White v. Secretary, Department of Corrections et al
Filing
35
OPINION AND ORDER. 1. White's petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment against White and to close this case. 2. White is not entitled to a certificate of appealability and he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 3/29/2017. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID ANDREW WHITE,
Petitioner,
v.
Case No. 8:14-cv-94-T-36MAP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________/
ORDER
David Andrew White, a Florida prisoner proceeding pro se, filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) He challenges a judgment entered by
the Circuit Court for the Sixth Judicial Circuit, in and for Pasco County, Florida, in 2008.
In its response, Respondent agrees that the petition is timely. (Dkt. 20.) White filed a
reply. (Dkt. 32.) White’s petition is due to be denied.
PROCEDURAL HISTORY
A jury convicted White of one count of second degree murder. (Dkt. 25, Ex. 3.) The
trial court sentenced him to forty-six years in prison, with ten years suspended. (Dkt. 25,
Ex. 7.) The state appellate court per curiam affirmed the conviction and sentence. (Dkt.
25, Exs. 11, 12.) White filed a motion and amended motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850. (Dkt. 25, Exs. 16, 18.) The state court
summarily denied relief. (Dkt. 25, Exs. 19, 21.) The state appellate court per curiam
affirmed the lower court. (Dkt. 25, Ex. 24.) White also filed a motion to correct illegal
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sentence under Florida Rule of Criminal Procedure 3.800(a). (Dkt. 25, Ex. 32.) The state
court denied his motion, and the state appellate court per curiam affirmed the order of
denial. (Dkt. 25, Exs. 33, 37.)
FACTS1
Andrea White went missing on the night of July 11, 2005. Her husband, Petitioner
David White, told numerous family members and acquaintances that they got into an
argument and she left their home that night. The couple was known to have marital
difficulties. On July 12, White did not go to work, telling his boss that Andrea left and he
was attempting to get custody of their daughters. That day, Andrea’s best friend, Desiree
Patton, repeatedly attempted to call Andrea but could not reach her. Concerned, Patton
called White and went to the Whites’ house. White told her that Andrea, a diabetic, took
her insulin with her when she left. But when Patton looked inside Andrea’s purse, which
she had apparently left behind in the house, she saw Andrea’s pouch of insulin and
syringes. In Patton’s experience, Andrea never left home without insulin. Andrea also
noticed damp pillows in the laundry area.
Deputy Norman Gay of the Pasco County Sheriff’s Office responded to the Whites’
home that evening to perform a welfare check on Andrea.2 White told him that Andrea left
on foot following the argument. But, when Gay confronted him with Patton’s statement that
White told her Andrea left in a blue car, White agreed that he believed Andrea got into an
unknown blue car. White left for New York with his and Andrea’s two daughters. He
1
This summary of the facts is derived from the trial transcript and direct appeal briefs.
2
Before she left for the Whites’ house, Patton called Andrea’s sister Rhonda, stating that if she did
not contact Rhonda again within fifteen minutes, Rhonda should call police.
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stayed with family when he arrived there.
On July 14, Andrea White’s body was found in a shallow retention pond near
Cheltnam Court. Her death was from homicidal violence of undetermined etiology. The
circumstances in which she was found–in a remote area, barefoot and wearing night
clothes, and about five miles from her home–were crucial to this conclusion. When her
body was found, she likely had been dead for days. Evidence suggested her body may
have been in the water since the morning of July 12.3 Police learned that White, who had
worked maintaining rental homes, had worked on a home on Cheltnam Court.
Detectives from the Pasco County Sheriff’s Office arrived in New York on July 15.
White spoke to them in New York and agreed to return to Florida with them. He gave an
interview at the Sheriff’s Office upon arriving in Florida. Meanwhile, several of Andrea’s
family members had stayed at the house after Andrea’s body was found. White was
arrested almost a year later, in June 2006, in New York.
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:
3
A witness testified that while walking his dog at about 5:30 a.m. on July 12, he saw a large shape
in the water. He wondered whether this object was a body, but was unable to determine what it was due to
the darkness at that hour.
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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.
“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
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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, 563 U.S. 170, 181 (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).
The state appellate court affirmed the denial of White’s postconviction motions in
per curiam decisions without written opinions. These decisions warrant deference under
Section 2254(d)(1) because “the summary nature of a state court’s decision does not
lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh’g
and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby,
538 U.S. 906 (2003). See also Richter, 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
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the state court adjudicated the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”).
Review of the state court decision is limited to the record that was before the state
court. Pinholster, 563 U.S. at 181-82. White 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.
2001).
EXHAUSTION OF STATE COURT 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 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
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(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). 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).
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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); 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.
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance are analyzed under the test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). A petitioner must show both deficient performance
by counsel and resulting prejudice. Demonstrating deficient performance “requires showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. at 687. Deficient performance is
established if, “in light of all the circumstances, the identified acts or omissions [of counsel]
were outside the wide range of professionally competent assistance.” Id. at 690. However,
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“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.
White must demonstrate that counsel’s alleged error prejudiced the defense because
“[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 69192. To show prejudice, a petitioner must demonstrate “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. 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).
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
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, 563 U.S. at 202 (a petitioner must overcome
the “‘doubly deferential’ standard of Strickland and AEDPA.”). If a claim of ineffective
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assistance of counsel can be resolved through one of the Strickland test’s two prongs, the
other prong need not be considered. Strickland, 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.”)
DISCUSSION
Ground One
White alleges that the State’s failure to present sufficient evidence of second degree
murder resulted in a federal due process violation. He argues that the State did not show
that Andrea died due to “the criminal agency of another person,” rather than as a result of
natural or accidental causes. (Dkt. 1, p. 5.)
A review of the trial transcript shows that the State’s evidence of White’s guilt was
circumstantial. And White stated in his brief that the evidence of a criminal act was
circumstantial.
(Dkt. 25, Ex. 2; Ex. 9, pp. 11-12.) Florida’s standard of review for
circumstantial evidence cases provides that “‘[w]here the only proof of guilt is
circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot
be sustained unless the evidence is inconsistent with any reasonable hypothesis of
innocence.’” Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 460 (11th Cir. 2015)
(quoting Thorp v. State, 777 So.2d 385, 389 (Fla. 2000)). This involves a higher standard
of proof than the federal sufficiency of the evidence standard applied in Jackson v. Virginia,
443 U.S. 307 (1979). See id. at 451 (Florida uses a “heightened burden of proof for cases
involving circumstantial evidence.”).
White raised only state law to support his argument when he brought it on direct
appeal. (Dkt. 25, Ex. 9, pp. 11-14.) He did not cite Jackson or refer to any federal authority
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or constitutional provision. (Id.) His reliance on state law in this circumstantial evidence
case, without any mention of federal law, was insufficient to exhaust a federal claim in state
court. See id. at 460-62. State procedural rules do not provide for successive direct
appeals. See Fla. R. App. P. 9.140. Therefore, White’s unexhausted claim is procedurally
defaulted. See Smith, 256 F.3d at 1138. White does not argue or demonstrate that an
exception applies to overcome the default. The claim presented in Ground One is
procedurally barred from federal habeas review.
Ground Two
The State theorized that White smothered Andrea with a pillow. White alleges that
trial counsel was ineffective for failing to investigate and file a motion to suppress the
pillows found in the home. He further claims that counsel should have moved to suppress
Andrea’s purse, which was also recovered from the Whites’ home. White alleges that
Desiree Patton and Andrea’s family members may have tampered with these items when
they entered the house during his absence.
The state postconviction court denied White’s ineffective assistance claim:
Defendant alleges ineffective assistance of counsel for failing to
investigate and file a proper motion to suppress. Defendant alleges that the
pillow that the State asserted was the murder weapon should have been
suppressed because the victim’s mother and friends lived at the house where
the crime took place for three days before the police investigation began.
Defendant asserts that if the pillows were washed, as the State alleged, they
could have been washed within the three days that these people were
staying at the house. The State’s argument being that the Defendant
washed the pillows to conceal evidence of the crime.
The Defendant also claims that the purse of the victim should have
also been suppressed because this evidence also had the potential to be
tampered with while the guests were staying at the house prior to the police
investigation. Defendant alleges he was prejudiced by this evidence being
introduced because the State was allowed to draw inferences from them to
persuade the jury that the Defendant was guilty.
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With regard to the pillows, the record refutes the Defendant’s claim.
The pillows were never introduced into evidence, and therefore trial counsel
cannot be deemed ineffective for failing to move to suppress them.
Furthermore, defense counsel argued in closing argument that the State
lacked sufficient evidence by referencing the fact that the pillows were never
introduced at trial.
With regard to the victim’s purse and its contents, the Defendant has
not stated any valid basis to suppress this item. All relevant evidence is
admissible at trial except as otherwise provided by law. See § 90.402, Florida
Statutes. Relevant evidence is evidence is evidence tending to prove or
disprove a material fact. § 90.401, Florida Statutes.
Furthermore, the record refutes the Defendant’s claim that the purse
was “planted” after he vacated the premises. There was ample testimony at
trial, including the Defendant’s own, that shows that the victim’s purse was
found at the house the day after the victim disappeared while the Defendant
was still living there. Lastly, Officer Norman Gay, arriving at the house in
response to a report by the victim’s mother that the victim was missing,
testified that he spoke to the Defendant about the purse and that the
Defendant told the officer that he had put the purse in the closet and that the
victim’s insulin was in the purse. Therefore, the evidence indicates that the
purse and the insulin inside the purse were found while the Defendant was
still living in the house.
Lastly, defense counsel did argue that the purse identified by the
victim’s friend as the one she took out of the closet was not the actual purse
pulled out of the closet, and that this was supported by the testimony of the
Defendant and other witnesses. The State notes in its response that
discrepancies in evidence are decided by the jury – they are not a basis to
suppress evidence. See Hertz v. State, 803 So.2d 629, 647 (Fla. 2001); I.R.
v. State, 385 So.2d 686 (Fla. 3d DCA 1980). The Defendant has failed to
sufficiently show ineffectiveness of counsel. This claim is denied.
(Dkt. 25, Ex. 21) (court’s record citations omitted).
The state court determined that no basis for suppression existed. This Court must
accept the state court’s conclusion that, under Florida evidentiary law,4 counsel had no
grounds to seek suppression. See, e.g., 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
4
White does not allege any federal constitutional basis upon which counsel could have moved to
suppress these items.
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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 matters.’”) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997));
Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (“[T]he Alabama Court of
Criminal Appeals has already answered the question of what would have happened had
[petitioner’s counsel] objected to the introduction of [petitioner’s] statements based on [state
law]–the objection would have been overruled. . . . Therefore, [petitioner’s counsel] was not
ineffective for failing to make that objection.”). See also Bradshaw v. Richey, 546 U.S. 74,
76 (2005) (“We have repeatedly held that a state court’s interpretation of state law . . .
binds a federal court sitting in habeas corpus.”).
White has not shown that the state court’s determination was contrary to or an
unreasonable application of clearly established federal law, or was based on an
unreasonable determination of the facts. He is not entitled to relief on Ground Two.
Ground Three
White alleges that trial counsel was ineffective for failing to argue that his statements
to detectives in New York, in transit from New York to Florida, and at the police station
upon returning to Florida were obtained in violation of his constitutional rights. Specifically,
he asserts that law enforcement conducted custodial interrogations without providing him
warnings under Miranda v. Arizona, 384 U.S. 436 (1966). White claims that he was not
free to leave because “from the time [he] met with the Florida detectives in New York he
was under [police] supervision and control.” (Dkt. 1, p. 9.)
Under the Fifth Amendment, an individual has a “privilege . . . not to be compelled
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to incriminate himself.” Id. at 439. Whether White was in custody when he spoke to police
matters because “the right to Miranda warnings attaches when a custodial interrogation
begins.” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006).5 Determining
custody involves examining the circumstances surrounding the interrogation and whether,
under those circumstances, a reasonable person would have felt he or she was not at
liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112
(1995). While a court determining whether an individual was in custody must examine all
of the circumstances of the interrogation, “the ultimate inquiry is simply whether there [was]
a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a
formal arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting California v.
Beheler, 463 U.S. 1121, 1125 (1983)) (internal quotation marks omitted). See also
Miranda, 384 U.S. at 444 (“By custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.”). “The test is objective: the actual, subjective
beliefs of the defendant and the interviewing officer on whether the defendant was free to
leave are irrelevant.” United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996.)
The state court rejected White’s claim of ineffective assistance of counsel, finding
that White was not in custody when he spoke to officers:
Defendant alleges ineffective assistance of counsel for failure to raise
Miranda violations. Defendant claims it was a violation of Miranda for
Detectives from Florida to travel to New York to inform the Defendant that his
wife had died and to ask him questions and search the house at which he
5
Miranda provides that an individual subject to custodial interrogation must be informed “prior to any
questioning that he has the right to remain silent, that anything he says can be used against him in a court of
law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires.” 384 U.S. at 479.
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was staying in New York. This was not a violation of Miranda because there
was no custodial interrogation involved and therefore no Miranda warnings
were necessary. See Ramirez v. State, 739 So.2d 568 (Fla. 1999).
Defendant also claims it was a violation Miranda for the Detectives to
escort Defendant home on a flight from New York to Florida without reading
him his warnings. Defendant does not allege that any questioning went on
during this flight and therefore no Miranda issues exist. Id. However,
Defendant claims that upon landing, the Detectives drove the Defendant
directly to the police station where he was placed in an interrogation room
and was questioned for hours. Defendant claims that because the
interrogation was not recorded, the Detectives did not Mirandize him before
they started the questioning and that counsel should have moved to
suppress any statements made by Defendant in this interview. Defendant
alleges he was prejudiced because the State was able to admit conflicting
statements made by Defendant in response to questions asked by the
Detectives.
The Defendant’s claim is refuted by the record. The Defendant
testified at trial that he voluntarily spoke with Detective Mazza in New York
and that he voluntarily returned to Florida. Most importantly, the Defendant
testified that he initially consented to the interview at the police station and
when he stopped the interview, the officers drove him home. Specifically, the
State points to Defendant’s testimony that Detective Sessa asked him if he
was willing to talk to which Defendant responded “What choice do I have at
that point? Just told me I can’t go anywhere. I said yes.” The State further
notes in a footnote in its response, that while Defendant testified at that point
that he could not leave, the rest of the Defendant’s testimony contradicts that
statement, specifically where the Defendant testified that the officers drove
him home when he stopped the interview and refused to waive his rights.
Furthermore, aside from the Defendant’s internally contradictory testimony,
Detectives Sessa and Mazza testified in contradiction with the Defendant’s
assertion that he was told he was not allowed to leave. Detective Mazza
testified that the Defendant agreed to be interviewed before going home after
the flight from New York because he “wanted to get it over with.” The
Defendant testified that Detective Mazza told him to sign a release form but
that upon his refusal, the detective stated, “well, then I’ll take you home.”
Consequently, there was no violation of Miranda in this situation. The
Defendant spoke to the officers voluntarily and was not in custody, therefore
no Miranda warnings were necessary and there was no basis for which
defense counsel could have moved to suppress the Defendant’s statements.
This claim is denied.
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(Dkt. 25, Ex. 21) (court’s record citations omitted).6
White has not shown he was in custody when he talked to Detective Lisa Mazza in
New York about Andrea’s disappearance. White agreed to talk with Mazza and was
cooperative during their conversation. (Dkt. 25, Ex. 2D, pp. 538, 542; Ex. 2H, p. 1198.)
White was not under arrest. They met at White’s brother’s house and talked outside by a
bonfire. (Dkt. 25, Ex. 2D, pp. 538, 474-75; Ex. 2H, p. 1198). See, e.g., Brown, 441 F.3d
at 1348 (“Although the location of the interview is surely not dispositive in determining
whether the interviewee was in custody, [c]ourts are much less likely to find the
circumstances custodial when the interrogation occurs in familiar or at least neutral
surroundings, such as the suspect’s home.”) (quoting United States v. Ritchie, 35 F.3d
1477, 1485 (10th Cir. 1994)) (internal quotation marks omitted) (emphasis original). There
is no indication that White sought to leave, asked police to leave, or decided he no longer
wanted to speak to them. At the end of the meeting, White agreed when Mazza asked him
to return to Florida with her. (Dkt. 25, Ex. 2D, p. 483-84; Ex. 2H, p. 1200.) White has not
shown any Miranda violation when he met with detectives at his brother’s house in New
York.
Nor does White show any Miranda violation during travel from New York to Florida.
White voluntarily agreed to return to Florida with police. (Dkt. 25, Ex. 2D, pp. 483-84; Ex.
2H, p. 1200.) Police picked him up at his sister’s house the day after he talked to Mazza.
(Dkt. 25, Ex. 2D, p. 484; Ex. 2E, p. 567; Ex. 2H, p. 1201.) Mazza testified that they had
6
The state court’s order provides that Petitioner argued a Miranda violation with respect to the
detectives’ searching the house in New York. He makes no such claim in his federal habeas petition. He says
that police “asked Defendant for permission to search the house. Defendant gave consent . . .” (Dkt. 1, p.
9.)
Page 16 of 44
“casual” conversation at the airport, and White testified that Mazza asked him about his
relationship with Andrea in the days prior to her disappearance. (Dkt. 25, Ex. 2E, p. 569;
Ex. 2H, p. 1202.) However, the record contains no indication that he changed his mind and
wanted to stay in New York or that he became unwilling to talk to law enforcement. White
was not under arrest, and there is no evidence that White’s contact with officers during
transit was involuntary at any time. The record therefore supports the state court’s finding
that Miranda was not required because White was not in custody.
Finally, the detectives’ testimony supports the finding that White was not subject to
custodial interrogation when White spoke to Sergeant James Sessa upon returning to
Florida. Mazza testified that when she told him the interview would take place after they
arrived in Florida, “He’s like, good. He wanted to get it over with.” (Dkt. 25, Ex. 2E, p.
573.) Sessa testified that White agreed to talk and was cooperative. (Dkt. 25, Ex. 2G, pp.
897, 898.)7 Sessa further testified that White was informed he was not under arrest and
was free to leave at any time. (Id., p. 897.) Therefore, there is record support for the state
court’s conclusion that counsel did not perform deficiently for not seeking to suppress
White’s statements because he was not in custody.
However, White testified that he was not permitted to leave the interview room when
he tried to do so. (Dkt. 25, Ex. 2H, p. 1204.)8 Even assuming that counsel was deficient
for not moving to suppress White’s statements in light of his recollection of the interview,
7
Mazza was not present when Sessa interviewed White. (Dkt. 25, Ex. 2E, p. 574.)
8
None of White’s statements to police were recorded. White alleges in support of his ineffective
assistance claim that police had a duty to record his statements. But he cites no authority that the federal
constitution requires recording of custodial or non-custodial interviews and does not establish that counsel was
ineffective for not moving to suppress his statements on this basis.
Page 17 of 44
he does not demonstrate resulting prejudice. The crux of his comments to Sessa were
introduced through other witnesses.9
White told Sessa about difficulties in the marriage. Sessa testified that White
reported problems with Andrea, whom he called a “bitch.” (Dkt. 25, Ex. 2G, p. 899.) He
also said Andrea was not happy with him and threatened to take the children. (Id.) Other
witnesses testified to White’s statements about marital trouble and potential child custody
issues. Gay testified that White told him that Andrea was considering divorce. (Dkt. 25,
Ex. 2C, p. 313.) Susan Gula testified that White brought up his martial problems and stated
that Andrea was going to leave him. (Id., pp. 401-03.) Rhonda Draper testified that White
told her he would never let Andrea have the children. (Dkt. 25, Ex. 2D, p. 430.) Marianne
Salo testified that White told her Andrea was crazy and that they fought. (Dkt. 25, Ex. 2E,
p. 700-01.) Rod Mick testified that White discussed marital difficulties, said Andrea was
insane, and stated that he could not leave because he would lose the children. (Dkt. 25,
Ex. 2G, pp. 814-16, 822.) Heather Hart said that White told her Andrea was leaving. (Id.,
p. 832.) Finally, White himself testified to his marital problems. (Dkt. 25, Ex. 2H, pp. 114042.) Therefore, the jury knew of White’s statements about his marriage and children from
sources other than Sessa.
White also gave Sessa a description of events immediately prior to Andrea’s
disappearance on the night of July 11. Sessa testified that White told him that he and
Andrea had sex and then had an argument. (Dkt. 25, Ex. 2G, pp. 899-900.) White told
Sessa that Andrea slapped him, and also told Sessa that after the argument, Andrea
9
White does not challenge the admissibility of other witnesses’ testimony.
Page 18 of 44
pointed a gun at him and pulled the trigger, but the gun misfired. (Id., pp. 902, 908.) He
stated that he slapped the gun away and that Andrea then picked it up and walked out of
the house. (Id., pp. 902-03.) White told Sessa that Andrea left the house and got in a blue
car. (Id., p. 903.) Sessa testified that White said he did not know why he did not report
Andrea missing. (Id.)
White made similar statements about the events to many other witnesses. Angelo
Borringo, Gay, and Mazza all testified that White said he and Andrea had an argument.
(Dkt. 25, Ex. 2C, pp. 313-15; Ex. 2D, p. 476; Ex. 2E, p. 720.) White also told Patton, Gay,
Mazza, Diane Cassett, Borringo, Fran Fitzgerald, Mick, Hart, and Andrea’s son that Andrea
hit him. (Dkt. 25, Ex. 2C, pp. 254-55, 313-15; Ex. 2D, pp. 451, 476; Ex. 2E, pp. 720-21,
737; Ex. 2F, p. 762; Ex. 2G, pp. 817, 836-37.) White stated to Judy Biolickey and Andrea’s
son that Andrea tried to shoot a gun at him but that it misfired. (Dkt. 25, Ex. 2F, pp. 755,
762.) White told numerous witnesses that Andrea left in a blue car. (Dkt. 25, Ex. 2C, pp.
255-56, 318; Ex. 2D, p. 477; Ex. 2E, pp. 712, 721, 740; Ex. 2G, pp. 836-37.) White also
testified to these same matters. (Dkt. 25, Ex. 2H, pp. 1159-64.)
Witnesses other than Sessa testified about White’s failure to report Andrea missing.
White told Janis Friend that he could not file a missing person report for twenty-four hours.
(Dkt. 25, Ex. 2G, pp. 993-94.) He likewise told Mazza during their conversation in New
York that he attempted to report Andrea missing but was told by a dispatcher that he must
wait twenty-four hours to do so. (Dkt. 25, Ex. 2D, p. 481.)10 Patton testified that White told
her his attorney said not to report Andrea missing. (Dkt. 25, Ex. 2C, p. 250.) Thus, while
10
The State presented evidence that White made no such call, and that no twenty-four hour waiting
policy existed. (Dkt. 25, Ex. 2E, pp. 656-57.)
Page 19 of 44
these witnesses did not say that White did not know why he failed to report Andrea missing,
as White stated to Sessa, they informed the jury that White made inconsistent statements
about any such report.
Therefore, the jury heard from sources besides Sessa about White’s statements.
White has not shown a reasonable probability that the outcome of trial would have been
different had his specific statements to Sessa been excluded. Accordingly, he does not
show that he was prejudiced by counsel’s failure to object to the use of his statement to
Sessa.11
White does not demonstrate that the state court’s decision was an unreasonable
application of Strickland or was based on an unreasonable determination of the facts.12 He
is not entitled to relief on Ground Three.
Ground Four
White argues that trial counsel was ineffective for failing to adequately crossexamine Dr. Daniel Schultz, the former assistant medical examiner who performed
Andrea’s autopsy, and Dr. Jon Thogmartin, the medical examiner who reviewed Schultz’s
findings.
Schultz testified that Andrea’s death was due to homicidal violence of
11
Sessa testified that, during the interview, White indicated he could not tell Sessa something
because his mother-in-law would kill him. (Dkt. 25, Ex. 2G, pp. 901-03.) His specific remark in this context
was not reported by other witnesses. However, this statement is not necessarily inculpatory, and White
testified that he meant he did not want to say that his mother-in-law had been sending prescription
medications to Andrea, as he did not know at the time if “pills or what” had caused her death. (Dkt. 25, Ex.
2H, p. 1206.) White does not show that the exclusion of this statement through Sessa’s testimony would have
created a reasonable probability of a different outcome at trial.
12
To the extent White alleges that trial counsel was ineffective for failing to preserve for appeal the
issues raised in Ground Three, he is not entitled to relief. He does not demonstrate any error, and, even if
error occurred, he does not show that he would have been entitled to relief had the issue been preserved. See
United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (no ineffective assistance of counsel for failing
to preserve or argue meritless issue).
Page 20 of 44
undetermined etiology.
(Dkt. 25, Ex. 2G, p. 860.)
Thogmartin reached the same
conclusion. (Id., p. 914.)
White states that Schultz was fired “for cause” from the medical examiner’s office
due to errors in an autopsy he performed subsequent to Andrea’s autopsy. (Dkt. 1, p. 11.)
White asserts that counsel should have asked Schultz about his “incompetence” in the
other case to “undermine his credibility, expertise, and professionalism.” (Id.) He argues
that counsel should have asked Thogmartin why Schultz was terminated and if, given his
alleged error, he might have “missed something” in Andrea’s case. (Id., pp. 11, 12.)
The state court rejected this claim of ineffective assistance:
I. Defendant claims that counsel was ineffective for failing to impeach Dr.
Schultz with regard to him being fired as Assistant Medical Examiner for an
error made in another case a few months after he did the autopsy on the
victim. The Defendant does not present a legally sufficient claim for relief.
The ways in which one can attack a witness’s credibility at trial are provided
in § 90.608, Florida Statutes. Attacking Dr. Schultz’s credibility based on an
alleged error committed in another case i[s] not a valid manner to attack a
witness’s credibility. Furthermore, the Defendant fails to show how testimony
regarding an autopsy in another, unrelated case would have be[en] relevant
evidence as it is not shown how an alleged error in another unrelated case
would tend to prove or disprove a material fact in the case at bar. This claim
is denied.
II. Defendant claims that counsel was ineffective for failing to impeach Dr.
Schultz by asking Dr. Thogmartin, Dr. Schultz’s supervisor, why Dr. Schultz
was fired as Assistant Medical Examiner. The Defendant again does not
present a legally sufficient claim for relief for the reasons addressed above.
Furthermore, the Defendant cannot demonstrate any prejudice as Dr.
Thogmartin testified that Dr. Schultz’s termination had nothing to do with the
case at bar and that Dr. Thogmartin reviewed and signed off on all of Dr.
Schultz’s work, finding no discrepancies or problems in his report for this
case. Counsel was thus aware that Dr. Thogmartin thought Dr. Schultz’s
report was accurate and showing that there was no prejudice by counsel
failing to inquire on the subject. This claim is denied.
(Dkt. 25, Ex. 21.)
Page 21 of 44
Thogmartin testified in a deposition that Schultz was not terminated because of his
performance in Andrea’s case. (Dkt. 25, Ex. 21, Deposition of Dr. Jon Thogmartin, p. 4.)
Thogmartin did not elaborate on the reason for Schultz’s termination. Attached to White’s
amended postconviction motion was a letter from the medical examiner’s office provided
in response to White’s records request. It states that Schultz was dismissed due to “[i]nitial
misinterpretation of the agent of injury in a case.” (Dkt. 25, Ex. 18, Letter from Medical
Examiner, District Six, to David White.)
However, any allegation that Schultz’s later error means he also erred in Andrea’s
autopsy is too speculative to warrant federal habeas relief. See Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot
support an ineffective assistance of counsel claim). Additionally, this Court must afford
deference to the state court’s finding that, under Florida law, counsel could not have
questioned Schultz about such an error in order to attack Schultz’s credibility. See Herring,
397 F.3d at 1354-55. Finally, Thogmartin testified that he also concluded that Andrea died
from homicidal violence. (Dkt. 25, Ex. 2G, p. 914.) Thus, even if White had cast doubt on
Schultz’s capabilities, the jury heard that Thogmartin reached the same conclusion about
Andrea’s death. White does not allege any error in Thogmartin’s review of the case.
White has not demonstrated that the state court unreasonably applied Strickland or
unreasonably determined the facts in denying his claim.13 Ground Four warrants no relief.
Ground Five
White contends that trial counsel was ineffective for failing to make “timely and
13
White’s allegation that trial counsel was ineffective for failing to preserve the issue for appeal is
without merit. See Winfield, 960 F.2d at 974.
Page 22 of 44
proper objections” several times during trial.
A.
White asserts that counsel should have objected when three State witnesses
testified regarding lab results they did not prepare. He claims that this violated Crawford
v. Washington, 541 U.S. 36 (2004) because he was denied the opportunity to confront and
cross-examine the reports’ authors.14
In their testimonies, Schultz and Thogmartin addressed a toxicology report that
revealed the presence of numerous substances in Andreas’s body. White attached to his
amended postconviction motion a copy of what he claims is the report. It was conducted
in the Pinellas County Forensic Laboratory and was signed by Chief Forensic Toxicologist
Robin Neuenschwander. (Dkt. 25, Ex. 18, Report, Pinellas County Forensic Laboratory.)15
Additionally, Florida Department of Law Enforcement crime lab analyst Darren Esposito
testified about a DNA report based on tests performed at Bode Technology.16
The state court denied White’s ineffective assistance claim:
Defendant claims counsel was ineffective for failing to object to testimony by
laboratory analyst Darren Esposito, Dr. Schultz and Dr. Thogmartin regarding
the results of tests they did not perform. Defendant alleges that he was
prejudiced because he was unable to confront and cross examine the person
who performed the tests. The Defendant specifically alleges that these
witnesses testified regarding test results from Bode Technology and that
Drs. Schultz and Thogmartin relied on a toxicology report prepared by Robin
Neuenschwander. The Defendant claims that had counsel objected, the lab
reports and the testimony with regard to such would have been excluded.
14
Crawford held that the Confrontation Clause bars testimonial evidence by a non-testifying declarant
unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination. 541
U.S. at 68.
15
Thogmartin explained that the test was not performed by his laboratory. (Dkt. 25, Ex. 2G, pp. 915-
16.)
16
Florida Department of Law Enforcement contracted with Bode Technology to perform testing due
to the Department’s overload of cases. (Dkt. 25, Ex. 2E, p. 560; Ex. 2G, p. 931.)
Page 23 of 44
First, Darren Esposito testified as an expert witness in the area of
DNA analysis. Per § 90.704, Florida Statutes, expert witnesses may base
their opinions on facts or data not in evidence if the facts or data are of a type
reasonably relied upon by experts in the subject. Furthermore, expert
witnesses may rely on reports of others in reaching their own opinion. See
Schoenwetter v. State, 931 So.2d 857, 870-71 (Fla. 2006). Therefore, Mr.
Esposito testifying that Bode Laboratories handled the overflow work from
the State and that after reviewing the reports from Bode that he was
comfortable telling the jury that the victim’s DNA matched the DNA found on
the fingernail clipping taken from the victim’s left hand was proper.
Next with regard to Drs. Schultz and Thogmartin relying on the
toxicology report of Robin Neuenschwander, this was also proper. As stated
above, expert witnesses may rely on the reports of others. See
Schoenwetter, 931 So.2d at 871 (holding that medical examiners can rely on
outside reports). This claim is denied.
(Dkt. 25, Ex. 21) (court’s record citations omitted).
An expert witness17 may testify to an opinion based on facts that the expert
assumes. An expert is permitted in appropriate cases “to explain the facts on which his or
her opinion is based without testifying to the truth of those facts.” Williams v. Illinois, 132
S.Ct. 2221, 2228 (2012). Williams explains:
[T]his form of expert testimony does not violate the Confrontation Clause
because that provision has no application to out-of-court statements that are
not offered to prove the truth of the matter asserted. . . . Out-of-court
statements that are related by the expert solely for the purpose of explaining
the assumptions on which that opinion rests are not offered for their truth and
thus fall outside the scope of the Confrontation Clause.
Id.
Schultz and Thogmartin utilized the toxicology report to make determinations about
Andrea’s death. Specifically, the report showed that Andrea’s body contained some
alcohol, Benadryl, an antidepressant, and a muscle relaxant. (Dkt. 25, Ex. 2G, pp. 857,
885-86, 914-16.) However, Schultz concluded that these results did not explain Andrea’s
17
White does not object to the expert qualifications of any of these three witnesses.
Page 24 of 44
death, stating that “I don’t have a toxicological reason to blame the death on.” (Id., p. 859.)
Thogmartin likewise did not believe that these substances accounted for Andrea’s death.
(Id., pp. 916-17.) Thus, Schultz and Thogmartin did not testify that the results of the
toxicology test were in fact accurate; they merely used the results in reaching conclusions
about Andrea’s death. White fails to show a Crawford violation to which counsel could
have objected during the doctors’ testimony. In addition, White does not explain how he
was prejudiced by counsel’s performance.
He does not establish any reasonable
probability that the outcome of trial would have been different had Schultz and Thogmartin
been prevented from testifying about the toxicology report.
Darren Esposito testified about results of a DNA test performed by Bode
Technology. Without testifying to the results’ accuracy, he testified that the report showed
no foreign DNA was found on fingernail clippings from Andrea’s left hand, and no
detectable DNA profile was obtained from the fingernail clippings of her right hand. (Dkt.
25, Ex. 2G, pp. 932-33, 937.) White has not shown that counsel was deficient for not
objecting to Esposito’s testimony.
Moreover, even if Esposito’s testimony was excluded based upon an objection by
counsel, White does not establish a reasonable probability that the outcome of trial would
have been different. The defense called Ashley Fullmer, a Bode Technology employee,
who testified that the results from a partial female profile and partial reference sample taken
from Andrea agreed with one another. (Id., p. 965.) Fullmer also stated that White could
be excluded as contributing to the partial female profile obtained from Andrea’s left hand
fingernail clippings. (Id., p. 964.) Thus, Fullmer provided testimony consistent with
Esposito’s about the lack of foreign DNA found on Andrea.
Page 25 of 44
White has not established deficient performance of counsel or resulting prejudice
in connection with these three witnesses’ testimonies. He does not show that the state
court’s decision was contrary to or an unreasonable application of clearly established
federal law, or was based on an unreasonable determination of the facts.
B.
White argues that counsel should have objected to improper prosecutorial
comments. An allegedly improper remark must be considered in the context of the
proceeding as a whole, and relief is only available if an improper remark prejudiced the
defendant’s substantial rights. See United States v. Beasley, 72 F.3d 1518, 1525 (11th Cir.
1996) (“Prosecutorial misconduct is a basis for reversal only if, in the context of the entire
trial and in light of any curative instruction, the misconduct may have prejudiced the
substantial rights of the accused.”). See also 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.”).
1.
During opening statements, the prosecutor addressed White’s refusal to
provide a written statement when Deputy Gay initially responded on July 12 to perform a
welfare check on Andrea. White claims that the prosecutor’s statement “violated [his] right
to remain silent at the time he was interviewed by Deputy Gay, and the right not to testify
at trial.” (Dkt. 1, p. 13.) Specifically, in White’s postconviction motion, he cited a portion of
the opening statement in which the prosecutor addressed his statements to Deputy Gay
on July 12, and then said:
Page 26 of 44
What’s interesting and noteworthy and pay attention to this, the deputy then
asks the defendant, will you sign a written statement? And the defendant’s
response was, no, I will not.
You’re going to hear that Desiree Patton filled out a statement and signed it,
but this defendant refused to do that with Deputy Gay.
(Dkt. 25, Ex. 2B, pp. 182-83; Ex. 18, pp. 9-13.)
The state court denied this portion of White’s claim:
I. Defendant claims counsel was ineffective for failing to object to the State
introducing into its opening argument statements Defendant made to Deputy
Gay. Defendant claims the introduction of these statements violated the
Defendant’s right to remain silent at the time he was interviewed by Deputy
Gay and his right not to testify at trial. The Court finds that this claim has no
merit. Deputy Gay went to Defendant’s house after the victim’s friend
became concerned because the victim had been missing for over 16 hours.
No body had been found at this time and Defendant was not a suspect
because there was no criminal investigation being conducted. The interview
conducted by Deputy Gay was non-custodial and related only to a missing
person. If Defendant had wanted to invoke his right to remain silent, he could
have by not making any statements to law enforcement at the time of the
interview.
(Dkt. 25, Ex. 19.)
It is improper for a prosecutor to comment on a defendant’s silence or decision not
to testify in his defense. See Griffin v. California, 380 U.S. 609, 615 (1965) (“[T]he Fifth
Amendment . . . in its bearing on the States by reason of the Fourteenth Amendment,
forbids . . . comment by the prosecution on the accused’s silence.”).
However, “[t]he
government may comment on a defendant’s silence if it occurred prior to the time that he
is arrested and given his Miranda warnings.” United States v. Rivera, 944 F.2d 1563, 1568
(11th Cir. 1991).
White was not under arrest when Gay initially responded on July 12, when White
spoke to him but refused to make a written statement. Under these circumstances, White
Page 27 of 44
does not show that the prosecutor improperly commented on his right to remain silent “at
the time he was interviewed by Deputy Gay.”
Nor does White establish that the
prosecutor’s remarks amounted to an improper comment on his right not to testify at trial.
Accordingly, White fails to establish that counsel was ineffective for failing to object to the
prosecutor’s statement. White has not demonstrated that the state court’s decision was
an unreasonable application of or contrary to Supreme Court precedent, or was based on
an unreasonable determination of the facts.
2.
White claims that counsel should have objected to remarks during the
prosecution’s opening statement that could only be refuted by White’s testimony, thus
requiring White to testify in his own defense. His postconviction motion referred to lengthy
portions of the opening statement in which the prosecutor addressed the anticipated
testimonies of Patton, Fitzgerald, Mick, Hart, Schultz, and Thogmartin. (Dkt. 25, Ex. 18,
pp. 9-13.) The state court rejected this portion of White’s claim:
Defendant also claims counsel was ineffective for failing to object to
statements the State made in its opening argument that “required that
defendant take the stand to refute them since only he could actually do so.”
A defendant is not required to take the stand in his own defense. He has a
constitutional right allowing him to testify at trial, but he may also waive this
right. See Cutter v. State, 460 So.2d 538 (Fla. 2d DCA 1984). However, the
prosecutor making proper statements in his opening argument about
evidence that will be presented to the jury, evidence that the Defendant
claims he is the only person qualified to refute, is not a violation of his right
not to testify. This claim is denied.
(Dkt. 25, Ex. 19.)
White does not demonstrate any impropriety to which counsel could have objected.
The prosecutor’s statements informed the jury about evidence the State expected to
present during the case. “An opening statement gives counsel the opportunity to state
Page 28 of 44
what evidence will be presented in order to make it easier for the jurors to understand what
is to follow, and is not an occasion for argument.” United States v. Lizon-Barias, 252 Fed.
App’x 976, 978 (11th Cir. 2007). “Opening remarks are not evidence, and the purpose of
opening argument is to outline what an attorney expects to be established by the evidence.”
Occhicone v. State, 570 So.2d 902, 904 (Fla. 1990)
Additionally, although White claims that the statements could only be refuted by his
testimony, he does not demonstrate that his decision to testify was involuntarily made as
a result. At a colloquy during trial, White told the court that his choice to testify was
voluntary. He did not allege he was compelled to testify against his wishes to respond to
the prosecution’s opening statement. (Dkt. 25, Ex. 2G, pp. 981-82.) White has not
established that the state court’s decision was contrary to or an unreasonable application
of clearly established federal law or based on an unreasonable determination of the facts.
C.
White asserts that counsel should have objected to the prosecutor’s bolstering the
credibility of Deputies Gay and Mazza18 during closing arguments. In his amended
postconviction motion, White appears to refer to the following prosecutorial statements
about Gay:
What else do we know? We know that Deputy Gay responds. If anybody has
no motivation to color the testimony, distort the truth, it’s Deputy Gay, isn’t it?
What does he got to gain out of this?
(Dkt. 25, Ex. 2I, p. 1333.)
Here we go. We’ve got someone else who is in this conspiracy. It’s
Desiree. And now it’s Norman Gay. They’re involved in this conspiracy to
18
Though White does not refer to Mazza by name, his claim is liberally interpreted as raising the same
claim of ineffective assistance of counsel that he presented in his postconviction motion. The state court
construed this claim as involving both Gay and Mazza.
Page 29 of 44
misrepresent and distort the truth so we would implicate this man right here.
See, that’s what’s happening here.
(Id., p. 1337.)
White also referred to the prosecutor’s remark about Mazza:
Now, what else do we know? We know he goes to New York. And the case
is assigned to a detective named Lisa Mazza. And counsel says, well, she’s
got an interest in this case. What’s the interest? We don’t know because we
don’t know by way of evidence. There’s been no evidence that [Mazza] gets
a bonus, that she gets some kind of notoriety if he’s convicted.”
(Id., p. 1346.)
The state court rejected White’s claim that counsel was ineffective for failing to
object to these statements:
Defendant claims counsel was ineffective for failing to object to the State
improperly bolstering Deputy Norman Gay’s testimony in its closing
argument. The Defendant specifically refers to the prosecutor’s statement
that Deputy Gay has no motivation to “distort the truth” and, though the
Defendant never expressly mentions the State’s attempt to bolster Detective
Mazza’s testimony, the Defendant quotes a statement made by the
prosecution referring to Detective Mazza.
The State argues and the Court agrees that the statements at issue
did not vouch for the credibility of either officer’s testimony. The State claims
that read in context, the statements were fair comments on the evidence and
proper replies to defense counsel’s closing arguments. With regard to the
prosecutor’s comments about Deputy Gay, the comments at issue are
spread out over five pages of trial transcripts. The prosecutor’s arguments
are not statements bolstering Deputy Gay’s credibility, but rather comments
on the Defendant’s testimony and responses to defense counsel’s
arguments. Specifically, the Defendant testified that Deputy [G]ay told the
Defendant not to write a statement, and Deputy Gay testified that the
Defendant actually refused to write a statement. Defense counsel then
argued that Deputy Gay’s testimony about his conversation with the
Defendant was inaccurate because everyone was under stress. Defense
counsel further argued that the jurors cannot know what was actually said
because the conversation was not recorded. Therefore, it is clear to the
Court that the State was simply arguing in response to the defense’s
argument when it stated that Deputy Gay had no reason to distort what
occurred between himself and the Defendant. The State was responding to
the defense’s assertion that Deputy Gay’s testimony was inaccurate and
Page 30 of 44
could not be verified. This argument was proper under the case law cited by
the State. See Williamson v. State, 994 So.2d 1000, 1013 (Fla. 2008).
With regard to the comments about Detective Mazza quoted by the
Defendant in his motion, the State argues and the Court agrees that these
comments are not bolstering either. The State asserts that the prosecutor
was responding to defense counsel’s argument that everyone involved in the
case had an interest in the outcome. The State, in response to this, argued
that Detective Mazza did not have an interest in the case as far as receiving
a bonus or notoriety and that her only interest was that it was her job to find
the victim’s murderer. The Court finds that when read in context, the State’s
comments were not improper bolstering. This claim is denied.
(Dkt. 25, Ex. 21.)
A prosecutor may not bolster testimony of a state witness:
Ordinarily, it is improper for a prosecutor to bolster a witness's testimony by
vouching for that witness's credibility. United States v. Hands, 184 F.3d 1322,
1334 (11th Cir.1999). Bolstering occurs when “ ‘the jury could reasonably
believe that the prosecutor was indicating a personal belief in the witness'
credibility.’ ” United States v. Knowles, 66 F.3d 1146, 1161 (11th Cir.1995)
(quoting United States v. Sims, 719 F.2d 375, 377 (11th Cir.1983)). A
prosecutor's comments can fail this test in two ways: (1) by placing the
prestige of the government behind the witness, or (2) by indicating that
information not before the jury supports the witness's credibility. Id. The rule
against bolstering does not, however, prevent the prosecutor from
commenting on a witness's credibility, which can be central to the
government's case. United States v. Hernandez, 921 F.2d 1569, 1573 (11th
Cir.1991).
United States v. Bernal-Benitez, 594 F.3d 1303, 1313–14 (11th Cir. 2010).
White does not show that the prosecutor improperly bolstered the testimony of
Mazza or Gay. The prosecutor did not support these witnesses’ testimonies with the
prestige of the government or suggest that information not known to the jury substantiated
their credibility. Furthermore, as stated in Bernal-Benitez, attorneys are permitted to argue
about witness credibility. Id. at 1314. The prosecutor had reason to address Mazza’s
Page 31 of 44
credibility, as the defense questioned whether she became too involved in the case.19
Additionally, the prosecutorial comments that White identifies may be considered fair
reply to defense counsel’s closing argument.. “[A] prosecutor, as an advocate, is entitled
to make a fair response to the arguments of defense counsel.” United States v. Stanley,
495 Fed. App’x 954, 957 (11th Cir. 2012) (citing United States v. Sarmiento, 744 F.2d 755,
765 (11th Cir. 1984)). See also Rivera v. State, 840 So.2d 284, 288 (Fla. 5th DCA 2003)
(“Based on notions of fundamental fairness, the doctrine of invited response allows the
state to comment on the issues raised by the defendant.”).20 Defense counsel stated in
closing argument, “You can ask yourself whether the testimony agrees with anybody else
in the case and, importantly, who has an interest in the outcome of this case. Most
19
Defense counsel asked Mazza on cross-examination:
Q. [ ] You didn’t go to Desoto and actually talk with the people that had personal knowledge
of this information [concerning a lead], correct?
A. No.
Q. Ma’am, do you feel you have a vested interest in this case?
A. It’s assigned to me.
Q. But do you think what happens with regard to this case may reflect negatively on you as
far as performance?
A. No.
Q. And would you agree with me that in this case at some point it became - - the investigation
on this case became too personal for you where you lost objectivity?
A. No.
(Dkt. 25, Ex. 2E, p. 621.)
20
White makes a vague allegation that the State “[a]lso . . . was allowed to make inappropriate
arguments during closing arguments that were designed to mislead and confuse the jury.” (Dkt. 1, p. 13.)
White has not identified any particular statements in support of this assertion. To the extent White may be
referring to statements other than those addressed, he fails to show entitlement to relief.
Page 32 of 44
everybody involved has an interest in it one way or another, either professional interest or
mostly personal interest.” (Dkt. 25, Ex. 2I, pp. 1300-01.) He also suggested that Patton
was responsible for Andrea’s death.21 He stated that Gay and Patton were “accusing
[White] of all these things” during the July 12 welfare check and noted that nobody
recorded White’s “varying testimony” and that everyone was “under some form of stress.”
(Dkt. 25, Ex. 2I, pp, 1312, 1313.) White shows no basis for counsel to have objected. Nor
does he show a reasonable probability that the outcome would have been different had
counsel done so.
White does not show that the state court unreasonably applied Strickland or
unreasonably determined the facts in making its decision. He is not entitled to relief on
Ground Five.
Ground Six
White asserts that trial counsel was ineffective for failing to call witnesses.
A.
Andrea took insulin to manage her diabetes. White alleges that counsel should have
called an expert witness to testify about the “adverse effects of drugs, alcohol, and insulin,”
as well as the “detrimental effects” if diabetes is not “monitored and controlled properly.”
(Dkt. 1, p. 15.) He suggests that the interaction of alcohol, drugs, and insulin might have
caused Andrea’s death. The state court denied White’s claim:
1. Defendant claims that counsel was ineffective for failing to call an expert
witness to testify to the detrimental health effects of diabetes (a condition the
21
There was testimony that Andrea’s blood sugar was abnormal on July 11 such that Patton, a “CNA
home health aid[e],” was surprised Andrea was not in a coma. (Dkt. 25, Ex. 2C, pp. 223, 283-84.) Defense
counsel theorized that Andrea went to Patton’s house after the argument on July 11 and died of an insulin
overdose when Patton gave her too much insulin. (Dkt. 25, Ex. 2I, pp. 1321-23.) He theorized that Patton,
who was also familiar with the Cheltnam Court location, moved Andrea’s body there because she would lose
her license if it became known that she gave Andrea an injection. (Id., pp. 1320, 1323.)
Page 33 of 44
victim had). Defendant states that he told trial counsel that the victim was a
diagnosed insulin dependent diabetic but that counsel adamantly refused to
call an expert. Defendant states that counsel should have called the expert
to testify to the detrimental effects of drugs and alcohol mixed with insulin.
Defendant alleges he was prejudiced because without this expert testimony,
the jury went into deliberations believing that the victim’s condition along with
drug and alcohol consumption could not have caused her death.
This claim is refuted in part by the record. As noted by the State, the
toxicology report indicated low levels of both drugs and alcohol in the victim’s
tissues. However, both medical examiners testified at trial that the alcohol
level was consistent with the alcohol generated during decomposition. This
partially refutes the Defendant’s claim of ineffective assistance of counsel
with regard to the victim’s alcohol consumption.
Furthermore, the Defendant has failed to sufficiently allege prejudice
where Dr. Schultz testified upon cross-examination that insulin shock or
diabetic shock can be fatal and that the substances found in the victim’s
system could cause sedation and drowsiness. Dr. Schultz further testified
that if a person with reported high levels of blood sugar to the point that it is
surprising that she is not in a coma, leaves her home, comes back and
injects herself or is injected with a large amount of insulin and is then carried
to another location and left, it would not be inconsistent with the medical
examiner’s findings, thus apprising the jury of the fact that nothing in the
medical examiner’s report was inconsistent with a diabetes-related death.
Finally, as the State argues, even if an expert witness could have
testified as the Defendant suggests, that testimony would do nothing to
change the fact that Dr. Schultz testified that he believed the death to be a
homicide based on the fact that the body was found in a remote location. Dr.
Thogmartin also testified that the fact that the victim was not found at her
home was significant because typically deaths from natural causes remain
where they are[ ] and are not found at a remote location. Dr. Thogmartin
further testified that even if the victim’s death was accidental by nature of an
insulin overdose, that somebody would have had to transport her body to the
pond where it was found. Testimony by an expert as the Defendant suggests
would not have changed the circumstances of where the victim’s body was
discovered. Therefore the Defendant does not sufficiently allege prejudice.
This claim is denied.
(Dkt. 25, Ex. 19.)
White does not identify any expert who could have testified at trial. Nor does he
provide any factual basis upon which an expert could have testified as he hypothesizes.
White simply theorizes about what an expert witness might have said. Under these
Page 34 of 44
circumstances, he cannot show that counsel was ineffective for not calling an expert
witness to testify to the interaction of insulin with the drugs and alcohol found in Andrea’s
body. 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 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); 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)). Finally,
“[w]hich 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). White does not demonstrate that the state
court unreasonably applied Strickland or unreasonably determined the facts in rejecting his
claim.22
B.
White also argues that counsel should have called his divorce attorney, Art Hadley,
to testify about the circumstances of White’s trip to New York. The state court denied this
claim:
II. Defendant claims that counsel was ineffective for failing to call Defendant’s
divorce attorney, Art Hadley, as a defense witness. Defendant claims that
Mr. Hadley would have supported Defendant’s version of events and also
22
White also alleges that trial counsel was ineffective for not preserving the issue for appeal. He does
not establish that the lack of a defense expert is an issue reviewable on appeal. His claim is without merit.
See Winfield, 960 F.2d at 974.
Page 35 of 44
would have refuted the flight allegations made by the State. Defendant
alleges that Mr. Hadley was available to testify and that he was on the
witness list to testify at trial, but was never called.
Specifically, the Defendant alleges that Mr. Hadley would have
testified that he advised the Defendant not to report his wife missing and
would have testified to the “chronology of events surrounding defendant’s trip
to New York after the disappearance of his wife, including the events
surrounding the ‘Amber’ alert that was filed by Florida officials, thereby
refuting the State’s allegations of a cover up to hinder being prosecuted, flight
and eluding Florida law enforcement officials.”
This claim is refuted by the record. During a telephone deposition of
Mr. Hadley on January 28, 2008, Mr. Hadley testified that when the
Defendant contacted him on July 12, 2006, he told the Defendant as follows:
I told him to take a time out, not to do anything to make things
worse, not to harass her (Defendants’s wife), and wait until she
returns home and try to work things out, and if they still could
not resolve their differences, then I would do their divorce.
Mr. Hadley was also specifically asked whether he had advised the
Defendant not to report his wife missing, to which he replied “I can’t answer
that yes or no, because I can’t tell you specifically what happened in that
conversation. I can tell you in general I told him don’t harass her, take a time
out and when she comes back try and resolve it.” Mr. Hadley further stated
that he could not “recall the specifics of the conversation (with the Defendant.
I only recall what was generally said, what was the tenure [sic], what was the
purpose of that message I was trying to convey.” Therefore the Defendant’s
claim that Mr. Hadley would have testified that he told the Defendant not to
report his wife missing is directly refuted by the record where it is clear that
Mr. Hadley does not recall what he told Defendant.
With regard to the Defendant’s claim that Mr. Hadley could have
testified to the “chronology of events surrounding defendant’s trip to New
York,” the State indicates in its response and the Court agrees that the
Defendant has failed to show how this is relevant to the Defendant’s
motivation for leaving Florida two days after his wife is reported missing. The
record indicates through the Defendant’s testimony that the decision to travel
to New York with his children was his own and that Mr. Hadley was not
contacted until after the Defendant arrived in New York and was informed by
his sister of the “Amber” alert and his wife’s body being found. Therefore,
because Mr. Hadley was not contacted until after the Defendant arrived in
New York, he could not have testified to the chronology of events
surrounding the Defendant’s trip.
Furthermore, the State points out that the Defendant does not allege
that Mr. Hadley would have testified as to the Defendant’s reason for going
to New York, refuting the Defendant’s allegation that Mr. Hadley had relevant
Page 36 of 44
evidence regarding the Defendant’s alleged fleeing of Florida law
enforcement. Lastly, the record refutes the Defendant’s claim that the New
York police officers testified that the Defendant was “hiding at his sister’s
house,” as neither New York officer testified to this. Nor did Detective Mazza
indicate such. This claim is denied.
(Dkt. 25, Ex. 21) (court’s record citations omitted).
Hadley’s deposition shows that, in response to White stating that Andrea had left
him, he advised White to take some time, not to harass her, and to try to reconcile. (Dkt.
25, Ex. 21, Telephone Deposition of Arthur Hadley.) Hadley could not recall specifics of
the conversation, including whether he told White not to report Andrea missing. (Id.) There
is no indication that Hadley’s purported testimony would have countered allegations by the
State that White fled Florida after Andrea went missing. White fails to show a reasonable
probability that the outcome of trial would have been different had Hadley testified. White
has not shown that the State court unreasonably applied Strickland or unreasonably
determined the facts in rejecting this claim. Ground Six warrants no relief.
Ground Seven
White argues that trial counsel was ineffective for failing to request complete and
proper jury instructions because the instruction for the lesser included crime of
manslaughter by act was erroneous. The state court denied White’s claim:
Defendant claims that counsel was ineffective for failing to request complete
and proper jury instructions. Defendant alleges that the manslaughter
instruction given was erroneous because it contained an “intent” element and
that there was already a certified conflict between Florida Courts on this
subject. The Defendant alleges he was prejudiced because the jury was
given a defective instruction and that influenced the verdict.
The Defendant’s claim is without merit. The jury instruction used had
not been invalidated by the Florida Supreme Court. See Rodriguez v. State,
919 So.2d 1252, 1272 (Fla. 2005) (citing Thompson v. State, 759 So.2d 650,
665 (Fla. 2000)). The Florida Supreme Court did not amend the standard
jury instruction for manslaughter until December of 2008. See In re Standard
Page 37 of 44
Jury Instruction in Criminal Cases – Report 2007-10, 997 So.2d 403 (Fla.
2008). The Defendant’s trial was in April of 2008. Therefore, counsel was
not ineffective for failing to object.
Furthermore, in Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010), the
court held that the instruction given was not fundamentally erroneous where
the instruction gave the jury the opportunity to convict the defendant of
manslaughter by culpable negligence. In the case at bar, the instruction
given was as follows:
Manslaughter. Before you can find the defendant guilty
of manslaughter as a lesser crime, the State must prove the
following two elements beyond a reasonable doubt: Number
one, Andrea White is dead. Number two, David White, A,
intentionally caused the death of Andrea White or, B, the death
of Andrea White was caused by the culpable negligence of
David White.
The Court in Singh held that the instruction given “allowed the jury two
options in finding the second element of manslaughter by act: either the
appellant ‘intentionally cause[d] the death’ or the death ‘was caused by
culpable negligence’ of the appellant.” The Court found no fundamental error
exists when the option is given. As the State notes, other districts, including
the Second District Court of Appeals have ruled similarly. See e.g., BarrosDias v. State, 41 So.3d 370 (Fla. 2d DCA 2010). This claim is denied.
(Dkt. 25, Ex. 21) (court’s record citations omitted).
In State v. Montgomery, 39 So.3d 252, 255-57 (Fla. 2010) the Florida Supreme
Court held that the standard jury instruction on manslaughter by act misstated Florida law
by adding an element of intent to kill. Providing the instruction as a lesser offense
constituted fundamental, per se reversible error, in Montgomery’s case because
Montgomery was convicted of second degree murder, an offense only one step removed
from manslaughter. Id. at 259.
The jury instruction for manslaughter by act used at White’s April 2008 trial was
consistent with the standard instruction then in effect. See Fla. Std. Jury Inst. (Crim.) 7.7
(2006); In re Standard Jury Instructions in Criminal Cases–Instruction in Manslaughter
Page 38 of 44
Cases, 997 So.2d 403 (Fla. 2008). The Florida Supreme Court’s Montgomery decision had
not issued at the time of White’s trial.23 White does not cite any authority, controlling at the
time of trial, that held the jury instruction as given in his case was erroneous.24 The state
court determined that counsel could not be deemed ineffective for failing to object to the
standard instruction as it existed at the time of trial. See Thompson v. State, 759 So.2d
650, 665 (Fla. 2000) (“[The Florida Supreme Court has] previously stated that trial
counsel’s failure to object to standard jury instructions that have not been invalidated by
[the Florida Supreme Court] does not render counsel’s performance deficient.”). Counsel’s
performance must be reviewed based on the circumstances at the time of the act or
omission. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.”). Furthermore, as this claim involves the
state court’s interpretation of Florida law, deference must be afforded to the state court’s
decision. See Herring, 397 F.3d at 1354-55.
White also alleges that trial counsel’s failure to object meant that the question of the
instructions’ propriety was not preserved for appeal, and therefore, any appellate claim
23
Nor had Florida’s First District Court of Appeal found the standard manslaughter by act instruction
erroneous in Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009), which the Florida Supreme Court later
approved.
24
In his reply, White states that the appellant in Daniels v. State, 121 So.3d 409 (Fla. 2013) obtained
relief pursuant to Montgomery “even though Daniels’ trial was on September 15, 2009, before the decision
in Montgomery.” (Dkt. 32, p. 10.) He therefore argues that he “also qualifies for the same relief . . .” (Id.)
However, the holding in Montgomery applied to Daniels because Daniels was decided on direct appeal. See,
e.g., Falcon v. State, 162 So.3d 954, 960 (Fla. 2015) (a Florida Supreme Court decision favorable to
defendants applies to all convictions that have not yet become final through the issuance of an appellate court
mandate). White did not challenge the jury instructions on direct appeal. (Dkt. 25, Ex. 9.) His only argument
was a collateral challenge alleging ineffective assistance of trial counsel.
Page 39 of 44
could only be raised under “the higher standard of proving a fundamental error.” (Dkt.1,
p. 17.) However, White does not show any error that counsel failed to preserve. Trial
counsel performed in accordance with Florida law as it applied at the time of trial, and
White does not demonstrate that counsel could have anticipated a change in the law. See
United States v. Ardley, 273 F.3d 991, 993 (11th Cir. 2001) (rejecting the argument “that
an attorney’s failure to anticipate a change in the law constitutes ineffective assistance of
counsel.”). Accordingly, White does not demonstrate that trial counsel provided ineffective
assistance for failing to preserve an objection to the manslaughter by act instruction. See
Winfield, 960 F.2d at 974.
White has not shown that the state court unreasonably applied Strickland or
unreasonably determined the facts when it denied his claim. He is not entitled to relief on
Ground Seven.
Ground Eight
White alleges that the trial court erred in providing an erroneous jury instruction on
manslaughter by act, thus violating his federal due process rights. White did not exhaust
the federal nature of this claim when he brought it in his amended postconviction motion.
(Dkt. 25, Ex. 18, pp. 27-34.) Accordingly, the claim is unexhausted. As the state court
noted in rejecting his state law trial court error claim, an allegation of trial court error is
properly brought on appeal, not in a postconviction motion. (Dkt. 25, Ex. 19.) See Bruno
v. State, 807 So.2d 55, 63 (Fla. 2001) (“A claim of trial court error generally can be raised
on direct appeal but not in a rule 3.850 motion. . .”) (footnote omitted).
However, White
cannot return to state court to raise a federal claim in a successive, untimely direct appeal.
Therefore, the claim is procedurally defaulted. White does not establish that an exception
Page 40 of 44
applies to overcome the default. Accordingly, Ground Eight is barred from federal habeas
review.
Ground Nine
The state trial court sentenced White to forty-six years in prison, with ten years
suspended. (Dkt. 25, Ex. 7.) White contends that the trial court violated his federal due
process rights by imposing a “departure sentence” based upon facts that were not
submitted to a jury and proven beyond a reasonable doubt. (Dkt. 1, p. 21.)
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Blakely v. Washington, 542 U.S. 296, 303 (2004) clarified that “the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.”
The state court rejected White’s claim when he raised it in his Rule 3.800(a) motion
to correct illegal sentence:
In order for a sentence to be held illegal under rule 3.800(a), it must impose
a sentence under which “the terms or conditions of the punishment for a
particular offense are impermissible as a matter of law.” Carter v. State, 786
So.2d 1173, 1181 (Fla. 2001) (quoting Young v. State, 716 So.2d 280, 282
(Fla. 2d DCA 1998)).
The Defendant’s sole claim for relief is that his sentence of 46 years
is illegal. The Defendant argues that 46 years is an illegal sentence because
it “exceeds the statutory maximum established by the sentencing guideline
scoresheet.”
The Defendant’s argument is without merit. A life sentence for a
second degree murder conviction is a lawful sentence under Florida law.
§ 782.04(2), Florida Statutes; Romero v. State, 105 So.3d 550 (Fla. 1st DCA
2012); Broom v. Tucker, 94 So.3d 502 (Fla. 2012); Berube v. State, 84 So.3d
436 (Fla. 2d DCA 2012). The Defendant’s 46 year sentence falls short of the
maximum permissible penalty for his crime and was a legal sentence.
Page 41 of 44
(Dkt. 25, Ex. 33.)
In its per curiam affirmance of this order, the state appellate court cited cases
explaining that under sentencing law applicable to White’s case, the sentencing court may
impose a sentence up to the statutory maximum. See Williams v. State, 907 So.2d 1224,
1225 (Fla. 5th DCA 2005) (“Williams’ reliance on Blakely is misplaced because under the
Criminal Punishment Code, the sentencing judge is entitled to impose a sentence up to the
statutory maximum without having to make any factual findings.”); Carpenter v. State, 884
So.2d 385, 386 (Fla. 2d DCA 2004) (“Under the Criminal Punishment Code the sentencing
judge has unfettered discretion to impose the statutory maximum for offenses committed
on or after October 1, 1998.”).
The Criminal Punishment Code scoresheet prepared in White’s case lists a “lowest
permissible prison sentence” of 246 months. (Dkt. 7, p. 29.) It does not state the maximum
sentence with specificity, but notes that “[t]he maximum sentence is up to the statutory
maximum for the primary and any additional offenses as provided in s. 775.082, F.S.” (Dkt.
7, p. 29.) Section 775.082(3)(b)1., Fla. Stat., provides that a first degree felony is
punishable by life imprisonment if “specifically provided by statute.” Section 782.04(2), Fla.
Stat., in turn, specifically provides that second degree murder is a first degree felony
punishable by life imprisonment.
White’s forty-six year sentence fell within the permissible sentencing range under
Florida law, and the court was authorized to enter it without making any factual findings.
As White fails to show that the court imposed a “departure sentence” based upon facts not
found by a jury, he has not established any constitutional violation. Because he does not
show that the state court’s decision was contrary to or an unreasonable application of
Page 42 of 44
clearly established federal law, White is not entitled to relief on Ground Nine.
Any claims not specifically addressed herein have been determined to be without
merit.
Accordingly, it is ORDERED that:
1. White’s petition for writ of habeas corpus (Dkt. 1) is DENIED. The Clerk is
directed to enter judgment against White and to close this case.
2. White 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)(1). A district court must first issue a COA. Id. “A [COA] may issue ...
only if the applicant has made a substantial showing of the denial of a constitutional right.”
Id. at § 2253(c)(2). To make such a showing, White “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement
to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983)). White has not made this showing. Finally,
because White is not entitled to a COA, he is not entitled to appeal in forma pauperis.
Page 43 of 44
ORDERED in Tampa, Florida, on March 29, 2017.
Copies to:
David Andrew White
Counsel of Record
Page 44 of 44
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