Williams v. Secretary, Department of Corrections

Filing 19

ORDER: The Petition for Writ of Habeas Corpus is DENIED. The Clerk shall enter judgment against Petitioner, terminate all pending motions, and close this case. Because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 7/11/2011. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CLIFFORD WILLIAMS,
Petitioner,
-vs-

Case No. 8:10-CV-1655-T-30AEP

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 challenging a conviction for
attempted second degree murder entered in 2004 by the Tenth Judicial Circuit Court, Polk
County, Florida (Dkt. 1). Respondent filed a response to the petition (Dkt. 16). Despite being
given the opportunity to file a reply to Respondents’ response (see Dkt. 4 at pg. 4), Petitioner
did not file a reply.
Respondent asserts no challenge to the petition’s timeliness. The matter is now before
the Court for consideration on the merits of Petitioner’s claims. An evidentiary hearing is
not required for the disposition of this matter. Rules Governing Section 2254 Cases 8(a)
(2011).

Procedural History
On May 26, 2004, Petitioner was charged by Information with attempted first degree
murder, and possession of a firearm by a convicted felon (Respondent’s Ex. 1, Vol. 1 at pgs.
47-48). On July 29, 2004, the State filed an Amended Information charging Petitioner with
attempted first degree murder, possession of a firearm by a convicted felon, and violation of
an injunction for protection (Id. at pgs. 42-44). The trial court severed the possession of a
firearm by a convicted felon and violation of an injunction for protection counts. On April
17, 2006, Petitioner proceeded to a jury trial on the attempted first degree murder charge
only. The jury found Petitioner guilty of the lesser included offense of attempted second
degree murder (Id. at pgs. 71-74). On April 20, 2006, Petitioner was sentenced to a
mandatory minimum twenty-five (25) year prison sentence (Id. at pgs. 75-79). The appellate
court affirmed his conviction and sentence (Respondent's Ex. 5); Williams v. State, 969 So.
2d 1033 (Fla. 2d DCA 2007) [table].
On December 27, 2007, Petitioner filed a motion for post conviction relief pursuant
to Florida Rule of Criminal Procedure 3.850 in which he raised ten ineffective assistance of
counsel claims (Respondent’s Ex. 7). He filed a supplement to his post conviction motion,
adding an eleventh claim of ineffective assistance of counsel (Respondent’s Ex. 8). On May
14, 2008, the post conviction court issued an order denying grounds 1, 5, 6, 7, 8, 10, and 11
of the Rule 3.850 motion, and directed the State to respond to grounds 2, 3, 4, and 9
(Respondent’s Ex. 9). On July 15, 2008, the State filed its response to the remaining claims
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(Respondent’s Ex. 10). On August 28, 2008, the post conviction court issued a final order
denying the remaining claims (Respondent’s Ex. 11). On August 5, 2009, the appellate court
affirmed the denial of Petitioner’s Rule 3.850 motion (Respondent’s Ex. 17); Williams v.
State, 17 So. 3d 297 (Fla. 2d DCA 2009) [table]. The Florida Supreme Court dismissed
Petitioner's petition for discretionary review (Respondent's Ex. 22); Williams v. State, 19 So.
3d 987 (Fla. 2009) [table].
On November 30, 2009, in the Florida Second District Court of Appeal, Petitioner
filed a petition for writ of habeas corpus asserting ineffective assistance of appellate counsel
(Dkt. 16 at pgs. 6-7).1 He filed an amended petition on February 11, 2010 (Respondent’s Ex.
24). On March 10, 2010, the Second District Court of Appeal issued an order denying the
petition without discussion (Respondent’s Exhibit 25); Williams v. State, 30 So. 3d 505 (Fla.
2d DCA 2010). The Florida Supreme Court dismissed Petitioner's petition for discretionary
review (Respondent's Ex. 29); Williams v. State, 36 So. 3d 86 (Fla. 2010) [table].
Petitioner constructively filed the instant § 2254 petition in this Court on July 16,
2010 (Dkt. 1). The petition raises the following two grounds for relief:
Ground One
Petitioner during Anders’ [sic] proceeding was denied due process of law
where the district court on the state level were [sic] required under Anders to
make an independent review of the record to identify error arguable on appeal;
however, in the [sic] instance, the district court failed to identify prejudicial
error on the face of the appellate record.

1

Respondent states that he does not possess a copy of the original petition for writ of habeas corpus.

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Ground Two
During Anders’ [sic] proceedings, the appellate court during its independent
review of the appellant’s record, and the law as required [sic] Anders v.
California, the appellate court failed to identify error that was arguable on
appeal, thus denied appellant his right to a full appeal and appointed counsel.
Standard 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 must be highly deferential. Such findings are presumed to be correct unless rebutted
by clear and convincing evidence. Similarly, the state courts' resolutions of issues of lawincluding constitutional issues-must 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).
Procedural Default
A § 2254 application cannot be granted unless a petitioner "has exhausted the
remedies available in the courts of the State; . . ." 28 U.S.C. 2254(b)(1)(A); Snowden v.
Singletary, 135 F.3d 732, 735 (11th Cir. 1998). In other words, the state prisoner must give
the state courts an opportunity to act on his claims before he presents those claims to a
4

federal court in a habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also,
Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003)("A state prisoner seeking federal
habeas relief cannot raise a federal constitutional claim in federal court unless he first
properly raised the issue in the state courts.")(quoting Judd v. Haley, 250 F.3d 1308, 1313
(11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364 (1995)("[E]xhaustion of state remedies
requires that the state prisoner ‘fairly present’ 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[.]’") (citation omitted).
Under the procedural default doctrine, "if the petitioner has failed to exhaust state
remedies that are no longer available, that failure is a procedural default which will bar
federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage
of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). "The
doctrine of procedural default was developed as a means of ensuring that federal habeas
petitioners first seek relief in accordance with established state procedures." Henderson, 353
F.3d at 891 (quoting Judd v. Haley, 250 F.3d at 1313).
Pre-AEDPA decisions from the Supreme Court establish the framework governing
procedural default in federal habeas cases. A procedural default will only be excused in two
narrow circumstances. First, petitioner may obtain federal habeas review of a procedurally
defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting from
the default. "Cause" ordinarily requires petitioner to demonstrate that some objective factor
external to the defense impeded the effort to raise the claim properly in the state court.
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Henderson, 353 F.3d at 892; Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).
To show “prejudice," the petitioner must show "not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his factual and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions." Hollis v.
Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152,
170 (1982)). The 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.
Second, a petitioner may obtain federal habeas review of a procedurally defaulted
claim, without a showing of cause or prejudice, if such review is necessary to correct a
fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Henderson, 353 F.3d at 892. This exception is only available "in an extraordinary case,
where a constitutional violation has resulted in the conviction of someone who is actually
innocent." Henderson, 353 F.3d at 892. The fundamental miscarriage of justice exception
concerns a petitioner's "actual" innocence rather than his "legal" innocence. Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (citing Calderon v. Thompson, 523 U.S. 538,
559 (1998)); Murray v. Carrier, 477 U.S. 478, 495-96 (1986) (explaining a "fundamental
miscarriage of justice" occurs "in an extraordinary case, where a constitutional violation has
resulted in the conviction of someone who is actually innocent"). 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, "'to be credible,' a claim of actual innocence must be based on [new] reliable
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evidence not presented at trial." Calderon, 523 U.S. at 559 (quoting Schlup, 513 U.S. at 324)
(explaining "given the rarity of such evidence, in virtually every case, the allegation of actual
innocence has been summarily rejected") (internal quotation marks omitted). The Schlup
Court stated the petitioner must show constitutional error coupled with "new reliable
evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts,
or critical physical evidence -- that was not presented at trial.” Schlup, 513 U.S. at 324. This
fundamental miscarriage of justice exception is not available unless "the petitioner shows,
as a factual matter, that he did not commit the crime of conviction." Ward v. Cain, 53 F. 3d
106, 108 (5th Cir. 1995)(denying certificate of probable cause)(footnote omitted).
Discussion
In Ground One, Petitioner asserts that after his appellate attorney filed an Anders
brief,2 the state appellate court denied him due process when it failed to identify prejudicial
error apparent on the face of the record. It appears that Petitioner asserts that the error which
the appellate court failed to identify was the state trial court’s giving the standard criminal
jury instruction on the lesser included offense of attempted voluntary manslaughter which,
Petitioner argues, erroneously includes an “intent to kill element.” He appears to state that
because of the jury instruction, the jury may have erroneously believed that it had to find
Petitioner intended to kill the victim in order to find Petitioner guilty of attempted voluntary
manslaughter.

2

Anders v. California, 386 U.S. 738 (1967).

7

In Ground Two, Petitioner again challenges the appellate court’s failure to identify
prejudicial error apparent on the face of the record. It appears that Petitioner asserts that the
error which the appellate court failed to identify was that the state trial court adjudicated him
guilty without a unanimous jury verdict. Specifically, he asserts that when the jury was
polled, five of the six jurors confirmed the verdict. Juror Abdullah, however, did not respond.
Thus, Petitioner argues, the verdict was not unanimous.
Initially, Respondent contends that both these claims are procedurally barred because
they were never presented to the state courts. This Court agrees. The record reveals that
Petitioner never presented the claims raised in his federal habeas petition, that the state
appellate court denied him due process when it failed to find reversible error during its
independent examination of the trial record, to the state courts.
A petition for writ of habeas corpus should not be entertained unless the petitioner has
first exhausted his state remedies. See Castille v. Peoples, 489 U.S. 346, 349, reh'g denied,
490 U.S. 1076 (1989). Petitioner has failed to do so. It would be futile to dismiss this case
to give Petitioner the opportunity to exhaust these claims. Accordingly, these claims have
been procedurally defaulted.
Petitioner has not shown both cause excusing the default and actual prejudice resulting
from the bar. Further, he has not shown that he is entitled to the fundamental miscarriage of
justice exception.

8

Moreover, Petitioner’s claims would fail even if they were not barred. As to Ground
Two, Petitioner fails to show the denial of a constitutional right because the Constitution
does not guarantee state defendants the right to a unanimous jury verdict. Apodaca v.
Oregon, 406 U.S. 404 (1972) (upholding felony verdicts of 11-1 and 10-2 ). Furthermore,
the record belies Petitioner’s assertion that the jury verdict was not unanimous. After the
verdict was read, the court polled the jurors as to whether they concurred in the verdict
(Respondent’s Ex. 1, Vol. III at pp. 416-17). Each juror, including Juror Abdullah, affirmed
his or her concurrence in the verdict (Id. at p. 417).3 Thus, the claim has no merit.
With regard to Ground One, Petitioner asserts that the standard criminal jury
instruction on attempted voluntary manslaughter that the trial court gave to the jury
erroneously stated that the State must prove that Petitioner intended to kill the victim. The
attempted voluntary manslaughter jury instruction stated in pertinent part that “the State must
prove the [sic] beyond a reasonable doubt that Mr. Williams committed of [sic] act which
was intended to cause the death of Ms. Walker...” (Respondent’s Ex. 1, Vol. III at p. 405).

3

The Court notes that Petitioner may be attempting to take advantage of an apparent scrivener’s error in the
trial transcript. In pertinent part, the trial transcript states:
The Court: Ms. Patel, was that your verdict?
Juror Patel: Yes, sir.
The Court: Mr. Abdullah, was that your verdict?
Juror Patel: Yes, sir.
(Respondent’s Ex. 1, Vol. III at p. 417) (emphasis added). It is apparent from the record that the trial court asked
Mr. Abdullah if he concurred in the verdict, and Mr. Abdullah responded “yes, sir.” Petitioner has not alleged that
Ms. Patel actually answered the Court’s question to Mr. Abdullah on his behalf. Thus, the Court concludes that the
transcript’s reference to “Juror Patel” following the state court’s question to Mr. Abdullah is a scrivener’s error.

9

First, whether the offense of attempted voluntary manslaughter includes an “intent to kill”
element is a matter of state law. A state's interpretation of its own laws or rules provides no
basis for federal habeas corpus relief because no federal constitutional question is presented.
28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("[I]t is not the province of
a federal habeas court to re-examine state-court determinations on state-law questions."). It
is a fundamental principle that state courts are the final arbiters of state law, and federal
habeas courts should not second-guess them on such matters. See Herring v. Secretary, Dept.
of Corrections, 397 F.3d 1338, 1354-55 (11th Cir. 2005) (citing Agan v. Vaughn, 119 F.3d
1538, 1549 (11th Cir. 1997)).
Second, at the time the Second District Court of Appeal affirmed Petitioner’s
conviction, December 5, 2007 (see Respondent’s Ex. 5), the Second District had stated in
Hall v. State, 951 So. 2d 91, 96 (Fla. 2d DCA 2007) that “[a]n intent to kill is required to
commit an attempted manslaughter because no person can attempt to cause an unintentional
act.” Thus, at the time of the decision in Petitioner’s appeal, it was not apparent that the
attempted voluntary manslaughter standard jury instruction was erroneous.4
Third and finally, Anders stated that once an appellant files an Anders brief, the
appellate court must conduct an independent examination of the proceedings to determine
whether the appeal is wholly frivolous before it will allow the attorney to withdraw from the
4

The Court notes that in Houston v. State, 56 So. 3d 908, 909 (Fla. 2d DCA 2011) the Second District Court
of Appeal held that the phrase "committed an act which was intended to cause the death of" in the standard jury
instruction for attempted manslaughter impermissibly creates an intent-to-kill element in the crime of attempted
manslaughter.

10

case. See Anders, 386 U.S. at 744-45. Petitioner does not allege, nor does the record
indicate, that the state appellate court failed to conduct an independent examination of the
trial record prior to affirming Petitioner’s conviction.
Conclusion
For the foregoing reasons, the Court finds that Petitioner is not entitled to federal
habeas relief.
ACCORDINGLY, the Court ORDERS 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 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 demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or wrong,"
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed
11

further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n. 4 (1983)). 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 July 11, 2011.

SA:sfc
Copy to: Petitioner pro se
Counsel of Record

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