Aumuller v. Secretary, Department of Corrections
Filing
28
OPINION AND ORDER: denying petition for the writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT against Aumuller and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/30/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL AUMULLER
Petitioner,
v.
Case No. 8:12-cv-389-T-23EAJ
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Michael Aumuller petitions for the writ of habeas corpus under 28 U.S.C.
§ 2254 (Doc. 1) and challenges the validity of his state conviction for first-degree
murder. Aumuller alleges one ground of trial court error and one ground of ineffective
assistance of trial counsel. Numerous exhibits (“Respondent’s Exhibit__”) support the
response. (Doc. 10)
FACTS1
Michael Aumuller challenges his conviction for first-degree
murder by drug distribution in violation of section
782.04(1)(a)(3), Florida Statutes (2001).1
1
Section 782.04(1)(a)(3), Florida Statutes (2001),
provides:
1
This factual summary is from the state appellate court’s order affirming Aumuller’s conviction and
sentence on direct appeal. (Respondent’s Exhibit 6)
The unlawful killing of a human being: . . . Which
resulted from the unlawful distribution of any
substance controlled under s. 893.03(1) . . . by a person
18 years of age or older, when such drug is proven to be
the proximate cause of the death of the user, is murder
in the first degree and constitutes a capital felony,
punishable as provided in s. 775.082.
....
The indictment charged that Aumuller “did unlawfully
distribute . . . heroin, which was the proximate cause of the death
of Ja[ir]on Nevius.”[2] At trial, the State presented the testimony
of Ryan Connaughton, Jason Aykroyd, and Jason Howlett, three
friends of the deceased, each of whom recounted the events on
the day that Nevius died.
According to Connaughton, he met Nevius in the early afternoon
on March 9, 2002, and began “partying.” They used marijuana
and cocaine. Nevius also drank alcohol and used Valium. Nevius
came up with the idea of getting heroin. They ran into Aykroyd,
who joined them at Nevius’s apartment. They discussed their
desire to obtain heroin. Aykroyd used his cell phone to call
someone, and then the three went in Aykroyd’s car to a gas
station to get the heroin. By this time, it was dark outside.
Aumuller and a woman arrived in a red sports car and both came
to Aykroyd’s car to talk to Aykroyd and deliver the heroin.
Aumuller told them the heroin “was fire,” which Connaughton
understood to mean that it was very potent. Nevius gave the
money to Aykroyd. Aykroyd and Aumuller exchanged the
money for the drugs. Aykroyd and Aumuller went into the store
to get change and buy water. Aumuller and the woman then left
in their car.
Aykroyd and Nevius then shot up the heroin in the car. Nevius
fell asleep. Connaughton drove them back to Nevius’s apartment.
Connaughton and Aykroyd left Nevius sleeping in the car and
went into the apartment where they shot up. About twenty
minutes later, they went out to check on Nevius and found he
was not breathing and had no pulse. They brought him into the
apartment and tried to perform CPR. Nevius vomited while they
were trying to revive him, but he was otherwise non-responsive.
2
The indictment charged Aumuller as a principal under Section 777.011, Florida Statutes.
(Respondent’s Exhibit 1)
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. . .[A]fter about fifteen minutes, Aykroyd called the
paramedics . . . .
Aykroyd’s testimony differed from that of Connaughton as to the
details of the drug transaction. Aykroyd testified
that . . . Aumuller drove a red Nissan 200SX car and had a
girlfriend named Heather Crouse. Aykroyd met with Nevius and
Connaughton at Nevius’s house in the afternoon on March 9.
They decided to get some heroin. Aykroyd used his cell phone to
page Aumuller, and Aumuller returned the call. Aykroyd
conveyed to Aumuller that he wanted to buy a half gram of
heroin. Aumuller indicated that he was going to Tampa to
“re-up” which Aykroyd understood to mean that he planned to
get more heroin.
Aykroyd paged Aumuller again a few hours later, and this time
Crouse called back. Aykroyd and Crouse set a location, a gas
station, where the drug transaction would occur. He also asked
Crouse to sell him some Ecstasy. Aykroyd, Connaughton, and
Nevius waited at the gas station for about an hour before Crouse
and Aumuller arrived in Aumuller’s red Nissan. Crouse was
driving. . . . Crouse got out of the car and went up to Aykroyd’s
window to exchange the money for the drugs. Nevius gave the
money to Aykroyd because Nevius was buying the drugs, and
Aykroyd gave the money to Crouse. Aumuller never got out of
his car. Crouse went into the store to get change. Crouse and
Aumuller drove away.
Aykroyd handed the heroin to Nevius, who proceeded to make
“his fix” and hand the bag back to Aykroyd. Aykroyd noticed
that Nevius took a lot more than what would be normal. They
both put the heroin in a spoon, mixed it up, put it in a syringe,
and shot it into their arms. Aykroyd blacked out in the driver’s
seat. Connaughton drove them to Nevius’s house. Nevius fell
asleep on the way. Aykroyd and Connaughton left Nevius
sleeping in the car and went into the house to shoot up more
heroin.
....
Officer Quinones testified that he was sent to investigate the
overdose at 3:21 a.m. Upon arriving at the house, he found a
white male slouched over and non-responsive. The paramedic
who arrived testified that Nevius was pronounced dead at 3:33
a.m. He appeared to have been dead for a couple of hours.
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Detective Faugno . . . interviewed Aumuller after reading him his
rights. Aumuller said that Crouse was his girlfriend and that he
knew Aykroyd. He said that on the night in question Aykroyd
wanted to buy heroin and ecstasy from him. Aumuller recalled
having to make a special trip to get the pills separate from the
heroin. He said that he had to put Aykroyd at the bottom of the
list for that reason. Aumuller said that he bought the drugs from
someone in Tampa and that he called Aykroyd back with a
location for the transaction. . . .
A forensic toxicologist for the medical examiner’s office
examined autopsy samples from Nevius and testified that the
urine sample indicated the presence of caffeine, nicotine, cocaine,
marijuana, and heroin. The blood sample showed the presence of
heroin in a level consistent with the range for accidental
overdose. According to the toxicologist, cocaine did not play a
role in the cause of death in this case.
The associate medical examiner who performed the autopsy
testified that she determined from the toxicology reports that the
cause of death was heroin toxicity.
(Respondent’s Exhibit 6, pp.1–7) A jury convicted Aumuller of first-degree murder
for which he serves life imprisonment.
I.
EXHAUSTION AND PROCEDURAL BAR
Ground One
Aumuller contends that the trial judge’s rejection of an intervening cause jury
instruction resulted in a violation of Aumuller’s right to due process. Aumuller raised
this issue on direct appeal but argued only a violation of state law. The failure to
present to the state court a federal due process claim challenging the jury instruction
renders the claim unexhausted. Before a federal court may grant habeas relief, a
federal habeas petitioner must exhaust every available state court remedy for
challenging his conviction, either on direct appeal or in a state post-conviction motion.
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28 U.S.C. § 2254(b)(1)(A), (C). “[T]he state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to a 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.”) (citations omitted)). To exhaust a claim, a
petitioner must present the state court with the particular legal basis for relief in
addition to the facts supporting the claim. See Snowden v. Singletary, 135 F.3d 732, 735
(11th Cir. 1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly
presen[t] federal claims to the state courts in order to give the State the opportunity to
pass on and correct alleged violations of its prisoners’ federal rights.’”) (quoting
Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an
unexhausted claim in federal court extends to both the broad legal theory of relief and
the specific factual contention that supports relief. Kelley v. Sec’y for Dep’t of Corr., 377
F.3d 1317, 1344 (11th Cir. 2004).
The requirement that a federal habeas corpus petitioner exhaust available state
court remedies as a prerequisite to federal review is satisfied if the petitioner “fairly
presents” his claim in each appropriate state court and alerts that court to the federal
nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275–76
(1971). A petitioner may raise a federal claim in state court “by citing in conjunction
with the claim the federal source of law on which he relies or a case deciding such
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claim on federal grounds, or by simply labeling the claim ‘federal.’” Baldwin v. Reese,
541 U.S. 27, 32 (2004). A petitioner must “do more than scatter some makeshift
needles in the haystack of the state court record.” McNair v. Campbell, 416 F.3d 1291,
1302–03 (11th Cir. 2005) (quotations and citations omitted).
In his direct appeal brief Aumuller failed to alert the state appellate court of a
federal due process claim. See Anderson v. Harless, 459 U.S. 4, 5–6 (1982) (“It is not
enough that all the facts necessary to support the federal claim were before the state
courts or that a somewhat similar state-law claim was made.”). Aumuller’s failure to
present to the state court the federal component of ground one deprived the state court
of a “full and fair opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.” Boerckel, 526 U.S.
at 845. Consequently, the exhaustion requirement remains unsatisfied, Henry, 513
U.S. at 365, rendering ground one procedurally defaulted.
Under the procedural default doctrine, “[i]f 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). To establish cause for a procedural default, a petitioner “must
demonstrate that some objective factor external to the defense impeded the effort to
raise the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.
1999). To show prejudice, a petitioner must demonstrate not only that the errors at his
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trial created the possibility of prejudice but that they worked to his actual and
substantial disadvantage and infected the entire trial with error of constitutional
dimension. United States v. Frady, 456 U.S. 152 (1982). In other words, he must show
at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892.
A petitioner may obtain federal habeas review of a procedurally defaulted claim,
without a showing of cause or prejudice, if review is necessary to correct a
fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000);
Carrier, 477 U.S. at 495–96. A fundamental miscarriage of justice occurs in an
extraordinary case where a constitutional violation has probably resulted in the
conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327
(1995); Henderson, 353 F.3d at 892. This exception requires a petitioner’s “actual”
innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this
standard, a petitioner must show a reasonable likelihood of acquittal absent the
constitutional error. Schlup, 513 U.S. at 327.
Aumuller fails to demonstrate cause and prejudice excusing the default of his
federal claim. Carpenter, 529 U.S. at 451; Carrier, 477 U.S. at 49–96. He neither
alleges nor shows that the fundamental miscarriage of justice exception applies.
Henderson, 353 F.3d at 892. Because Aumuller fails to proffer specific facts showing an
exception to procedural default, ground one is procedurally barred from federal
review.
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II.
MERITS
Aumuller’s remaining ground is exhausted and entitled to review on the merits.
Standard of Review
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.
1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly
deferential standard for federal court review of a state court adjudication, states in
pertinent part:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court
interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a
federal habeas court to grant a state prisoner’s application for a writ
of habeas corpus with respect to claims adjudicated on the merits in
state court. Under § 2254(d)(1), the writ may issue only if one of
the following two conditions is satisfied--the state-court
adjudication resulted in a decision that (1) “was contrary to . . .
clearly established Federal Law, as determined by the Supreme
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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, 694 (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
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harrington v. Richter, ___ U.S.
___, 131 S. Ct. 770, 786–87 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th
Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of the state
court decision that we are to decide.”). The phrase “clearly established Federal law”
encompasses only the holdings of the United States Supreme Court “as of the time of
the relevant state-court decision.” Williams, 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
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effect to the extent possible under law.” Cone, 535 U.S. at 693. 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, ____ U.S. ____, 130 S. Ct.
1855, 1866 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398
(2011) (“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the
doubt’ . . . .”) (citations omitted).
In a per curiam decision without a written opinion the state appellate court
affirmed the denial of Aumuller’s Rule 3.850 motion to vacate. (Respondent’s
Exhibit 16) The state appellate court’s per curiam affirmance warrants deference under
Section 2254(d)(1) because “the summary nature of a state court’s decision does not
lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.),
reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby,
538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784–85 (“When a federal claim has
been presented to a state court and the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits in the absence of any indication
or state-law procedural principles to the contrary.”).
Review of the state court decision is limited to the record that was before the
state court.
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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.
Pinholster, 131 S. Ct. at 1398. Aumuller 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 Aumuller’s post-conviction claims warrants deference in this case.
Standard for Ineffective Assistance of Counsel
Aumuller 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
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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 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.
Aumuller must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
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setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691–92. To meet this burden, Aumuller must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. Aumuller cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would have
done. Nor is the test even what most good lawyers would have
done. We ask only whether some reasonable lawyer at the trial
could have acted, in the circumstances, as defense counsel acted
at trial . . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So, omissions
are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or
appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting Burger v.
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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).
Aumuller must prove that the state court’s decision was “(1) . . . contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States or (2) . . . based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Sustaining a claim of ineffective assistance of
counsel is very difficult because “[t]he standards created by Strickland and § 2254(d) are
both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (A petitioner must
overcome this “‘doubly deferential’ standard of Strickland and the AEDPA.”), and
Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is
doubly difficult for a petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the merits in state court is
found to merit relief in a federal habeas proceeding.”).
Ground Two
Aumuller contends that his trial counsel rendered ineffective assistance (1) by
proposing an inapplicable special jury instruction, (2) by failing to “substantially”
investigate the victim’s cause of death and not presenting “the fruit” of that
investigation to the jury, and (3) by introducing no evidence that another person
confessed to the crime.
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(1) Jury instruction
Aumuller testified at trial that he gave Crouse the heroin that she, in turn, sold
to the victim. Trial counsel pursued an “independent act” defense and requested an
“independent act” jury instruction.3 Aumuller contends that trial counsel should have
instead pursued an abandonment/withdrawal defense because Aumuller testified at
trial that he participated in the drug transaction “but withdrew from the crime and
renounced his participation.” (Doc. 1, p. 9) Aumuller argues that trial counsel’s error
fell outside the range of competent representation and deprived him of a fair trial.
The state post-conviction court rejected this claim in Aumuller’s Rule 3.850
motion:
Defendant alleges that counsel was ineffective for requesting an
inapplicable jury instruction when a plausible instruction was
available. Specifically, he argues that the independent act
instruction was improper because it required the jury to find that
Defendant was not involved at all. Instead, Defendant contends
3
The trial judge instructed the jury (Respondent’s Exhibit 22, Vol. 3, pp. 452–53):
If you find that the crime alleged was committed, an issue in this case is whether the
crime of distribution of heroin was an independent act of a person other than the
defendant. An independent act occurs when a person other than the defendant
commits or attempts to commit a crime.
One, which the defendant did not intend to occur, and two, in which the defendant
did not participate, and three, which was outside of and not a reasonably foreseeable
consequence of the common design or unlawful act contemplated by the defendant.
If you find the defendant was not present when the crime of distribution of heroin
occurred, that does not, in and of itself, establish that the distribution of heroin was
an independent act of another.
If you find that the distribution of heroin was an independent act of Heather Crouse,
then you should find Michael Aumuller not guilty of the crime of distribution of
heroin.
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counsel should have requested a jury instruction on
abandonment/voluntary withdrawal, which was supported by
Defendant’s testimony that he renounced his intention to
participate.
This claim has no merit. Abandonment is a valid defense only in
cases in which a person is charged with attempting to commit an
offense or with committing an offense that involved an attempt as
a lesser-included offense and the defendant presents evidence
showing that he or she voluntarily abandoned the attempt before
committing the substantive crime. See Dixon v. State, 559 So. 2d
354, 355 (Fla. 1st DCA [1990]). The crime of attempt requires a
specific intent to commit a particular crime and an overt act
toward the commission of the crime. Williams v. State, 967 So. 2d
735 (Fla. 2007).
As the indictment clearly reflects, Defendant was not charged
with attempting to commit an offense in this case. Additionally,
since the charged offense did not require proof of specific intent,
it could not involve an attempt as a lesser included offense. Once
the unlawfully distributed substance caused the victim’s death,
the offense was completed and Defendant could not avoid an
adjudication of guilt as to the charged offenses by showing that
he had thereafter abandoned his criminal purpose. See Dixon, 559
So. 2d at 357. As a result, counsel was not ineffective in failing to
request an instruction on a defense that was irrelevant to the
offense charged. See id. Accordingly, this claim is denied.
(Respondent’s Exhibit 12, pp. 4–5) (court’s record citations omitted)
Aumuller shows no entitlement to an abandonment defense.
Florida recognizes the common-law defense of abandonment,
also referred to as withdrawal or renunciation.[4] Abandonment is
4
Section 777.04(5), Florida Statutes, provides:
It is a defense to a charge of criminal attempt, criminal solicitation, or
criminal conspiracy that, under circumstances manifesting a complete
and voluntary renunciation of his or her criminal purpose, the
defendant:
(a) Abandoned his or her attempt to commit the
offense or otherwise prevented its commission;
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(continued...)
a valid defense only in cases in which a person is charged with
attempting to commit an offense, or with committing an offense
that involves an attempt as a lesser-included offense. Further, in
order to constitute a defense, abandonment must be complete and
voluntary. Thus, in order to assert the abandonment defense, a
defendant must present evidence which shows that a voluntary
abandonment of the attempt occurred prior to committing the
substantive crime.
Elizabeth Bosek, J.D., et al., FLORIDA JURISPRUDENCE, CRIMINAL LAW —
SUBSTANTIVE PRINCIPLES AND OFFENSES, § 285 (2d ed. 2011) (footnotes omitted)
(citing Carroll v. State, 680 So. 2d 1065, (Fla. 3d DCA 1996) and Dixon v. State, 559
So. 2d 354 (Fla. 1st DCA 1990)). The indictment charged Aumuller with first-degree
murder by drug distribution. The trial judge instructed the jury that “the lesser crimes
indicated are murder in the second degree, manslaughter, and sale of heroin.”
(Respondent’s Exhibit 22, Vol. 3, pp. 446–47) Because abandonment is not a defense
to the charged offense, trial counsel had no basis to either pursue the defense or request
an abandonment instruction. Aumuller offers no evidence establishing that the
abandonment defense would have resulted in his acquittal. He satisfies neither
Strickland’s deficient performance requirement nor prejudice requirement to support a
claim of ineffective assistance of counsel. Strickland, 466 U.S. at 691–92. The state
4
(...continued)
(b) After soliciting another person to commit an
offense, persuaded such other person not to do so or
otherwise prevented commission of the offense; or
(c) After conspiring with one or more persons to
commit an offense, persuaded such persons not to do
so or otherwise prevented commission of the offense.
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post-conviction court neither unreasonably applied Strickland nor unreasonably
determined the facts in rejecting this claim. 28 U.S.C. § 2254(d)(1), (2).
(2) Investigation
Aumuller contends that his trial counsel rendered ineffective assistance by not
investigating either “red flags” about the victim’s death5 or the “scientific field” or the
law applicable to his case. Aumuller further contends that trial counsel should have
retained both a pathologist and a toxicologist. He alleges that the pathologist would
have opined that an obstructed airway rather than heroin caused the victim’s death.
Aumuller speculatively asserts that the toxicologist “would have refuted the opinion of
the State’s expert toxicologist.” (Doc. 1, p. 11)
The state post-conviction court denied this claim in Aumuller’s Rule 3.850
motion:
5
Aumuller alleges that trial counsel had a duty to “substantially” investigate the following (Doc. 1,
pp.10–11):
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
The toxicologist prior counsel obtained permission to hire
Opinion of State expert toxicologist that any heroin found in blood implies
heroin toxicity
The State medical examiner’s finding based [on the] toxicology report since
nothing from [the] autopsy indicated death
Concentrat[ion] of heroin at the “bottom” of toxicity range for people
without tolerance when [the victim] had tolerance (i.e., prior use)
No other deaths occurred from same heroin used when greater amounts
w[ere] used in some witnesses
After alleged “legal [sic] injection,” [the victim] moved Aykroyd from front
seat to back seat
Unidentified pill may have caused death
Airway was described as obstructed
Effects of the Heimlich maneuver on an unconscious man
Vomiting would have cleared airway
The lapse of time from use of heroin to death was unusually long (time
indicated by phone records, testimony, and metabolite breakdown)
- 18 -
Defendant alleges that his counsel was ineffective for failing to
investigate the cause of death and consult an independent
pathologist and toxicologist despite Defendant’s requests.
Specifically, Defendant claims that the trial testimony of the
toxicologist . . . did not negate the possibility of a substantial
amount of cocaine in the victim’s blood and that, therefore, more
testing was required. Additionally, he argues that an independent
pathologist would have shown that the victim’s airway was
blocked at the time of his death. Lastly, Defendant contends that
counsel should have explored the fact that the victim was
observed taking an unknown “fatal pill” on the night of the
offense.
This claim has no merit. First, contrary to Defendant’s assertion,
[the State’s toxicologist] testified that there was no detectable
cocaine in the victim’s blood and that the victim was not under
the influence of cocaine at the time of his death.[6] Accordingly,
[the toxicologist] concluded that cocaine did not play a role in the
victim’s death.
As to the assertions regarding the victim’s blocked airway and the
unknown “fatal pill,” Defendant does not indicate what evidence
an independent expert could [have] presented to benefit his case.
See Beasley v. State, 18 So. 3d 473, 484 (Fla. 2009) (“Absent any
evidence of what an expert could and would have presented, a
defendant cannot establish a reasonable probability that expert
testimony would have impacted the original trial.”). Specifically,
Defendant does not allege that additional testimony on these
issues would have shown that heroin toxicity did not cause the
victim’s death. Therefore, Defendant’s claim appears to be based
on nothing more than his own speculation and, as such, it cannot
form the basis for post-conviction relief. See Knight v. State, 923
So. 2d 387, 399 (Fla. 2005) (holding that speculative and
conclusory allegations are insufficient to warrant an evidentiary
hearing).
6
The State’s toxicologist testified that testing of the victim’s urine showed a “recent use of cocaine;
however, at the time of death the decedent was not under the influence of cocaine . . . .”
(Respondent’s Exhibit 12, final order denying Rule 3.850 motion, Ex. C, p. 237) The toxicologist
further opined that, “[e]ven if there had been, for example, a trace of cocaine in the system, the
detection of the cocaine was so low, an amount less than that would have no cause or impact
whatsoever.” (Respondent’s Exhibit 12, final order denying Rule 3.850 motion, Ex. C, p. 245)
- 19 -
Further, the record reflects that counsel thoroughly
cross-examined the State’s experts regarding the presence of
substances in the victim’s system and the potential for other
causes of death. As a result, Defendant has not established that
counsel’s performance was deficient. See Belcher v. State, 961
So. 2d 239 (Fla. 2007) (“[I]t is unnecessary to retain a defense
expert where defense counsel cross-examined the State’s experts
to establish the facts necessary for the defense.”). Accordingly,
this claim is denied.
(Respondent’s Exhibit 12, pp. 8–9) (emphasis in original) (court’s record citations
omitted)
“Complaints of uncalled witnesses are not favored, because the presentation of
testimonial evidence is a matter of trial strategy and because allegations of what a
witness would have testified are largely speculative.” Buckelew v. United States, 575
F.2d 515, 521 (5th Cir. 1978)7 (citations omitted). “The inquiry into whether a lawyer
has provided effective assistance is an objective one: a petitioner must establish that no
objectively competent lawyer would have taken the action that his lawyer did take.”
Van Poyck v. Fla. Dep’t of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002). Trial counsel
must decide which strategic and tactical option to pursue. See e.g., Dingle v. Sec’y, Dep’t
of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (“Even if counsel’s decision appears to
have been unwise in retrospect, the decision will be held to have been ineffective
assistance only if it was ‘so patently unreasonable that no competent attorney would
have chosen it.’”) (quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983)).
7
Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued before
October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc).
- 20 -
A habeas petitioner must overcome a presumption that counsel’s challenged conduct
was a matter of strategy. Strickland, 466 U.S. at 689; United States v. Perry, 908 F.2d
56, 59 (6th Cir. 1990). A defendant’s disagreement with counsel’s tactics or strategy
will not support a claim of ineffective assistance of counsel. Waters v. Thomas, 46 F.3d
1506, 1512 (11th Cir. 1995) (en banc) (“[W]hich witnesses, if any, to call, and when to
call them, is the epitome of a strategic decision.”); Chandler, 218 F.3d at 1314 (finding
that counsel cannot be deemed incompetent for performing in a particular way in a
case as long as the approach taken “might be considered sound trial strategy”).
Aumuller presents no evidence establishing that trial counsel failed to
investigate the applicable law, the facts of the case, or the medical evidence.
He likewise offers no evidence supporting his speculative assertion that trial counsel
rendered ineffective assistance by not retaining either a toxicologist or a pathologist.
Aumuller speculates about the testimony of both a toxicologist and a pathologist. He
presents no evidence showing that either expert would have testified as he
hypothesizes. See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991)
(“[E]vidence about the testimony of a putative witness must generally be presented in
the form of actual testimony by the witness or an affidavit. A defendant cannot simply
state that the testimony would have been favorable; self-serving speculation will not
sustain an ineffective assistance claim.”) (footnotes omitted). Aumuller fails to
demonstrate that trial counsel’s performance fell outside the bounds of reasonable
professional judgment. See Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th Cir. 2001)
- 21 -
(holding that petitioner did not establish ineffective assistance based on defense
counsel’s failure to call an expert witness because petitioner failed to show that
counsel’s decision was so patently unreasonable that no competent attorney would
have chosen that strategy), cert. denied, 535 U.S. 1000 (2002). Aumuller offers no
evidence establishing that the proposed testimony of either a toxicologist or pathologist
would have resulted in his acquittal. He satisfies neither Strickland’s deficient
performance requirement nor prejudice requirement to support a claim of ineffective
assistance of counsel. Strickland, 466 U.S. at 691-92. The state post-conviction court
neither unreasonably applied Strickland nor unreasonably determined the facts in
rejecting this claim. 28 U.S.C. § 2254(d)(1), (2).
(3) Confession of another
Aumuller alleges that his girlfriend, Heather Crouse, testified before the
grand jury that Aumuller committed the underlying felony (unlawful distribution
of heroin). He claims that before trial he received a copy of two recorded statements
in which Crouse both confessed to a fellow jail inmate (Lisa Morande) that she
(Crouse) committed the underlying felony8 and admitted to her mother that “they got
the real thing.” (Doc. 1, p. 12) Aumuller claims that he asked trial counsel to depose
Crouse but “[c]ounsel refused in favor of Crouse invoking her right against
8
Aumuller attached to his Rule 3.850 motion a transcript of a tape-recorded conversation between
Morande and Heather that includes Heather’s statement that Aumuller was in the car when she was
selling the drugs and that he “had nothing to do with it” and that he “took the rap” for her.
(Respondent’s Exhibit 11, attach. G to Aumuller’s Rule 3.850 motion, pp. 3, 10)
- 22 -
self-incrimination before the jury rather than making her unavailable before trial.”
(Doc. 1, p. 12) Aumuller argues that trial counsel rendered ineffective assistance (1) by
not calling Crouse as a defense witness or introducing her taped confession, (2) by not
making Crouse’s mother available to corroborate Crouse’s truthfulness, and (3) by not
presenting a complete defense.
The state post-conviction court denied this claim in Aumuller’s Rule 3.850
motion:
(a) Failure to Introduce Taped Confessions
Defendant alleges that his counsel was ineffective for failing to
prepare and introduce evidence that on December 29, 2003,
inmate Lisa Morande, who was wearing a wire at the direction of
police detectives, taped Heather Crouse confessing that she sold
the heroin and ecstasy that resulted in the victim’s death. In
addition, Defendant claims that Crouse told her mother . . . in a
taped phone conversation that “they got the real thing” on tape.
Defendant alleges that he asked counsel to investigate the
transcribed tapes of Crouse’s confessions but that he failed to do
so.
First, Defendant has not established prejudice. Defendant was
charged under section 777.011, Florida Statutes, which defines a
“principal” as a person who “helped another person or persons
commit a crime.” While the conversations with M[o]rande show
that Crouse admitted to the handing over [of] the drugs and
collecting the money, they also confirm that Defendant
participated in the transaction.FN In fact, a transcript of the taped
conversation reveals that Defendant and Crouse went to purchase
the drugs together and that Crouse gave Defendant the money
from the transaction and asked him to obtain change from the
store. Thus, even if the recording had been admitted, Crouse’s
statements would not have demonstrated that Defendant was not
a principal as charged. § 777.011, Fla. Stat.; Fla. Std. Jury Instr.
3.5(a) (Crim.). Similarly, the fact that Defendant was involved is
not refuted by Crouse’s comment to her mother that “they got the
real thing.”
- 23 -
FN. The court also notes that the jury heard testimony
that Crouse was the one who did the hand-to-hand
transaction.
Neither conversation was sufficiently exculpatory to overcome
the other evidence of Defendant’s involvement, which includes
his admission to law enforcement and the testimony of two other
witnesses who acknowledged Defendant’s participation in the
deal. As a result, Defendant has not shown a reasonable
probability that the outcome of his trial would have been different
had the tapes been introduced as evidence. The claim is denied.
(b) Failure to Call Witnesses
Next, Defendant alleges that counsel should have called inmate[]
Lisa Mirande . . . and [Crouse’s mother] as witnesses at trial, as
they “were needed to overcome the scheme Crouse had
planned.”
This claim has no merit. First, even if counsel had called these
witnesses to testify about Crouse’s recorded statements, the
testimony would not have been sufficient to overcome the
evidence showing Defendant’s involvement. As discussed in part
(a) of this claim, Defendant’s participation was corroborated by
his own statements to law enforcement as well as by the trial
testimony of other witnesses. Further, the conversation between
Crouse and Mirande only confirmed Defendant’s involvement.
Therefore, Defendant has failed to show that counsel was
deficient by not calling these witnesses.
Finally, Defendant has not demonstrated that the recorded
conversations or the testimony from other witnesses related to
Crouse’s conversations could overcome a hearsay objection. By
Defendant’s own contention, Crouse was available to testify.
Therefore, her statements would not be admissible as a statement
against penal interest pursuant to section 90.804(2)(c), Florida
Statutes. Counsel cannot be deemed ineffective for failing to
introduce inadmissible evidence. See Owens v. State, 986 So. 2d
534, 556 (Fla. 2008).
(Respondent’s Exhibit 12, pp. 2–3) (court’s record citations omitted)
- 24 -
Even assuming that Crouse’s recorded statements were admissible and that trial
counsel performed deficiently by not introducing the statements at trial, Aumuller
shows no resulting prejudice. Both Connaughton and Aykroyd testified to Aumuller’s
participation in the drug sale. (Respondent’s Exhibit 22, Vol. 1, pp.146,
188-95) Detective Faugno testified about Aumuller’s admission to the police that he
obtained the heroin and sold the heroin to Aykroyd. (Respondent’s Exhibit 22, Vol. 2,
pp. 279–80) Aside from his own speculation, Aumuller provides no evidence
establishing that either Crouse or her mother was available or willing to testify, nor has
he submitted a sworn affidavit from either witness. Ashimi, 932 F.2d at 650. See also
Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (rejecting ineffective assistance of
counsel claim based on an alleged failure to investigate a witness because petitioner did
not present an affidavit from the witness demonstrating that he would have provided
testimony helpful to the defense); United States v. Porter, 924 F.2d 395, 397 (1st Cir.
1991) (holding that failure to interview a witness could not constitute ineffective
assistance without a showing that the investigation would have helped defendant).
“[M]ere speculation that missing witnesses would have been helpful is insufficient to
meet the petitioner’s burden of proof.” Streeter v. United States, 335 Fed. App’x 859,
864 (11th Cir. 2009)9 (citing Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)).
Aumuller meets neither Strickland’s deficient performance requirement nor prejudice
9
“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive
authority.” 11th Cir. Rule 36-2.
- 25 -
requirement to support this claim of ineffective assistance of counsel. Strickland, 466
U.S. at 691–92. He fails to establish that the state post-conviction court’s rejection of
this claim was contrary to, or an unreasonable application of, Strickland. 28 U.S.C.
§ 2254(d)(1), (2).
Accordingly, Aumuller’s petition for the writ of habeas corpus (Doc. 1) is
DENIED. The clerk must enter a judgment against Aumuller and close this action.
DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Aumuller is not entitled to a certificate of appealability (“COA”). 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
COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” To merit a COA,
Aumuller 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). Because he fails to show that reasonable jurists would
debate either the merits of the claims or the procedural issues, Aumuller is entitled to
neither a certificate of appealability nor an appeal in forma pauperis.
- 26 -
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma
pauperis is DENIED. Aumuller must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 30, 2015.
- 27 -
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