McGirt v. Secretary, Department of Corrections et al
Filing
14
ORDER denying McGirt's application for the writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against McGirt and to CLOSE the case. Signed by Judge Steven D. Merryday on 10/14/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANDRE C. McGIRT,
Applicant,
v.
CASE NO. 8:11-cv-2858-T-23JSS
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
McGirt applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges his convictions on forty-five counts of RICO, burglary, grant theft,
and various forms of forgery, for which convictions McGirt is imprisoned for life.
Numerous exhibits (“Respondent’s Exhibit __”) support the response. (Doc. 7) The
respondent admits the application’s timeliness. (Response at 3, Doc. 7)
FACTS1
With the goal of stealing checks and credit cards, McGirt established a criminal
enterprise comprising himself, his wife (Jennifer McGirt), and other members of his
wife’s family. The enterprise committed (1) a series of car burglaries outside of
churches and daycare facilities and (2) a home burglary. The members of the
enterprise were charged with cashing forged checks and using stolen credit cards. The
This summary of the facts derives from McGirt’s brief on direct appeal. (Respondent’s
Exhibit 5 at 9S12)
1
trial lasted eight days and involved more than thirty witnesses. The evidence
established crimes against (1) Heather Jo Brown, whose car was burglarized and her
purse was stolen after she parked outside of a daycare center on June 1, 2004; (2) Toni
Walsh, whose car was burglarized and whose purse was stolen when she took her son
to kindergarten on August 17, 2004; (3) Christina Ann McDowell, whose car was
burglarized and whose purse was stolen when she and her husband went to their
children’s school for a birthday party on August 20, 2004; (4) Judith Crowley,
whose car was burglarized and whose baby bag (containing her purse, wallet, and cell
phone) was stolen when she dropped-off her daughter at her pre-kindergarten school
on September 10, 2004; (5) Jack Blanchard, whose Pinellas Park home was
burglarized as he slept and whose roommate’s pants and wallet were stolen on
September 13, 2004; (6) Gail O’Conner, whose car was burglarized and whose purse
was stolen while she was teaching tennis to children on September 14, 2004; and
(7) Marsha McArthur, whose car was burglarized and whose purse was stolen while
she was attending a church funeral dinner on September 17, 2004.
Law enforcement investigators identified Andre and Jennifer McGirt as
possible suspects. While conducting an undercover surveillance, the police observed
the McGirts commit the McDowell burglary. The police arrested the couple after
following the McGirts to their home. Because she was on probation when arrested,
Jennifer McGirt remained in jail. Andre McGirt was released on bond. While
Jennifer McGirt was in jail, the police monitored telephone conversations between
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Andre McGirt and her. The monitoring produced incriminating evidence against
Andre McGirt.
Andre and Jennifer McGirt were charged in a fifty-count information with
(1) violating Florida’s Rico statute; (2) committing many burglaries, thefts, and
forgeries; (3) uttering forged checks; and (4) using stolen credit cards. Jennifer McGirt
testified against Andre McGirt in exchange for a favorable plea agreement. The
state’s evidence against McGirt consisted primarily of testimony from Sonya West,
William Reynolds, Alfonso Williams, Michelle Gramling and Jennifer McGirt, who
were members of the enterprise. The prosecution introduced photographs and
surveillance recordings from Wal-Mart and K-Mart. The recordings showed both
McGirt with some of the above-identified members of the enterprise soon after several
of the burglaries and some members of the enterprise using stolen credit cards to
purchase or attempt to purchase merchandise. Neither this evidence nor the
testimony of some of the store cashiers showed that McGirt himself used a stolen
credit card at the stores. Similarly, no burglary victim was able to identify who
committed the relevant burglary, and no bank teller was able to identify McGirt as
cashing a forged check. The prosecution withdrew four of the counts before trial.
The jury convicted McGirt of forty-five counts and acquitted on one count.
Andre McGirt’s defense was (1) that the evidence showed no involvement in
racketeering, (2) that no money trail connected him to the stolen items, and (3) that
the physical evidence, including surveillance tapes and photographs, did not show
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him committing a crime. McGirt argued that all of the testimonial evidence against
him came from his wife and her family, who were biased against him because of selfinterest and racial animus (Jennifer McGirt is Caucasian and Andre McGirt is
African-American).
McGirt’s state motion for post-conviction relief was summarily denied without
an evidentiary hearing because the court determined that each claim was refuted by
the record. The state court correctly rejected McGirt’s claims of ineffective assistance
of counsel because McGirt, as the leader of the criminal enterprise, is liable for an act
by a member of his enterprise if the act was in furtherance of the enterprise. Most of
McGirt’s grounds for relief in his Section 2254 application show a misunderstanding
about a principal’s liability for an act by a participant in a criminal enterprise. This
misunderstanding undermines much of his application.
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 —
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(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, 412S13 (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 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. 685, 693 (2002). “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
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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, 786S87 (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. at 694. A federal
court 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 to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559
U.S. 766, 779 (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 on
direct appeal affirmed McGirt’s convictions and sentence. (Respondent’s Exhibit 7)
Similarly, in another per curiam decision without a written opinion the state appellate
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court affirmed the denial of McGirt’s subsequent Rule 3.850 motion to vacate.
(Respondent’s Exhibit 16) 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 784S85
(“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.”), and Bishop v. Warden, 726 F. 3d 1243, 1255S56 (11th Cir. 2013)
(describing the difference between an “opinion” or “analysis” and a “decision” or
“ruling” and explaining that deference is accorded the state court’s “decision” or
“ruling” even if there is no “opinion” or “analysis”).
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 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.
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Pinholster, 131 S. Ct. at 1398. McGirt bears the burden of overcoming by clear and
convincing evidence a state court factual determination. “[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 McGirt’s post-conviction claims warrants deference in this case.
(Order Denying Motion for Post-Conviction Relief, Respondent’s Exhibit 14)
INEFFECTIVE ASSISTANCE OF COUNSEL
McGirt claims 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.
McGirt must demonstrate that counsel’s alleged 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 691S92. To meet this burden, McGirt must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
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proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
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 690S91. McGirt 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, 1220S21 (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).
McGirt must prove that the state court’s decision was “(1) . . . contrary to, or
involved an unreasonable application of, clearly established Federal law, as
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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). 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 (An applicant
must overcome this “‘doubly deferential’ standard of Strickland and the AEDPA.”),
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.”), and Pooler v. Sec’y, Dep’t of
Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must view Pooler's
ineffective counsel claim — which is governed by the deferential Strickland test —
through the lens of AEDPA deference, the resulting standard of review is “doubly
deferential.”), cert. denied, ___ U.S. ___, 134 S. Ct. 191 (2013).
In summarily denying McGirt’s motion for post-conviction relief, the state
court specifically recognized that Strickland governs a claim of ineffective assistance of
counsel. (Respondent’s Exhibit 14 at 2) Because the state court rejected the claims
based on Strickland, McGirt cannot meet the “contrary to” test in Section 2254(d)(1).
McGirt instead must show that the state court unreasonably applied Strickland or
unreasonably determined the facts. In determining “reasonableness,” a federal
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application for the writ of habeas corpus authorizes determining only “whether the
state habeas court was objectively reasonable in its Strickland inquiry,” 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).
The 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:
McGirt alleges that trial counsel rendered ineffective assistance by not
investigating, deposing, and calling as a witness Eugene McGirt (a brother of
McGirt), whom he alleges would have testified to having forged the check stolen from
Gail O’Connor. Based on a misunderstanding about the law of principals, McGirt
argues that his brother’s testimony (that the brother forged the check) would have
refuted the prosecution’s evidence that a state witness saw McGirt forge the check.
The post-conviction court denied this claim as follows (Respondent’s Exhibit 14
at 2S5) (citations to record omitted) (brackets original):
The Defendant first alleges that he was denied effective
assistance of counsel due to counsel’s failure to investigate,
interview, depose and call Eugene McGirt as a witness. The
Defendant alleges that Eugene McGirt contacted counsel prior
to trial and informed him that he “had written both checks and
would submit a copy of the written information on the check(s)
for analysis to support that fact.” The Defendant contends that
he told counsel that Eugene McGirt’s testimony would have
“refuted the testimony of State’s witness Alphonzo Williams
that he ‘witnessed the Defendant sign [victim Gail O’Connor’s
name to] the checks.’” The Defendant states that there is a
strong probability that the outcome of the trial would have been
different had Alfonso Williams testified.
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. . .
Preceding trial, the court asked the Defendant whether he would
be inquiring of any defense witnesses at trial. The Defendant
stated that he had discussed calling witnesses with counsel and
that none would be called. Furthermore, the Defendant
specifically stated that he had not asked counsel to locate any
witnesses preceding trial. In fact, during a bench conference on
August 10, 2007, the State affirmed that prior to trial, counsel
and the State had discussed that Eugene McGirt had been
making threats to Alfonso Williams. Thereafter, upon the close
of the State’s case, the Defendant represented to the court that
he had asked counsel to locate witnesses that had not been
located. The Defendant stated that he was happy with counsel’s
attempts to locate witnesses and, moreover, that he did not want
to call any witnesses or present any evidence on his behalf.
Additionally, as noted above, the Defendant was charged with
50 counts including burglary; grand theft; uttering forged bills,
checks, drafts or notes; fraudulent use of personal identification
information; violation of racketeer influenced and corrupt
organization act; forgery of bank bills, checks, drafts, or
promissory notes; fraudulent use of a credit card; and forgery.
Following an eight-day jury trial, the Defendant was found
guilty of forty-five counts of the aforementioned offenses. In
Ground One of his motion, the Defendant appears to challenge
specifically the testimony of Alfonso Williams pertaining to
Count 34 (grand theft), Count 35 (forgery of bank bills, checks,
drafts or promissory notes), and Count 36 (uttering forged bills,
checks, drafts or notes) regarding victim Gail O’Connor.
The failure to call witnesses can constitute ineffective assistance
of counsel if the witnesses may have been able to cast doubt on
the Defendant’s guilt. Sulley v. State, 900 So. 2d 596 (Fla. 2d
DCA 2004). If a defendant’s motion for post-conviction relief
presents a facially sufficient claim for ineffective assistance of
counsel for failure to call witnesses, a defendant is entitled to an
evidentiary hearing unless the record conclusively refutes his
claim. Ford v. State, 825 So. 2d 358 (Fla. 2002).
The Defendant was charged as a principal in the first degree in
every count of the information. §777.011, Fla. Stat. (2004). As a
principal in the first degree, whoever aids, abets, counsels, hires,
or otherwise procures an offense to be committed, and the
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offense is committed or is attempted to be committed, is a
principal in the first degree and may be charged, convicted, and
punished as such, whether he or she is or is not actually or
constructively present at the commission of such offense. Staten
v. State, 519 So. 2d 622 (Fla. 1988); State v. Reid, 886 So. 2d 265
Fla. 5th DCA 2005) (“Under statute defining principals in the
first degree, no distinction is made between those who are the
brains of the crime and those who are the arms of the crime.”).
Aside from Alphonso Williams’ testimony that the Defendant
signed Ms. O’Connor’s name to the checks, Mr. Williams also
testified that the Defendant presented the check to him and
drove him to multiple locations in order to cash the check. In
exchange, Mr. Williams testified that he received a portion of
the proceeds. Ms. O’Connor testified that she recognized the
check as her own; however, she did not know anyone by the
name of Alfonso Williams or Andre McGirt. Furthermore, she
testified that she did not make out the check to Alfonso Williams
nor did she authorize anyone to do so.
Michelle Gramling2 and Jennifer McGirt . . . testified to the
systematic manner in which the Defendant organized and
orchestrated the various offenses. Ms. Gramling testified that she
made credit card purchases using Ms. O’Connor’s credit cards,
forging the victim’s name. Ms. Gramling further testified to how
she was instructed by the Defendant to forge the victim’s checks
using a typewriter.
Co-Defendant Jennifer McGirt also testified to the manner in
which the offenses were conducted and the Defendant’s role in
carrying them out. Ms. McGirt testified in detail as to the
offenses for which the Defendant was charged. Additionally,
incriminating audio tapes of conversations that Ms. McGirt had
with the Defendant from the Pinellas County Jail were played at
trial. In these tapes, the Defendant revealed his participation in
the offenses of which he was convicted.
Dwight Reynolds [(a cousin of Jennifer McGirt)] testified to
driving around with the Defendant, parking next to Ms.
O’Connor’s vehicle, and watching the Defendant remove her
purse from the vehicle. Mr. Reynolds testified that the
Defendant instructed Ms. Gramling to use a computer to fill out
the check taken from Ms. O’Connor’s vehicle.
2
The fiancee of William Reynolds, who is a cousin of Jennifer McGirt.
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Sonya West [(a cousin of Jennifer McGirt)] also testified to the
Defendant asking her to cash a check, the surreptitious manner
in which it was attempted, and the defendant’s role in the
process.
Because the Defendant was convicted as the principal to the
various offenses, it was immaterial to prove that the Defendant
personally executed the falsified check bearing Ms. O’Connor’s
signature. As demonstrated by the ample evidence presented at
trial and cited above, the Defendant was convicted as a principal
in the first degree. Based upon the foregoing, counsel cannot be
deemed ineffective for failing to investigate, interview, depose
and call Eugene McGirt as a witness. Ground One is denied.
The post-conviction court rejected this claim because, whether McGirt, as the
leader of the enterprise and as a principal, or his brother forged the check is irrelevant
to McGirt’s liability for the crime because he is liable for any act committed in
furtherance of the enterprise. McGirt argues that his convictions, based on his
liability as a principal, are invalid because the information did not charge him as a
principal. Under Florida law the information need not designate that the defendant is
charged as a principal. “[A] person is a principal in the first degree whether he
actually commits the crime or merely aids, abets or procures its commission, and it is
immaterial whether the indictment or information alleges that the defendant
committed the crime or was merely aiding or abetting in its commission, so long as
the proof establishes that he was guilty of one of the acts denounced by the statute.”
State v. Roby, 246 So. 2d 566, 571 (Fla. 1971). See Hodge v. State, 970 So. 2d 923, 927
(4th DCA 2008) (quoting Roby). See also State v. Larzelere, 979 So. 2d 195, 215 (Fla.
2008) (“Under Florida law, a person who is charged in an Indictment or Information
with commission of a crime may be convicted on proof that she aided or abetted in
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the commission of such crime.”) (citations omitted). As a consequence, the postconviction court reasonably applied Strickland by determining that trial counsel was
not ineffective for not investigating, deposing, and calling Eugene McGirt. McGirt is
entitled to no relief under ground one.
Ground Two:
McGirt alleges that trial counsel rendered ineffective assistance by not
investigating, consulting, and presenting the testimony of a handwriting expert even
though McGirt gave counsel sufficient money to hire an expert. The post-conviction
court denied this claim as follows (Respondent’s Exhibit 14 at 6) (citations to record
omitted):
The Defendant next claims that counsel was ineffective for
failing to “investigate, consult with, and present expert
testimony in the area of handwriting analysis.” The Defendant
claims that the handwriting expert would have corroborated the
testimony of Eugene McGirt [(that he and not the defendant
signed the O’Connor check)] and would have discredited the
testimony of Alfonso Williams [(that McGirt signed the check)].
As noted above, the Defendant was convicted as a principal in
the first degree to the numerous offenses with which he was
charged. Therefore, there was no need for the State to prove that
the Defendant personally executed the falsified checks. Instead,
as documented above, ample evidence was presented at trial
showing that to varying degrees, the Defendant aided,
counseled, and directed his coconspirators in carrying out the
multitude of offenses for which he was ultimately convicted.
Because the Defendant has failed to show how he was
prejudiced through counsel’s failure to call a handwriting expert,
Ground Two is denied.
For the reasons stated under ground one, the post-conviction court reasonably
applied Strickland by determining that McGirt proved no deficient performance
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because McGirt, as a leader of the enterprise and principal, is liable for an act
committed in furtherance of the enterprise. McGirt is entitled to no relief under
ground two.
Ground Three:
McGirt alleges that trial counsel rendered ineffective assistance by not
investigating, deposing, and presenting the testimony of Virginia Vanhoose (Jennifer
McGirt’s grandmother) and asserts that her testimony would establish that McGirt
was financially secure and without the need to commit the charged crimes. The postconviction court denied this claim as follows (Respondent’s Exhibit 14 at 6S7)
(citations to record omitted):
The Defendant next alleges that counsel was ineffective in
failing to investigate, interview, depose, and call Virginia
Vanhoose as a defense witness.
The Defendant avers that on July 7, 2006, he informed counsel
that from August 21, 2004, until his arrest on October 1, 2004,
that he had resided at the residence of Ms. Vanhoose. The
Defendant claims that Ms. Vanhoose had taken out a reverse
mortgage on her home to financially assist the Defendant and
co-defendant Jennifer McGirt. The Defendant claims that
recorded statements would have clearly established that the
Defendant was financially stable and would have undercut the
State’s theory that the Defendant committed the offenses to
obtain money for the “Jennifer McGirt Defense Fund.”
The record reveals that Ms. Vanhoose was listed as a witness on
the Defendant’s April 5, 2006, “Second Amended Witness List
and List of Tangible Evidence” and April 20, 2006, “Third
Amended Witness List and List of Tangible Evidence.”
Furthermore, at an April 21, 2006, Williams Rule hearing
counsel informed the court that Ms. Vanhoose was listed as a
State witness and a defense witness, and that she was scheduled
to have cataract surgery but she would be available to testify at
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trial. Additionally, on April 18, 2006, counsel filed a witness
subpoena for Ms. Vanhoose.
In addition to the testimony set forth in Ground One above,
Detective Anthony Stevens and Officer Randall Jones testified
that the Defendant provided a post-Miranda statement in which
he denied doing daycare burglaries, however he stated that he
told several people how to do vehicle burglaries at day cares,
and he told them how to use the checks taken from the
burglaries to obtain cash, and that he received payment from
individuals that carr[y] out the burglaries because he told them
how to do it.
Based upon the testimony and evidence presented at trial, as
stated above, it is dubious that counsel’s failure to call Ms.
Vanhoose as a witness prejudiced the defense. Additionally,
preceding trial, the court asked the Defendant whether he would
be inquiring of any defense witnesses at trial. The Defendant
stated that he had discussed calling witnesses with counsel and
that none would be called. Furthermore, the Defendant
specifically stated that he had not asked counsel to locate any
witnesses preceding trial.
Thereafter, upon the close of the State’s case, the Defendant
represented to the court that he had asked counsel to locate
witnesses that had not been located. The Defendant stated that
he was happy with counsel’s attempts to locate witnesses and,
moreover, that he did not want to call any witnesses or present
any evidence on his behalf. Hall v. State, 10 So. 3d 170 (Fla. 5th
DCA 2009) (“A defendant may not claim his counsel was
ineffective for failing to call witnesses when it was the
defendant’s decision not to call them.”); Thomas v. State, 838 So.
2d 535, 541 (Fla. 2003) (affirming denial of ineffective assistance
of counsel claim where trial court found that defendant agreed
not to call a witness and thus, could not claim ineffective
assistance of counsel based on his decision). Based upon the
foregoing, Ground Three is denied.
Strickland requires proof of both deficient performance and consequent
prejudice. The post-conviction court rejected McGirt’s claim after determining that
counsel did not perform deficiently. The court further determined that, based on
McGirt’s statements and the extensive incriminating evidence, McGirt failed to prove
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that he was prejudiced by counsel’s not investigating, deposing, and presenting the
testimony of Virginia Vanhoose. Because he does not show that the post-conviction
court unreasonably applied Strickland, McGirt is entitled to no relief under ground
three.
Ground Four:
McGirt alleges that trial counsel rendered ineffective assistance by not
impeaching Jennifer McGirt with her juvenile adjudication of a “prior check charge”
to refute her testimony that McGirt taught her how to forge checks. The postconviction court denied this claim as follows (Respondent’s Exhibit 14 at 8) (citations
to record omitted):
The Defendant next alleges that counsel was ineffective for
failing to investigate and impeach State’s witness Jennifer
McGirt. More specifically, the Defendant alleges that counsel
was ineffective for failing to investigate Jennifer McGirt and
impeach her with “prior check charges as a juvenile.” The
Defendant alleges that these impeachable offenses would have
refuted her testimony that the Defendant “taught her to do this.”
The Defendant specifically argues that counsel should have
impeached Ms. McGirt for her “prior check charges as a
juvenile.” An offense that occurred while the witness was a
juvenile, which was handled as a juvenile matter and resulted in
a juvenile adjudication, is inadmissible for impeachment
purposes. § 90.610(1)(b); Rivers v. State, 792 So. 2d 564, 566 (Fla.
1st DCA 2001); Martin v. State, 710 So. 2d 58, 59 (Fla. 4th DCA
1998). Because such convictions are inadmissible for the purpose
of impeaching a witness, counsel cannot be deemed ineffective
for failing to use the juvenile convictions to impeach Ms.
McGirt. Ground Four is denied.
The post-conviction court determined that, as a matter of state evidentiary law,
the juvenile adjudication was unusable for impeachment purposes. As a general
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principle, an alleged violation of state law fails to assert a constitutional issue because
the admissibility of evidence in a state trial is largely a matter for the state to decide
without federal intervention. See McCullough v. Singletary, 967 F.2d 530, 535S36 (11th
Cir. 1992) (“A state’s interpretation of its own laws or rules provides no basis for
federal habeas corpus relief, since no question of a constitutional nature is involved.”),
cert. denied, 507 U.S. 975 (1993), and Marshall v. Lonberger, 459 U.S. 422, 438, n. 6
(1983) (“[T]he Due Process Clause does not permit the federal courts to engage in a
finely tuned review of the wisdom of state evidentiary rules.”). Federal review is
available only in extreme circumstances. “[I]t is normally
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