Brown v. Secretary, Department of Corrections et al
Filing
17
ORDER: William David Brown's application for the writ of habeas corpus (Doc. 1) is DENIED. The Clerk is directed to enter a judgment in favor of Respondent and against Brown and close this case. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. See Order for details. Signed by Judge Thomas P. Barber on 5/28/2020. (EKB)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIAM DAVID BROWN,
Applicant,
v.
CASE NO. 8:16-cv-2393-T-60AEP
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Brown applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and
challenges his convictions for both murder in the first degree and robbery with a deadly
weapon, for which convictions Brown is serving two consecutive life sentences.
Numerous exhibits (“Respondent’s Exhibit __”) support the response. (Docs. 8; 11).
The respondent admits both the application’s timeliness and Brown’s exhaustion of his
available state court remedies. (Doc. 8 at 34-36).
I.
BACKGROUND 1
Brown was charged with (1) the murder and robbery of Ryan Keith Skipper and
(2) arson and tampering with evidence for the attempted destruction of Skipper’s car.
Brown’s co-defendant was Joseph Bearden.
1
This summary of the facts derives from Brown’s brief on direct appeal (Respondent’s
Exhibit B-1) and the parties’ papers in this federal action. Additional facts are discussed below under
each ground for relief.
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Late in the evening of March 13, 2007, Bearden arrived at Brown’s uncle’s
house, where Brown and others were present. Bearden was driving a car that the others
did not recognize. 2 The car belonged to Skipper, who remained inside his car. Bearden
stated that he intended to rob Skipper at Skipper’s house but could not because
someone else was present. When Brown and others went outside to the car, Skipper
recognized Brown. Skipper, accompanied by Brown and another, drove to a gas
station to purchase fuel for a generator. After that errand, Brown and Bearden left with
Skipper in Skipper’s car.
At 1:00 a.m. Skipper’s body was found on the road in a dark area. About 2:00
a.m. Daniel Aguero arrived at his home where he saw Bearden and Brown in front of
his home with a car he did not recognize. Daniel Aguero called his brother Robert
Aguero (a former roommate with Bearden) to come over to get rid of Bearden. When
he arrived, Robert Aguero saw Bearden wiping down the floorboard of the car while
Brown was standing beside the car. Bearden offered to sell the car, which offer was
declined. 3
That morning Brown was overheard knocking on his uncle’s window or door
saying something to the effect that “I think I killed him or I killed him.” Later that
afternoon a police officer recognized Brown riding a bicycle, stopped to question him,
2
The failure to present Brown’s uncle as a witness is the subject of Ground Five.
3
Robert Aguero’s testimony is the subject of Ground Seven.
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and noticed that Brown seemed nervous. Later that evening Skipper’s partially burned
car was found at a boat ramp. 4 Police preserved a shoe impression from the boat ramp.
Based on a tip, the next day (March 15th) the police went to Aguero’s home,
where outside they found Skipper’s school parking permit. Another day later (March
16th), when a search warrant was executed at Brown’s home, police found a boot that
matched the shoe impression from the boat ramp –– the pair of boots were soaking in a
bucket that smelled of bleach.
In a statement to the police Brown (1) described how Bearden (from the
backseat) stabbed Skipper in the stomach, back, and throat, (2) stated that Skipper got
out of the car and fell into the street, (3) claimed that, when he checked on Skipper
laying in the street, he could see that Skipper was still breathing, and (4) admitted that
he got into the driver’s seat and drove away. 5
II.
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). Section 2254(d), which creates a highly deferential standard for federal court
review of a state court adjudication, states in pertinent part:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —
4
Brown’s fingerprints were on papers found inside the car.
5
Brown’s statement to the police is the subject of Ground Eight.
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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
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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000), explains this deferential
standard:
In sum, § 2254(d)(1) places a new constraint on the power of a
federal habeas court to grant a state prisoner’s application for a
writ of habeas corpus with respect to claims adjudicated on the
merits in state court. Under § 2254(d)(1), the writ may issue only if
one of the following two conditions is satisfied — the state court
adjudication resulted in a decision that (1) “was contrary to . . .
clearly established Federal Law, as determined by the Supreme
Court of the United States” or (2) “involved an unreasonable
application of . . . clearly established Federal law, as determined
by the Supreme Court of the United States.” Under the “contrary
to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court
on a question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable facts.
Under the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
case.
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing law
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beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86,
103 (2011); see also White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical point is that
relief is available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it
is so obvious that a clearly established rule applies to a given set of facts that there could
be no ‘fairminded disagreement’ on the question . . . .”) (citing Richter); Woods v.
Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable application of ’ those
holdings must be objectively unreasonable, not merely wrong; even clear error will not
suffice.”) (citing Woodall, 572 U.S. at 419); accord Brown v. Head, 272 F.3d 1308, 1313
(11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of the
state court decision that we are to decide.”). The phrase “clearly established Federal
law” encompasses only the holdings of the United States Supreme Court “as of the time
of the relevant state-court decision.” Williams v. Taylor, 529 U.S. at 412.
The purpose of federal review is not to re-try the state case. “The [AEDPA]
modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given
effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694. A federal court
must afford due deference to a state court’s decision. “AEDPA prevents defendants —
and federal courts — from using federal habeas corpus review as a vehicle to secondguess 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).
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When the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal habeas court reviews the specific reasons as stated in the
opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018). When the relevant state-court decision is not accompanied by
reasons for the decision, the federal court “should ‘look through’ the unexplained
decision to the last related state-court decision that does provide a relevant rationale
[and] presume that the unexplained decision adopted the same reasoning.” Id. The
State may contest “the presumption by showing that the unexplained affirmance relied
or most likely did rely on different grounds than the lower state court’s decision . . . .”
Id.
In a per curiam decision without a written opinion the state appellate court on
direct appeal affirmed Brown’s convictions and sentence. (Respondent’s Exhibit B-3).
Similarly, in another per curiam decision without a written opinion the state appellate
court affirmed the denial of Brown’s subsequent Rule 3.850 motion to vacate.
(Respondent’s Exhibit D-3). The state appellate court’s per curiam affirmances 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. 2002); 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.”); Bishop v. Warden, 726 F.3d 1243, 1255-56 (11th
Cir. 2013) (describing the difference between an “opinion” or “analysis” and a
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“decision” or “ruling” and explaining that deference is accorded the state court’s
“decision” or “ruling” even absent an “opinion” or “analysis”).
As Pinholster, 563 U.S. at 181-82, explains, review of the state court decision is
limited to the record that was before the state court:
We now hold that review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on
the merits. Section 2254(d)(1) refers, in the past tense, to a statecourt adjudication that “resulted in” a decision that was contrary
to, or “involved” an unreasonable application of, established law.
This backward-looking language requires an examination of the
state-court decision at the time it was made. It follows that the
record under review is limited to the record in existence at that
same time, i.e., the record before the state court.
Brown bears the burden of overcoming by clear and convincing evidence a state court’s
fact 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). The
state court’s rejection of Brown’s post-conviction claims warrants deference in this case.
(Respondent’s Exhibits C-2, C-4, and C-6). Brown’s federal application presents the
same grounds of ineffective assistance of counsel that were presented to the state courts.
III.
INEFFECTIVE ASSISTANCE OF COUNSEL
Brown claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
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1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.
1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland
v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is well
settled and well documented. In Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court
set forth a two-part test for analyzing ineffective assistance of
counsel claims. According to Strickland, first, the defendant must
show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Strickland,
466 U.S. at 687, 104 S. Ct. 2052.
Strickland requires proof of both deficient performance and consequent prejudice. See
Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes
an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When applying Strickland,
we are free to dispose of ineffectiveness claims on either of its two grounds.”).
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland,
466 U.S. at 690. “[A] court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct.” 466 U.S. at 690. Strickland requires that
“in light of all the circumstances, the identified acts or omissions were outside the wide
range of professionally competent assistance.” 466 U.S. at 690.
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Brown must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” 466 U.S. at 691. To meet this burden, Brown must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.”
466 U.S. at 690-91. Brown cannot meet his burden merely by showing that the avenue
chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would have
done. Nor is the test even what most good lawyers would have
done. We ask only whether some reasonable lawyer at the trial
could have acted, in the circumstances, as defense counsel acted at
trial . . . . We are not interested in grading lawyers’ performances;
we are interested in whether the adversarial process at trial, in fact,
worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992); accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers, in
every case, could have done something more or something different. So, omissions are
inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or appropriate,
but only what is constitutionally compelled.’”) (en banc) (quoting Burger v. Kemp,
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483 U.S. 776, 794 (1987)). The required extent of counsel’s investigation is discussed in
Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014):
[W]e have explained that “no absolute duty exists to investigate
particular facts or a certain line of defense.” Chandler, 218 F.3d at
1317. “[C]ounsel has a duty to make reasonable investigations or
make a reasonable decision that makes particular investigations
unnecessary.” Strickland, 466 U.S. at 691, 104 S. Ct. at 2066
(emphasis added). “[C]ounsel need not always investigate before
pursuing or not pursuing a line of defense. Investigation (even a
nonexhaustive, preliminary investigation) is not required for
counsel reasonably to decline to investigate a line of defense
thoroughly.” Chandler, 218 F.3d at 1318. “In assessing the
reasonableness of an attorney’s investigation . . . a court must
consider not only the quantum of evidence already known to
counsel, but also whether the known evidence would lead a
reasonable attorney to investigate further.” Wiggins, 539 U.S. at
527, 123 S. Ct. at 2538.
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty to
raise a frivolous claim).
Under 28 U.S.C. § 2254(d) Brown must prove that the state court’s decision was
“(1) . . . contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States or (2) . . . based
on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” Sustaining a claim of ineffective assistance of counsel is very
difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105; see also Pinholster, 563 U.S. at 202 (An applicant must overcome this
“‘doubly deferential’ standard of Strickland and the AEDPA.”); Johnson v. Sec’y, Dep’t of
Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is doubly difficult for a
petitioner to overcome, and it will be a rare case in which an ineffective assistance of
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counsel claim that was denied on the merits in state court is found to merit relief in a
federal habeas proceeding.”); Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th
Cir. 2012) (“Because we must view Pooler’s ineffective counsel claim — which is
governed by the deferential Strickland test — through the lens of AEDPA deference, the
resulting standard of review is ‘doubly deferential.’”).
IV.
GROUNDS FOR RELIEF
Three orders govern the review of Brown’s nine grounds of ineffective assistance
of counsel. The post-conviction court (1) summarily denied Grounds Two, Three, and
Six without a response from the state, (2) denied Grounds Four, Five, and Seven after a
response from the state, and (3) denied Grounds One, Eight, and Nine after an
evidentiary hearing. (Respondent’s Exhibits C-2, C-4, and C-6, respectively).
In the first order, which summarily denied three grounds, the post-conviction
court did not cite Strickland as controlling a claim of ineffective assistance of counsel.
Although the state court’s order omits citing Strickland, no explicit citation is required.
A state court need not cite Supreme Court precedent (or even be aware of it) if the
decision is consistent with the precedent. Early v. Packer, 537 U.S. 3, 8 (2002); Parker v.
Sec’y of Dep’t of Corr., 331 F.3d 764, 775-86 (11th Cir. 2003). In Florida, Strickland
governs an ineffective assistance of counsel claim. Walls v. State, 926 So. 2d 1156 (Fla.
2006). The state post-conviction court analyzed the three summarily denied ineffective
assistance of counsel claims consistent with both Florida precedent and Strickland —
not contrary to Strickland — by requiring proof of both deficient performance and
prejudice. (Respondent’s Exhibit C-2). In the next two orders denying the remaining
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grounds, the post-conviction court recognized that Strickland governs a claim of
ineffective assistance of counsel. (Respondent’s Exhibit C-4 and C-6).
Because the state court’s rejections of the claims are either consistent with or
pursuant to Strickland, Brown cannot meet the “contrary to” test in § 2254(d)(1). Brown
instead must show that the state court unreasonably applied Strickland or unreasonably
determined the facts.
A federal habeas corpus action authorizes no independent determination of the
reasonableness of counsel’s actions but authorizes only a determination “whether the
state habeas court was objectively reasonable in its Strickland inquiry, not an
independent assessment of whether counsel’s actions were reasonable.” Putnam v.
Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001). Brown recognizes that this is the
standard of review controlling this action (Docs. 2 at 10-11; 15 at 6-8), but he mostly
ignores this standard and, for nearly every ground, asserts entitlement to relief under
Strickland without attempting to show that the state court’s application of Strickland was
unreasonable. Nevertheless, the highly deferential standard of review and the
presumption of correctness govern. The proper application of both the standard and
the presumption requires that the analysis of each claim begin with the state court’s
analysis.
A. Claims of IAC Regarding the Jury
Brown asserts five grounds of ineffective assistance of counsel that involve either
an individual juror or the jury as a whole: Ground One is based on an event that
occurred after the jury was selected; Grounds Two, Three, and Six involve the jury
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selection process; and Ground Four challenges the validity of a jury instruction. Each
ground is addressed approximately in order of occurrence.
Ground Two:
Brown alleges that trial counsel rendered ineffective assistance by not moving to
strike juror Bass both for cause and with a peremptory strike. The state post-conviction
court rejected this claim as follows (Respondent’s Exhibit C-2 at 405-06) (cites to the
record omitted):
The Defendant alleges that counsel provided ineffective assistance
when she failed to request that juror Bass be stricken for cause, or
alternatively, failed to use a peremptory strike to ensure juror Bass
did not serve as a juror on his case. The Defendant alleges that
juror Bass equivocated about his ability to be fair and impartial.
During voir dire, Mr. Bass indicated that he thought he had read
something about the case in the newspaper on Saturday. He was
asked what he remembered reading, and he answered, “Well, that
the case was due to start today, and I think they briefly touched on
the case prior to it and it had something in the article about the
gay rights, thinking it should be a hate crime.” Mr. Bass indicated
that he couldn’t recall the outcome of the co-defendant’s case and
indicated he thought he would be impartial. Mr. Bass was asked
the following question by the Court, “As we sit here now, having
heard no evidence, can you presume Mr. Brown to be innocent
until and if it’s overcome by the evidence.” Mr. Bass answered,
“Yes.” Mr. Bass also informed the Court that he remembered
reading something about the matter when it happened. He was
asked if he remembered any specifics about what he read, and he
answered, “No. Just basically, you know, the robbery; due to the
fact that the victim was a gay, he was going to be an easy target.”
When Mr. Bass was asked by the Court whether or not he could
put aside something he read and rely only on evidence the Court
allowed in the trial, he responded, “I’m 99 percent sure I could.”
The Court also asked Mr. Bass the following question during voir
dire, “Do you agree that at the end of the case when I give you the
law, that that’s the only law that applies to this case?” Mr. Bass
answered, “Yes.”
According to the Fourth District Court of Appeal in Jenkins v.
State, 824 So. 2d 977, 982 (Fla. 4th DCA 2002):
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Proceedings under Rule 3.850 are not to be used as
a second appeal. See Medina v. State, 573 So. 2d 293,
295 (Fla. 1990). A lawyer’s competence in failing to
make a cause challenge should not be reviewed in a
3.850 proceeding in the same way that a denial of a
cause challenge is reviewed on direct appeal. To do
so is to undermine the trial process and to nullify the
reasons for requiring a timely objection in the first
place. Because a defendant must demonstrate
prejudice in a 3.850 proceeding, post-conviction
relief based on a lawyer’s incompetence with regard
to the composition of the jury is reserved for a
narrow class of cases where prejudice is apparent
from the record, where a biased juror actually
served on the jury.
Although Mr. Bass expressed a little concern in his responses
regarding his ability to completely set aside anything he might
have learned about the case outside the courtroom through the
media, the little information he seemed to have heard about the
case was not extensive. His responses to the Court and counsel
indicated he was going to do his best to consider only the evidence
presented at trial, and he agreed to follow the law that would be
provided to him by the Court. There is no indication on the record
that Mr. Bass could not be fair and impartial, or that he was biased
against the Defendant.
The Court does not find that there is any basis to conclude a
challenge for cause would have had any chance of success, and the
Court does not find that Mr. Bass’s answers showed any
compelling need to use a peremptory challenge. Counsel’s
performance did not fall below an objective standard of
reasonableness in not trying to strike Mr. Bass from the jury
through a cause challenge or preemptory challenge. Ground 2 of
the Defendant’s Motion is denied.
In his supporting memorandum Brown argues as follows (Doc. 2 at 16):
Juror Bass had a preconceived opinion based on what he had read
in the newspaper, and he gave equivocal answers about his ability
to be impartial. One of the cornerstone’s [sic] of juror competency
is that the juror can lay aside any bias or prejudice and render a
verdict solely on the evidence presented at trial, which Juror Bass
indicated that he could not do.
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As shown above in the state court’s order –– “There is no indication on the record that
Mr. Bass could not be fair and impartial, or that he was biased against the Defendant”
–– Brown’s argument is a mischaracterization of the record. The post-conviction
court’s determination –– that “[c]ounsel’s performance did not fall below an objective
standard of reasonableness in not trying to strike Mr. Bass from the jury through a
cause challenge or preemptory challenge –– is based on Brown’s failure to prove
prejudice.
Although he disagrees with the state court’s ruling, Brown presents no
controlling precedent that shows the post-conviction court’s ruling is an unreasonable
application of Strickland. Brown’s arguments seek to have this federal court rule
without any deference to the state court’s rulings. Because the state court ruled on the
merits of this claim, review de novo would be contrary to the standard of review under
§ 2254(d); the purpose of federal review is not to re-try the state case. See Bell v. Cone,
535 U.S. at 694 (“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.”).
Brown fails to show that the state court unreasonably applied Strickland in
determining that Brown failed to prove that trial counsel’s performance was both
deficient and prejudicial. As a consequence, Brown is entitled to no relief under
Ground Two.
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Ground Three:
Brown alleges that trial counsel rendered ineffective assistance by not moving to
strike juror Lineberger both for cause and with a peremptory strike. The state
post-conviction court rejected this claim as follows (Respondent’s Exhibit C-2 at
406-08) (cites to the record omitted):
The Defendant alleges counsel failed to adequately voir dire juror
Lineberger, failed to request that juror Lineberger be stricken for
cause, and alternatively failed to use a peremptory strike to ensure
juror Lineberger did not serve on the jury. The Defendant alleges
that juror Lineberger equivocated about his ability to be fair and
impartial. Defense counsel actually did use a peremptory strike on
juror Lineberger, but later agreed to allow juror Lineberger to be
the second alternate juror. Two jurors had to be excused during
the trial and juror Lineberger ended up serving on the jury that
returned a guilty verdict.
The Defendant alleges in his Motion that juror Lineberger’s wife
was watching the news and related some things about the case to
him. The following discussion took place between the Court and
Mr. Lineberger during voir dire:
The Court: Mr. Lineberger, what’s your wife’s name?
Venireman Lineberger: Cheryl.
The Court: You evidently –– where were you when
Venireman Lineberger: Shall I tell the story?
The Court: Uh-huh.
Venireman Lineberger: Okay. Sunday night, I’m
watching TV, football, and she’s in there –– in the
next room, and she’s giving me, oh, you’re going to
be on this murder trial, and she’s in there checking it
all out and I’m watching football going on and not
paying a lot of attention. That’s why I say I was
disinterested. So I didn’t really catch a whole lot
there. So the next morning, Channel 9 comes on
and she’s in there, and I’m having my coffee, and
she’s [saying] you need to come look at this because
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you’re going to get this. And I’m saying, no, I’m not
going to get this. And she rattled off a few pertinent
items that, really, the only thing I know that you
haven’t told us is that the cohort has been tried and
is incarcerated. Basically, that’s all I know more
than what you have explained.”
The Court: Okay. I actually saw that. I was at the
gym and on the treadmill and looked up and saw
my courtroom. Let me start with the fact that the
co-defendant in this case and Mr. Brown –– Mr.
Bearden and Mr. Brown are tried separately, and
the evidence as to each and the guilt or innocence as
to each is a separate issue.
Venireman Lineberger: Yes, Sir.
The Court: The fact that you know that –– Bearden
has been tried, does that –– does that lead you to
believe, well, if he was found guilty of something,
then Mr. Brown must be guilty of something?
Venireman Lineberger: Guilt by association?
The Court: Sir?
Venireman Lineberger: Guilt by association?
The Court: Yeah.
Venireman Lineberger: All I can say is –– I have no
opinion at this time.
The Court: Okay. Given the fact that your wife told
you that, do you think you can go into this with an
open mind and look at Mr. Brown and presume him
innocent?
Venireman Lineberger: Yes, sir. I have enough trial
experience to be very open-minded.
The Court: Okay.
A review of the trial transcript shows that counsel thoroughly
questioned Mr. Lineberger during voir dire regarding his ability to
serve as an impartial juror. Based on his responses to the Court
and counsel, there is no indication on the record that Mr. Line- 17 -
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berger could not be fair and impartial, or that he was biased
against the Defendant. The Court does not find that there is any
basis to conclude a challenge for cause would have had any
chance of success, and the Court does not find that Mr. Lineberger’s answers showed any compelling need for counsel to stick
with her earlier decision to use a peremptory challenge on
Mr. Lineberger, to keep him from sitting on the jury.
Counsel’s performance did not fall below an objective standard of
reasonableness with regard to her voir dire of Mr. Lineberger, her
failure to strike Mr. Lineberger from the jury through a cause
challenge, or her failure to keep Mr. Lineberger from serving on
the jury through the use of a preemptory challenge. Ground 3 of
the Defendant’s Motion is denied.
The post-conviction court’s determination –– “that there is [no] basis to conclude
a challenge for cause would have had any chance of success, and . . . that Mr.
Lineberger’s answers showed [no] compelling need for counsel to stick with her earlier
decision to use a peremptory challenge on Mr. Lineberger” –– is consistent with federal
precedent to the extent that the post-conviction court reasonably deferred to trial
counsel’s tactical decisions during jury selection. See, e.g., Teague v. Scott, 60 F.3d 1167,
1172 (5th Cir. 1995) (“The attorney’s actions during voir dire are considered to be a
matter of trial strategy.”); Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997)
(same); Fox v. Ward, 200 F.3d 1286, 1295 (10th Cir. 2000) (same); see also Gardner v.
Ozmint, 511 F.3d 420, 426 (4th Cir. 2007) (finding “entirely plausible the state court’s
characterization of defense counsel’s choice as ‘tactical’” in choosing how to use
peremptory challenges).
Brown disagrees with the state court’s rulings, but he presents no controlling
precedent that shows the post-conviction court’s ruling is an unreasonable application
of Strickland. Brown fails to show that the state court unreasonably applied Strickland in
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determining that Brown failed to prove that trial counsel’s performance was deficient.
Consequently, Brown is entitled to no relief under Ground Three.
Ground Six:
To possibly assist the veniremen in recalling whether they knew anything about
the incident, the trial court read to the venire a fact statement, which was written
primarily by the state but with some input from the defense. Brown alleges that trial
counsel rendered ineffective assistance by not objecting to the court’s reading of the fact
statement during voir dire. The state post-conviction court rejected this claim as follows
(Respondent’s Exhibit C-2 at 409-10) (cites to the record omitted):
The Defendant alleges counsel’s performance fell below an
objective standard of reasonableness when she did not object to
the Court reading a factual statement of the case prepared by the
[State] during jury selection. The Defendant claims that the
statement “served to improperly bolster the State’s case, pre-try the
State’s case, and pre-dispose the jurors to the State’s evidence.
During jury selection the Court stated the following:
But I’m now going to read to you what is a fact
statement alleged by the State to have occurred.
Again, this is not evidence either, but I’m going to
read this to you because it may trigger your memory
better, and it lacks all the legalese that are in that
Indictment and Information. And so if you know
anything about this case, this may help trigger your
memory. On March the 14th, 2007, Ryan Keith
Skipper was found dead on Morgan Road in the
Winter Haven/Wahneta area of Florida.
Mr. Skipper had been stabbed multiple times.
Mr. Skipper was a gay man and lived in Wahneta,
Florida. Joseph Bearden . . . and William Brown,
Junior, . . .” have been charged with the killing of
Ryan Keith Skipper. Ryan Skipper’s vehicle was
found burned at Lake Pansey near the Winter
Haven area.
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The Court read the statement during jury selection a second time.
The Defendant alleges that because the Court read the statement
to the jurors, the jurors likely interpreted the court’s instructions as
proven facts lending more credibility to the State’s case and
allowing the State to pre-try their case.
The Court finds that counsel’s performance did not fall below an
objective standard of reasonableness in not objecting to the
Court’s reading of the statement, which was initially prepared by
the State, but altered to some extent by input of counsel during
discussions with the Court. Counsel insisted the statement say Mr.
Skipper was found dead in the Winter Haven/Wahneta area and
specify that the car was found burned at Lake Pansey. The Court
finds that the statement concerned only matters which would
come out at trial, and the statement was designed to trigger the
memories of jurors as to whether they had any knowledge of the
case. The Court does not find that the statement improperly
bolstered the State’s case or otherwise prejudiced the rights of the
Defendant to a fair trial. Ground 6 of the Defendant’s Motion is
denied.
The post-conviction court’s determination –– “that counsel’s performance did
not fall below an objective standard of reasonableness in not objecting to the Court’s
reading of the statement” –– is not an unreasonable deferral to counsel’s strategic or
tactical decision not to object. See Strickland, 466 U.S. at 690 (“[S]trategic choices . . .
are virtually unchallengeable.”); Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir.
1998) (“In order to show that an attorney’s strategic choice was unreasonable, a
petitioner must establish that no competent counsel would have made such a choice.”).
Consistent with the earlier grounds, (1) Brown disagrees with the state court’s
rulings, but he presents no controlling precedent showing that the post-conviction
court’s ruling is an unreasonable application of Strickland, and (2) contrary to the
required standard of review, Brown’s arguments seek to have this federal court rule de
novo without any deference to the state court’s rulings. Brown fails to show that the
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state court unreasonably applied Strickland in determining that Brown failed to prove
that trial counsel’s performance was deficient. Consequently, Brown is entitled to no
relief under Ground Six.
Ground One:
Brown was on trial for (1) murder and robbery of Mr. Skipper, as charged in
Case No. CF-07-2100-XX, and (2) arson and tampering with evidence (the partial
burning of Mr. Skipper’s car), as charged in Case No. CF08-00581-XX. After the
state’s opening statement –– during which the jury was told that Brown’s fingerprints
were found on papers inside the victim’s car and a shoe impression from one of his
boots was found near the car –– Brown pleaded guilty to the arson and tampering
charges. Thereafter, trial resumed for the murder and robbery charges.
Brown alleges that trial counsel rendered ineffective assistance by allowing the
trial judge to inform the jury that Brown pleaded guilty to both the arson and the
tampering with evidence charges. After holding an evidentiary hearing on this claim,
the state post-conviction court rejected this claim as follows (Respondent’s Exhibit C-6
at 585-86) (cites to the record omitted):
In Ground 1 of his Motion, the Defendant alleges, “Trial counsel
rendered inept and unprofessional representation when she
allowed the court to inform the jury of the Defendant’s guilty plea
to arson and tampering charges which prejudiced the Defendant.”
The Defendant asserts that the record indicates that the Court read
the Information for Case No. CF08-008511-XX, charging the
Defendant with Arson and Tampering with Evidence, twice
during voir dire; and the Court mentioned it again after the jury
was sworn in. After the State gave its opening statements, the
Defendant entered a plea of guilty to Arson and Tampering with
Evidence in Case No. CF08-008511-XX. Defense counsel advised
the Court that she did not object to the Court telling the jury that
the Defendant has entered a plea to those charges. The Court
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advised the jury, “Ladies and gentlemen, while you were on
recess, Mr. Brown entered a plea of guilty to the two-count
information. The first count in that information was the charge of
arson, and the second count was tampering with physical
evidence, and I accepted his plea of guilty on those two counts.
That leaves you in charge of the case of first degree murder and
robbery.”
The Defendant alleges that the jury became aware of the
Defendant’s guilty plea to Arson and Tampering, which exceeded
what the jury was entitled to know. The Defendant alleges, “The
Arson and Tampering charges addressed the damage to the
victim’s car, and thus, those charges directly linked the Defendant
to the murder and robbery of the victim, which prejudiced the
Defendant because there was no physical evidence that linked the
Defendant to the scene of the murder.” The Defendant alleges the
fact that the Defendant had entered guilty pleas to Arson and
Tampering in Case No. CF08-008511-XX would not have been
admissible had defense counsel not agreed to inform the jury
about the pleas. The Defendant further alleges that the State
highlighted the guilty pleas during closing arguments.
At the evidentiary hearing, Ms. Wells [(defense counsel)] testified
that her opinion was that the Defendant was going to be found
guilty of the Arson and Tampering charges based on his statement
to law enforcement, and he would gain credibility with the jury if
he admitted guilt to those charges. Ms. Wells testified that she
discussed the matter with the Defendant about a week before trial.
Ms. Wells also testified that prior to the Defendant’s actual entry
of the plea it was her practice to make sure it was still the
Defendant’s intention to enter the guilty plea. Ms. Wells testified
that in her discussions with the Defendant she would have
discussed the matter of letting the jury know about the guilty plea
to the two charges to gain credibility with them, and she stated
that if the Defendant had not agreed with this tactic that she
would not have proceeded with that tactic. She said that they
wanted the jury to know that Mr. Brown was accepting
responsibility for the things that he had done, but this did not
include First-degree Murder or Robbery.
Mr. Brown testified at the hearing that his counsel did not talk
with him about letting the jury know about his guilty plea to the
other charges. The Court finds Ms. Wells testimony that she
discussed the guilty plea and its ramifications with the Defendant
to be highly credible.
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A review of the Court file, including Mr. Brown’s statement to law
enforcement, the fact that Mr. Brown’s fingerprints were found on
papers in the burned automobile, and the fact that a shoe
impression of the Defendant was found near the burned
automobile, clearly showed Mr. Brown’s involvement with the
burning of the Defendant’s car. The Court agrees with Ms. Wells
that Mr. Brown was clearly going to be found guilty of the arson
and tampering charges, and it was a reasonable tactical decision to
gain credibility with the jury by the Defendant taking
responsibility for those crimes in the hopes of not being found
guilty of First-Degree Murder and Robbery. Trial counsel’s
strategic decision in this regard was carefully considered,
reasonable under the norms of professional conduct, and did not
constitute ineffective assistance. See Occhione v. State, 768 So. 2d
1037 (Fla. 2000).
Additionally, the Court finds that the Robbery, Murder, Arson,
and Tampering were inextricably intertwined as part of the same
criminal episode and no motion in limine would have been
successful to keep the information about the arson and tampering
from the jury. See Parker v. State, 142 So. 3d 960 (Fla. 4th DCA
2014). Counsel’s performance did not fall below an objective
standard of reasonableness with regard to Ground 1 of the
Defendant’s Motion. Ground l of the Defendant’s Motion is
denied.
The post-conviction court’s credibility determination –– the acceptance of trial
counsel’s testimony over Brown’s –– is a finding of fact that binds this court. Under
28 U.S.C. § 2254(e)(1), a federal court must defer to the state court’s findings of fact,
and this deference applies to a credibility determination that resolves conflicting
testimony, as Consalvo v. Sec'y for Dep't of Corr., 664 F.3d 842, 845 (11th Cir. 2011),
explains:
Determining the credibility of witnesses is the province and
function of the state courts, not a federal court engaging in habeas
review. Federal habeas courts have “no license to redetermine
credibility of witnesses whose demeanor has been observed by the
state trial court, but not by them.” Marshall v. Lonberger, 459 U.S.
422, 103 S. Ct. 843, 851, 74 L. Ed. 2d 646 (1983). We consider
questions about the credibility and demeanor of a witness to be
questions of fact. See Freund v. Butterworth, 165 F.3d 839, 862 (11th
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Cir. 1999) (en banc). And the AEDPA affords a presumption of
correctness to a factual determination made by a state court; the
habeas petitioner has the burden of overcoming the presumption
of correctness by clear and convincing evidence. 28 U.S.C.
§ 2254(e).
See also Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) (“We must accept the
state court’s credibility determination and thus credit [the attorney’s] testimony over
[the petitioner’s].”).
The required deference is heightened when reviewing a credibility determination
in a § 2254 application. Gore v. Sec’y, Dep’t of Corr., 492 F.3d 1273, 1300 (11th Cir.
2007); accord Kurtz v. Warden, Calhoun State Prison, 541 F. App’x 927, 929 (11th Cir.
2013) (“‘A certain amount of deference is always given to a trial court’s credibility
determinations,’ and a credibility determination in a case on habeas review receives
heightened deference.”) (quoting Gore). Brown presents no basis for rejecting the state
court’s credibility determination. 6
Also, the post-conviction court’s determination that counsel employed a
reasonable trial tactic –– that “it was a reasonable tactical decision to gain credibility
with the jury by the Defendant taking responsibility for those crimes in the hopes of not
being found guilty of First-Degree Murder and Robbery” –– is consistent with federal
6
In his reply Brown presents the following argument (Doc. 15 at 9):
[C]ounsel had no recollection of any specific conversation with Petitioner regarding her
decision to tell the jury information they should not have known, and Petitioner testified
she never discussed it with him and never gave him an option to disagree with her
decision. Thus, counsel’s equivocal testimony cannot be considered a refutation of
Petitioner’s specific recitation that he was not told of counsel’s strategy.
This argument ignores the presumption of correctness afforded a state court’s credibility determination.
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precedent. See Florida v. Nixon, 543 U.S. 175, 184 (2004) (brackets original) (“The
evidence of guilt ‘would have persuaded any jury . . . beyond all doubt,’ and ‘[f]or trial
counsel to have inferred that Mr. Nixon was not guilty . . . would have deprived
[counsel] of any credibility during the penalty phase.’”) (quoting the trial judge); Darden
v. United States, 708 F.3d 1225, 1230 (11th Cir. 2013) (“Defense counsel would
reasonably find it strategically advantageous to concede guilt on [unwinnable] charges
to preserve credibility in defending against the others”). Furthermore, counsel’s choice
of tactic did not require Brown’s agreement. Nixon, 543 U.S. at 187 (trial counsel is not
required to obtain the defendant’s consent to every tactical decision); Taylor v. Illinois,
484 U.S. 400, 417-418 (1988) (trial counsel has authority to manage most aspects of the
defense without obtaining the defendant’s concurrence); see also Strickland, 466 U.S. at
690 (“[S]trategic choices . . . are virtually unchallengeable.”); Provenzano v. Singletary,
148 F.3d at 1332 (“In order to show that an attorney’s strategic choice was
unreasonable, a petitioner must establish that no competent counsel would have made
such a choice.”); Stanley v. Zant, 697 F.2d 955, 964 (11th Cir. 1983) (choosing a specific
line of defense to the exclusion of others is a matter of strategy).
Although Brown opines that “the court’s denial of this claim was contrary to or
an unreasonable application of Federal constitutional law” (Doc. 15 at 10), Brown cites
no supporting Supreme Court precedent as required under § 2254(d). Brown fails to
show that the state court unreasonably applied Strickland in determining that Brown
failed to prove that trial counsel’s performance was deficient. Consequently, Brown is
entitled to no relief under Ground One.
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Ground Four:
Brown alleges both that the trial court erroneously instructed the jury on
“manslaughter by intentional act” and that trial counsel rendered ineffective assistance
by not objecting to the erroneous jury instruction. After considering the state’s
response, the state post-conviction court rejected this claim as follows (Respondent’s
Exhibit C-4 at 471-73) (cites to the record omitted):
In Ground 4 of his Motion, the Defendant alleges, “'The
Defendant is entitled to a new trial because his conviction was
obtained contrary to Florida law where the trial court erroneously
instructed the jury on manslaughter by intentional act, a necessary
lesser charge, and where the Supreme Court recently pronounced
for the first time, that such error violates the Defendant’s rights to
a fair trial, alternately, trial counsel rendered inept and
unprofessional representation when she failed to object to the
giving of the manslaughter instruction, which prejudiced the
Defendant and denied him the constitutional right to have the jury
accurately instructed on the law.”
At the Defendant’s trial the jury was given the following
instruction on Manslaughter:
7.7 MANSLAUGHTER
F.S. 782.07
To prove the crime of Manslaughter, a lesser
included crime of Count 1 of the Indictment, the
State must prove the following two elements beyond
a reasonable doubt:
1. RYAN KEITH SKIPPER is dead.
2. WILLIAM D. BROWN, JR. intentionally
caused the death of RYAN KEITH SKIPPER.
However, the Defendant cannot be guilty of
manslaughter if the killing was either justifiable or
excusable homicide as I have previously explained
those terms.
In order to convict of manslaughter by intentional
act, it is not necessary for the State to prove that the
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Defendant had a premeditated intent to cause death,
only an intent to commit an act which caused death.
The Defendant not only argues that the jury instruction is
erroneous and contrary to Florida Law, but alleges that counsel
was ineffective for failing to object to the Court giving this
manslaughter Instruction. Trial counsel is not deemed to be
ineffective for allowing the Court to read the Standard Instruction
in use at that time. See Thompson v. State, 759 So. 2d 650, 665 (Fla.
2000).
In State v. Montgomery, 39 So. 3d 252, 259 (Fla. 2010), the Florida
Supreme Court discussed Pena v. State, 901 So. 2d 781 (Fla. 2005),
and the significance of being improperly instructed on a lesser
included offense one step removed versus two steps removed from
the crime of which the Defendant is convicted. The Florida
Supreme Court stated:
Second-degree murder as a lesser included offense is
one step removed from first-degree murder, and
manslaughter as a lesser included offense is two
steps removed from first-degree murder. In Pena we
concluded that “when the trial court fails to properly
instruct on a crime two or more degrees removed
from the crime for which the defendant is convicted,
the error is not per se reversible, but instead is subject
to a harmless error analysis.” Pena, 901 So. 2d at
787. We explained that the significance of the
two-steps-removed requirement is more than merely
a matter of number or degree. A jury must be given
a fair opportunity to exercise its inherent “pardon”
power by returning a verdict of guilty as to the next
lower crime. If the jury is not properly instructed on
the next lower crime, then it is impossible to
determine whether, having been properly instructed,
it would have found the defendant guilty of the next
lesser offense.
In this case the Defendant was convicted of First Degree Murder
and Robbery with a deadly weapon. Manslaughter is two steps
removed from first-degree murder. The jury had the option [of]
finding the Defendant guilty of Second Degree Murder but did not
do so. The Court finds that it is mere speculation by the Defendant
that the outcome of the trial would have been any different but for
the faulty Manslaughter instruction that was given to the jury.
Ground 4 of the Defendant’s Motion is denied.
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In his reply Brown “agrees that his conviction is two steps removed, and because
of that fact, the giving of the erroneous manslaughter instruction would not be
considered fundamental error.” (Doc. 15 at 13). Brown next argues that “the State has
not conclusively refuted Petitioner’s allegation that the giving of the erroneous
instruction could not be considered harmless error beyond a reasonable doubt under the
circumstances of this case.” (Id.). Once again, this shows Brown’s avoidance of the
required standard of review in a federal habeas action. The respondent (or state) does
not bear the burden of proving anything beyond a reasonable doubt; the applicant
(Brown) bears the burden of proving that the state court’s ruling is an unreasonable
application of controlling Supreme Court precedent.
Whether the post-conviction court misapplied Montgomery is beyond the scope of
federal review because a federal habeas court does not sit as an appellate court over a
state court. “Federal habeas courts . . . do not grant relief, as might a state appellate
court, simply because the [jury] instruction may have been deficient in comparison to
the [state’s] model [jury instruction, and] the fact that the [jury] instruction was
allegedly incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire,
502 U.S. 62, 71-72 (1991); accord Pinkney v. Sec’y, Dep’t of Corr., 876 F.3d 1290, 1299
(11th Cir. 2017) (“]I]t is not a federal court's role to examine the propriety of a state
court’s determination of state law.”).
As McGuire explains, “[t]he only question for us is ‘whether the ailing instruction
by itself so infected the entire trial that the resulting conviction violates due process.’”
502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Brown asserts that
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“the instruction given interfered with the jury’s deliberative process in a way that
tainted the underlying fairness of the trial, and because the ailing instruction so infected
the entire trial, the resulting conviction violates due process.” (Doc. 15 at 14).
Although he cites McGuire (Doc. 2 at 20), Brown provides no analysis –– or at least
whatever analysis can be garnered from the briefs is cursory –– to show that the state
court’s rejection of his claim was unreasonable. Renico v. Lett, 559 U.S. 766, 773 (2010),
explains:
We have explained that “an unreasonable application of federal
law is different from an incorrect application of federal law.”
Williams v. Taylor, 529 U.S. 362, 410, 120 S. Ct. 1495, 146 L. Ed.
2d 389 (2000). Indeed, “a federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id., at 411, 120
S. Ct. 1495. Rather, that application must be “objectively
unreasonable.” Id., at 409, 120 S. Ct. 1495.
Brown fails to meet his burden of showing that the state court unreasonably
applied Strickland in determining both that trial counsel’s performance was not deficient
and that Brown was not prejudiced by the erroneous jury instruction. Consequently,
Brown is entitled to no relief under Ground Four.
B. Claims of IAC During Trial
Brown alleges three grounds of ineffective assistance of counsel based on
counsel’s acts during trial: Ground Five faults counsel for not calling a witness,
Ground Seven faults counsel for her cross-examination of a witness, and Ground Eight
faults counsel for the way she dealt with the testimony of two police officers. Each
ground is addressed approximately in order of occurrence.
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Ground Seven:
During a lengthy proffer outside the presence of the jury, state’s witness Robert
Aguero admitted to having eight convictions for either a felony or a crime involving
dishonesty. When trial resumed, Mr. Aguero admitted that he presently resided in
prison, but neither the prosecutor nor defense counsel asked Mr. Aguero about his
criminal record. Brown alleges that trial counsel rendered ineffective assistance by not
cross-examining Mr. Aguero about his prior convictions. After considering the state’s
response, the state post-conviction court rejected this claim as follows (Respondent’s
Exhibit C-4 at 474) (cites to the record omitted):
The Defendant alleges that there was a big discussion about how
to ask questions about Mr. Aguero’s prior record. Counsel
indicated on the record that she needed a recess to obtain certified
copies of Mr. Aguero’s convictions. The Defendant alleges,
“Mr. Aguero proffered the testimony outside of the presence of
the jury, and when he was asked,‘[I]sn’t it true that you’ve been
convicted of a felony or crime involving dishonesty eight prior
times?’ he responded, ‘maybe around that –– around there. I’m
not –– I’m not for sure.” Counsel commented that she was happy
with his answer.
When Mr. Aguero testified at the trial, counsel did not ask
Mr. Aguero if he had any convictions. The Defendant alleges that,
“With Robert Aguero’s testimony, the State attempted to link Mr.
Bearden [(the co-defendant)] with the Defendant and the victim’s
car and the fact that the Defendant was present when Mr. Bearden
was wiping down the floorboard of the car and when he asked if
he would get rid of the car for him, and when they returned with
Chico.” The Defendant further alleges, “Had counsel obtained the
convictions prior to trial and impeached Mr. Aguero there is a
reasonable probability that the outcome of the trial would have
been different because the jury could have taken the priors into
consideration in deciding whether to believe Mr. Aguero’s
testimony, in a case that turned on the credibility of the
witnesses.”
Although counsel for the Defendant did not point out how many
convictions Mr. Aguero had, Mr. Aguero testified to the jury that
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he was residing in a prison. It is pure speculation that had the jury
been aware of eight convictions the outcome of the trial might
have been different. The Court does not find that counsel’s
performance fell below an objective standard of reasonableness
with regard to the Defendant’s claims in Ground 7 of his Motion.
Additionally, to the extent counsel could be considered to have
acted deficiently in not bringing out that Mr. Aguero had eight
convictions, the Court finds that there is no reasonable basis to
assume the result of the proceedings might have been different but
for such a deficiency. Ground 7 of the Defendant’s Motion is
denied.
The post-conviction court determined that counsel’s performance was not
deficient –– “the Court does not find that counsel’s performance fell below an objective
standard of reasonableness” –– and even if it was deficient, the performance was not
prejudicial –– “the Court finds that there is no reasonable basis to assume the result of
the proceedings might have been different.” The respondent explains why the
performance, even if deficient, was not prejudicial: “Aguero’s testimony was limited to
Mr. Bearden and Brown’s coming to his home with Skipper’s car to clean it and try to
sell it to him — all things Brown admitted to in his recorded and unrecorded statements
and pleas.” (Doc. 8 at 65). So even if Aguero’s credibility was diminished, the
substance of the testimony was independently supported by Brown’s recorded
admissions.
Brown fails to show that the state court unreasonably applied Strickland in
determining that Brown failed to prove that trial counsel’s performance was deficient
and, even if deficient, that Brown was prejudiced. Consequently, Brown is entitled to
no relief under Ground Seven.
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Ground Eight:
Brown alleges that trial counsel rendered ineffective assistance in handling the
testimony of two police officers, specifically, by not objecting, by eliciting inadmissible
testimony, and by not moving to exclude inadmissible testimony. After holding an
evidentiary hearing on this claim, the state post-conviction court rejected this claim as
follows (Respondent’s Exhibit C-6 at 586-88) (cites to the record omitted):
The Defendant asserts, “The record reveals that Deputy Bellamy
testified [that,] as he was riding around on Rifle Range Road on
March 14, 2007, he saw the Defendant on a bicycle and he
‘recognized this person’ because he worked in the area for
approximately 90% of his career at the Sheriff ’s Office. Rather
than objecting to the Deputy’s testimony, during crossexamination, defense counsel asked the Deputy about the
acronym COPS, which stood for Community Oriented Policing
Section, and he stated it is an assignment to a smaller area. When
counsel asked him “are they typically begun in communities
where there are issues, like high drug issues or things like that?”
and he responded, “yes, ma’am.” Regarding the Deputy’s contact
with the Defendant, counsel asked him, “and the nervous
behavior, isn’t that also consistent with methamphetamine use?”
and the Deputy responded, “yes.” Counsel further asked, “when
you saw Mr. Brown and you asked to search him, you were
looking for narcotics, right?” and the Deputy stated, “that would
have been probably my focus, yes ma’am.”
The Defendant also alleges, “Subsequently, during the crossexamination of Deputy Ripke, counsel continued her erroneous
solicitation, “the behavior that you saw and described to the jury
that Mr. Brown was exhibiting, was it just as consistent with a
methamphetamine user?” and he responded, “I couldn’t say if it is
or not, ma’am. I really wouldn’t speculate on that.”
The Defendant points out that following Deputy Bellamy’s
testimony the State pointed out that counsel seemed to be eliciting
other crimes being committed by the Defendant. The Defendant
alleges, “Defense counsel’s response was to blame the State for
asking objectionable questions about the Defendant’s nervous
behavior and how the Deputy knew the Defendant, despite the
fact that counsel failed to object to any of the State’s questions.
Counsel also attempted to justify her improper solicitation of
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evidence by stating the evidence of the Defendant’s meth use was
going to come out in his recorded statement to law enforcement.”
The Defendant further alleges counsel could have requested a
motion in limine to exclude such evidence from the Defendant’s
statement as inadmissible collateral crimes evidence.
The Defendant argues that absent counsel’s error the State would
not have been able to introduce that the Defendant had used
methamphetamines and was known by law enforcement to be a
drug user. The Defendant asserts that this testimony from Deputy
Bellamy likely influenced the jury to rely upon the bad character
evidence as evidence of guilt of the charged crime.
At the evidentiary hearing, Ms. Wells testified that information
about methamphetamine use and drug use was going to come out
through the witnesses and from Mr. Brown’s statement to law
enforcement. She testified that the State was interested in making
it look like the nervous behavior of the Defendant when
confronting law enforcement was an indication of guilt because of
the murder of Mr. Skipper. Ms. Wells testified that it was
important to show that there could have been another reason
having to do with drug use that would be consistent with the
Defendant’s behavior. She testified that at the jail she would have
discussed allowing the jury to know about his drug use during the
trial.
Mr. Brown testified at the evidentiary hearing that Ms. Wells did
not discuss the disclosure of his drug use to the jury with him. The
Court finds that Ms. Wells’s testimony that she discussed the
matter of the Defendant’s drug use and its relationship to his
defense with him to be highly credible.
When Mr. Brown entered his plea of guilty to the Arson and
Tampering charges, the trial Court asked him the following
question: “Without telling me any discussions you have with your
attorney, which I’m not entitled to know and don’t want to know,
but you do believe after discussing this with her, from a strategy
standpoint with your part of the trial, you believe that [t]his plea is
in your best interest? Mr. Brown responded “Yes, sir.”
The use of drugs was inextricably intertwined with the criminal
episode that resulted in the murder, robbery, arson, and tampering
charges and the Court does not find that a motion in limine would
have been successful with regard to keeping this evidence from the
jury. See Parker v. State, 142 So. 3d 960 (Fla. 4th DCA 2014).
Additionally, the Court finds that the defense strategy regarding
presenting the jury with another reason for the Defendant’s
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nervous and evasive behavior, other than consciousness of guilt of
a murder, was a reasonable tactical decision. Trial counsel’s
strategic decision in this regard was carefully considered, and
reasonable under the norms of professional conduct and did not
constitute ineffective assistance. See Occhione v. State, 768 So.2d
1037 (Fla. 2000). The Court does not find that counsel’s
performance fell below an objective standard of reasonableness
with regard to Ground 8 of the Defendant’s Motion. Ground 8 of
the Defendant’s Motion is denied.
The post-conviction court determined that trial counsel’s performance was not
deficient because (1) “the defense strategy regarding presenting the jury with another
reason for the Defendant’s nervous and evasive behavior, other than consciousness of
guilt of a murder, was a reasonable tactical decision,” and (2) “counsel’s strategic
decision in this regard was carefully considered and reasonable under the norms of
professional conduct.” Brown contends that trial counsel’s decision was unreasonable,
but he fails to argue –– much less meet his burden of proof 7 –– that the state court’s
ruling is unreasonable. The post-conviction court’s determination was not
unreasonable; to the contrary, it was a very reasonable determination because counsel
was offering the jurors a justification for Brown’s nervousness apart from the murder of
Mr. Skipper.
Brown fails to show that the state court unreasonably applied Strickland in
determining that Brown failed to prove that trial counsel’s performance was deficient.
Consequently, Brown is entitled to no relief under Ground Eight.
7
Harrington v. Richter, 562 U.S. 86, 103 (2011) (“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.”).
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Ground Five:
Brown alleges that trial counsel rendered ineffective assistance by not
investigating and calling as a witness Brown’s uncle, J.T. Brown, whose testimony
Brown contends would have impeached a state witness. After considering the state’s
response, the state post-conviction court rejected this claim as follows (Respondent’s
Exhibit C-4 at 473-74) (cites to the record omitted):
The Defendant alleges that counsel, “failed to investigate and call
J.T. Brown to testify, who was a material witness that was
available to testify.” The Defendant alleges that the State used
witness John Kirchoff to try and link the Defendant to a
discussion by Mr. Bearden about robbing the victim. The
Defendant argues that J.T. Brown would have testified that he was
never woken up by Mr. Kirchoff to talk to the Defendant on
March 14. The Defendant alleges [J.T.] Brown’s testimony would
have impeached the trial testimony of key witness, Mr. Kirchoff.
Mr. Kirchoff testified at the trial that he heard Mr. Bearden say
something about robbing the victim, Mr. Skipper, and Mr. Brown
was present. Mr. Kirchoff also testified that when [Mr.] Brown
arrived at the house on the morning of the 14th he was nervous
and upset. He testified that Mr. Brown said something about
burning a car at a boat ramp and Mr. Brown said something like,
“I think I killed him or I killed him.” Mr. Kirchoff was asked how
he reacted to that statement, and Mr. Kirchoff testified that he
went and woke up Mr. Brown’s uncle, J.T. Brown.
The Defendant argues that J.T. Brown would have testified that he
was never woken up by Mr. Kirchoff to talk to the Defendant on
March 14. The Defendant alleges [J.T.] Brown’s testimony would
have impeached the trial testimony of key witness, Mr. Kirchoff. It
is not clear to what extent testimony from Mr. J.T. Brown would
have impeached Mr. Kirchoff ’s testimony. The statements that
the Defendant complains about were made prior to the time
Mr. Kirchoff says that he woke up J.T. Brown. Testimony by
J.T. Brown that Mr. Kirchoff did not wake him up is not very
compelling, and the Court does not find that the Defendant has
shown that J.T. Brown’s testimony was likely to make any
difference in the outcome of the trial. The Defendant has not
shown that his counsel’s performance fell below an objective
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standard of reasonableness in not calling J.T. Brown as a witness.
Ground 5 of the Defendant’s Motion is denied.
The post-conviction court determined that counsel’s performance was (1) not
deficient –– Brown “has not shown that his counsel’s performance fell below an
objective standard of reasonableness in not calling J.T. Brown as a witness,” and (2) not
prejudicial –– Brown “has [not] shown that J.T. Brown’s testimony was likely to make
any difference in the outcome of the trial.” Although he disagrees with both
determinations, Brown does not show that both determinations are unreasonable.
Brown fails to show that the state court unreasonably applied Strickland in
determining that Brown failed to prove that trial counsel’s performance was both
deficient and prejudicial. Consequently, Brown is entitled to no relief under
Ground Five.
Ground Nine:
Brown alleges that the cumulative effect of trial counsel’s errors “produced a
fundamentally flawed trial.” (Doc. 1 at 27). The post-conviction court rejected this
claim as follows (Respondent’s Exhibit C-6 at 588):
In Ground 9 of his Motion, the Defendant alleges, “The
cumulative effect of counsel’s deficient performance prejudiced the
Defendant.” This claim appears to be based on the cumulative
effect of counsel’s errors argued in Grounds 1-8 of the Defendant’s
Motion. The Court did not find that counsel’s performance fell
below an objective standard of reasonableness with regard to any
of the grounds raised by the Defendant, and the Court does not
find that the cumulative effects of the alleged deficiencies meet the
Strickland Standard. Ground 9 of the Defendant’s Motion is
denied.
The post-conviction court’s ruling is consistent with federal precedent. Brown
can prove cumulative error only by showing two or more errors. “Without harmful
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errors, there can be no cumulative effect compelling reversal.” United States v. Barshov,
733 F.2d 842, 852 (11th Cir. 1984); see also Conklin v. Schofield, 366 F.3d 1191, 1210
(11th Cir. 2004) (“[T]he court must consider the cumulative effect of [the alleged errors]
and determine whether, viewing the trial as a whole, [the applicant] received a fair trial
as is [his] due under our Constitution.”); Lucas v. Warden, Georgia Diagnostic &
Classification Prison, 771 F.3d 785, 802 (11th Cir. 2014) (“We are equally unpersuaded
that the cumulative effect from Lucas’s Strickland and Brady claims entitles him to
relief.”) (citing Conklin). Because each individual claim of error lacks merit, Brown
shows no cumulative prejudicial effect. See Mullen v. Blackburn, 808 F.2d 1143, 1147
(5th Cir. 1987) (“Mullen cites no authority in support of his assertion, which, if
adopted, would encourage habeas petitioners to multiply claims endlessly in the hope
that, by advancing a sufficient number of claims, they could obtain relief even if none of
these had any merit. We receive enough meritless habeas claims as it is; we decline to
adopt a rule that would have the effect of soliciting more and has nothing else to
recommend it. Twenty times zero equals zero.”).
Brown fails to show that the state court unreasonably applied Strickland in
determining that Brown failed to prove that trial counsel’s performance was deficient.
Consequently, Brown is entitled to no relief under Ground Nine.
V.
CONCLUSION
Brown fails to meet his burden to show that the state court’s decision was either
an unreasonable application of controlling Supreme Court precedent or an
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unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19-20 (2013),
recognizes, an applicant’s burden under § 2254 is very difficult to meet:
Recognizing the duty and ability of our state-court colleagues to
adjudicate claims of constitutional wrong, AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires “a
state prisoner [to] 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 . . . beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. [86, 103] (2011). “If
this standard is difficult to meet” — and it is — “that is because it
was meant to be.” Id., at [102]. We will not lightly conclude that a
State’s criminal justice system has experienced the “extreme
malfunctio[n]” for which federal habeas relief is the remedy. Id., at
[103] (internal quotation marks omitted).
Brown’s application for the writ of habeas corpus (Doc. 1) is DENIED. The
clerk must enter a judgment against Brown and CLOSE this case.
DENIAL OF BOTH
A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Brown is not entitled to a certificate of appealability (“COA”). Under §
2253(c)(1), a prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his application. Rather, a district court must first issue
a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” To merit a COA, Brown
must show that reasonable jurists would find debatable both the merits of the
underlying claims and the procedural issues he seeks to raise. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926,
935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate the
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merits of the claims, Brown is entitled to neither a COA nor leave to appeal in forma
pauperis.
A certificate of appealability is DENIED. Leave to appeal in forma pauperis is
DENIED. Brown must obtain permission from the circuit court to appeal in forma
pauperis.
DONE and ORDERED in Chambers in Tampa, Florida, this 28th day of May,
2020.
TOM BARBER
UNITED STATES DISTRICT JUDGE
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