of Florida et al
Filing
16
ORDER denying 1 --petition for writ of habeas corpus; denying certificate of appealability; directing the Clerk to ENTER A JUDGMENT against Kaler and CLOSE the case. Signed by Judge Steven D. Merryday on 8/31/2011. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SHAUN A. KALER,
Petitioner,
v.
Case No. 8:08-cv-1731-T-23MAP
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Kaler petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and
challenges his conviction on a thirteen-count information. A jury convicted Kaler for
three counts of aggravated assault on a law enforcement officer and one count each of
burglary and possession of burglary tools. Three months later Kaler pleaded guilty to
seven other counts of burglary and one count of grand theft. Kaler serves fifteen years
as a parolee releasee re-offender. Kaler asserts no challenge to the plea-based
convictions. Numerous exhibits ("Respondent’s Exhibit __") support the response.
(Doc. 9) The respondent admits the petition's timeliness. (Response at 7 Doc. 9)
FACTS1
Kaler was identified as a suspect in a series of burglaries. The special
investigations unit in the St. Petersburg Police Department started monitoring Kaler and
his van. Around 3:00 a.m. on April 25, 2004, four plain-clothes officers in un-marked
1
This summary of the facts derives from Kaler's and respondent's briefs on direct appeal.
(Respondent's Exhibit 1 and 2)
police cars followed the van to a strip mall and observed Kaler pry open the back door of
a restaurant. After Kaler and his co-defendant entered the business, the officers
established a security perimeter to arrest both burglars. The co-defendant exited first
and was arrested without incident. Threatening to use a crowbar as a weapon, Kaler
attempted to flee arrest but eventually surrendered.
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs
this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998),
cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential
standard for federal court review of a state court adjudication, states 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 with respect
to any claim that was adjudicated on the merits in State court proceedings
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.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted
this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a federal
habeas court to grant a state prisoner's application for a writ of habeas
corpus with respect to claims adjudicated on the merits in state court. Under
§ 2254(d)(1), the writ may issue only if one of the following two conditions is
satisfied--the state-court adjudication resulted in a decision that (1) "was
contrary to . . . clearly established Federal Law, as determined by the
Supreme Court of the United States," or (2) "involved an unreasonable
application of . . . clearly established Federal law, as determined by the
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Supreme Court of the United States." Under the "contrary to" clause, a
federal habeas court may grant the writ if the state court arrives at a
conclusion opposite to that reached by this Court on a question of law or if
the state court decides a case differently than this 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 this Court's decisions but
unreasonably applies that principle to the facts of the prisoner's case.
"The focus . . . is on whether the state court's application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different from
an incorrect one." Bell v. Cone, 535 U.S. at 694. "As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that the state court's ruling on
the claim being presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement." Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 786-87
(2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective
reasonableness, not the correctness per se, of the state court decision that we are to
decide."). 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. at 412.
The purpose of federal review is not to re-try the state case. "The [AEDPA]
modified a federal habeas court's role in reviewing state prisoner applications in order to
prevent federal habeas 'retrials' and to ensure that state-court convictions are given
effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Federal courts must afford due deference to a state court's decision. "AEDPA prevents
defendants—and federal courts—from using federal habeas corpus review as a vehicle
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to second-guess the reasonable decisions of state courts." Renico v. Lett, ____ U.S.
____, 130 S. Ct. 1855, 1866 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S.
Ct. 1388, 1398 (2011) ("This is a 'difficult to meet,' . . . and 'highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be given the
benefit of the doubt' . . . .") (citations omitted).
In a per curiam decision without a written opinion the state appellate court
affirmed Kaler's convictions and sentences on direct appeal. (Respondent's Exhibit 3)
Similarly, in another per curiam decision without a written opinion the state appellate
court affirmed the denial of Kaler's subsequent Rule 3.850 motion to vacate.
(Respondent's Exhibit 13) The state appellate court's per curiam affirmances warrant
deference under Section 2254(d)(1) because "the summary nature of a state court's
decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245,
1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub
nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784-85
("When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the contrary.").
Review of the state court decision is limited to the record that was before the state
court.
We now hold that review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits. Section
2254(d)(1) refers, in the past tense, to a state-court adjudication that
"resulted in" a decision that was contrary to, or "involved" an unreasonable
application of, established law. This backward-looking language requires
an examination of the state-court decision at the time it was made. It
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follows that the record under review is limited to the record in existence at
that same time, i.e., the record before the state court.
Pinholster, 131 S. Ct. at 1398. Kaler bears the burden of overcoming a state court
factual determination by clear and convincing evidence. "[A] determination of a factual
issue made by a State court shall be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding
of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831,
836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Kaler's
post-conviction claims warrants deference in this case. (Orders Denying Motion for
Post-Conviction Relief, Respondent's Exhibits 6 and 9)
INEFFECTIVE ASSISTANCE OF COUNSEL
Kaler asserts seven claims of ineffective assistance of counsel, a difficult claim to
sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th
Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is well settled
and well documented. In Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set forth a
two-part test for analyzing ineffective assistance of counsel claims.
According to Strickland, first, the defendant must show that counsel's
performance was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the "counsel"
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to
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deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice.
Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes
an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we
are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at
690. "[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." 466 U.S. at 690. Strickland requires that "in light of all the
circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance." 466 U.S. at 690.
Kaler must demonstrate that counsel's error prejudiced the defense because "[a]n
error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S.
at 691-92. To meet this burden, Kaler must show "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome." 466 U.S. at 694.
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Strickland cautions that "strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation."
466 U.S. at 690-91. Kaler cannot meet his burden merely by showing that the avenue
chosen by counsel proved unsuccessful.
The test 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 . . . . 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). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable . . . . [T]he issue is not what is possible or 'what is prudent or appropriate, but
only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no
duty to raise a frivolous claim).
Kaler must prove that the state court's decision was "(1) . . . contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States or (2) . . . 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). In determining "reasonableness," a federal petition
for the writ of habeas corpus authorizes an independent assessment of "whether the
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state habeas court was objectively reasonable in its Strickland inquiry" but not an
independent assessment of whether counsel's actions were reasonable. Putnam v.
Head, 268 F.3d 1223, 1244 n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002).
Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he
standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the
two apply in tandem, review is 'doubly' so." Richter, 131 S. Ct. at 788. See also
Pinholster, 131 S. Ct. at 1410 (A petitioner must overcome this "'doubly deferential'
standard of Strickland and the AEDPA."), and Johnson v. Sec'y, Dep't of Corr., 643 F.3d
907, 911 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to
overcome, and it will be a rare case in which an ineffective assistance of counsel claim
that was denied on the merits in state court is found to merit relief in a federal habeas
proceeding.").
Although the state court's order omits citing Strickland as the standard for an
ineffective assistance of counsel claim, no explicit citation is required. A state court need
not cite Supreme Court precedent (or even be aware of it) if the decision is consistent
with the precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Parker v. Sec'y of Dep't of
Corr., 331 F.3d 764, 775-86 (11th Cir. 2003). In Florida, Strickland governs an
ineffective assistance of counsel claim. Walls v. State, 926 So.2d 1156 (Fla. 2006). The
state post-conviction court analyzed Kaler's ineffective assistance of counsel claims
consistent with Strickland by requiring proof of both deficient performance and prejudice.
Consequently, Kaler must show that the state court's ruling was either an unreasonable
application of Strickland's principle or an unreasonable determination of the facts. The
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presumption of correctness and the highly deferential standard of review requires that
the analysis of each claim begin with the state court's analysis.
Ground One:
Kaler alleges that trial counsel was ineffective for failing to object to a letter from
the Department of Corrections, which letter showed that Kaler qualified as a prison
releasee re-offender. The state post-conviction court rejected this claim as follows
(Respondent's Exhibit 6 at 85):
Defendant alleges that counsel was ineffective for failing to object to the
letter submitted by the State Attorney from the Department of Corrections,
which established that Defendant qualified as prison releasee reoffender.
Defendant alleges that counsel should have objected because the letter
from the DOC was hearsay, was not self-authenticating, and did not fall
into any exception to the hearsay rule. Defendant's claim is facially
insufficient as he fails to allege prejudice. Defendant does not allege that
he does not qualify as a PRR only that counsel did not object to the proof
offered by the State. Had counsel objected the State would have provided
further proof that Defendant qualified as a PRR so Defendant was not
prejudiced, but for the actions of counsel, the outcome would not have
been different. This claim is denied.
The state court determined that Kaler fails to show prejudice. Florida's prison
releasee re-offender statute, § 775.082(9), establishes an enhanced sentence for
someone who commits an enumerated offense within three years of release from the
Florida Department of Corrections ("DOC"). The prosecutor presented a letter
(Respondent's Exhibit 15, vol. I at 16) from the DOC showing that Kaler was released
from prison on June 14, 2003.2 Less than a year later Kaler was arrested while
committing the offenses he challenges in his federal petition. The state court reasonably
determined that Kaler fails to show prejudice.
2
The website for the DOC verifies this date.
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Ground Two:
Kaler alleges that trial counsel was ineffective for failing to advise him that he
could move to recuse the trial judge. The state post-conviction court rejected this claim
as follows (Respondent's Exhibit 6 at 85):
Defendant alleges that counsel was ineffective for failing to ask Defendant
whether he wanted Judge Downey recused from his case. Defendant
alleges that had counsel informed him of the misconduct that Judge
Downey was accused of and his right to have the judge recused he would
have had Judge Downey recused. Defendant's claim is facially insufficient
as he fails to allege how he was prejudiced and how the outcome of the
trial would have been different but for counsel's ineffective assistance. This
claim is denied.
The state court determined that Kaler fails to show prejudice. Kaler cites
allegations of judicial misconduct reported in the local newspaper (Appendix F attached
to the petition), but asserts no judicial bias against him. Consequently, the state court
reasonably determined that Kaler fails to show prejudice.
Ground Three:
Kaler alleges that trial counsel was ineffective for failing to suppress the crowbar
as "fruits" of an illegal arrest. The state post-conviction court rejected this claim as
follows (Respondent's Exhibit 9 at 2) (citations to the record omitted):
Defendant alleges that counsel was ineffective for failing to file a motion to
suppress the crowbar evidence and failing to object to the admission of that
evidence at trial as the fruits of an unlawful arrest. Defendant alleges that
counsel should have filed a motion to suppress because the officers who
arrested him were outside of their jurisdiction as they were St. Petersburg
Police Officers and he was arrested in Kenneth City. The State properly
argues that Defendant's claim is without merit as a motion to suppress
would not have been successful and Defendant was not prejudiced. See
Ramos v. State, 559 So. 2d 705 (Fla. 4th DCA 1990).
The grounds upon which the Defendant alleges a motion to suppress was
that the St. Petersburg police officers were outside of their jurisdiction
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however, police officer's can conduct a lawful investigation outside their
jurisdiction if the subject matter of that investigation originated in their own
jurisdiction. See State v. Price, 589 So. 2d 1009 (Fla. 4th DCA 1991). In
the Defendant's case, the subject matter of the investigation was a
restaurant burglary, which originated in St. Petersburg. The State
explained that there had been a string of robberies and burglaries to
restaurants and the police developed Defendant and others as suspects
and had them under surveillance from St. Petersburg to Kenneth City,
where the police witnessed the start of another crime. As the subject
matter of the investigation began in their jurisdiction, the police were able to
conduct a lawful investigation and the evidence would not have been
suppressed. The State further argues that since the officers witnessed the
Defendant in the commission of a crime they could lawfully arrest the
Defendant via a citizen's arrest. The officers without the use of the "color
of their office" powers, observed from their car the Defendant and others
pry open the door of a restaurant, a scene that could easily have been
observed by a private citizen. See Phoenix v. State, 455 So. 2d 1024 (Fla.
1984). As the motion to suppress would not have prevailed this claim is
denied.
The state court determined that Kaler fails to show prejudice because a "motion to
suppress would not have prevailed." This claim of ineffective assistance of counsel is
based on a matter of state law—whether the officers could arrest Kaler outside of their
city limits. The state post-conviction court ruled that, as a matter of state law, the officers
could legally arrest Kaler and "the evidence would not have been suppressed."
Consequently, the state court reasonably determined that Kaler fails to show prejudice.
Ground Four:
Kaler alleges that trial counsel was ineffective for failing to investigate
photographs of the crime scene. The state post-conviction court rejected this claim as
follows (Respondent's Exhibit 6 at 85-86) (citations to the record omitted):
Defendant alleges that counsel was ineffective for failing to investigate
crime scene photos taken by technician Sofia Cresente of the St.
Petersburg Police Department, as well as the photo that he provided to
counsel. Defendant alleges that had counsel admitted to evidence these
crime scene photos this evidence would rebut the testimony of the four law
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enforcement officers who testified that there was adequate lighting.
Defendant alleges that counsel should have used these photos to prove
that Defendant did not know that the men outside of the restaurant were
law enforcement due to poor lighting conditions. This claim is without
merit. The four St. Petersburg Police Department [officers] testified that
they repeatedly informed Defendant that they were the police and asked
him to put the crowbar down. Furthermore, had counsel produced this
evidence the State could have co-defendant Ross Hoffman testify that he
heard the officers tell Defendant that they were the police and for him to put
his weapon down. Due to the other evidence that Defendant knew that the
individuals waiting for him outside the restaurant were in fact law
enforcement officers Defendant was not prejudiced by counsel not
submitting photos into evidence as the outcome of the trial would not have
been different. This claim is denied.
The state court determined that Kaler fails to show prejudice. Kaler shows no
basis for believing that the jury would have found him not guilty if counsel had submitted
the photographs. Additionally, determining what evidence to introduce is a strategic
decision left to counsel's discretion. See e.g., Dingle v. Sec'y, Dep't of Corr., 480 F.3d
1092, 1099 (11th Cir. 2007) ("Even if counsel's decision [to not present certain evidence]
appears to have been unwise in retrospect, the decision will be held to have been
ineffective assistance only if it was 'so patently unreasonable that no competent attorney
would have chosen it.'"), quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir.
1983). The state court reasonably determined that Kaler fails to show that trial counsel's
representation was ineffective assistance.
Ground Five:
Kaler alleges that trial counsel was ineffective for failing to object to hearsay
testimony. The state post-conviction court rejected this claim as follows (Respondent's
Exhibit 6 at 86):
Defendant alleges that counsel was ineffective for failing to object to
hearsay evidence and thereby gave the State a tactical advantage.
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Defendant's claim is without merit. Defendant alleges that counsel was
ineffective for failing to object to Sergeant Mandakis' testimony that one of
the officers around the front told him later that he flashed a flashlight in the
front window. Defendant alleges that had counsel objected to this
testimony it would have prevented the State from mentioning a flashlight
during closing arguments and would have changed the outcome of the trial.
Had counsel objected to Sergeant Mandakis' testimony the State would
have rephrased the question and the same information would have come
into evidence. Defendant has failed to meet the burden that but for
counsel's failure to object the outcome of the trial could have been
different. See State v. Bouchard, 922 So. 2d 424 (Fla. 2d DCA 2006).
This claim is denied.
The state court determined that Kaler fails to show prejudice. Kaler presents no
basis for rejecting the state court's determination that, if counsel had objected, the
prosecutor could have re-phrased the question and introduced the evidence. The state
court reasonably determined that Kaler fails to show that trial counsel's representation
was ineffective assistance.
Ground Six:
Kaler alleges that trial counsel was ineffective for failing to investigate a potential
witness—specifically Kaler's co-defendant—who could have provided exculpatory
testimony. The state post-conviction court rejected this claim as follows (Respondent's
Exhibit 6 at 87):
Defendant alleges that counsel was ineffective for failing to investigate a
potential witness who would have provided exculpatory evidence.
Defendant alleges that counsel should have investigated the co-defendant
Ross Hoffman as well as the co-defendant's medical records. Defendant's
claim is without merit. The medical condition of the co-defendant was of no
evidentiary value and does not tend to prove or disprove that Defendant
assaulted the law enforcement officers. Since the medical records were of
no evidentiary value counsel was not ineffective for not placing them into
evidence. Furthermore, co-defendant in his deposition stated that he did
not receive any medical care for his injuries so there would be no medical
records to review. Co-defendant Hoffman also stated that he was on the
ground and did not see Defendant after he came outside of the restaurant.
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Co-defendant's testimony would not change the outcome of the trial and
may have even harmed Defendant's case as he stated that he knew the
people outside the restaurant were police officers and that they stated this
several times to himself and the Defendant. This claim is denied.
The state court determined that Kaler fails to show either deficient performance or
prejudice in counsel's decision to not present the testimony of Kaler's co-defendant.
Deciding whether to present the testimony of a specific witness is left to trial counsel's
discretion. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995) ("Which witnesses, if
any, to call, and when to call them, is the epitome of a strategic decision, and it is one
that we will seldom, if ever, second guess.") (en banc); Blanco v. Singletary, 943 F.2d
1477, 1495 (11th Cir. 1991) ("The decision as to which witnesses to call is an aspect of
trial tactics that is normally entrusted to counsel."). Kaler speculates about his
co-defendant's expected testimony. To prove that counsel's failure to call a certain
witness was ineffective assistance, Kaler must present more than his speculation about
the proposed testimony. "[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." United States v. Ashimi, 932
F.2d 643, 650 (7th Cir. 1991) (footnotes omitted). The state court reasonably
determined that Kaler fails to show that counsel rendered ineffective assistance.
Ground Seven:
Kaler alleges that the cumulative effect of trial counsel's errors "prejudiced the
outcome of his trial." The state post-conviction court rejected this claim as follows
(Respondent's Exhibit 9 at 2):
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Defendant alleges that the cumulative errors of counsel and lack of pre-trial
preparation and investigation prejudiced him and relies on the above nine
claims to support this claim. [Because t]he court has found that counsel
was not ineffective in his representation there can be no cumulative error
when no valid allegation of individual error is made. Downs v. State, 740
So. 2d 506, 509 (Fla. 1999). This claim is denied.
The state court's rejection of Kaler's "cumulative errors" claim is consistent with
federal precedent. See e.g., Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004)
("[T]he court must consider the cumulative effect of [the alleged errors] and determine
whether, viewing the trial as a whole, [petitioner] received a fair trial as is [his] due under
our Constitution."); Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987)3 ("Mullen
cites no authority in support of his assertion, which, if adopted, would encourage habeas
petitioners to multiply claims endlessly in the hope that, by advancing a sufficient number
of claims, they could obtain relief even if none of these had any merit. We receive
enough meritless habeas claims as it is; we decline to adopt a rule that would have the
effect of soliciting more and has nothing else to recommend it. Twenty times zero equals
zero."); United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984) ("Without harmful
errors, there can be no cumulative effect compelling reversal."), cert. denied 469 U.S.
1158 (1985). The state court reasonably determined that Kaler fails to show that counsel
rendered ineffective assistance.
Rule 11(a), Rules Governing Section 2254 Cases, requires a district court to
"issue or deny a certificate of appealability when it enters a final order adverse to the
applicant." As stated in Slack v. McDaniel, 529 U.S. 473, 483-84 (2000):
3
Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before
October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc).
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To obtain a COA under § 2254(c), a petitioner must make a substantial
showing of the denial of a constitutional right, a demonstration that, under
Barefoot, includes showing that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were "'adequate to deserve
encouragement to proceed further.'" Barefoot, supra, at 893, and n.4, 102
S. Ct. 3383 ("sum[ming] up" the "substantial showing" standard).
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, 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. This construction
gives meaning to Congress' requirement that a prisoner demonstrate
substantial underlying constitutional claims and is in conformity with the
meaning of the "substantial showing" standard provided in Barefoot, supra,
at 893, and n.4, 102 S. Ct. 3383 . . . .
An applicant need not show probable success on appeal, but the issuance of a
certificate of appealability entails more than "mere good faith" or only the "absence of
frivolity." As stated in Miller-El v. Cockrell, 537 U.S. 322, 338 (2003):
We do not require petitioner to prove, before the issuance of a COA, that
some jurists would grant the petition for habeas corpus. Indeed, a claim
can be debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration, that
petitioner will not prevail. As we stated in Slack [v. McDaniel, 529 U.S. 473
(2000)], "[w]here a district court has rejected the constitutional claims on
the merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." 529
U.S. at 484, 120 S. Ct. 1595.
Kaler's petition for the writ of habeas corpus was denied on the merits. Because
jurists of reason would not fairly debate whether the petition states a valid claim of the
denial of a constitutional right, a certificate of appealability is unwarranted.
Accordingly, Kaler's petition for the writ of habeas corpus (Doc. 1) is DENIED. A
certificate of appealability is DENIED. Kaler must pay the full $455 appellate filing fee
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without installments unless the circuit court allows Kaler to proceed in forma pauperis.
The clerk shall enter a judgment against Kaler and close this case.
ORDERED in Tampa, Florida, on August 31, 2011.
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