Burch v. Secretary, DOC et al
Filing
21
ORDER denying 1 Petition for writ of habeas corpus. The clerk shall enter judgment accordingly and close this case. Petitioner is neither entitled to a COA nor to proceed on appeal IFP. Signed by Judge James D. Whittemore on 8/23/2012. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RANDALL BURCH,
Petitioner,
-vs-
Case No. 8:09-CV-745-T-27TGW
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________/
ORDER
Petitioner, an inmate in a Florida penal institution proceeding pro se, filed a Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“petition”) challenging a conviction for first-degree
murder entered in 2003 by the Twelfth Judicial Circuit Court, Sarasota County, Florida (Dkt. 1), and
a memorandum of law in support of the petition (Dkt. 2). Respondent filed a response to the petition
(Dkt. 14). Petitioner filed a reply to the response (Dkt. 16).1
Respondent asserts no challenge to the petition’s timeliness. The matter is now before the
Court for consideration of Petitioner’s claims. An evidentiary hearing is not required for the
disposition of this matter. Rules Governing Section 2254 Cases, Rule 8(a) (2011).
PROCEDURAL HISTORY
After a jury trial, Petitioner was convicted on August 29, 2005, of first-degree murder of
1
Petitioner subsequently filed an “Addendum” (Dkt. 20) which is an exhibit in support of Ground Two of
the petition.
Roland Shane Patrick (Respondent’s Ex. 1, Vol. II at 201). He was sentenced to life in prison (Id.
at 322). The appellate court affirmed Petitioner’s conviction and sentence on September 15, 2006
(Respondent’s Ex. 5); Burch v. State, 940 So. 2d 431 (Fla. 2d DCA 2006) [table]. Petitioner’s
petition to the Florida Supreme Court for review of the appellate court’s decision was dismissed for
want of jurisdiction (Respondent’s Ex. 12); Burch v. State, 946 So. 2d 1069 (Fla. 2006) [table].
On September 6, 2007, Petitioner filed a Motion for Post Conviction Relief pursuant to Rule
3.850, Fla. R. Crim. P. (“3.850 motion”) raising five claims of ineffective assistance of trial counsel
(Respondent’s Ex. 13). On March 11, 2008, the post conviction court denied Grounds One and Two
of the 3.850 motion, and ordered the State to respond to the three remaining grounds (Respondent’s
Ex. 14). After the State filed its response (Respondent’s Ex. 15), the post conviction court denied
the three remaining grounds on May 27, 2008 (Respondent’s Ex. 16). On January 29, 2009, the
appellate court affirmed the denial of the 3.850 motion (Respondent’s Ex. 18); Burch v. State, 999
So. 2d 649 (Fla. 2d DCA 2009) [table].
Petitioner filed his petition in this Court on April 16, 2009 (Dkt. 1).2 The petition raises the
following four grounds for relief:
Ground One
Trial court ruling on Miranda violation contrary to clearly established law in violation
of Fifth and Fourteenth Amendment [sic] of United States Constitution.
Ground Two
Ineffective assistance of counsel for failing to file motion to recuse judge in violation
2
Although Petitioner’s petition was received by this Court on April 20, 2009, Petitioner delivered his
petition to prison officials for mailing on April 16, 2009 (Dkt. 1 at 1). Under the mailbox rule set out in Houston v.
Lack, 487 U.S. 266 (1988), a document is deemed filed by a pro se prisoner when it is delivered to prison authorities
for forwarding to the court.
2
of Sixth and Fourteenth Amendment [sic] of United States Constitution.
Ground Three
Ineffective assistance of counsel for failing to properly object to use of victim’s
mother to introduce photo of victim to preserve for direct appeal.
Ground Four
Ineffective assistance of counsel for failure to cross-examine FDLE expert witness
Rosemary Jassoy.
STANDARDS OF REVIEW
Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), this Court’s review of the state court’s factual findings is highly
deferential. Those findings are presumed to be correct unless rebutted by clear and convincing
evidence. Similarly, the state courts’ resolutions of issues of law-including constitutional issuesmust be accepted unless they are found to be “contrary to” clearly established precedent of the
Supreme Court of the United States or involved an “unreasonable application” of such precedent.
Williams v. Taylor, 529 U.S. 362 (2000). It is not enough that the federal courts believe that the state
court was wrong; it must be demonstrated that the state court decision was “objectively
unreasonable.” Id. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).
Ineffective Assistance of Counsel
To have a facially valid claim alleging ineffective assistance of counsel, Petitioner must meet
the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland’s two-part
test requires Petitioner to demonstrate that counsel’s performance was deficient and “there was a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. However, if a claim fails to satisfy the prejudice component, the
3
court need not make a ruling on the performance component. Id. at 697.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 130 S. Ct.
1473, 1485 (2010). “Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). As the
Richter Court explained:
The standards created by Strickland and § 2254(d) are both “highly deferential,” and
when the two apply in tandem, review is “doubly” so. The Strickland standard is a
general one, so the range of reasonable applications is substantial. Federal habeas
courts must guard against the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not
whether counsel’s actions were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.
Id. (citations omitted).
DISCUSSION
Ground One
In Ground One, Petitioner asserts that the state trial court erred in denying his motion to
suppress the statements he made to the detectives. Petitioner contends that the statements were
procured in violation of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). He
argues that the state court’s determinations that he was not in custody for Miranda purposes, and that
his statements were voluntary, were based on an unreasonable determination of the facts in light of
the evidence.3 Specifically, Petitioner argues that he made the statements to the detectives while he
was in custody, and that the statements were involuntary because the detectives “denigrated the
importance of the Miranda warnings,” and coerced him into making the statements by telling him
that he could not get a plea agreement unless he first gave a statement, and implying that if he gave
3
Petitioner does not deny making the statements about which he now complains.
4
a statement, the police would approach the prosecutor about a plea agreement for Petitioner.
As the date for Petitioner’s trial approached, defense counsel filed an amended motion to
suppress inculpatory statements Petitioner made to law enforcement officers on January 28 and 29,
2004 (Respondent’s Ex. 1, Vol. I at 57-66).4 A hearing on the motion was held on August 3, 2005
(Respondent’s Ex. 1, Vol. VII at record pages 604-734). After reviewing the videotape of
Petitioner’s statements, hearing the testimony of Petitioner’s step-mother and father, Detective
Brewer, and T.J. Merry (who helped Petitioner bury the victim’s body), and hearing argument by
counsel, the state trial court took the matter under advisement. On August 9, 2005, it entered a
written order denying the amended motion to suppress:
1. In August, 2003, the Sarasota Sheriff’s Office began an investigation into the
disappearance of Shane Patrick.
2. Based on information provided to the Sarasota Sheriff’s Office months later by
David Davenport, a search warrant was executed on January 26, 2004 on the property
of T.J. Merry, at which time Shane Patrick’s body was discovered. The information
provided by David Davenport identified the Defendant as being involved in the
murder of Shane Patrick.
3. On either January 27, 2004 or January 28, 2004, a story appeared in the local
newspaper that stated that a body had been found and that the person had died
through homicidal violence.
4. After the article appeared in the newspaper, the Defendant contacted his father, and
told his father that he wanted to got to the Sarasota Sheriff’s Office and speak with
detectives. The Defendant’s father, mother, and girlfriend took the Defendant to the
Sarasota Sheriff’s Office on January 28, 2004.
5. Sarasota Sheriff’s detectives, based on their earlier conversations with David
Davenport, considered the Defendant a suspect in Patrick’s death. They were
continuing to investigate the case, and had no immediate plans to contact the
Defendant.
4
It appears from the record that Petitioner made the statements beginning approximately at 10:00 p.m. on
January 28th, and ending sometime in the early morning hours on January 29th (Respondent’s Ex. 1, Vol. II at 207).
5
6. Detectives met with the Defendant at the Sarasota Sheriff’s Office on the evening
of January 28, 2004. At the time detectives met with the Defendant, he was not under
arrest, and the detectives neither said not [sic] did anything to lead the Defendant (or
any reasonable person in a similar position) to believe he was under arrest. In fact,
detectives told the Defendant at the beginning of the conversation, after informing
him of his Miranda rights, that, “[i]t doesn’t mean you’re under arrest. You haven’t
been charged or anything like that.” Defendant was not handcuffed, was given a
beverage and was given smoking breaks.
7. Defendant knew that detectives would eventually want to talk to him, and he chose
to go to the Sarasota Sheriff’s Office and speak with detectives to avoid detectives
having to come to his house.
8. Defendant wanted to speak with detectives about his involvement in the homicide.
He clearly told detectives,”...I want to tell you guys absolutely everything. I don’t
want to lie or beat around the bush...” He even stated that he had always been advised
“...never to talk to a cop without an attorney present...,” but due to his strong desire
to speak with detectives, he chose to ignore that advice.
9. Defendant, in coming to the Sarasota Sheriff’s Office, was hoping for a plea
agreement. The detectives told Defendant that plea agreements “can happen
sometimes,” but at no time implied that a plea agreement would result from
Defendant speaking with detectives. Defense counsel argues that prior to giving
details about his involvement in the homicide, Defendant is seen on the videotaped
interview shaking his head (side to side), suggesting unwillingness to speak. The
Court has carefully watched the videotaped interview, and although the Defendant
is seen shaking his head (side to side) and then shrugging his shoulders, these
movements were not in response to any question regarding willingness to speak.
Indeed, within seconds of these movements, Defendant states, “I want to talk...I
just...want to get everything off my conscience and I want to be able to eat. I’d like
to be able to sleep, like not to worry...”
10. Defendant knew that by confession to detectives that he would likely be arrested.
In fact at one point in the interview he asked,”[a]nd pretty much no way in hell I’ll
ever get bail or anything like that to go out and work, is there?”
11. Prior to making any admissions, Defendant was informed by detectives
a. that he had the right to remain silent;
b. that anything he said could and would be used against him in a court of
law;
6
c. that he had the right to talk to a lawyer and have him present while being
questioned;
d. that if he could not hire a lawyer, one would be appointed to represent him
if he wished before questioning;
e. that he could decide at any time to exercise these rights and not answer any
question or make any statements.
Detectives, after informing Defendant of these rights, asked him if he
understood these rights. The videotaped interview clearly shows the
Defendant nodding affirmatively.
At the time Defendant gave his statement to detectives, he had not been taken
into custody or otherwise deprived of his freedom of action in any significant way.
A reasonable person in Defendant’s position would not have felt, immediately prior
to the giving of his statement, that he was in custody. Cotton v. State, 901 So. 2d 241
(Fla. 3d DCA 2005). Miranda warnings and a waiver of the rights associated thereto
were not required. In reaching this conclusion, the Court relies on the findings above,
and especially on the fact that defendant initiated the contact with detectives, came
to the Sarasota Sheriff’s Office on his own, was never handcuffed, was never
confronted with specific evidence of guilt, and detectives did nothing to suggest that
Defendant was in custody. See Ramirez v. State, 729 So. 2d 568, 574 (Fla. 1999).
The fact that the rights were read does not suggest that Defendant was in custody.
Rather, the reading of the rights and Defendant’s acknowledgment of understanding
the rights further support the Court’s finding of voluntariness of the statement.
Although Defendant was certainly hoping for a plea bargain, a careful review
of his statement does not show any explicit suggestion of leniency, nor any express
quid pro quo bargain for the confession. Accordingly, Defendant’s statements were
not rendered involuntary on that basis.
(Respondent’s Ex. 1, Vol. I at 111-14).
This claim was also raised by Petitioner on direct appeal (Respondent’s Ex. 2 at 18-25). The
state appellate court per curiam affirmed the judgment of conviction (Respondent’s Ex. 5); Burch
v. State, 940 So.2d 431 (Fla. 2d DCA 2006) [table]. Clearly, Petitioner was afforded a full and fair
opportunity to develop the factual basis for this claim before the state courts.
The state court applied the correct standard of review for the admissibility of evidence related
7
to statements made by a defendant to a law enforcement officer, as enunciated by the Supreme Court.
Miranda, 384 U.S. at 469-73. Therefore, to establish that he is entitled to relief on this claim,
Petitioner must establish that the state trial court incorrectly applied this standard in reaching its
determination that his statements to law enforcement on January 28 and 29, 2004, were admissible
evidence.
In Miranda, the Supreme Court held that evidence obtained as a result of a custodial
interrogation is inadmissible as having been obtained in violation of the Fifth Amendment unless
the defendant was first advised of his right to have counsel present, his right to remain silent and if
he gave up those rights, anything he said could be used against him. Miranda, 384 U.S. at 469-73.
The concern which led to the Miranda opinion was that the “interrogation environment” created by
the interplay of interrogation and custody would subjugate the individual to the will of his examiner,
undermining the privilege against compulsory self-incrimination.
In both Federal and Florida courts, the special procedural safeguards outlined in Miranda are
triggered only where a suspect in custody is subjected to interrogation, i.e., Miranda warnings are
not required if a suspect is not in custody when interrogated. Rhode Island v. Innis, 446 U.S. 291,
300 (1980); Davis v. State, 698 So.2d 1182 (Fla. 1997), cert. denied, 522 U.S. 1127 (1998). “A
suspect is not in custody. . .unless under the totality of the circumstances, a reasonable man in the
suspect’s position would feel a restraint on his freedom of movement fairly characterized as that
degree associated with a formal arrest to such extent that he would not feel free to leave.” Hillary
v. Sec’y for the Dep’t of Corr., 294 Fed. Appx. 569, 572 (11th Cir. 2008) (unpublished) (citation and
internal quotations omitted).
In the present case, the facts surrounding Petitioner’s statements to the detectives are largely
8
undisputed. The record from the suppression hearing reflects that on or about January 28, 2004, a
story appeared in the local newspaper which stated that the body of the victim had been found
(Respondent’s Ex. 1, Vol. VII at record pages 612-15). On January 28, 2004, Petitioner contacted
his father, and told him that he wanted to got to the Sarasota Sheriff’s Office and speak with
detectives regarding the victim (Id. at record page 615). Petitioner’s father, mother, and girlfriend
took Petitioner to the Sarasota Sheriff’s Office on January 28, 2004 (Id. at 616-17).
Sergeant Brewer testified that when Petitioner and his family arrived at the Sheriff’s Office,
Petitioner never gave any indication that he did not want to talk to law enforcement (Id. at 630).
Petitioner and Brewer walked to the interview room (Id. at 631). Prior to entering the room, Brewer
gave Petitioner a routine nonintrusive patdown (Id. at 631-32). Brewer’s practice was to read an
interviewee his or her Miranda rights, even if the interviewee had voluntarily come to see him (Id.
at 634-35). Therefore, before interviewing Petitioner, Brewer read Petitioner his Miranda rights
(Id.).
During the interview, Petitioner did most of the talking, volunteered information, and never
indicated that he did not want to talk about an issue (Id. at 637). Petitioner took two breaks during
the interview to go outside the building the building to smoke (Id. at 633).5 At no time prior to or
during the interview was Petitioner handcuffed or physically restrained (Id. at 659). Brewer testified
that during the time Petitioner was with him in the employee area of the Sheriff’s Office where the
interview room was located, Petitioner would have been free to leave the Sheriff’s Office at any time
had he requested to leave (Id.).
5
Brewer escorted Petitioner outside the building because they went out an employee exit door that
automatically locks, and requires a key to unlock in order to get back inside the building (Id. at 630).
9
The transcript of the videotape of the interview reveals in pertinent part that Brewer told
Petitioner that “Miranda Rights do apply. It doesn’t mean you’re under arrest. You haven’t been
charged or anything like that. It’s just you know how you stand, you know, talking to us, okay?”
(Respondent’s Ex. 1, Vol. II at 208). Immediately after Brewer read Petitioner his Miranda rights,
Petitioner stated “I want to tell you guys absolutely everything.” (Id. at 209). When the interview
started, Petitioner knew that he was not under arrest because later in the interview, after he made
several incriminating statements, he asked “when are you guys going to arrest?” (Id. at 224).
The factual finding by the state trial court that Petitioner was not in custody at the time he
gave his statements is supported by the record. Under the totality of the circumstances, a reasonable
man in Petitioner’s position at the time of his interview would not have felt a restraint on his freedom
of movement that could fairly be characterized as that degree associated with a formal arrest. See
United States v. Phillips, 812 F.2d 1355, 1360, 1362 (11th Cir. 1987) (suspect was not in custody
where he drove himself to a police station in response to a message left by a police officer, was not
placed under arrest, was not restrained, and the officers did not resort to any sort of physical or
psychological pressure to obtain a statement). Petitioner has not overcome by clear and convincing
evidence the presumption of correctness accorded the state court’s findings of fact. 28 U.S.C.
§2254(e)(1).6
Petitioner’s claim that his statements were coerced because the detectives told him that he
could not get a plea agreement unless he first gave a statement, and they implied that if he gave a
statement, they would approach the prosecutor about a plea agreement, also does not warrant federal
6
Because Petitioner was not in custody at the time he made the statements, his claim that his statements
were involuntary because the detectives “denigrated” the Miranda warnings does not warrant relief since Miranda
warnings were not required. See Rhode Island v. Innis, 446 U.S. at 300.
10
habeas relief. During the interview, the following exchange took place between Petitioner and
Brewer:
Petitioner: I was just wondering most cases (inaudible) the fir. . ., the first person to
speak, it’s like a plea agreement, correct?
Brewer: That can happen sometimes.
Petitioner: Is there any way, fucking that I can get one?
Brewer: The only one who can grant that to you would be a prosecutor, or if we go
to a prosecutor.
Petitioner: Or, would I need to get that before I talk, or after?
Brewer: They, they don’t know what you’re going to say up front. The thing is they
don’t go that way.
Petitioner: They can get you front to back.
Brewer: But like I said I got a, have an idea (inaudible).
(Respondent’s Ex. 1, Vol. II at 210).
The state trial court correctly found that the officers did not make “any explicit suggestion
of leniency, nor any express quid pro quo bargain for the confession.” (Respondent's Ex. 1, Vol. I
at 114). Furthermore, to the extent Petitioner argues that Brewer implied that if Petitioner gave a
statement, Brewer would approach the prosecutor about a plea agreement, a promise to make
cooperation known to a prosecutor with no guarantee of more lenient treatment is not an illegal
inducement to a confession. See United States v. Nash, 910 F.2d 749, 752-53 (11th Cir. 1990)
(promise to make cooperation known to the United States Attorney’s Office with no guarantee of
more lenient treatment is not an illegal inducement to a confession); United States v. Davidson, 768
F.2d 1266, 1271 (11th Cir. 1985) (statement to suspect that his “cooperation would be passed on to
11
judicial authorities and would probably be helpful to him is not a sufficient inducement so as to
render a subsequent incriminating statement involuntary”).7 The record establishes that Brewer did
not promise Petitioner that the prosecutor would offer Petitioner a plea agreement or otherwise show
Petitioner leniency in exchange for Petitioner’s confession. Petitioner may have hoped that his
confession would lead to a favorable plea offer, but nothing Brewer said would have led Petitioner
to reasonably expect that his confession guaranteed one.
To the extent Petitioner argues that his confession was coerced because Brewer impliedly
misrepresented that Petitioner had to give a statement before the prosecutor would offer him a plea
agreement, the claim does not warrant relief. First, there is no indication from the record that
Brewer’s alleged implied statement was false, i.e., there is no indication that the prosecutor in
Petitioner’s case would have considered offering a plea to Petitioner without Petitioner first giving
a statement. Second, even if Brewer’s statement was a misrepresentation, false statements by
officers made to induce confessions do not, in and of themselves, lead to a finding of coercion,
because courts must view the totality of the circumstances. Frazier v. Cupp, 394 U.S. 731, 739
(1969) (interrogators misrepresenting to the defendant that his co-defendant had already confessed
held no ground for finding defendant’s confession involuntary). Finally, a promise of leniency will
not render a confession involuntary unless it overcomes the confessor’s free will and impairs his
capacity for self determination. See Culombe v. Connecticut, 367 U.S. 568, 576, 602 (1961).
The circumstances of which Petitioner complains are not sufficiently grave to warrant a
conclusion that Petitioner’s will was overborne. Petitioner voluntarily went to the Sheriff’s Office.
7
The Court notes that under Florida law, an implied promise is not enough to establish that a confession was
improperly coerced. A promise of leniency from a police office is “only objectionable if [it] establish[es] an express
quid pro quo bargain for the confession.” State v. Moore, 530 So.2d 349, 350 (Fla. 2d DCA 1988).
12
At the beginning of the interview, Petitioner told the detectives that “I want to tell you guys
absolutely everything. I don’t want to lie or beat around the bush or anything” (Respondent’s Ex.
1, Vol. II at 209), and “I want to get everything off my conscience and I want to be able to eat, I’d
like to be able to sleep like to not worry.” (Id. at 211). The detectives did not threaten Petitioner in
any way, nor did they promise him anything in exchange for his confession. During the interview,
Petitioner was told that he was not under arrest, he was not handcuffed or restrained in any way, and
he was allowed to go outside with an officer to take two smoke breaks. Petitioner received warnings
of his constitutional rights before he confessed (Id. at 209). The detectives’ statements during the
interview were not enough in and of themselves to overcome Petitioner’s will.
The voluntariness of a confession is evaluated on the basis of the totality of the circumstances
surrounding that confession. Fare v. Michael C., 442 U.S. 707, 725 (1979). The totality of the
circumstances of Petitioner’s interrogation demonstrates that Petitioner’s confession was not induced
by false statements or promises.
The Court determines that the state trial court’s conclusion that Petitioner’s statements were
not the result of custodial interrogation, and thus Miranda warnings were not required, and were not
involuntarily coerced, was not unreasonable based on the record evidence, nor was it an
unreasonable application of Miranda and its progeny. Consequently, Petitioner’s statements were
properly admitted into evidence at trial. The state court’s ruling did not result in a decision that was
contrary to, or an unreasonable application of, United States Supreme Court precedent. Accordingly,
Ground One does not warrant relief.
Ground Two
In Ground Two, Petitioner complains that counsel was ineffective in failing to file a motion
13
to disqualify the trial judge. In support of his claim, Petitioner asserts that in September 2002, Adam
Tebrugge, one of the Assistant Public Defenders who represented him during the criminal
proceedings,8 had been an opponent of the trial judge, Charles Roberts, in the primary judicial
elections for the Twelfth Judicial Circuit of Florida (Judge Roberts ultimately won the election).
Petitioner argues that under Florida law, “a trial judge is required to recuse himself in any case,
within two (2) years, of an election, when one of the election contestants appears before the court.”
(Dkt. 2 at 8). Petitioner opines that because the time period between the election and the trial judge’s
assignment to Petitioner’s criminal case was less than two years, had counsel filed a motion to recuse
the judge, the judge would have been compelled to grant it. Petitioner further argues that he was
prejudiced by counsel’s failure to file the motion because the trial judge’s bias against defense
counsel deprived Petitioner a fair trial.
In state court, Petitioner raised this claim in Ground V of his 3.850 motion (Respondent’s
Ex. 13 at 23-25). In denying this claim, the post conviction court stated:
The Defendant claims counsel should have filed a motion to recuse the trial
judge, against whom defense counsel had run for judge, a position ultimately won by
the trial judge in 2002. The Defendant contends that Judicial Canon 3(E)(1)(a) was
violated by the trial judge in that he had a bias or prejudice against the Defendant’s
attorney.
The State Attorney responded that the court should deny the Defendant’s
claim because the Defendant has not shown that even if counsel had made a motion
for the trial judge to be disqualified, it would not have been granted because the
grounds were legally insufficient. The State pointed out that the defense counsel did
not run in the final election against the trial judge, but only the primary. Finally, the
State pointed out that under the law, disqualification would have been appropriate
within two years of the election, but thereafter, it would not have been required.
8
The record shows that Petitioner was also represented by John Scotese, A.P.D. (See for example
Respondent’s Ex. 13 at 25).
14
The Defendant’s motion is denied. It is clear that based upon the exhibit
attached to the Defendant’s Motion and the State’s response, that the election
involving the trial judge and defense counsel was in September, 2002. Defense
counsel was not in the general election, only the primary.
The trial in the instant case occurred more than two years after the election.
(See attached Trial Record). See Tower Group v. Doral Enterprises Joint Ventures,
760 So. 2d 256, 257 (Fla. 3d DCA 2000)(observing that trial judge should have been
disqualified from case involving attorney opponent in the judge’s reelection
campaign). See also Barber v. MacKenzie, 562 So. 2d 755, 758 (Fla. 3d DCA
1990)(observing that post-election disqualification should normally be for a period
of two years, until considering all the circumstances, the judge’s impartiality cannot
be reasonably be questioned). Here, the Defendant’s allegations do not establish that
the trial judge was not impartial during the trial and the allegations fail to satisfy the
test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Trial counsel was not
ineffective in failing to file the motion, as it was not well founded under the caselaw
and it would have been properly denied by the trial court. Additionally, as the State
points out, the trial court’s rulings were upheld on appeal and the sentence given for
first degree murder is a mandatory sentence, with no discretion given the sentencing
judge. As a result, the Defendant fails to show that he was prejudiced by his
attorney’s failure to file a motion to disqualify the trial judge.
(Respondent’s Ex. 16 at 7-9).
To the extent Petitioner relies on his underlying state law arguments, the state courts (the post
conviction court and the appellate court) answered the question of what would have happened had
his counsel sought recusal pursuant to state law. Consequently, Petitioner cannot show either
deficient performance or resulting prejudice from counsel’s foregoing the proposed motion for
recusal. See Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (although ineffective
assistance of counsel is a question of federal law, when the answer to the question turns on whether
counsel should have raised issues of state law, § 2254(d) requires the federal court defer to the state
court’s decision regarding its own laws).
Petitioner argues that the state post conviction court’s denial of the claim was based on an
unreasonable determination of the facts because the court “erroneously calculated the two (2) year
15
time period by using the time period between the election and trial instead of the election and [Judge
Roberts] assignment to the case.” This argument fails for two reasons. First, the determination of
whether the two year period encompasses either the time between the election and trial, or the time
between the election and the judge’s assignment to the case, is a matter of law, not an issue of fact.
Petitioner has cited no authority supporting his position that the two year period encompasses the
time between the election and the judge’s assignment to the case. Nor does he dispute the post
conviction court’s factual finding that trial started more than two years after the election.
Second, even if the two year period does encompass the time between the election and the
judge’s initial assignment to the case, Petitioner fails to allege when Judge Roberts was assigned to
his case. Therefore, Petitioner does not show that less than two years expired between the election
and the date on which Judge Roberts was assigned to the case.9 Consequently, Petitioner does not
establish that the state courts’ adjudication of this claim was based on an unreasonable determination
of the facts.
Finally, Petitioner does not allege facts that show counsel overlooked a meritorious basis for
seeking the judge’s disqualification on federal due process grounds. See Withrow v. Larkin, 421 U.S.
35, 46-47 (1975) (“Concededly, a ‘fair trial in a fair tribunal is a basic requirement of due process.’
In re Murchison, 349 U.S. 133, 136 (1955).”). At least one reasonably competent attorney at the
time could have determined that the alleged judicial bias did not raise a due process concern as to
the fairness and impartiality of the judge.
9
According to the Sarasota County Clerk of the Circuit Court’s Progress Docket in Petitioner’s case, Judge
Roberts’ name first appears in a docket entry on November 18, 2004 (Respondent’s Ex. 1, Vol. I at first page of
Progress Docket). Prior to that entry, it appears that the Honorable Harry M. Rapkin was the judge assigned to the
case (Id.).
16
Petitioner points to no evidence which indicates actual judicial bias.10 Nor do his allegations
overcome the presumption of the judge’s honesty and integrity. Winthrow, 421 U.S. at 47. The facts
asserted by Petitioner are not such that a reasonable person would be convinced that bias existed in
Petitioner’s case. See e.g., Tafero v. Wainwright, 796 F.2d 1314, 1322 (11th Cir. 1986) (rejecting
habeas petitioner’s due process claim regarding state court judge’s denial of motion to disqualify,
finding no showing of personal bias and alleged facts not such that reasonable person would be
convinced that a bias existed). Accordingly, even if counsel had moved to disqualify the trial judge
on either state or federal constitutional grounds, Petitioner cannot show that there was any reasonable
probability of a different outcome.
The state court decision resulted in a reasonable decision under either prong of Strickland
and a reasonable determination of the facts in light of the evidence. Accordingly, Ground Two does
not warrant relief.
Ground Three
In Ground Three, Petitioner complains that counsel was ineffective in failing to preserve for
appeal the introduction of a photograph of the victim11 during the testimony of the victim’s mother.
Petitioner asserts that counsel incorrectly objected to the photograph on the basis of relevancy. He
argues that counsel should have instead objected on the ground that the mother of the victim was the
10
In Hendrix v. Secretary, Florida Department of Corrections, 527 F.3d 1149 (11th Cir. 2008), the
Eleventh Circuit concluded that “there is no Supreme Court decision clearly establishing that an appearance of bias
or partiality, where there is no actual bias, violates the Due Process Clause or any other constitutional provision.” Id.
at 1153. Subsequently, however, the Supreme Court has decided that in some “extraordinary situations,” the
probability of actual bias is enough to violate due process. United States v. Rodriguez, 627 F.3d 1372, 1382 (11th
Cir. 2010) (citing Caperton v. A.T. Massey Coal Co., _ U.S. _, 129 S.Ct. 2252 (2009)). Petitioner has wholly failed
to show the “probability of actual bias” in his case.
11
The photograph depicted the way the victim looked at or near the time of death (Respondent’s Ex. 1, Vol.
X at 93; Vol. IV at 528).
17
person through whom the State was seeking introduction. Petitioner argues that under Florida law,
a family member should not be the one through whom a photograph of the victim should be
introduced. Petitioner argues, therefore, that he was prejudiced by counsel’s failure to raise the
“proper” objection because it deprived him the opportunity to correct the error on appeal.
In state court, Petitioner raised this claim in Ground I of his 3.850 motion (Respondent’s Ex.
13 at 3-9). In denying this claim, the post conviction court stated:
The Defendant alleges that Carol Mullins, the victim’s mother, testified at
trial and identified a pre-death photograph of the victim, Shane Patrick. Trial counsel
objected on the grounds of relevancy, but the court overruled the objection. The next
day, counsel filed a motion for mistrial in which he cited Ashmore v. State, 214
So.2d 67 (Fla. 1st DCA 1968), which supported the position that the photograph
should not have been introduced through a family member of the victim because it
interjects issues into the trial which do not fall within the scope of the charges on
which the defendant is being tried. The Defendant argues that counsel recognized that
his objection at trial on relevancy grounds may not have been the proper objection
and the State pointed out that the court’s ruling was correct given the relevancy
objection. The trial court denied the Defendant’s Motion for Mistrial, citing trial
counsel’s failure to make the proper objection and therefore, counsel had not
preserved the issue. The Defendant contends he was prejudiced because the witness
reacted emotionally in identifying the photograph before the jury and counsel’s
objection failed to preserve the issue for appeal and failed to incorporate the caselaw
he cited in his Motion for Mistrial.
The Defendant’s motion is denied. First, the trial court noted, when denying
defense counsel’s motion for mistrial, that it did not think the admission of the
photograph was prejudicial in the way it was done. (See attached Tr. 128-134). In
fact, the trial court specifically found that the witness, when she identified the
photograph was not visibly emotional and it was not even observed by the court until
after defense counsel had pointed it out. Further, the transcript of Ms. Mullins’s
testimony does not reflect that she became emotional at the time of the identification
of the photograph. (See attached Tr. 83-97). Under similar circumstances, the
Supreme Court of Florida found that any error committed by the trial court would be
harmless. See Peede v. State, 955 So. 2d 480, 501 (Fla. 2007)(observing that where
family member testified about other matters besides the identification of the victim
and even though there was little evidence that the State actually made a concerted
effort to find an unrelated witness to testify regarding identification of the victim’s
body, any error in admission of the family member’s identification testimony was
18
harmless). Even if counsel had properly preserved the issue, because the error would
have been harmless, the Defendant has not shown the required prejudice for
postconviction relief.
(Respondent’s Ex. 14 at 2-3).
First, Petitioner fails to demonstrate that trial counsel was deficient in failing to object on the
ground that the victim’s photograph should not have been introduced through the victim’s mother.
In Florida, “where an identity witness is available other than a member of the deceased’s family,
use of the latter serves only to prejudice the jury against the defendant by injecting issues into the
trial which do not fall within the scope of the charges on which the defendant is being tried.”
Ashmore v. State, 214 So. 2d 67, 68-69 (Fla. 1st DCA1968) (emphasis added). Petitioner does not
allege, nor does the record show, that there was another identity witness available at the time of trial
who could have testified that the photograph was of the victim, and that the photograph accurately
depicted the way the victim appeared at or near the time of his death. See Abram v. State, 242 So.
2d 215, 216 (Fla. 1st DCA 1970) (finding that the rule announced in Ashmore did not require
reversal, in part because “there [was] no showing in the record that other witnesses were available
to the prosecution to identify the victim’s body”). Moreover, in Ashmore, the appellate court held
that “it was error to prove the identity of the body of a deceased by members of the family of the
deceased when that fact could have been proven by other witnesses who were not members of the
family.” Id. at 68 (emphasis added). In Petitioner’s case, the mother was used to prove how the
victim appeared at or near the time of his death; she was not used to prove the identity of the body
of the victim (see Respondent’s Ex. 1, Vol. VII at 129-32). Consequently, Petitioner’s reliance on
19
Ashmore is misplaced.12
Second, Petitioner fails to demonstrate that he was prejudiced by trial counsel’s failure to
object on the ground that the photograph should not have been introduced through the victim’s
mother. The state post conviction court concluded that Petitioner failed to show prejudice because
had trial counsel preserved this issue for appeal, the error would have been harmless (Respondent’s
Ex. 14 at 3).13 The state postconviction court, and in turn the state appellate court by its affirmance,
have answered the question of what would have happened had defense counsel objected, pursuant
to state law, to introduction of the photograph through the victim’s mother. Petitioner cannot gain
federal review of this state law determination. See Alvord v. Wainwright, 725 F.2d at 1291.
Petitioner has failed to cite to any decision of the United States Supreme Court that would
indicate the state court’s decision was contrary to Strickland, or demonstrate that the decision was
based on an unreasonable determination of the facts. Accordingly, the Court finds that Petitioner
has failed to show that he is entitled to federal habeas relief on Ground Three.
Ground Four
In Ground Four, Petitioner complains that counsel was ineffective in failing to cross-examine
the State’s firearms expert witness, Rosemary Jassoy. Petitioner asserts that the rifle allegedly used
to shoot the victim was found and turned over to the Florida Department of Law Enforcement for
ballistics testing. Due to corrosion on the rifle, Jassoy removed the bolt and firing pin from the rifle
12
This Court notes that the state trial judge stated that he “always felt that that case law applied to an
autopsy photograph or a photograph depicting the victim after death.” (Respondent’s Ex. 1, Vol. VII at 133).
13
See Peede v. State, 955 So. 2d 480, 502 (Fla. 2007) (“any error that may exist in the admission of [the
victim’s daughter’s testimony regarding the identification of the victim’s body] was harmless”).
20
and installed them on another weapon for test firing in order to determine if a match could be made
with the cartridge cases found at the crime scene. Prior to trial, defense counsel filed a motion to
exclude Jassoy’s testimony on the ground that Jassoy’s testing procedures were unreliable. The
motion was denied. Petitioner argues that Jassoy’s testimony was critical to the State’s case because
it corroborated Petitioner’s statements to police, and therefore counsel was ineffective in failing to
cross-examine Jassoy, apparently regarding the reliability of the ballistics tests.
In state court, Petitioner raised this claim in Ground III of his 3.850 motion (Respondent’s
Ex. 13 at 10-19). In denying this claim, the post conviction court stated:
The Defendant argues that counsel failed to cross examine FDLE analyst
Rosemary Jossoy [sic], a firearms senior crime analyst in Tampa. Ms. Jossoy [sic]
was called by the State and she testified concerning her examination and testing of
a rifle that was recovered that was alleged to have been used by the Defendant to
shoot the victim. The rifle had been recovered from the water and barnacles were
attached to the stock and it was in deteriorated condition, with the bore and parts in
the firing mechanism used and corroded. Ms. Jossoy [sic] testified that she removed
the firing pin and bolt, cleaned them and then inserted them into a reference weapon
and the reference rifle was test fired. Trial counsel, as alleged by the Defendant, filed
a pre-trial motion to exclude Ms. Jossoy’s [sic] testimony in which he argued that her
testimony was inadmissible because the comparison casings used should not have
been allowed as proof that the crime scene casings were fired from the particular
rifle recovered nor allowed to support the testimony that the crime scene casings
could have only been fired from the weapon submitted to FDLE. Trial counsel argued
that is was impossible to assess or verify Ms. Jossoy’s [sic] testimony and therefore,
her testimony was inadmissible opinion testimony. The Defendant acknowledges that
counsel renewed his pre-trial objection at trial, but he never cross examined Ms.
Jossoy [sic] about the issues that he raised in his motion to exclude her testimony.
The Defendant argues that there was a possible faulty initial identification of the
cartridge cases made by Ms. Jossoy [sic] and that any challenge would have affected
her in court identification of the cartridge cases recovered from the scene.
The State Attorney responded that the court should deny this ground without
a hearing because the Defendant filed a pre-trial motion to exclude the testimony of
Ms. Jassoy , a lengthy hearing was held on the motion and the court ultimately denied
the motion, defense counsel renewed his objection at trial, thereby preserving the
issue for appeal. The State argued that because the Defendant gave a full statement
21
admitting he shot, struck and buried the victim, there was never any issue or question
about how the victim died and who killed him. The State argued that cross
examining the expert on an uncontroverted issue would only undermine the defense
credibility and would contradict the Defendant’s own words and confession.
The Defendant’s Motion is denied. As correctly pointed out by the State, the
Defendant admits that counsel argued the pre-trial motion and renewed his objection
to that evidence at trial, thus preserving the issue for appeal. It is unlikely,
considering the Defendant’s confession, that had counsel cross examined the expert,
that the outcome of the trial would have been different. (See attached Tr. 140-175).
Normally, a finding that counsel’s actions may be reasonable trial strategy cannot be
decided without benefit of an evidentiary hearing, however, the court finds that based
upon the record transcripts of the Defendant’s confession and the limited value of the
cross examination that could have been conducted, it is appropriate to summarily
deny this claim as the Defendant has failed to show the required prejudice for
postconviction relief. See Williams v. State, 797 So.2 d 1235, 1238-1239 (observing
that the defendant must show that counsel was deficient and that the prejudice was
so serious that there is a reasonable probability that the result of the proceeding
would have been different; and summary denial of tactical decision may be upheld
where it is so obvious from the record that no evidentiary hearing was necessary).
(Respondent’s Ex. 16 at 2-5).
The record reflects that prior to trial, defense counsel filed a Motion to Exclude Expert
Witness Testimony (Respondent’s Ex. 1, Vol. I at 25-26) in which defense counsel argued that the
trial court should exclude as unreliable Jassoy’s testimony that the sixteen rifle cartridge cases that
were found at the crime scene were fired from the rifle that was recovered, and allegedly used to
shoot the victim. At trial, defense counsel renewed his pre-trial objection to Jassoy’s testimony (Id.,
Vol. V at 340-41, 361). Defense counsel, however, never cross-examined Ms. Jassoy about the
issues that he raised in his motion to exclude her testimony (Id. at 342-68).
This claim may be denied on the prejudice prong of Strickland.14 Petitioner argues that
14
See Chambers v. Sec’y, Dep’t of Corr., 459 Fed. Appx. 852, 854 (11th Cir. 2012) (“If the defendant
makes an insufficient showing on the prejudice prong, we need not address the performance prong, and vice versa.”)
(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).
22
because Jassoy was a “key witness,” counsel was ineffective in failing to cross-examine her.
Therefore, Petitioner appears to implicitly argue that the failure to cross-examine a “key witness”
gives rise to a presumption of prejudice. See United States v. Cronic, 466 U.S. 648, 658-62 (1984)
(noting that “there are . . . circumstances that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified”). This Court disagrees.
In Broadwater v. United States, 347 Fed. Appx. 516 (11th Cir. 2009) (unpublished), the
Eleventh Circuit Court of Appeals stated:
“The decision as to whether to cross-examine a witness is a tactical one well
within the discretion of a defense attorney. . . . Absent a showing of a single specific
instance where cross-examination arguably could have affected the outcome of either
the guilt or sentencing phase of the trial, a [petitioner] is unable to show prejudice
necessary to satisfy the second prong of Strickland.” Fugate v. Head, 261 F.3d 1206,
1219 (11th Cir. 2001) (citations and internal quotation marks omitted). “Ineffective
assistance . . . will not be found merely because other testimony might have been
elicited from those who testified,” though we have “found ineffective assistance
where counsel failed to impeach the key prosecution witness with prior inconsistent
testimony where the earlier testimony was much more favorable to the defendant.”
Id. at 1219-20 (internal quotation marks and citations omitted) (emphasis added).
Though counsel may have performed deficiently in failing to impeach a witness, the
defendant must still demonstrate that prejudice resulted from the deficient
cross-examination. See id. at 1220.
Id. at 520-21.
Petitioner wholly fails to demonstrate that prejudice resulted from defense counsel’s failure
to cross-examine Jassoy. Petitioner fails to allege or show “a single specific instance where
cross-examination [of Jassoy] arguably could have affected the outcome of. . .the trial[.]” Instead,
Petitioner assumes prejudice or speculates that cross-examination of Jassoy could have affected the
outcome of the trial. Speculation about what witnesses could have said is not enough to establish
prejudice under Strickland. Cf. Brownlee v. Haley, 306 F.3d 1043, 1060 (11th Cir. 2002) (In the
23
context of a claim of ineffective assistance of counsel, speculation is insufficient to carry the burden
of a habeas corpus petitioner as to what evidence could have been revealed by further
investigation.).15
Furthermore, as the state post conviction court noted, there was other substantial evidence,
including Petitioner’s confession in which he admitted shooting and helping to bury the victim
(Respondent’s Ex. I, Vol. VII at 167-75), establishing that Petitioner shot and killed the victim.16
Therefore, there is not a reasonable probability that the outcome of the trial would have been
different had Petitioner’s counsel cross-examined Jassoy.
Petitioner fails to show that the state courts’ denial of this claim of ineffective assistance was
an unreasonable application of Strickland or based on an unreasonable determination of the facts.
Accordingly, Ground Four does not warrant relief.
Conclusion
For the foregoing reasons, the Court finds that Petitioner is not entitled to federal habeas
relief.
ACCORDINGLY, it is ORDERED that:
1. The Petition for Writ of Habeas Corpus is DENIED (Dkt. 1).
2. The Clerk shall enter judgment against Petitioner, terminate all pending motions, and
close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS
15
Petitioner has failed to present any evidence or testimony indicating that Jassoy’s ballistics tests were
unreliable.
16
The Court notes that defense counsel argued justifiable homicide as a defense (Respondent’s Ex. I, Vol.
IX at 612-19). Therefore, a critical cross-examination of Jassoy would have been inconsistent with Petitioner’s
defense of justifiable homicide.
24
\
~
"
L
DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability.
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's
denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate
of appealability (COA). Id. "A [COA] may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing,
Petitioner must show that reasonable jurists would find debatable both (1) the merits of the
underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack
v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001).
Petitioner cannot make the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a COA, he is not entitled to appeal in forma
pauperis.
DONE and ORDERED in Tampa, Florida, on
SA:sfc
Copy to: Petitioner pro se
Counsel of Record
.4u""~ r 2-3 tit
States District Judge
25
,2012.
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