Young v. Secretary, Department of Corrections et al
Filing
14
ORDER denying 1 Petition for writ of habeas corpus. The clerk is directed to enter judgment and close this case. Signed by Judge James D. Whittemore on 7/27/2015. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICO SHANDEL YOUNG,
Petitioner,
v.
Case No. 8:12-cv-1657-T-27TGW
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_________________________________/
ORDER
Petitioner Rico Shandel Young, an inmate in the Florida Department of Corrections
proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) and
memorandum of law (Dkt. 2). He challenges his convictions entered by the Circuit Court for the
Thirteenth Judicial Circuit, Hillsborough County, Florida, in 1998. Respondent filed a response
(Dkt. 9) and Petitioner filed a reply (Dkt. 12). Upon review, the petition must be denied.
Procedural History
A jury convicted Petitioner of armed burglary of a conveyance with a firearm (count one),
grand theft firearm (count two), and obstructing or opposing an officer without violence (count
three). (Dkt. 11, Ex. 3.) Petitioner was sentenced to life in prison on count one, five years in prison
on count two, and time served on count three. (Dkt. 11, Ex. 5.) The state appellate court per curiam
affirmed his convictions and sentences. (Dkt. 11, Ex. 9.)
Petitioner filed a state habeas petition, alleging ineffective assistance of appellate counsel.
(Dkt. 11, Ex. 12.) The state appellate court denied his petition without comment. (Dkt. 11, Ex. 15.)
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Petitioner filed a motion and an amended motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850. (Dkt. 11, Exs. 16, 17.) The state court denied some of his claims and
conducted an evidentiary hearing on the remaining claims. (Dkt. 11, Exs. 18, 20.) Following the
evidentiary hearing, the state court denied Petitioner’s motion for postconviction relief. (Dkt. 11,
Ex. 21.) However, the state court granted Petitioner’s motion for rehearing on ground five, vacated
Petitioner’s judgment and sentence, and ordered that a new trial be held. (Dkt. 11, Exs. 23, 25.) The
state appellate court reversed this decision and remanded for reinstatement of the judgment and
sentence. State v. Young, 932 So.2d 1278 (Fla. 2d DCA 2006).
Petitioner later was granted a belated appeal of the denial of his postconviction motion. (Dkt.
11, Ex. 43.) The state appellate court reversed the postconviction court’s denial of relief on ground
three and remanded to the state postconviction court for further proceedings. Young v. State, 988
So.2d 650 (Fla. 2d DCA 2008). It affirmed the denial of relief with regard to all other claims. Id.
On remand, the state postconviction court entered an order denying ground three of Petitioner’s
postconviction motion and subsequently denied Petitioner’s motion for rehearing. (Dkt. 11, Exs. 49,
50.) The state appellate court per curiam affirmed the order of denial. (Dkt. 11, Ex. 51.)
Respondent does not contest the timeliness of the federal habeas petition.
Factual Background1
Petitioner’s charges resulted from an incident in which a gun was taken from a vehicle. At
approximately 12:15 a.m. on March 28, 1998, Joseph Greco woke up when he heard noises outside
his house. He saw Petitioner, holding a hammer in one hand and a large screwdriver in the other,
approaching his car. Greco thought Petitioner appeared ready to hit the trunk with the screwdriver.
1
This factual summary is derived from the trial testimony and the briefs filed on direct appeal.
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Greco went outside, pointed a gun at Petitioner, and told him to get on the ground. Greco yelled at
neighbors to call the police. He observed that Petitioner wore a knit cap that was rolled up on the
bottom. Greco held Petitioner at gunpoint while waiting for police.
After Officer Gary Pruitt arrived, Petitioner fled. Pruitt chased Petitioner but did not
apprehend him. Pruitt noticed that he wore a knit cap that was rolled up. When Pruitt returned to
the scene, he and Greco saw that the driver’s side window of Greco’s car was broken and that the
car’s center console, which Greco had left closed, was open. A gun Greco kept in the console was
missing. The lock on the car’s trunk was also damaged. Petitioner was arrested several weeks later.
When Officer Jean Strickland conducted a search of Petitioner’s person at the time of arrest,
Strickland found in Petitioner’s pocket a knit cap that had eye holes cut out of it.
Pruitt did not identify Petitioner at trial, but Greco did. At the time of the incident, the area
outside his house was sufficiently well-lit for him to see Petitioner. As Greco held him at gunpoint,
Petitioner asked to be let go, stating that Greco knew him and that his grandmother lived “right
there.” Petitioner pointed in the direction of two vacant lots separating Greco’s house from
Petitioner’s grandmother’s house. Additionally, Greco recognized Petitioner from a recent encounter
at the home of another neighbor, Robert Alexander, who did some work painting houses for Greco.
Greco recalled that several weeks before the crimes, when he approached the Alexander residence
to ask for help removing paint cans from the trunk of his car, Petitioner answered the door. Greco
further recalled that Petitioner and one of Robert Alexander’s sons, Jason Alexander, removed the
paint cans. A rifle, which was stored in a case, was located inside the trunk. Greco believed
Petitioner saw it and thought this was suspicious. Although Greco had seen Petitioner around the
neighborhood a few times, this incident was a more definitive basis for his identification of
Petitioner.
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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). Habeas relief can only be granted if a petitioner is in custody “in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d),
which sets forth a highly deferential standard for federal court review of a state court adjudication,
states in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential
standard:
In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court
to grant a state prisoner's application for a writ of habeas corpus with respect to
claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may
issue only if one of the following two conditions is satisfied–the state-court
adjudication resulted in a decision that (1) “was contrary to . . . clearly established
Federal Law, as determined by the Supreme Court of the United States” or (2)
“involved an unreasonable application of . . . clearly established Federal law, as
determined by the 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.
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“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, 562 U.S. 86, 103
(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 [the federal court is] 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 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.”
Cone, 535 U.S. at 693. In other words, “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 statecourt rulings, which demands that state-court decisions be given the benefit of the doubt’ . . . .”)
(citations omitted).
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In decisions without comment or discussion, the state appellate court denied Petitioner’s state
habeas petition and affirmed the denial of all grounds of his postconviction motion except ground
five. These decisions warrant deference under § 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, 562 U.S. at 99 (“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.
Pinholster, 131 S. Ct. at 1398. Petitioner 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).
Exhaustion of State Remedies; Procedural Default
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner
must exhaust all state court remedies that are available for challenging his conviction, either on
direct appeal or in a state postconviction motion. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel,
526 U.S. 838, 842 (1999) (“[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.”). 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
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the issue in the state courts.”) (citations omitted). A state prisoner “‘must give the state courts one
full opportunity to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process,’ including review by the state’s court of last resort, even if
review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003)
(quoting O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal and factual
bases for his 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)). A federal habeas petitioner
“shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has
the right under the law of the State to raise, by any available procedure, the question presented.”
Pruitt, 348 F.3d at 1358. 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, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). The requirement of
exhausting state 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). The doctrine of
procedural default provides that “[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 established.” Smith
v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
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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). See also Murray v. Carrier, 477 U.S. 478
(1986). To show prejudice, a petitioner must demonstrate not only that the errors at his 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 dimensions. United States v. Frady, 456 U.S.
152, 170 (1982). The petitioner must show at least a reasonable probability of a different outcome.
Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted claim
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).
Discussion
Ground One
Petitioner asserts that appellate counsel was ineffective for failing to raise numerous
arguments on direct appeal. He contends counsel should have argued that (1) the trial court abused
its discretion when responding to the jury’s request for a “read back” of testimony; (2) the State
improperly made “golden rule”2 arguments; (3) the State’s evidence was insufficient to support his
convictions; and (4) the trial court erred in denying his motion to suppress.
2
Golden rule arguments “are arguments that invite the jurors to place themselves in the victim’s position during
the crime.” Braddy v. State, 111 So.3d 810, 842 (Fla. 2012) (quoting Mosley v. State, 46 So.3d 510, 520 (Fla. 2009)).
Page 8 of 34
In his state habeas petition, Petitioner only asserted that appellate counsel was ineffective for
failing to argue that the trial court abused its discretion when it responded to the jury’s request for
a “read back” of testimony. (Dkt. 11, Ex. 12.) He did not raise the other three allegations of
ineffective assistance of appellate counsel. (Id.)3 These claims are therefore unexhausted.
Petitioner cannot return to state court to file an untimely petition alleging ineffective
assistance of appellate counsel. See Fla. R. App. P. 9.141(d)(5). Consequently, the claims are
procedurally defaulted. See Smith, 256 F.3d at 1138. Petitioner does not argue or demonstrate that
an exception applies to overcome the procedural default. See id. Accordingly, these claims of
ineffective assistance of appellate counsel are barred from federal habeas review.
Furthermore, Petitioner is not entitled to relief on his exhausted claim that appellate counsel
was ineffective for not arguing that the trial court abused its discretion with regard to the jury’s
request for a “read back” of testimony. Claims of ineffective assistance of counsel are governed by
the law set forth in Strickland v. Washington, 466 U.S. 668 (1984):
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 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). In order to show deficient performance,
a petitioner must demonstrate that “in light of all the circumstances, the identified acts or omissions
3
Appellate counsel did claim that the prosecutor improperly made golden rule arguments. (Dkt. 11, Ex. 6, pp.
10-12.)
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[of counsel] were outside the wide range of professionally competent assistance.” Strickland, 466
U.S. at 690. However, “counsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment.” Id. Additionally, “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.” Id.
Petitioner must demonstrate that counsel’s alleged errors 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.” Id. at 691-92. To
show prejudice, a petitioner 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.” Id. at 694.
Counsel’s 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.” Id. at 690-91. A petitioner cannot meet his burden merely by
showing that counsel’s choices were 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
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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)).
Sustaining a claim of ineffective assistance of counsel on federal habeas review 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, 562 U.S. at 105 (citations
omitted). See also Pinholster, 131 S. Ct. at 1410 (a petitioner must overcome the “‘doubly
deferential’ standard of Strickland and AEDPA.”).
If a claim of ineffective assistance of counsel can be resolved through one of the Strickland
test’s two prongs, the other prong need not be considered. 466 U.S. at 697 (“[T]here 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.”).
Claims that appellate counsel provided ineffective assistance are analyzed under the two-part
test set forth in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d
1126, 1130 (11th Cir. 1991). To establish a claim, Petitioner must show that appellate counsel’s
performance was objectively unreasonable, and that there is a reasonable probability that, but for this
performance, Petitioner would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.
The state appellate court rejected Petitioner’s claim that appellate counsel was ineffective for
failing to argue the trial court abused its discretion in responding to a jury request during
deliberations. The record reflects that the jury sent the following question to the court: “Your Honor,
may we please read the court transcript of Officer Pruitt?” (Dkt. 11, Ex. 2, p. 175.) The court
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informed the jurors that no transcript had been made and that they must rely on their collective
recollection of the testimony. (Dkt. 11, Ex. 2, pp. 175-77.) Although no transcript was available,
counsel objected and requested that the court reporter read the testimony to the jury. (Id.)
In support of his ineffective assistance claim, Petitioner argues that the trial court failed to
comply with Florida Rule of Criminal Procedure 3.410, which provides that when the jury requests
to have testimony read back, the court may order the testimony be read back to them. Petitioner also
cited Rule 3.410, as well as several Florida decisions concerning that Rule and jury requests to
review testimony, in support of his state habeas petition. (Dkt. 11, Ex. 12.)
While Petitioner’s claim of ineffective assistance of appellate counsel is a federal question,
his challenge to the application of Florida law and procedural rules is a state law matter. A federal
habeas court must defer to the state court’s interpretation of state law and rules. See Will v. Sec’y
for Dep’t of Corr., 278 Fed. App’x 902, 908 (11th Cir. 2008) (“Although an ineffective-assistanceof-counsel claim is a federal constitutional claim, which we consider in light of the clearly
established rules of Strickland, when ‘the validity of the claim that [counsel] failed to assert is clearly
a question of state law, . . . we must defer to the state’s construction of its own law.’”) (citing Alvord
v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). In rejecting this claim, the state appellate
court answered what would have happened if appellate counsel had raised the claim of trial court
error presented by Petitioner–the claim would have been denied. See Herring v. Sec’y, Dep’t of
Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (“The Florida Supreme Court already has told us
how the issues would have been resolved under Florida state law had [petitioner’s counsel] done
what [petitioner] argues he should have done. . . . 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
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matters.’”) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)); see also Callahan v.
Campbell, 427 F.3d 897, 932 (11th Cir. 2005).
Petitioner has not demonstrated that the state appellate court’s rejection of his ineffective
assistance of appellate counsel claim was contrary to or an unreasonable application of clearly
established federal law, or was based on an unreasonable determination of the facts. Accordingly,
he is not entitled to relief on Ground One.
Ground Two
Petitioner asserts that the prosecutor made improper comments, resulting in a due process
violation. First, he claims the prosecutor improperly made golden rule arguments in his opening
statement and closing argument by stating that Petitioner was every homeowner’s nightmare. (Dkt.
1, p. 8.) Second, Petitioner asserts that the prosecutor implied that counsel acted improperly in
“doing something to prevent Robert Alexander Jr. from coming in to testify.” (Dkt. 1, p. 8.)4
Petitioner fails to assert a federal constitutional deprivation. A federal habeas court may
entertain an application for a writ of habeas corpus only on the ground that the petitioner is in
custody in violation of the Constitution, treaties, or the laws of the United States. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). Therefore, federal courts may intervene in the state judicial
process only to correct wrongs of a constitutional dimension. Wainwright v. Goode, 464 U.S. 78,
83 (1983). Issues of state law are not cognizable in a federal habeas action. Branan v. Booth, 861
F. 2d 1507 (11th Cir. 1988); Carrizales v. Wainwright, 699 F. 2d 1053 (11th Cir. 1983).
4
Robert Alexander, Jr., was a son of Greco’s neighbors. The record indicates the State subpoenaed him for
trial but he did not appear. During closing argument, the prosecutor said, “Well, Robert Alexander Jr. - - why wasn’t
he called? Where is he? He was subpoenaed last night in the State Attorney’s Office. Where is he at?” (Dkt. 11, Ex.
2, p. 148.) Counsel’s objection was sustained. Counsel subsequently moved for a mistrial, asserting that the State
suggested the defense subpoenaed Robert Alexander, Jr., and that his absence was due to improper action by the defense.
The court found that the State’s comments, while improper, did not necessitate a mistrial. (Id., pp. 159, 161.)
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Furthermore, even assuming his argument could be liberally construed as raising a federal
issue, Petitioner did not assert a federal claim when he raised prosecutorial misconduct on direct
appeal. (Dkt. 11, Ex. 6, pp. 9-12.) His failure to present a federal claim to the state court leaves the
claim unexhausted. See Picard, 404 U.S. at 275-76. Petitioner cannot return to state court to file
a second direct appeal. See Fla. R. App. P. 9.140. Consequently, this claim is procedurally
defaulted. See Smith, 256 F.3d at 1138. Petitioner does not argue or demonstrate that an exception
applies to overcome the default. See id. Accordingly, Petitioner’s claim is barred from federal
habeas review.5
Ground Four
A.
Petitioner asserts that counsel should have called Jason Alexander as a witness to contradict
Greco’s testimony that Petitioner answered the door at the Alexanders’ house and moved paint cans
from Greco’s car. The state court conducted an evidentiary hearing on Petitioner’s claim. Petitioner
testified to his belief that Jason Alexander would have stated that Petitioner was not present when
Greco came to the Alexanders’ house, and that Petitioner did not help take the cans of paint from
the trunk of Greco’s car. (Dkt. 11, Ex. 20, pp. 181-82.) Petitioner also testified that he believed
counsel was going to call Jason Alexander. (Id., p. 182.)6
5
Within his claim, Petitioner states that the trial court abused its discretion “when it held the same comments
did not rise to the level of a mistrial.” To the extent Petitioner attempts to raise an independent claim of trial court error
for denying his motion for mistrial, he has failed to raise this claim as one presenting a federal question. Accordingly,
the claim is not cognizable in his federal habeas petition. See Branan, 861 F. 2d 1507; Carrizales, 699 F. 2d 1053. Even
if the claim was construed as raising a federal claim, it is unexhausted because Petitioner did not raise it on direct appeal.
(Dkt. 11, Ex. 6.) Because state rules do not provide for a second direct appeal, the claim is procedurally defaulted. See
Smith, 256 F.3d at 1138. Petitioner does not establish the applicability of an exception to overcome the default. See id.
6
Petitioner’s trial counsel did not testify at the postconviction evidentiary hearing.
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At trial, however, the defense called Ivon Alexander, Jason Alexander’s mother. She
testified that she recalled Greco coming over to her house to drop off paint, and that she was certain
Petitioner was not inside the house at that time. (Dkt. 11, Ex. 2, pp. 93-94.)
After the evidentiary hearing, the state court denied Petitioner’s claim of ineffective
assistance of counsel:
[T]he record reflects that during the course of the trial, counsel, through the
testimony of Ms. Alexander, Jason Alexander’s mother, was able to bring out this
same testimony before the jury, wherein she testified as follows:
Q:
Okay. Did there come a point in time this year that there was
a knock on the door–a knock on the door by Mr. Greco?
A:
No, he didn’t knock on the door, he called from outside the
house.
Q:
Okay. And what did he say?
A:
He had some paint to drop off and he needed someone to take
it out of the car for him[.]
Q:
You heard him.
A:
Yes.
Q:
Was Mr. Young in the house during that time?
A:
No, sir.
Q:
Did you know Rico Young?
A:
Yes, I do.
Q:
How do you know Mr. Young?
A:
His grandmother lives next door to us.
Q:
Mr. Young was not in that house?
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A:
No, sir.
Q:
When you heard Mr. Greco what do you do?
A:
I answered the door and I went to see what he wanted.
Q:
And you answered the door and what did he say?
A:
He said he had some paint for my husband, and that he
couldn’t get it put [sic] of the trunk of the car. He wanted my
son to get it for him.
Q:
What did you do?
A:
I went and woke up my son and told him to get the paint out.
Q:
Which son was that?
A:
Jason.
Q:
What did Jason do?
A:
Well he–took his time, got up and went and got the paint.
Q:
And during that time at any point was Mr. Young in your
home?
A:
No, sir.
Counsel further used that testimony in his closing argument to argue that Mr. Greco
was mistaken and Defendant was not there. Defendant fails to meet the first prong
of the Strickland as he fails to show any deficient performance on the part of counsel
where the testimony that Defendant wanted brought out through Mr. Alexander was
already before the jury. As such, no relief is warranted as to this part of ground 2 of
Defendant’s Motion.
(Dkt. 11, Ex. 21, pp. 221-22) (court’s record citations omitted)
The record supports the state court’s conclusion. In addition, Petitioner did not call Jason
Alexander at the postconviction evidentiary hearing, and presents no evidence to support his
contention that Jason Alexander would have testified as Petitioner theorizes. See United States v.
Page 16 of 34
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 on 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). Consequently, Petitioner’s
claim is too speculative to warrant relief. Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)
(“Johnson offers only speculation that the missing witnesses would have been helpful. This kind of
speculation is ‘insufficient to carry the burden of a habeas corpus petitioner.’”) (quoting Aldrich v.
Wainwright, 777 F.2d 630, 636 (11th Cir.1985)).
Furthermore, counsel chose to call Ivon Alexander to address this matter. “Which witnesses,
if any, to call, and when to call them, is the epitome of a strategic decision, and it is one [a reviewing
court] will seldom, if ever, second guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995).
Petitioner does not show that the state court’s rejection of this aspect of his claim was an
unreasonable application of Strickland or was based on an unreasonable determination of the facts.
B.
Petitioner asserts that counsel was ineffective for failing to conduct adequate cross-
examination of Greco and Pruitt. He argues that the testimony of each witness regarding the
location of the hammer and screwdriver and whether Petitioner was sitting or standing when Pruitt
arrived contradicts the testimony of the other. Petitioner contends that in his deposition, Pruitt
testified to finding the screwdriver on the trunk of the car.7 Greco testified that he asked Petitioner
to drop the tools, and Petitioner did so when he got on the ground. (Dkt. 11, Ex. 20, p. 56.) Pruitt
testified at trial that the perpetrator was standing near a car when he arrived, and began running when
7
At trial, Pruitt testified that he found a hammer and screwdriver when asked whether he located any tools “by
the car.” (Dkt. 11, Ex. 2, p. 32.)
Page 17 of 34
Pruitt told him to come over. (Id., pp. 27-28.) Greco testified that Petitioner was sitting on a porch
stoop, and when police arrived, he jumped up and started running. (Id., p. 61.)
After the evidentiary hearing, the state court denied this claim. As to Greco, the state court
noted that “[t]he record reflects that counsel during his cross-examination of Mr. Greco attempted
to attack a previous meeting that Mr. Greco had with Defendant.” (Dkt. 10, Ex. 21, p. 219.) The state
court cited a lengthy portion of the trial transcript in which counsel questioned Greco about going
to the Alexanders’ house to drop off paint cans, and whether Greco was absolutely certain that it was
Petitioner who answered the door and went to the car. The court concluded that, “[a]s counsel did
adequately cross-examine Joseph Greco Defendant fails to meet the first prong of the Strickland
test.” (Id., p. 220.)
With regard to Pruitt, the court determined that “[t]he record reflects that counsel adequately
cross-examined counsel [sic] on several issues during the trial.” (Dkt. 10, Ex. 21, p. 220.) The court
cited a portion of the trial transcript in which Pruitt stated on cross-examination that the area was
well-lit, yet acknowledged that it was difficult for him to see whether the suspect had facial hair.
The state court further concluded:
Additionally, counsel was able to establish through cross-examination of Officer
Pruitt that there were no fingerprints secured in this matter. Furthermore, upon being
called again to the stand again, counsel during cross-examination was able to secure
some uncertainty in front of the jury as to whether or not the person was or was not
wearing gloves. As counsel did adequately cross-examine Officer Pruitt, Defendant
fails to meet the first prong of the Strickland test. As such, no relief is warranted as
to this portion of ground 2.
(Id., p. 221) (court’s record citations omitted)
The record supports the state court’s finding that counsel adequately cross-examined both
witnesses. Furthermore, in light of the totality of evidence presented at trial, Petitioner cannot
Page 18 of 34
demonstrate that any inconsistencies about the precise location of the tools or whether he was already
standing or jumped up and stood when Pruitt arrived were significant enough to warrant further
cross-examination of Pruitt and Greco. Nor does he establish a reasonable probability that crossexamination about these specific factual matters would have changed the outcome of trial.
Accordingly, Petitioner does not show that the state court unreasonably applied Strickland or
unreasonably determined the facts in rejecting his claim. Consequently, he is not entitled to relief
on Ground Four.
Ground Three
Petitioner contends that trial counsel was ineffective for failing to “set forth with specificity
the grounds relied upon” when he moved for a judgment of acquittal. (Dkt. 1, p. 10.) In support,
Petitioner claims that the State’s evidence was insufficient to sustain his convictions for armed
burglary of a conveyance and grand theft firearm. He asserts counsel should have specifically argued
that there was no evidence Petitioner broke the car window or entered the car, that the stolen firearm
was not recovered and was not seen in Petitioner’s possession, and that Petitioner was only observed
approaching the car with a hammer and screwdriver.
At the close of the State’s case, counsel moved for a judgment of acquittal, stating, “We’ll
move for a JOA with the feeling on all the counts the State has failed to prove a prima facie case to
link any physical evidence to my client.” (Dkt. 11, Ex. 2, p. 85.) The motion was denied. (Id., p.
88.)
The state court denied Petitioner’s ineffective assistance of counsel claim after an evidentiary
hearing:
Page 19 of 34
In alleging that trial counsel was ineffective for failing to file an adequate motion for
judgment of acquittal, a defendant must establish that he “may very well have
prevailed on a more artfully presented motion for acquittal based upon the evidence
he alleges was presented against him at trial.” Boykin v. State, 752 So.2d 1203 (Fla.
2d DCA 1999). In the instant action the following evidence was introduced against
Defendant during the trial:
Mr. Greco testified that he saw Defendant by the back of his car with
a screwdriver in one hand and a hammer in the other. Mr. Greco the
[sic] gets a gun and goes out and sees Defendant approaching the
trunk of his car and sees Defendant looking down and about ready to
strike the screwdriver with the hammer. Mr. Greco then holds
Defendant at gun point until the police arrive. Officer Pruitt and Mr.
Greco testified after the officer came back they find damage to the
trunk of the car where it was being struck with the screwdriver. The
drivers’s [sic] side window was smashed out and the inside of the car
had been rifled through. The glove compartment was open and
papers were strewn in the inside and the console was propped in an
up position. Mr. Greco testified that he left the console in the down
position and his 380 caliber gun that he used for self-defense was left
in the console of the car that evening. When Defendant was arrested
about four weeks later by Officer Strickland he had in his possession
a wool cap. Mr. Greco testified that Defendant was wearing a wool
cap. Officer Pruitt testified that the person he chased was wearing a
wool cap. They both testified that the wool cap found on Defendant’s
person was consistent with the wool cap that you were wearing.
Officer Strickland also testified that when she unraveled the wool cap
there were two eye holes cut out of the wool cap.
Based upon the sufficiency of the evidence introduced at trial, Defendant fails to
establish that he may very well have prevailed on a more artfully drafted motion for
judgment of acquittal. Defendant fails to meet the first prong of the Strickland test
and, as such, no relief is warranted on ground 1.
(Dkt. 11, Ex. 21, p. 218)(court’s record citation omitted)
The record supports the state court’s findings. The denial of a motion for judgment of
acquittal will be affirmed if the verdict is supported by competent, substantial evidence. Fitzpatrick
v. State, 900 So.2d 495, 507 (Fla. 2005). In light of the totality of the evidence, including the
information cited in the postconviction order and Greco’s identification of Petitioner, Petitioner does
Page 20 of 34
not establish that the state court made an objectively unreasonable determination that he failed to
show deficient performance of counsel.8 Moreover, he does not demonstrate that there is a
reasonable probability the outcome of the proceeding would have been different had counsel
presented more specific argument in his motion for judgment of acquittal. Accordingly, Petitioner
does not establish that the state court unreasonably applied Strickland or unreasonably determined
the facts in denying his claim.9 Ground Three warrants no relief.
Ground Five
Counsel filed a motion for new trial, asserting that the prosecutor committed misconduct by
referring to the incident as a homeowner’s nightmare during opening and closing arguments, and
informing the jury during closing arguments that the State subpoenaed Robert Alexander, Jr. (Dkt.
11, Ex. 49, Motion for New Trial.) Prior to sentencing, the state court heard the motion and denied
it. (Id., Sentencing Transcript.)
Petitioner asserts that counsel was ineffective for not arguing in the motion for new trial that
the verdict was contrary to the weight of the evidence.10 The state appellate court reversed the
8
To prove armed burglary of a conveyance, the State was required to show that Petitioner entered a conveyance
without invitation to do so and had the intent to commit an offense therein, and that in the course of committing the
offense Petitioner was or became armed within the conveyance with a dangerous weapon. See § 810.02(1)(b), (2)(b),
Fla. Stat. To prove grand theft firearm, the State was required to show that Petitioner knowingly obtained or used, or
endeavored to obtain or use, the property of another with intent to temporarily or permanently deprive the other person
of a right to the property or a benefit from the property, or to appropriate the property to his own use or the use of a
person not entitled to it, and that the property in question was a firearm. See § 812.014(1), (2)(c)5., Fla. Stat.
9
Petitioner contends that, had counsel made a more detailed motion for judgment of acquittal, “this issue would
have been properly preserved for appellate review.” (Dkt. 1, p. 11.) The state court found Petitioner failed to show he
would have prevailed had counsel presented a different motion for judgment of acquittal. As he fails to show prejudice,
Petitioner cannot establish that counsel provided ineffective assistance for failing to preserve for appeal any issues that
would have been raised in a more specific motion. See Strickland, 466 U.S. at 696 (“[T]he ultimate focus of inquiry must
be on the fundamental fairness of the proceeding whose result is being challenged.”).
10
Petitioner asserts in his federal habeas petition that counsel should have raised the following points in the
motion for new trial:
Page 21 of 34
postconviction court’s summary denial of this claim because the postconviction court applied an
incorrect legal standard and did not attach relevant portions of the record to its order. Young, 988
So.2d at 651. Upon remand, the postconviction court again denied the claim. It reviewed the
arguments raised in the motion for new trial and concluded:
“A new trial is only required for prosecutorial misconduct where ‘it is reasonably
evidence that the remarks may have influenced the jury to reach a more severe verdict
of guilt than it would have otherwise done.’ Thomas v. State, 748 So.2d 970, 984
(Fla. 1999); accord Dufour v. State, 905 So.2d 42, 64 (Fla. 2005).” Smith v. State,
—So. 2d—, *30, 2009 WL 702262 (Fla. 2009) (March 19, 2009). . . . Additionally,
“[i]n order for the prosecutor’s comments to merit a new trial, the comments must
either deprive the defendant of a fair and impartial trial, materially contribute to the
conviction, be so harmful or fundamentally tainted as to require a new trial, or be so
inflammatory that they might have influenced the jury to reach a more severe verdict
than that it would have otherwise. Spencer v. State, 645 So.2d 377, 383 (Fla. 1994).”
Salazar v. State, 991 So.2d 364, 372 (Fla. 2008).
[] After reviewing Defendant’s motion and argument for new trial, as well as the
State’s response, the Court finds that the weight of the evidence was sufficient to
support the jury verdict of guilty beyond a reasonable doubt on all charges, and that
the trial court properly denied Defendant’s Motion for New Trial. Furthermore, this
Court finds that the postconviction court could have properly summarily denied
ground 3 of Defendant’s rule 3.850 motion by using the correct legal standard and
attaching the proper documents.
(Dkt. 11, Ex. 49, pp. 4-5.)
1.
2.
3.
4.
5.
6.
7.
That there was no physical evidence or witnesses linking the Petitioner to ever having entered
the inside of the victim’s car;
That there was no testimony that the Petitioner was ever seen with the gun, nor was it ever
recovered;
There was never a receipt produced for the gun to show that it ever existed;
The victim gave inconsistent testimony in that he said the Petitioner dropped the screwdriver
on the ground, when Officer Pruitt said it was found on the trunk;
There were no fingerprints linking the Petitioner to the crime and there was not an attempt
to gather DNA evidence from the car or the jacket that the perpetrator dropped as he was
running away, thus no DNA evidence as well;
Mrs. Alexander testified in direct contravention to the victim’s testimony. She said that the
Petitioner was never in the house as Greco claimed, and that she woke her son up, in direct
contravention of Greco’s claim that the Petitioner woke Jason up; and,
Officer Pruitt testified when he arrived the perpetrator was standing by the victim’s blue car,
which is in direct contravention of the victim testimony that the Petitioner was sitting on the
porch stoop when the police arrived.
(Dkt. 1, pp. 16-17.)
Page 22 of 34
The state court found that the denial of Petitioner’s motion for new trial was supported by
the weight of the evidence. Given the totality of the evidence presented at trial as discussed above
in Ground Three, Petitioner does not show that this determination was unreasonable. Nor is he able
to demonstrate that he would have prevailed on his motion for new trial even if counsel argued that
the verdict was contrary to the weight of the evidence for the reasons he submits. Accordingly,
Petitioner does not demonstrate prejudice as a result of counsel’s performance. Petitioner does not
show that the state court’s finding was an unreasonable application of Strickland or was based on
an unreasonable determination of the facts.11 He is not entitled to relief on Ground Five.
Ground Six
Petitioner asserts that counsel was ineffective for presenting a misidentification defense
because Greco was able to identify him.12 Petitioner contends in his federal habeas petition that
counsel should have argued Petitioner was merely attempting to break into the trunk of Greco’s car,
but did not actually break the window or take the gun from inside the vehicle. Petitioner asserts that
this defense would have been consistent with Greco’s testimony that Petitioner acted suspicious
when he saw a rifle in the trunk on a previous occasion and would have created reasonable doubt.
The state court conducted an evidentiary hearing on this claim, after which it found:
11
Petitioner appears to argue in his memorandum of law that his due process rights were violated when a
successor judge ruled on his postconviction claim upon remand and failed to conduct an evidentiary hearing. Petitioner
does not clearly articulate a federal claim. Moreover, an allegation of defects in a state collateral proceeding does not
state a claim upon which federal habeas relief can be granted. See Alston v. Dep’t of Corr., Fla., 610 F.3d 1318, 1326
(11th Cir. 2010).
12
Counsel argued at trial that Greco was mistaken in his identification of Petitioner. In closing argument,
counsel asserted that Greco did not know Petitioner or his grandmother well and only met Petitioner one time, at the
Alexanders’ house. Counsel asserted that Greco’s recollection of that incident was incorrect because it contradicted Ivon
Alexander’s testimony, and questioned whether Greco was able to make an accurate identification of the suspect.
Counsel also emphasized that Pruitt, the other person at the scene, had some difficulty seeing the suspect. In addition,
counsel pointed out the lack of physical evidence in the case, including an absence of fingerprints from the car or tools.
Page 23 of 34
Defendant testified that he told counsel that he did not want to pursue the
misidentification defense because he felt like it was not a good defense. Defendant
testified that he disagreed with the misidentification defense because the alleged
victim, Mr. Greco, had known him for many years and as such, he felt that nobody
would believe such a defense. Defendant testified that he wanted to proceed on a
theory of innocence. Defendant testified that what merely happened in the instant
case was that the alleged victim pulled a gun on him accusing him of trying to break
into his stuff. However, Defendant’s testimony at the evidentiary hearing is
inconsistent with the theory raised in his Motion that he was merely trying to break
into the trunk of the vehicle rather than the vehicle itself. Moreover, from the
testimony presented at the evidentiary hearing, it is still unclear as to what defense
Defendant wanted counsel to pursue. Defendant fails to meet the first prong of the
Strickland test and, as such, no relief is warranted on ground 4.
(Dkt. 11, Ex. 21, pp. 222-23.)
The record supports the state court’s decision that Petitioner did not establish how counsel
performed deficiently in presenting a misidentification defense.
At the hearing, Petitioner
maintained that he wanted counsel to argue actual innocence by asserting that Petitioner was merely
walking back to his grandmother’s house when Greco pulled a gun on him. (Dkt. 11, Ex. 20, pp.
172-75, 195-96.) As the state court noted, this was inconsistent with the theory presented in
Petitioner’s postconviction motion, in which he stated that counsel should have argued he was only
attempting to break into the trunk of the car.
Petitioner does not establish that counsel was ineffective for not pursing either of these
defenses and for instead choosing to question whether Greco accurately identified Petitioner, whom
Greco did not know well. “In light of the reasonableness standard set forth by the Strickland Court,
. . . constitutionally sufficient assistance of counsel does not require presenting an alternative–not
to mention unavailing or inconsistent–theory of the case.” Dill v. Allen, 488 F.3d 1344, 1357 (11th
Cir. 2007). “Reasonableness, indeed, suggests that a trial counsel would weigh competing theories
and choose to present the most compelling theory among the various options.” Id. The defense
Page 24 of 34
theory that Petitioner was simply walking back home would not account for Greco’s testimony that
he saw Petitioner near the trunk of his car with a screwdriver and hammer. The theory that Petitioner
only attempted to break into the trunk of the car concedes Petitioner’s intent to commit a crime by
gaining access to a part of Greco’s car in which a rifle had been located, while asking the jury to
believe that, independent of these actions, someone else happened to break into the interior of the
same car that night and take a gun from the center console. Petitioner does not meet his burden
under Strickland of establishing either deficient performance of counsel or resulting prejudice.
Accordingly, Petitioner does not demonstrate that the state court unreasonably applied clearly
established federal law or unreasonably determined the facts in rejecting his claim. Ground Six
warrants no relief.
Ground Seven
Petitioner contends that counsel was ineffective with regard to the charge of armed burglary
of a conveyance when he did not request jury instructions on the lesser-included offenses of simple
burglary of a conveyance and attempted burglary. He claims that, because he was not seen actually
breaking into the car or in possession of the firearm that was taken, “[t]he jury would have been
more inclined to exercise its inherent pardon power had counsel requested” these instructions. (Dkt.
1, p. 21.) Petitioner claims that the only evidence presented during trial supported a conviction for
attempted burglary.
The state court rejected Petitioner’s claim that counsel should have requested an instruction
on attempted burglary:
With respect to the failure of the Court to give an instruction on Attempt,
Florida Rule of Criminal Procedure 3.510 provides that trial courts are not required
to instruct the jury on attempt if there is no evidence to support the attempt. After
Page 25 of 34
reviewing the record, the Court finds that the only evidence presented provided a
completed offense and as such Defendant was not entitled to an instruction on
Attempt. Therefore, Defendant fails to meet the second prong of the Strickland test
and no relief is warranted on this ground.
(Dkt. 11, Ex. 18, p. 99.) The record supports the state court’s finding. The evidence at trial reflects
that the car window was broken and a gun was missing from the center console inside the car.
Accordingly, Petitioner does not demonstrate that the state court’s rejection of this portion of his
claim was an unreasonable application of Strickland or was based on an unreasonable determination
of the facts.
The state court conducted an evidentiary hearing on Petitioner’s claim that counsel should
have requested a jury instruction on simple burglary. Petitioner testified that he believed counsel
“took away” the lesser-included instructions, and that the State failed to present evidence he actually
entered Greco’s car or took the weapon that was stored there. (Dkt. 11, Ex. 20, pp. 184, 198.) After
the hearing, the state court denied this claim:
As part of the jury instruction for Armed Burglary of a Conveyance, [the] jury was
instructed that it could not return a verdict of guilty as charged unless it found that
Defendant used a firearm. Since by finding Defendant guilty as charged the jury
found every element of the offense proven beyond a reasonable doubt, Defendant has
failed to show that there was even a substantial probability that the jury would have
returned a guilty verdict on the lesser included offense. See Sanders v. State, 847
So.2d 504 (Fla. 1st DCA 2003). Defendant fails to meet the second prong of the
Strickland test and, as such, no relief is warranted on ground 5.
(Dkt. 11, Ex. 21, p. 223.)
However, the state court granted Petitioner’s motion for rehearing, finding that it could not
“conclusively refute Defendant’s allegation that he was entitled to a jury instruction for Simple
Burglary.” (Dkt. 11, Ex. 25, p. 352.) The state court vacated Petitioner’s judgment and sentence and
ordered a new trial. The state appellate court reversed, holding that Petitioner failed to show
Page 26 of 34
prejudice as a result of counsel’s performance. Although the state appellate court agreed that
Petitioner was entitled to a jury instruction on simple burglary as a lesser-included offense, it
concluded that the first postconviction court properly denied relief because Petitioner failed to
demonstrate prejudice:
Here, Mr. Young was given an opportunity but failed to demonstrate a reasonable
probability that this attorney’s allegedly deficient performance so permeated the trial
proceeding that the court’s confidence in the outcome was undermined. In a similar
appeal from the denial of a motion for postconviction relief after an evidentiary
hearing, the Fourth District, in Johnson v. State, 855 So.2d 1157, 1160 (Fla. 4th DCA
2003) . . . held that even though it was “conceivable” that a jury would decline to
follow the law and grant a pardon, the probability was not “reasonable.”
That probability is far less than “reasonable” in this case given the jury’s guilty
verdict on the charge of grand theft of a firearm. Nothing in the record before us
(which is admittedly slim) suggests that the object of the grand theft was anything
other than the firearm with which Mr. Young became armed during the course of the
burglary of the vehicle. Thus, as the first postconviction court concluded, the State
proved armed burglary beyond all reasonable doubt, rendering any error in the jury
instructions harmless.
In sum, the first postconviction court correctly cited the Sanders rationale for the
principle that the defendant must actually prove prejudice. This enormous barrier to
postconviction relief cannot be overcome by mere speculation that the jury would
have ignored its own fact findings and the judge’s legal instructions to find the
defendant guilty of a lesser offense.
Young, 932 So.2d at 1282-83. Federal habeas relief on a claim of error in the jury instructions is
only available if the instruction “so infected the entire trial that the resulting conviction violates due
process.” McGuire, 502 U.S. at 72. The state appellate court determined that, because the State
proved armed burglary beyond a reasonable doubt, Petitioner could not show any prejudice as a
result of the omission of the simple burglary instruction. This was not an objectively unreasonable
conclusion in light of the evidence presented at trial and the jury’s finding that Petitioner was guilty
of armed burglary of a conveyance, as charged. Accordingly, Petitioner does not show that any error
Page 27 of 34
with regard to the instruction vitiated the trial so as to violate due process or that counsel was
ineffective for not requesting the instruction. As the state appellate court did not unreasonably apply
Strickland or unreasonably determine the facts when it held that Petitioner failed to show prejudice
as a result of counsel’s performance, Petitioner is not entitled to relief on Ground Seven.
Ground Eight
Petitioner claims that counsel should have objected to the “stealthy entry” and “flight and
attempt” instructions provided with the jury instruction on armed burglary of a conveyance.13 He
claims that the “stealthy entry” instruction was erroneous. Petitioner asserts that the “flight and
attempt” instruction “constitutes an impermissible judicial comment on the evidence” because it
indicates “that the crime was completed.” (Dkt. 1, p. 24.) Petitioner raised this claim in his
postconviction motion. The state court denied it:
The record reflects that the jury instructions submitted in the present case are the
standard jury instructions provided by the Florida Standard Jury Instructions in
Criminal Cases. (See [F]lorida standard jury instructions, jury instructions used in
this case, attached). As such, Defendant fails to meet the first prong of the Strickland
test and no relief is warranted on this ground.
(Dkt. 11, Ex. 18, p. 99.)
The state court found that the instruction given in Petitioner’s case was consistent with the
standard jury instruction. “Where the claim is merely that a jury instruction was incorrect under state
13
With regard to “stealthy entry,” the jury instruction provided:
Proof of the entering of a conveyance stealthily and without the consent of the owner or occupant may
justify a finding that the entering was with the intent to commit a crime if, from all the surrounding
facts and circumstances, you are convicted beyond a reasonable doubt that the intent existed.
(Dkt. 11, Ex. 18, p. 130.) With regard to “flight and attempt,” the jury instruction provided that “[a]n act is committed
‘in the course of committing’ if it occurs in the attempt to commit the offense or in flight after the attempt or
commission.” (Id., p. 131.)
Page 28 of 34
law, federal habeas relief is not available.” Applewhite v. Secretary, DOC, 373 Fed. App’x 969, 972
(11th Cir. 2010) (citing McGuire, 502 U.S. at 71-72). Moreover, “a state court’s interpretation of
state law . . . binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76
(2005). See also Will, 278 Fed. App’x at 908. Petitioner does not establish any error in the jury
instructions. Accordingly, he fails to show that the jury instructions undermined the trial so as to
violate due process, or that counsel performed deficiently in failing to object to the instructions. Nor
does he demonstrate that he suffered prejudice as a result of counsel’s performance. Because
Petitioner cannot show that the state court’s decision involved an unreasonable determination of
Strickland or was based on an unreasonable determination of the facts, he is not entitled to relief on
Ground Eight.
Ground Nine
Petitioner asserts that counsel was ineffective for not objecting to several prosecutorial
comments.14 First, he asserts that the prosecutor’s questioning of Pruitt about comparing latent
fingerprints to known rolled prints allowed the jury to infer that Petitioner must have a prior record.15
14
The discussion of this claim relies on specific page numbers of the trial transcript that Petitioner cited in his
postconviction motion.
15
The following exchange took place when the State questioned Pruitt on re-direct examination:
Q:
And you were asked by counsel about latents of value from the crime scene and you stated
you didn’t find any latents of value?
A:
Right.
Q:
Tell the jury, if you can, what a latent print is?
A:
It’s a fingerprint that you can actually lift, bring off whatever you may be dusting, the car
window or whatever. It may be that you can actually lift off.
Q:
And how is that compared to a known rolled fingerprint?
A:
What do you mean?
Page 29 of 34
Similarly, Petitioner argues that the prosecutor’s reference to him as a “crook” during closing
arguments permitted the jury to presume he had a prior record. The prosecutor stated:
If you want to identify the biggest piece of evidence in this case is Mr. Greco’s
memory and Mr. Young’s statements to Mr. Greco. “You know me, I live right
down the street in my grandmother’s house. My grandmother lives right down
there.” Stupid? Yeah, yeah. Not the smartest thing for a crook to do, but he
identified himself to his man.
(Dkt. 11, Ex. 2, p. 141.)
Petitioner also argues that the prosecutor improperly characterized the knit cap as a mask
during Strickland’s testimony, despite a lack of evidence the suspect wore a mask. The record
reflects that, when questioning Strickland, the prosecutor referred to the knit cap Strickland found
upon conducting a search of Petitioner’s person as a mask. (Id., p. 80.) Strickland’s testimony
indicates the knit cap had eye holes cut into it. (Id.) Lastly, Petitioner asserts that during closing
arguments, the prosecutor improperly made comments such as “I think” or “I believe.” Specifically,
Q:
What is a known rolled fingerprint?
A:
It would be like if you went and got printed and I would know that was your prints.
Q:
You would know who’s [sic] prints?
A:
Correct.
Q:
If you lift fingerprints by lifting - [COUNSEL]:
Objection, counsel testify [sic].
THE COURT:
Sustained.
BY [STATE]:
Q:
Do you know necessarily who they belong to if you lift them at a crime scene?
A:
No, sir.
(Dkt. 11, Ex. 2, pp. 44-45.)
Page 30 of 34
the prosecutor stated that he told the jurors at the start of trial he was going to show them “a fear of
all homeowners” and further stated, “I think that’s what the case showed you in the State’s case.”
(Dkt. 11, Ex. 2, p. 122.)16 The state court denied Petitioner’s claim of ineffective assistance for
failing to object to the propriety of these comments:
An improper statement made by the prosecutor may lead to a new trial if the
statement will prejudice the jury in its duty to presume the defendant innocent and
to weigh impartially the evidence. See Ruiz v. State, 395 So.2d 556 (Fla. 1991).
However, Defendant fails to show how the above comments prejudiced the jury in
light of the evidence presented at trial. As such, Defendant fails to meet the second
prong of the Strickland test and no relief is warranted on this ground.
(Dkt. 11, Ex. 18, pp. 99-100.)
To establish a prosecutorial misconduct claim, Petitioner must show that the challenged
conduct was both improper and prejudicially affected his substantial rights. Sexton v. Howard, 55
F.3d 1557, 1559 (11th Cir. 1995). Habeas relief is available based upon an improper prosecutorial
remark only if it is so egregious that the proceeding is rendered fundamentally unfair. “[I]t is not
enough that the prosecutors’ remarks were undesirable or even universally condemned.” Darden
v. Wainwright, 477 U.S. 168, 181 (1986). See also Smith v. Phillips, 455 U.S. 209, 219 (1982)
(“[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the
fairness of the trial, not the culpability of the prosecutor.”). Darden, 477 U.S. at 181, further
explains:
The relevant question is whether the prosecutors’ comments “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 416 U.S. 637 [643] . . . (1974). Moreover, the
appropriate standard of review for such a claim on writ of habeas corpus is “the
narrow one of due process, and not the broad exercise of supervisory power.” Id., at
16
Counsel did not object to the prosecutor saying “I think,” but counsel’s objection to this comment as a golden
rule violation was overruled. (Dkt. 11, Ex. 2, p. 122.)
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642 . . . .
Accord Tucker v. Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986) (en banc) (“If a reviewing court is
confident that, absent the improper remarks, the jury’s decision would have been no different, the
proceeding cannot be said to have been fundamentally unfair.”), cert. denied, 480 U.S. 911 (1987).
Furthermore, “[c]laims of prosecutorial misconduct are fact specific inquiries which must be
conducted against the backdrop of the entire record.” United States v. Hall, 47 F.3d 1091, 1098
(11th Cir. 1995). Accord United States v. Young, 470 U.S. 1, 11 (1985) (“[A] criminal conviction
is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the
statements or conduct must be viewed in context; only by so doing can it be determined whether the
prosecutor’s conduct affected the fairness of the trial.”).
Additionally, closing argument is designed to “assist the jury in analyzing, evaluating and
applying the evidence.” United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984). The
prosecutor may comment on the evidence and express the conclusions he contends the jury should
draw from the evidence. United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984). Prior to closing
arguments, the state trial court instructed the jury that “what the lawyers say during argument is not
evidence.” (Dkt. 11, Ex. 2, p. 121.) Jurors are presumed to follow the court’s instructions. See
Richardson v. Marsh, 481 U.S. 200, 211 (1987); Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir.
2001).
Considered in context of the entire trial, the prosecutor’s comments, even if improper, neither
rendered the trial fundamentally unfair nor infected the trial with such unfairness that the resulting
convictions amount to a denial of due process. Tucker, 802 F.2d at 1296. Petitioner does not
establish a reasonable probability that the outcome of trial would have been different had counsel
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objected to these remarks, given the totality of the evidence of guilt presented at trial. Accordingly,
the record supports the state court’s finding that Petitioner failed to meet the prejudice prong of
Strickland.17 Petitioner does not show that the state court unreasonably applied Strickland or
unreasonably determined the facts in resolving his claim. He is not entitled to relief on Ground
Nine.18
Accordingly, it is
ORDERED that the Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED. The Clerk
shall enter judgment against Petitioner and close this case.
It is further ORDERED that Petitioner is not entitled to a certificate of appealability (COA).
A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas
petition. 28 U.S.C. § 2253(c)(l). A district court must first issue a COA. Id. Petitioner is only
entitled to a COA if he demonstrates that reasonable jurists would find debatable whether the Court's
procedural ruling was correct and whether the§ 2254 petition stated “a valid claim of the denial of
a constitutional right.” Id.; Slack v. McDaniel, 529 U.S. 473, 484 (2000). To make a substantial
17
In his memorandum of law, Petitioner appears to allege that he is entitled to relief as a result of the cumulative
effect of counsel’s alleged errors. “The Supreme Court has not directly addressed the applicability of the cumulative
error doctrine in the context of an ineffective assistance of counsel claim.” Forrest v. Fla. Dep’t of Corr., 342 Fed.
App’x 560, 564 (11th Cir. 2009). The Supreme Court has held, however, in relation to an ineffective assistance of
counsel claim, that “there is generally no basis for finding a Sixth Amendment violation unless the accused can show how
specific errors of counsel undermined the reliability of the finding of guilt.” Id. at 564-65 (quoting United States v.
Cronic, 466 U.S. 648, 659 n.26 (1984)). Petitioner has not met his burden to show that he is entitled to relief on any of
the ineffective assistance claims presented in his federal habeas petition. Accordingly, he cannot show that relief is
warranted on his claim of cumulative error.
18
Petitioner further asserts that the trial court abused its discretion when it found that the prosecutorial
comments did not warrant a mistrial. To the extent Petitioner attempts to raise an independent claim of trial court error
for denying his motion for mistrial, he has failed to raise this claim as one presenting a federal question. Accordingly,
the claim is not cognizable in his federal habeas petition. See Branan, 861 F. 2d 1507; Carrizales, 699 F. 2d 1053. In
addition, Petitioner did not bring this claim of trial court error on direct appeal. (Dkt. 11, Ex. 12.) Because he cannot
return to state court to file a second direct appeal, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138.
Petitioner does not establish the applicability of an exception to overcome the default. See id.
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showing of the denial of a constitutional right, 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, 529 U.S. at 484), or that “the issues presented
were ‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322,
335-36 (2003) (quoting Barefootv. Estelle, 463 U.S. 880, 893 n.4 (1983)). Petitioner cannot make
the requisite showing because he cannot demonstrate that reasonable jurists would debate whether
the Court’s procedural rulings were correct, or whether the petition stated a substantial denial of a
constitutional right. And because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on July 27, 2015.
/s/ James D. Whittemore
JAMES D. WHITTEMORE
United States District Judge
SA:ml
Copy to:
Pro se Petitioner
Counsel of Record
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