Wright v. Secretary, Department of Corrections
Filing
48
ORDER denying 36 Amended petition for writ of habeas corpus filed by Tavares J. Wright. A certificate of appealability and in forma pauperis status for appeal are denied in accord with attached order. The Clerk is directed to enter judgment for Respondent, terminate deadlines, and close the case. Signed by Judge William F. Jung on 8/19/2020. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAVARES J. WRIGHT,
Petitioner,
v.
Case. No: 8:17-cv-974-T-02TGW
SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
_____________________________/
ORDER DENYING AMENDED PETITION
Tavares Wright received two death sentences for two murders during a
crime spree in Polk County in 2000. He files this petition for relief from those
sentences under 28 U.S.C. § 2254. The Court has before it Wright’s amended
petition and memorandum in support, Docs. 36, 37, and 38, the State’s response,
Doc. 42, and Wright’s reply, Doc. 46. With the benefit of full briefing on both
sides, the Court finds that a hearing is unnecessary and denies the amended
petition.
FACTUAL BACKGROUND
The underlying events took place over a period of several days. The Florida
Supreme Court 1 provided the factual details accurately here based upon the
undersigned’s reading of the trial transcript:
With the aid of codefendant Samuel Pitts, Wright carjacked, kidnapped,
robbed, and murdered David Green and James Felker while engaged in
a three-day crime spree that spanned several areas in Central Florida.2
During the crime spree, Wright was connected multiple times to a
stolen pistol that matched the caliber of casings discovered at the scene
of the murders. The trial court allowed the State to present evidence of
these collateral acts to demonstrate the context in which the murders
occurred and to explain Wright’s possession of the murder weapon.
2
Wright and Pitts were tried separately for the murders.
Pitts was convicted of two counts of first-degree murder
and other offenses related to this incident. He received
sentences of life imprisonment for the murders.
The spree began when Wright stole a pistol and a shotgun from the
Shank family’s residence in Lakeland on Thursday, April 20, 2000. On
the Friday morning following the burglary, Wright used the pistol to
commit a drive-by shooting in a neighborhood near the Shank
residence.3 That evening, Wright and Samuel Pitts abducted Green and
Felker in Lakeland, drove Green’s vehicle approximately fifteen miles
to Polk City, and murdered the victims in a remote orange grove.
Wright shot one victim with a shotgun, which was never recovered, and
the other victim with a pistol that used the same caliber bullets as the
gun stolen from the Shank residence. Wright then abandoned the
victim’s vehicle in a different orange grove in Auburndale. In nearby
Winter Haven, Wright used the Shank pistol in a carjacking that
occurred during the morning hours on Saturday, April 21, 2000. That
afternoon, law enforcement responded to a Lakeland apartment
1
Wright v. State, 19 So. 3d 277, 283–91 (Fla. 2009) (Wright I).
2
complex based on reports of a man matching Wright’s description
brandishing a firearm.
3
For the drive-by shooting, Wright was convicted of
attempted second-degree murder and two counts of
attempted felony murder.
When an officer approached, Wright fled, but he was eventually
arrested in the neighboring mobile home park. Ammunition matching
the characteristics of the ammunition stolen from the Shank residence
was found in his pocket. The stolen pistol was also recovered near the
location where Wright was arrested. Almost a week later, the bodies of
the victims were discovered. Thus, the following facts are presented in
chronological order to demonstrate the geographical nexus of the
offenses and to provide a complete picture of the interwoven events
surrounding the double murders.
The Crime Spree
The Shank Burglary: Thursday, April 20, 2000
On Thursday, April 20, 2000, Wright unlawfully entered a Lakeland
home with two accomplices. Wright testified that they separated to
search the house for items to steal. In one bedroom, Wright found and
handled a plastic bank filled with money. One of his accomplices
discovered a 12-gauge, bolt-action Mossberg shotgun and a loaded
Bryco Arms .380 semi-automatic pistol with a nine-round clip in
another bedroom.4 The accomplice also found four shells for the
shotgun in a dresser drawer. In exchange for marijuana, Wright
obtained possession of the pistol from the accomplice.
4
The stolen shotgun was never recovered. References to
the firearm stolen from the Shank residence relate to the
automatic pistol.
When Mark Shank returned home after work to discover his firearms
missing, he notified the Polk County Sheriff’s Office of the burglary.
The Sheriff’s Office lifted latent prints from the house, including
several from the plastic bank. An identification technician with the
Sheriff’s Office matched the latent palm print lifted from the plastic
bank to Wright’s palm print, confirming that Wright was inside the
3
house where the Shank firearms were stolen. The following day, Wright
used the stolen pistol during a drive-by shooting in a nearby Lakeland
neighborhood.
The Longfellow Boulevard Drive-By Shooting: Friday, April 21, 2000
At approximately 9 a.m. on Friday, April 21, 2000, Carlos Coney and
Bennie Joiner observed a black Toyota Corolla approaching slowly on
Longfellow Boulevard as they were standing outside a nearby house.
Wright and Coney had been embroiled in a continuing dispute since
their high school days. Joiner made eye contact with Wright, who was
sitting on the passenger side. The car made a U-turn and slowly
approached the house again. Wright leaned out the passenger side
window and fired multiple shots. One bullet struck Coney in his right
leg. Coney’s neighbor carried the wounded man to a car and drove
Coney and Joiner to a Lakeland hospital where a .380 caliber projectile
was removed from Coney’s leg.
While Coney was being treated at the hospital, crime-scene
technicians collected cartridge casings and projectiles from the
Longfellow Boulevard scene. Two projectiles had entered the house
and lodged in the living room wall and table. One spent .25 caliber
casing and three spent Winchester .380 caliber casings were recovered
from the driveway and the street. The projectile recovered from
Coney’s leg and the one removed from the living room table were
fired from the .380 pistol stolen from the Shank residence.5 The
recovered casings definitely had been loaded in the stolen pistol, but
the firearms analyst could not state with precision that they had been
fired from the pistol because the casings lacked the necessary
identifying characteristics.
5
However, a .380 handgun could not have fired the .25
caliber bullet. No explanation for the different shell casing
was presented at trial, though it was implied by the defense
that an exchange of gunfire occurred between Wright and
the victims. Coney and Joiner denied having a firearm at
the Longfellow Boulevard residence.
Approximately one hour after the drive-by shooting, Wright
unexpectedly visited James Hogan at a house in Lake Alfred, Florida.
4
Lake Alfred is approximately fourteen miles away from the Longfellow
Boulevard location. Wright testified that he and an accomplice from the
Shank burglary and Samuel Pitts traveled to see Hogan because the
accomplice wanted to sell the stolen shotgun. When they arrived, the
accomplice attempted to show Hogan the shotgun, but Hogan was not
interested. At that point, Wright pulled a small pistol from under the
floor mat in the front seat of the vehicle. This placed Wright in
possession of the possible murder weapon on the day of the murders.
The Double Murders in the Orange Grove: Friday, April 21, 2000
The trio remained with Hogan for approximately twenty minutes and
then left together to return to the Providence Reserve Apartments on
the north side of Lakeland. Wright and Samuel Pitts lived at that
apartment complex with Pitts’ family and girlfriend, Latasha Jackson.
To support his theory of defense that he did not possess the pistol during
the time the murders likely occurred, Wright testified that following the
drive-by shooting, he informed Samuel Pitts of the details of the
shooting. Wright explained that he had an obligation to disclose his
actions to Pitts, who was the leader of a gang of which Wright was a
member. According to Wright, the drive-by shooting upset Pitts, and
Pitts demanded that Wright surrender the pistol. Wright asserted that he
complied with Pitts’ demand.
According to Wright’s testimony, around twilight that Friday evening,
a customer messaged Wright to inquire about procuring marijuana.
Wright agreed to meet the customer at a supermarket parking lot and
started walking toward the store. Shortly after 7:15 that evening, a
female friend saw Wright walking down the street and offered him a
ride, which Wright accepted. Then, without provocation, Wright said,
“I ain’t even going to lie, I did shoot the boy in the leg yesterday,”
more likely than not referring to the Longfellow Boulevard drive-by
shooting. When they arrived at the store, Wright exited the vehicle in
the supermarket parking lot without further elaboration of the
statement.
Some time that night, James Felker and his cousin, David Green, were
abducted from that parking lot and murdered. The cousins left Felker’s
5
house at approximately 8 p.m. in Green’s white Chrysler Cirrus for a
night of bowling. Both men were carrying at least $100 at that time.
Several witnesses testified that Wright had willingly described the
details of the abduction. Wright had informed the witnesses that he
approached Felker and Green in the supermarket parking lot and
requested a cigarette. When they refused, Wright pulled out a pistol and
forced his way into the backseat of Green’s vehicle. Wright then
ordered Green to drive to the Providence Reserve Apartments, where
Pitts entered the vehicle.
As this group left the apartments between 10 and 10:45 p.m., Wright
ran a stop sign in the victim’s car. A detective observed the traffic
infraction and conducted a tag check as he followed the vehicle. The
tag check reported that the license plate was registered to an unassigned
Virginia plate for a blue, 1988, two-door Mercury, which did not match
the vehicle to which it was attached.
After receiving this report, the detective activated his emergency lights
and attempted to stop the white Chrysler. The Chrysler sped through
another stop sign and accelerated to sixty miles per hour. The detective
remained in pursuit for ten to fifteen minutes before his supervisor
ordered the pursuit terminated. An all-county alert was issued to law
enforcement to be on the lookout for the Chrysler. The identification
developed from the pursuit connected Wright to the victim’s vehicle on
the night of the murders.
R.R., a juvenile who also lived at the Providence Reserve Apartments,
testified that Wright informed him that Wright and Pitts drove the
victims ten miles from the abduction site to a remote orange grove in
Polk City. When the victims insisted that they had nothing to give the
assailants, Wright exited the car. One of the victims also exited,
possibly by force, and Wright shot him. The other victim then exited,
and Wright shot him as well. While one of the men continued to crawl
and moan, Pitts retrieved the shotgun from the trunk and handed it to
Wright, who then shot this victim in the head execution-style. Wright
and Pitts abandoned the bodies and drove away in the Chrysler.6
6
Wright testified, to the contrary, that after he arrived at
the supermarket, he conducted a drug transaction and then
6
visited other apartments in the area to sell more drugs.
After making stops at various apartments, he began
walking back to the Providence Reserve Apartments.
While he was walking, Pitts drove up in a white vehicle.
Pitts asked Wright if he wanted to drive, and as Wright
walked to the driver’s side, he noticed blood on the
vehicle. Wright suggested that they take the vehicle to an
apartment to wash it. Wright testified that it was while they
were driving to the apartment that the police chase
occurred.
Sometime between 10 p.m. and midnight, Pitts and Wright drove the
Chrysler to a Lakeland apartment complex to wash blood spatter off the
vehicle. When they arrived at the apartment, Pitts ordered Wright to
wash the car while Pitts removed items from the vehicle, including a
phone, a black bag, and a Polaroid camera. Pitts placed the items in his
sister’s vehicle. She had arrived with R.R., who testified that when they
arrived, Pitts and Wright were acting nervous and scared. On the ride
back to the apartment complex, Pitts told R.R. “that they pulled off a
lick and that things was getting crazy.”
Wright testified that before Pitts left, he ordered Wright to burn the car
and throw the weapon into a lake. Instead, Wright kept the pistol and
later drove back to Hogan’s house in Lake Alfred. Hogan suggested
that Wright dump the car in an Auburndale orange grove, and Wright
followed that suggestion.
The Winter Haven Carjacking: Saturday, April 22, 2000
In the vicinity of the Auburndale orange grove where the homicide
victim’s vehicle was abandoned, Ernesto Mendoza and Adam
Granados were addressing a car battery problem in the parking lot of a
fast-food restaurant. It was during those early morning hours of
Saturday, April 21, that Wright allegedly approached them, pointed a
small handgun at a female with them, and announced that he was going
to take the car.7 Wright immediately entered Mendoza’s vehicle and
sped away. Granados and Mendoza quickly entered a truck and pursued
Wright. The car chase continued through several streets before Wright
ran the vehicle onto the curb near a car dealership in Lake Alfred.
7
Wright exited the vehicle, fired several gunshots at Granados and
Mendoza, and then escaped across the car lot in the direction of James
Hogan’s house.
7
Wright refused to testify about the details of the
carjacking because he was not charged with this offense.
Several .380 caliber casings were also collected from this scene. These
casings were later identified as having been fired from the pistol stolen
from the Shank residence. One latent print was lifted from the interior
side of the driver’s window of Mendoza’s car, and three were lifted
from the steering wheel. All of these latent prints matched Wright’s
known fingerprints.
Hogan, whose house was within walking distance of the car dealership
from which Wright was seen fleeing, testified that when he returned
home at approximately 12:30 a.m. on Saturday, he found Wright seated
there. Wright asked Hogan to drive him back to the Providence Reserve
Apartments, and on the way there, Wright spontaneously said “they had
shot these two boys,” and that he had also “got into it with some
Mexicans.” Wright confessed to Hogan that they had transported two
white men to an orange grove and shot both men with a pistol and a
shotgun. Wright also confirmed that they engaged in a high-speed chase
with police in Lakeland. However, at that point, Wright did not disclose
the identity of the other person who aided in the murders.
The Providence Reserve Foot Chase and Subsequent Investigation:
Saturday, April 22, 2000
After Hogan returned Wright to the apartment complex following the
Winter Haven carjacking, Wright was observed throughout Saturday
handling a pistol at the Providence Reserve Apartments. He also spoke
with people regarding the murders. Wright confessed to R.R. that he
received a cellular phone from a “lick,” meaning it had been stolen. He
also described to R.R. the details of the abduction and murders. Wright
then gave the stolen phone to R.R.
Later that day, Wright was seated with Latasha Jackson on the steps of
the apartment building, and Wright had a small firearm resting in his
lap. During their conversation, Wright told Jackson that he shot two
8
white men in an orange grove and that he had shot one in the head. Soon
after this, the police responded to a report of an armed man, who
matched Wright’s description, at that location.8
8
Wright was charged with aggravated assault related to
this incident, but was acquitted.
A uniformed officer approached Wright and Jackson and stated that he
needed to speak with Wright. Wright jumped over the balcony railing
and raced down the stairs. As Wright ran from the apartment, his tennis
shoes fell off. Jackson picked up the shoes and placed them by the
apartment door. The police later seized these sneakers from the
apartment during the murder investigation. James Felker’s DNA was
determined to match a blood sample secured from the left sneaker.
Though Wright contended that the shoes were not his and that he had
never worn them, both Wright and Pitts were required to try on the
shoes. The shoes were determined to be a better fit for Wright than for
Pitts.
Several officers chased Wright from the Providence Reserve
Apartments to a nearby mobile home park, which was located across a
field from the apartment complex. During the chase, the officers
noticed Wright holding his pants pocket as if he carried something
inside. Wright was arrested at the mobile home park, and his pocket
contained live rounds and a box of ammunition containing both .380
Federal and Winchester caliber of rounds. This was the same caliber
ammunition as that recovered from the drive-by shooting, the murders,
and the carjacking.
After the police departed, a resident of that mobile home park entered
her car to leave for dinner. Her vehicle had been parked there with the
windows down when Wright had been arrested near her front door. As
she entered her vehicle, she discovered a pistol, which was not hers.
This weapon was determined to be the pistol stolen from the Shank
residence.
Wright was taken into custody pending resolution of the aggravated
assault charges. While Wright was in custody, Auburndale police
officers discovered David Green’s white Chrysler abandoned in an
orange grove. Crime-scene technicians discovered blood on both the
9
exterior of the vehicle and on the interior left side. Four of the blood
samples from the vehicle matched James Felker’s DNA profile. Further
investigation revealed that prints lifted from multiple locations on the
vehicle matched known prints of Wright.9
9
None of the latent prints lifted from the Chrysler matched
the known fingerprints of Pitts or R.R.
A deputy with the Polk County Sheriff’s Office linked this abandoned
vehicle with a missing persons report for David Green and James
Felker. After the vehicle was discovered, the family of the victims
gathered at the orange grove to search for any items that might aid in
the missing persons investigations. Green had his personal Nextel
cellular phone and a soft black bag filled with special computer tools
that he utilized for his work in the Chrysler. A Polaroid camera had also
been left in Green’s vehicle. Green's fiancée discovered her son's jacket
in that grove, but Green’s workbag, tools, cellular phone, and camera
were all missing from the vehicle.
A couple of days after the murders, Pitts attempted to sell the black bag
that contained Green’s computer tools to a pawnshop. R.R. assisted his
stepfather in securing proceeds for the Polaroid camera from another
pawnshop. The police had begun contacting pawnshops looking for the
items missing from Green’s car and recovered the black computer bag
and the pawn tickets, which led them to Pitts and R.R.10 Further
investigation established that three latent fingerprints from the black
bag matched Wright’s known fingerprints.
10
During trial, Green’s fiancée identified the Polaroid
camera as the one she purchased with Green. She also
identified his black workbag.
Following the information obtained from the pawnshop, the police
traveled to R.R.’s residence where they identified and seized the Nextel
cellular phone Wright had given R.R. The phone seized from R.R.’s
residence matched the serial number of David Green’s phone. R.R. told
the police that Wright, who was still in jail on the aggravated assault
arrest, had given him the phone.
10
A few hours later, a detective questioned Pitts, who revealed the general
location of the bodies. Six days following the disappearance of David
Green and James Felker, their bodies were discovered in a remote
orange grove in Polk City. Each man had been shot three times, and
spent bullet cases surrounded the bodies. David Green was face-up,
with bullet wounds in his chest and in his head. From his outstretched
hand, the police recovered a wallet that contained Green’s license.
James Felker was face-down in the same area, with three bullet wounds
in his head. Green’s cause of death was determined to be multiple
gunshot wounds to the chest, the forehead, and the back of his neck. A
medical examiner removed a projectile from Green’s face and a
deformed projectile from his throat. Felker’s cause of death was
determined to be gunshot wounds to the head, one by a .380 caliber
projectile to the forehead and two by a shotgun blast to the back of the
head. Except for the gunshot wound to Green’s chest, any of the
gunshot wounds would have rendered the victims unconscious
instantaneously.
Law enforcement never recovered the shotgun used in these murders.
However, a Florida Department of Law Enforcement firearms expert
inspected the pistol recovered from the mobile home park, which was
identified as the pistol stolen from the Shank residence, and the
firearms-related evidence collected from the various crime scenes. The
expended projectiles from the pistol and those found in Wright’s
possession were of the same caliber but were different brands. Due to
the damage sustained by some of the projectiles, the expert was unable
to conclusively establish that the pistol stolen from the Shank residence
fired all .380 caliber bullets discovered at the scene of the murders.
However, the projectiles and the firearm were of the same caliber and
displayed similar class characteristics. Five Federal .380 caliber casings
discovered near the victims were positively identified as having been
fired from the pistol. Thus, the stolen Shank pistol had likely been used
in, and connected with, the Longfellow Boulevard drive-by shooting,
the double murders of David Green and James Felker, and the Winter
Haven carjacking.
11
The underlying case history is as follows: Petitioner was charged on May 11,
2000 with carjacking, two counts of kidnapping, two counts of robbery, and two
counts of first degree murder. A2 at 341–47. 2 The case was mis-tried twice, once
for an evidentiary mishap during trial, and the second one due to a jury deadlock.
On the third trial in late 2004, the jury convicted Petitioner of all counts. A4 at
707–15. Petitioner waived jury at the penalty phase. A33 at 5047–123. On
October 12, 2005 the trial court entered its sentencing order, imposing the death
sentence for the two murders. The trial court found four aggravating
circumstances, three statutory mitigating circumstances, and several nonstatutory
mitigating circumstances.3
The Florida Supreme Court affirmed on direct appeal, with the factual
recitation set forth above. Wright I, 19 So. 3d at 283. Petitioner underwent a full
2
The physical record, in five boxes in good order, is indexed at Doc. 43. The trial record on
appeal bears prefix “A.” The postconviction record has prefix “B.” The U.S. Supreme Court
certiorari record has a “C” prefix.
3
The four statutory aggravating circumstances were 1) previous conviction of another capital
felony or felony involving violence to the person (great weight); 2) felony for pecuniary gain (no
weight); 3) homicide committed in cold, calculated, and premediated manner without any
pretense of moral or legal justification (great weight); and 4) felony committed for purpose of
avoiding or preventing lawful arrest (great weight). The trial court found three statutory
mitigating circumstances, and gave them some weight: 1) offense committed under the influence
of extreme mental or emotional disturbance; 2) Petitioner’s capacity to appreciate the criminality
of his conduct or to conform his conduct to the requirements of law was substantially impaired;
and 3) Petitioner was 19 years old at the time of the homicides. Petitioner offered approximately
34 non-statutory mitigating circumstances and the Court found several including those related to
Petitioner’s low IQ, low self-esteem, emotional deprivation during his upbringing, substance
abuse, neurological impairments, which affected his impulse control and reasoning ability, lack
of mature coping skills, and lack of capacity to develop mature, health relationships. Wright I,
19 So. 3d at 290 n.16.
12
round of state collateral review with no success, some of which is discussed below
when it is pertinent to one or more grounds for relief. Petitioner now brings this
amended petition for federal habeas relief under 28 U.S.C. § 2254, Doc. 36, and
memorandum in support. Doc. 38. The State has filed a response, Doc. 42, to
which Petitioner replied. Doc. 46.
The standards by which this petition is adjudged are set forth as follows:
Because it was filed after April 24, 1996, this case is governed by the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254
(“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v.
Garceau, 538 U.S. 202, 210 (2003).
Under the AEDPA, a writ of habeas corpus cannot be granted unless the
petitioner has exhausted all available state court remedies. 28 U.S.C. § 2254(b)(1);
see also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S.
509, 510 (1982). To exhaust state remedies, the petitioner must “fairly present” his
claims to the state’s highest court in a procedurally appropriate manner.
O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A claim is “fairly presented” if
the petitioner has described the operative facts and the federal legal theory on
which his claim is based so that the state courts have a fair opportunity to apply
controlling legal principles to the facts bearing upon his constitutional claim.
Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275–
13
78 (1971). Unless the petitioner clearly alerts the state court that he is alleging a
specific federal constitutional violation, he has not fairly presented the claim. A
petitioner must make the federal basis of a claim explicit either by citing specific
provisions of federal law or federal case law, or by citing state cases that explicitly
analyze the same federal constitutional claim. Howell v. Mississippi, 543 U.S. 440,
443–44 (2005).
A habeas petitioner’s claims may be precluded from federal review in two
ways. First, a claim may be procedurally defaulted in federal court if it was
actually raised in state court but found by that court to be defaulted on state
procedural grounds. Coleman, 501 U.S. at 729–30. Second, a claim may be
procedurally defaulted if the petitioner failed to present it in state court and “the
court to which the petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims procedurally barred.”
Id. at 735 n.1.
The AEDPA established a “substantially higher threshold for habeas relief”
with the “acknowledged purpose of ‘reducing delays in the execution of state and
federal criminal sentences.’” Schriro v. Landrigan, 550 U.S. 465, 475 (2007)
(quoting Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The AEDPA’s
“‘highly deferential standard for evaluating state-court rulings,’ demands that statecourt decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S.
14
19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7
(1997)).
Under the AEDPA, a petitioner is not entitled to habeas relief on any claim
“adjudicated on the merits” by the state court unless that adjudication: (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. 28 U.S.C. § 2254(d). The relevant state court decision is the last
reasoned state decision regarding a claim. Kernan v. Hinojosa, 136 S. Ct. 1603,
1605–06 (2016) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991)).
“The threshold question under the AEDPA is whether [a petitioner] seeks to
apply a rule of law that was clearly established at the time his state-court
conviction became final.” Williams v. Taylor, 529 U.S. 362, 390 (2000).
Therefore, to assess a claim under subsection (d)(1), the Court must first identify
the “clearly established Federal law,” if any, that governs the sufficiency of the
claims on habeas review. “Clearly established” federal law consists of the
holdings of the Supreme Court at the time the petitioner’s state court conviction
became final. Williams, 529 U.S. at 412; see Carey v. Musladin, 549 U.S. 70, 74
(2006).
15
The Supreme Court has provided guidance in applying each prong of §
2254(d)(1). The Court has explained that a state court decision is “contrary to” the
Supreme Court’s clearly established precedents if the decision applies a rule that
contradicts the governing law set forth in those precedents, thereby reaching a
conclusion opposite to that reached by the Supreme Court on a matter of law, or if
it confronts a set of facts that is materially indistinguishable from a decision of the
Supreme Court but reaches a different result. Williams, 529 U.S. at 405–06; see
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). In characterizing the claims
subject to analysis under the “contrary to” prong, the Court has observed that “a
run-of-the-mill state-court decision applying the correct legal rule from [the
Supreme Court’s] cases to the facts of the prisoner’s case would not fit
comfortably within § 2254(d)(1)’s ‘contrary to’ clause.” Williams, 529 U.S. at
406.
Under the “unreasonable application” prong of § 2254(d)(1), a federal
habeas court may grant relief where a state court “identifies the correct governing
legal rule from [the Supreme] Court’s cases but unreasonably applies it to the facts
of the particular . . . case” or “unreasonably extends a legal principle from
[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should
apply.” Williams, 529 U.S. at 407. For a federal court to find a state court’s
16
application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the
petitioner must show that the state court’s decision was not merely incorrect or
erroneous, but “objectively unreasonable.” Id. at 409; Visciotti, 537 U.S. at 25.
Under the standard set forth in § 2254(d)(2), habeas relief is available only if
the state court decision was based upon an unreasonable determination of the facts.
Miller–El v. Dretke, 545 U.S. 231, 240 (2005) (Miller–El II). A state court decision
“based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court
proceeding[.]” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (Miller–El I). In
considering a challenge under 2254(d)(2), state court factual determinations are
presumed to be correct, and a petitioner bears the “burden of rebutting this
presumption by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller–
El II, 545 U.S. at 240. However, only the state court’s factual findings, not its
ultimate decision, are subject to 2254(e)(1)’s presumption of correctness. Miller–
El I, 537 U.S. at 341–42 (“The clear and convincing evidence standard is found in
§ 2254(e)(1), but that subsection pertains only to state-court determinations of
factual issues, rather than decisions.”).
PETITIONER’S GROUNDS ONE, TWO, AND THREE
These three grounds comprise the bulk of the petition. They address
Petitioner’s mental status and claimed intellectual disability. They are related, and
17
the Court combines them here for discussion. Ground I, which spans 82 pages of
the 160-page petition, seeks relief because Petitioner is intellectually disabled and
thus may be not be put to death under the eighth amendment to the U.S.
Constitution.4 Ground II seeks relief because Florida Statutes § 921.137(4), 5
which requires a defendant in the death phase to establish intellectual disability by
clear and convincing evidence, imposes a standard of proof upon a defendant that
violates the defendant’s due process rights under the fifth, sixth, eighth and
fourteen amendments. 6
4
To quote the petition: “Ground One: Wright is intellectually disabled, and his execution is
barred by the eighth amendment of the United States Constitution. The state court’s resolution
of Wright’s claim was an unreasonable application of clearly established federal law, including
Atkins v. Florida, 536 U.S. 304, Hall v. Florida, 134 S. Ct. 1986 (2014), and Moore v. Texas,
137 S. Ct. 1039 (2017). Further, the state court made an unreasonable determination of the facts
in light of the state court record.” Doc. 36 at 9.
5
This statute, entitled “Imposition of the death sentence upon an intellectually disabled
defendant prohibited” states in pertinent part: “After a defendant who has given notice of his or
her intention to raise intellectual disability as a bar to the death sentence is convicted of a capital
felony . . . the defendant may file a motion to determine whether the defendant is intellectually
disabled. Upon receipt of the motion, the court shall appoint two experts in the field of
intellectual disabilities who shall evaluate the defendant and report their findings to the court . . .
. At the final sentencing hearing, the court shall consider the findings of the court-appointed
experts and consider the findings of any other expert which is offered by the state or the defense
on the issue of whether the defendant has an intellectual disability. If the court finds, by clear
and convincing evidence, that the defendant has an intellectual disability . . . the court may not
impose a sentence of death and shall enter a written order that sets forth with specificity the
findings in support of the determination.”
6
To quote the petition: “Ground Two: Fla. Stat. § 921.137(4) is unconstitutional and violates
Wright’s due process rights as protected by the fifth, sixth, eighth, and fourteen amendments to
the United States Constitution. The state court’s resolution of Wright’s claim was an
unreasonable application of clearly established federal law. Further, in many respects, the state
court made an unreasonable determination of facts in light of the state court record.” Doc. 36 at
91.
18
Ground III also addresses mental disability. It alleges that trial counsel
provided ineffective assistance of counsel by failing adequately to present
mitigation evidence (related to mental disability) at the penalty phase.7
Procedural Background of these Claims: After conviction below,
Petitioner waived the jury recommendation in the penalty phase, and the jury was
discharged. During the penalty hearing, Petitioner filed a motion to bar the death
penalty due to intellectual disability (“ID”), then known under the term “mental
retardation.” A5 at 743–44. The trial court conducted a lengthy penalty phase
hearing, receiving several mental health expert witnesses, including two retained
by Petitioner and two that the Court appointed. The Court found Petitioner was not
intellectually disabled, primarily due to his tested IQ of 75, 77, and 82. 8 The Court
did not consider adaptive functioning specifically at this penalty phase. A5 at 829.
Petitioner did not bring this point on direct appeal. Wright I.
In his postconviction proceedings, Petitioner received a first hearing, in
October 2012 lasting several days, on his collateral ID claims and other trial-
7
To quote the petition: “Ground Three: Wright received prejudicial ineffective assistance of
counsel at the penalty phase of his trial when trial counsel failed to adequately investigate,
prepare and present available mitigation. The state court’s resolution of Wright’s claim was an
unreasonable application of clearly established law, including Strickland v. Washington, 366
U.S. 668 (1984), Wiggins v. Smith, 539 U.S. 510 (2003), Williams v. Taylor, 529 U.S. 362
(2000), Porter v. McCollum, 558 U.S. 30 (2009), Sears v. Upton, 130 S. Ct. 3259 (2010), and
Rompilla v. Beard, 545 U.S. 374 (2005). Further, in many respects, the state court made an
unreasonable determination of facts in light of the state court record.” Doc. 36 at 93.
8
A5 at 755, 789, 791.
19
related claims. He called multiple witnesses. The state circuit court ruled against
Petitioner after this hearing, in a lengthy order. Doc. 37 at 26–116. But during the
pendency of Petitioner’s appeal from this ruling, the U.S. Supreme Court issued its
opinion in Hall v. Florida, in which it held Florida’s intellectual disability scheme
unconstitutional insofar as it equated adaptive functioning to a strict IQ score
requirement. 572 U.S. 701, 704–05 (2014). Thereafter, the Florida Supreme Court
relinquished jurisdiction of Petitioner’s appeal and allowed him to file a renewed
motion for determination of ID with the postconviction court.
After Petitioner refiled his postconviction ID motion post-Hall, the
postconviction court granted a renewed evidentiary hearing on ID, where the court
heard from additional witnesses, including more mental health experts. Doc. 37 at
118–29. The state circuit court denied Petitioner’s renewed motion in 2015, id.,
and Petitioner appealed.
The result of the appeal was a detailed opinion, Wright II, in which the
Florida Supreme Court undertook a very detailed examination of the record on
Petitioner’s ID claims, and stated: “Given that Wright has not even demonstrated
by a preponderance of the evidence either of the first two prongs for a
determination of intellectual disability, we conclude that he has not demonstrated
that he belongs to that category of individuals that are categorically ineligible for
20
execution.” Wright v. State, 213 So. 3d 881, 902 (Fla. 2017) (Wright II), cert.
granted, vacated and remanded, 138 S. Ct. 360 (2017).
Two weeks after the Florida Supreme Court issued Wright II, the U.S.
Supreme Court issued an opinion out of Texas on capital punishment intellectual
disability issues, Moore v. Texas, 137 S. Ct. 1039 (2017). Moore was issued in
spring 2017. Petitioner filed a certiorari petition from Wright II that the Supreme
Court first addressed upon returning from their 2017 summer recess. That Court
granted, vacated, and remanded (“GVR”) Wright II in light of Moore. Wright II
thus came back on remand to the Florida Supreme Court in late 2017 without
opinion for reconsideration in light of Moore. Wright v. Florida, 138 S. Ct. 360
(2017). The Florida Supreme Court then issued Wright III. Wright v. State, 256
So. 3d 766 (Fla. 2018) (Wright III).
In Wright III the Florida Supreme Court first discussed, correctly, that the
“GVR” remand after Moore was not a merits determination nor precedential. 256
So. 3d at 769. The Wright III court set forth to “reconsider this case in light of
Moore to determine if a different outcome is warranted.” Id. at 770. It again
reviewed the two main elements of ID, quantitative intelligence (basically, IQ) and
adaptive functioning, to determine if the Moore opinion changed matters. Upon its
detailed review of the evidence and consideration of Moore, the Florida Supreme
Court held:
21
At the ID hearing, the parties presented all the evidence that they could
muster, which resulted in an outcome adverse to Wright. Because that
decision was supported by competent, substantial evidence, which we
thoroughly detailed, [in Wright II], we can again conclude that Wright
failed to prove adaptive deficits by clear and convincing evidence—a
conclusion that Moore did not alter.
Wright III, 256 So. 3d 778.
The Florida Supreme Court in Wright III thus reaffirmed denial of
Petitioner’s ID petition. Petitioner’s certiorari petition on Wright III was denied in
June 2019, Wright v. Florida, 139 S. Ct. 2671 (2019), and he filed the instant
amended federal habeas petition shortly thereafter. The petition is timely.
The summary of events is as follows:
April 20–22, 2000: 3-day crime spree and murders
October 18, 2004: the instant (third) trial starts
November 13, 2004: jury guilty verdicts
May 10–11, 2005: penalty phase bench trial
September 22, 2005: penalty phase ID bench hearing
October 12, 2005: sentencing order, death sentence entered
September 3, 2009: direct appeal (Wright I) aff’d by Fla. Sup. Ct.
November 5, 2010: state postconviction petition filed
March 9, 2012: amended state postconviction petition filed
October 16–18, 2012: trial court hearing on postconviction claims
May 22, 2013: trial court denies postconviction claims, appealed
May 27, 2014: U.S. Sup. Ct. issues Florida v. Hall
October 7, 2014: Fla. Sup. Ct. relinquishes pending appeal to trial court for
reconsideration in light of Florida v. Hall
January 5–6 & February 11, 2015: 3 days of hearings on post-Hall ID
motion
March 26, 2015: trial court denies post-Hall ID motion, appealed
March 16, 2017: postconviction appeal aff’d by Fla. Sup. Ct., revising an
earlier 2016 affirmance (Wright II)
October 16, 2017: on cert. petition, U.S Sup. Ct. grants GVR of Wright II in
light of new case Moore v. Texas
22
Sept. 27, 2018: Fla. Sup. Ct. affirms postconviction denial (Wright III)
June 3, 2019: U.S. Sup. Ct. denies cert. on Wright III
The Legal Test for The Intellectual Disability Defense: In Atkins v.
Virginia, the Supreme Court held that the eighth amendment to the U.S.
Constitution “restrict[s] . . . the State’s power to take the life of” an intellectually
disabled individual. 536 U.S. 304, 321 (2002). Adjudications of intellectual
disability should be ‘informed by the views of medical experts.” Hall v. Florida,
572 U.S. at 721. The “generally accepted” approach, according to the Moore
Court, is to consider 1) intellectual functioning deficits, indicated by an IQ score
roughly two standard deviations below the mean, 2) adaptive deficits, which are
the inability to learn basic skills and adjust behavior to changing circumstances,
and 3) require onsets of these deficits while still a minor. Moore, 137 S. Ct. at
1045; see also Atkins, 536 U.S. at 308 n.3.
The Florida Courts Reasonably Held Petitioner is Not Mentally Disabled:
Trial Evidence Shows No Mental Disability
Before delving into what the Florida courts did to adjudicate Petitioner’s
intellectual disability claim in the penalty and postconviction phases, it is
worthwhile to simply state, in lay terms, what the trial record shows about
Petitioner’s mind. The record shows this: Tavares Wright is not intellectually
disabled. Tavares Wright is not, in the former term, mentally retarded.
23
The one portion of this record in which Petitioner could neither malinger
about nor script, and had to show his full wits, was in his trial direct examination
and more importantly in his cross examination. The trial record shows that
Petitioner ably and clearly testified in his defense. A30 at 4517–626. He was
coherent. He was clear. On both direct and cross he understood the questions and
his answers were responsive, concise, and lucid. He underwent a thorough cross
examination. He responded politely and firmly, and held up well. He portrayed an
entire and complete version of facts, chronologically, that exculpated him on the
murders and placed blame on the separately-tried codefendant Mr. Pitts. A30 at
4567–622. Petitioner did not stray or deviate from the defense theme and clear
factual version that mapped the path to acquittal.
Petitioner was firm and rational in refusing to testify about the second,
uncharged Mendoza/Winter Haven carjacking for which he could have faced
future criminal exposure. He identified every question that touched on this
uncharged criminal exposure, and he declined to answer them, correctly noting
why. A30 at 4576–79. He effectively parried the prosecutor’s questions. See,
e.g., A30 at 4576, 4606. His trial testimony addressed unimpeachable points of the
State’s case. For example, he noted that he leaned against the victim’s car when
Pitts drove it up, which addressed any fingerprints thereon. A30 at 4547. He had a
plausible and firmly stated reason why bullets that matched the murder weapon
24
were in his pocket at his arrest. A30 at 4611 (Pitts bought them and later asked
Petitioner to discard along with the gun). He ably and consistently set up a factual
scenario, without logical holes or gaps, whereby Mr. Pitts disappeared alone, and
returned somewhat later driving the victims’ blood-marked car. No one can read
Petitioner’s direct and cross examination and rightly say this man is so bereft of
mind that the eighth amendment bars this punishment. 9
In addition to his capable trial testimony other concrete facts in this record
show Petitioner’s mental ability. He earned his GED while in juvenile boot camp.
A39 at 367. 10 He did not have a driver’s license because he could not pass the
written test, but he was a capable driver, at one point outrunning the police after a
chase, and later driving the dead victims’ car away to abandon it. A30 at 4547,
4554, 4556, 4563–64; B24 at 1304. He managed his marijuana sales business,
receiving pages from regular customers, and traveling to call on customers and
doling out bags of marijuana and collecting money. A30 at 4521, 4539–41, 4544.
He exchanged marijuana for the pistol used in the murders. Id. at 4520.
9
The Florida Supreme Court stated that “Wright gave extensive testimony during trial, where he
told a coherent narrative of his version of events. He testified at length and was not generally
aided by leading questions. Furthermore, he endured a strong cross-examination by the State….”
Wright II, 213 So. 3d at 900. The state circuit judge who issued the postconviction order found
Petitioner’s trial testimony was “very telling and compelling in gauging the Defendant’s
intellectual functioning and adaptive behavior.” Doc. 37 at 123.
10
A defense expert testified this was not a real high school graduate equivalency degree, but was
a certificate which evidenced something much less. Doc. 36 at 106–07.
25
He not infrequently criticized his lawyer’s work and strategy, questioning
and suggesting alternate steps. B21 at 733; accord Wright II, 213 So. 3d at 900–01
(“Wright assessed the performance of his counsel across all three of his trials,
sometimes expressing dissatisfaction with their inability to elicit certain evidence
that had been elicited during a previous trial.”). He argued to the state trial court
that his defense lawyers should have prior transcripts on hand to impeach
witnesses. A22 at 2969. He lucidly addressed the court about his worry concerning
trial fairness and engaged in other lucid colloquy with the judge. A4 at 669–75;
A20 at 2581–88. He articulately waived a jury finding on the record, in the penalty
phase, A33 at 5083–92. At that time his lawyer said Petitioner is “articulate,
bright, aware of what’s going on in his reasoning.” He said, “I understood
everything.” A33 at 5092–93.
Family relatives testified that Petitioner reads the Bible often in prison,
writes letters and cards, and asked for a college-level dictionary. A38 at 293–94.
They testified that he learned to work in a fast-paced shelving job at a grocery
store, did not have problems understanding them, and knew how to use the city bus
system. Wright III, 256 So. 3d at 778. In police interviews he recalled addresses
and phone numbers of others. B25 at 1475. The Florida Supreme Court noted
“[t]he interview is inconsistent with an intellectually disabled defendant.” Wright
II, 213 So. 3d at 901.
26
Florida Court Used Appropriate Procedures and Made Reasonable Findings
Florida statute § 921.137(2) states that “[a] sentence of death may not be
imposed upon a defendant convicted of a capital felony if it is determined in
accordance with this section that the defendant is intellectually disabled.” Section
921.137(1) further states:
As used in this section, the term “intellectually disabled” or
“intellectual disability” means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the period from conception to age 18.
The term “significantly subaverage general intellectual functioning,”
for the purpose of this section, means performance that is two or more
standard deviations from the mean score on a standardized intelligence
test specified in the rules of the Agency for Persons with Disabilities.
The term “adaptive behavior,” for the purpose of this definition, means
the effectiveness or degree with which an individual meets the
standards of personal independence and social responsibility expected
of his or her age, cultural group, and community. . . .
The conclusions of the Florida courts that Petitioner did not meet the
definition of intellectually disabled under this definition are sound, and reasonable.
The state circuit court and Florida Supreme Court followed Atkins, Hall, and
Moore, supra.
Concerning the element of “general intellectual functioning,” a rough,
general inquiry is whether the Petitioner exhibited IQ scores below 70, which is
two standard deviations below the mean. One must take into account the standard
error of measurement (“SEM”) with these tests. Taking the SEM into account,
ranges in the 70 to 75 level still require consideration of adaptive functioning, and
27
a Petitioner even with a 75 IQ could prove intellectual disability by showing
substantial adaptive deficits. Hall, 572 U.S. at 722 (quoting Atkins, 536 U.S. at
309 n.5).
The IQ scores present in this record are generally higher than those recently
reviewed by the Eleventh Circuit in a capital case affirming denial of relief. See
Clemons v. Comm’r, Ala. Dept. Corr., __ F.3d __, 2020 WL 4370963, at *13 (11th
Cir. July 30, 2020) (Clemons’ IQ scores were 51, 58 adjusted to 66, 67 adjusted to
60, 73, 77, 84).
Both the state circuit court11 and Florida Supreme Court noted that Petitioner
has taken a total of nine IQ tests, all of them reported full-scale scores of 75 or
above. His highest was a full-scale score of 82. As to this 82, Petitioner’s own
expert testified it was “valid and free of any practice effect concerns.” Wright II,
213 So. 3d at 897. These tests started at age ten. On the IQ testing element alone,
Petitioner clearly is not disabled.12 Even if one factored in the SEM, and
hypothetically said every test taken was too high by the maximum SEM rate,
Petitioner is still over 70 on each of them save two, as he scored 75 on two of
11
The postconviction trial court’s detailed 2013 order can be found at Doc. 37 at 26. The same
court’s order, after remand due to Hall can be found at Doc. 37 at 118. Both orders show a very
detailed, fact-based postconviction inquiry with several dozen witnesses. The postconviction
court heard testimony, all told, from at least seven mental health experts.
12
Petitioner scored a 76, 80, and 81 on his first three IQ tests at age 10 or 11. Doc. 36 at 89, 102.
He scored 75 on his next test at age 16. Id. He took two abbreviated tests in 2001 and 2004. He
took two full tests in 2005, scoring 82 and 75, respectively. Doc. 36 at 15, 103.
28
them. The data simply shows, no matter how it is viewed, tests almost universally
over 70 and some over 80. Summarizing all the IQ test evidence accurately, the
Wright II court held: “Wright has not proven even by a preponderance of the
evidence, and certainly not by clear and convincing evidence, that he is of
subaverage intellectual functioning.” 213 So. 3d at 896–98. These various IQ
tests, by various practitioners spanning over a decade, are in the record; all of them
augur against Petitioner on the first “general intellectual functioning” element of
mental disability. Id. The Florida Supreme Court reaffirmed this proper finding
after the Moore remand, in Wright III. 256 So. 3d at 771–72. The Wright III court
held: “Based on the competing medical testimony of Dr. Kasper and Dr.
Gamache—along with numerous IQ test scores above 70 after SEM adjustments—
there was competent, substantial evidence for the postconviction court to conclude
that Wright failed to prove significant subaverage intellectual functioning by clear
and convincing evidence.” 256 So. 3d at 771–72.
The record that Petitioner suffers no qualifying ID is strengthened by the
indication in this record that Petitioner may have been malingering in some tests.
The State expert expressed these concerns and the Florida Supreme Court was
reasonable in considering the likelihood of malingering when reviewing this
record. Wright II, 213 So. 3d at 898. In Clemons, supra, the Court noted that “it is
abundantly clear that a state court may discount IQ scores where there is evidence
29
of malingering.” 2020 WL 4370963, at *13 (citing Carroll v. Sec’y DOC, 574
F.3d 1354, 1359, 1367–68 (11th Cir. 2009)).
Additionally, the Florida courts properly considered the second ID element
of “adaptive functioning,” consistent with prevailing U.S. Supreme Court
pronouncements. The Florida Supreme Court consulted and followed modern
medical advice, citing to the authoritative AAIDD-11 and DSM-5 definitions of
adaptive functioning and discussing how those authorities impacted Petitioner’s
case.13 Wright III, 256 So. 3d at 773. The state courts properly found Petitioner
had not proven adaptive functioning deficits. Considering the multiple mental
health experts who examined Petitioner at length and testified on this topic at
length in the hearings on mental disability, the lay witnesses, the crimes at bar and
the trial testimony, the Wright II court found “all of these types of evidence refute
that Wright has concurrent deficits in adaptive functioning.” 213 So. 3d at 898–99.
The Florida Supreme Court provided a detailed, multi-page summary in this
regard, id. at 898–902, which is well based in the evidentiary record. The Florida
Supreme Court then readdressed the findings at length, including a full discussion
of the AAIDD-11 and DSM-5 standards in Wright III. 256 So. 3d at 773–78. This
13
These sources are DSM-5, i.e. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 37 (5th ed. 2013) and AAIDD-11, American Association of
Intellectual Development Disabilities, Intellectual Disability: Definition, Classification, and
Systems of Supports 5 (11th ed. 2010). See Wright III, 256 So. 3d at 771–76.
30
discussion closely followed Hall and Moore. It is noteworthy that even
Petitioner’s expert agreed that Petitioner did not have current deficits in the social
and practical skills domains. Wright III, 256 So. 3d at 777; Wright II, 213 So. 3d
at 900. The only adaptive deficit that Petitioner’s expert Dr. Kasper could point to
is in the subcategory of conceptual skills.
In crediting the State’s expert, both the trial court and the Florida Supreme
Court exercised reasonable judgment based upon the extensive record, consistent
with federal constitutional principles. As noted above, the only adaptive function
in dispute was in regard to conceptual skills. And:
To a large extent, [the State expert’s] findings with regard to conceptual
skills related to Wright’s ability to read and write, understand numbers
and time, comprehend his current legal circumstances, and conduct
monetary transactions prior to incarceration. [citation omitted] These
findings all directly impact and are connected with adaptive functioning
within the conceptual domain. See DSM-5, at 37 (identifying
“memory, language, reading, writing, math reasoning, acquisition of
practical knowledge, problem solving, and judgment in novel
situations” as hallmarks of the conceptual domains).
Wright III, 256 So. 3d at 777 (citing Moore, 137 S. Ct. at 1045–47).
Under the standard set forth in §2254(d)(2), habeas relief is available only if
the state decision was based upon an unreasonable determination of the facts.
Miller-El II, 545 U.S. at 240. This determination that Petitioner was not suffering
from ID is well founded. Thus Ground One is denied.
31
In Ground Two, Petitioner asserts that the Florida statute is unconstitutional
and violates his right to due process because it places upon him the burden to prove
intellectual disability by clear and convincing evidence. This ground is due to be
dismissed and denied for three reasons.
First, as the Respondent notes, this is ground is unexhausted, and therefore
procedurally barred, subject to dismissal. This ground was not squarely presented
to the Florida courts in a manner to get a proper merits ruling. Petitioner raised
this point for the first time in his written closing arguments to the state circuit
court, submitted after his final intellectual disability hearing. At the outset of the
hearing Petitioner’s counsel had acknowledged that this was the applicable
standard. B20 at 628–29. The claim that this standard and burden of proof was
unconstitutional did not arise until written closing arguments, where Petitioner
argued in favor of a preponderance standard. B26 at 1715–17. Raising the issue
for first time in a written closing argument does not preserve it under Florida wellestablished pleading requirements, as the Wright II court noted. 213 So. 3d at 896
n.3. The federal issue was thus not squarely presented for state court review, and
the point was denied on an adequate and independent state law ground as
unpreserved under Florida procedural rules. “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.’” Herring v. Sec’y, Dep’t of Corr., 397 F.3d
32
1338, 1355 (11th Cir. 2005) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th
Cir. 1997)). It is thus not reviewable here and should be dismissed. See, e.g.,
Coleman v. Thompson, 501 U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S.
72, 78 (1977).
Second, this ground is almost certainly foreclosed by the Eleventh Circuit’s
holding in Raulerson v. Warden, 928 F.3d 987, 1001–04 (11th Cir. 2019). The
Raulerson court held that the Georgia capital sentencing statute did not violate due
process by requiring the capital defendant to prove beyond a reasonable doubt his
intellectual disability. The Georgia beyond a reasonable doubt standard of proof is
greater than Florida’s clear and convincing standard. Petitioner’s claim cannot
survive Raulerson and is without merit until the Eleventh Circuit or Supreme Court
changes that ruling. Just as in Raulerson, Petitioner here does not cite controlling
federal precedent that bars this part of the Florida sentencing procedure. Thus the
Florida court’s decision, even if this Court could presume it was presented to them
squarely, was not “contrary to, or involved an unreasonable application of, clearly
established Federal law.” 28 U.S.C. § 2254(d)(1).
Third, Ground Two is to be denied because of this detailed factual record.
Petitioner did not establish mental disability by clear and convincing evidence, nor
could he establish it by a preponderance. The record, especially the trial evidence,
shows clearly as a matter of fact that he is not intellectually disabled. On his
33
record, he could meet no standard of proof whatsoever, as the Florida Supreme
Court has noted correctly. Wright II, 213 So. 3d at 898, 902.
Petitioner’s third ground is also related to intellectual disability and the
Court turns to it now. Petitioner asserts that his two defense lawyers provided
constitutionally ineffective assistance of counsel in the penalty phase by
improperly marshaling and presenting mitigating evidence, which mostly related to
intellectual disability. As the petition states, Petitioner claimed that trial counsel
failed to acquire documents, failed to present mitigation witnesses, and failed to
present expert testimony about the “Flynn effect” and the practice effect on IQ
scores. Doc. 38 at 42. The state circuit court held an evidentiary hearing on this
claim, which it denied. The Florida Supreme Court affirmed on this point. Wright
II, 213 So. 3d at 905–08. Thus, Ground Three is exhausted.
This ground requires consideration of the familiar precepts of Strickland v.
Washington, 466 U.S. 668, (1984). This is a very familiar standard and the Court
will not repeat the boilerplate case law here. Suffice it to say, Petitioner must
establish both that his penalty phase lawyers were deficient, and that the deficient
performance prejudiced him so as to deprive him of a reliable proceeding. Id. at
687. Both Florida courts reviewing this matter hewed closely to the constitutional
doctrines set forth in Strickland and federal law. See, e.g., Doc. 37 at 101–09;
Wright II, 213 So. 3d at 903–09.
34
The test is “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).
Even so, when one reads the trial record and the penalty phase record, one is
impressed by the thorough and effective lawyers who defended Petitioner with
vigor and dedication.
The Florida Supreme Court reviewed in detail the efforts of Petitioner’s
lawyers in the sentencing phase, and we need not detail all that action here. In
summary, as to the alleged failure to acquire documents, during the postconviction
evidentiary hearing Petitioner’s counsel presented his compete school records,
from two states, which indicated Petitioner had several independent “special”
education plans and was both emotionally handicapped and specific learning
disabled. Two of these school reports contained psychological reports that
contained early IQ. One of Petitioner’s mental health experts testified he reviewed
these records, and Petitioner’s family members testified, corroborating these points
as well. It was also established Petitioner’s mother was receiving social security
benefits due to his mental state. The Florida Supreme Court found that documents
complained-of as missing were simply cumulative to this type of evidence. Wright
II, 213 So. 3d at 905–08. The record bears this out. For example, school records
that his present lawyers offer, see amended petition at Doc. 36 at 95, are
35
cumulative. It was abundantly clear that this man suffers from mental deficits,
severe learning disabilities, and was in special education classes. His precise
mental state was quite apparent and presented by the time the penalty phase
concluded.
Concerning the alleged failure to properly present penalty-phase witnesses,
the Florida Supreme Court noted that:
Wright’s penalty phase counsel pursued the presentation of evidence
of mitigating circumstances diligently and ultimately retained five
expert witnesses. Indeed, trial counsel testified that they specifically
retained Dr. Waldman and Dr. Sesta after the original experts did not
find that Wright was intellectually disabled. Furthermore, as discussed
above, the record reflects that Wright’s trial counsel at times believed
that Wright was bright, a conclusion that was reasonable in light of
Wright’s input with regard to objections across the three trials and his
extensive trial testimony.
Wright II, 213 So. 3d at 906.
These findings are record-based, and sound. As to the claimed failure to
present mitigation witnesses, Petitioner’s lawyers presented additional mitigating
evidence at the penalty phase, beyond that presented at the guilt phase.
The Eleventh Circuit recently addressed this type of claim in a capital case
where, unlike here, additional witnesses were not presented in the penalty phase:
No absolute duty exists to introduce mitigating or character evidence.
[citation omitted] And we have held, in a capital case, that counsel’s
performance was not deficient when he chose to rely on the mitigating
evidence presented in the guilt phase instead of presenting additional
evidence during the penalty phase. [citation omitted] We explained that
“[w]hich witnesses, if any, to call, and when to call them, is the epitome
36
of a strategic decision, and it is one that we will seldom, if ever, second
guess.”
Raulerson, 928 F.3d at 998 (quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th
Cir. 1995) (en banc)).
Concerning failure to present penalty phase evidence about various mental
deficits, at the initial penalty phase the defense presented mitigation evidence of
Petitioner’s unfortunate, traumatic childhood which included abandonment and
neglect. One of Petitioner’s experts testified about Petitioner’s in utero exposure to
alcohol and cocaine, which caused microencephaly, a smaller brain and cranium.
He also suffered mild traumatic injuries as a child which the trial court heard
about. Wright I, 19 So. 3d at 289. The sentencing judge received the defense’s
expert testimonial evidence concerning fetal alcohol syndrome and
microencephaly during the penalty phase. Wright II, 213 So. 3d at 906; Doc. 36 at
89 n.15; Doc. 37 at 107.
Likewise, Petitioner’s present argument that counsel were Stricklandineffective due to failure to argue the “Flynn effect” is unavailing. This effect
describes an apparently upward drift in IQ scores in this country over the years.
See Doc. 36 at 100. Petitioner contends that means his IQ scores are actually lower
on the older standard that what he registered. A key problem with this argument is
that he took IQ tests quite a long time ago, starting at age 9. They have remained
fairly consistent, and almost always they land him in the area above 70. For this
37
same reason, Petitioner’s arguments about the “practice effect,”—that scores go up
when you take more tests—fails. Id. As the petition notes, “Wright received a
full-scale 76 on this first test [in 1991].” Id. at 102.
As to the “Flynn effect,” there is no medical/legal consensus. See
Raulerson, 928 F.3d at 1008 (“No adjustment for the Flynn effect is required in
this Circuit.”); Thomas v. Allen, 607 F.3d 749, 757–58 (11th Cir. 2010). Here, the
facts do not fit well to establish such an effect anyway. The courts below were all
quite aware that Petitioner was profoundly impaired, had fetal alcohol syndrome,
and a low IQ. Wright II, 213 So. 3d at 906–07. Under no fair reading of this
record can Petitioner’s trial counsel be described as incompetent to the point of
“not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 690. And no matter how the Flynn
effect might be deemed in the future, there is voluminous evidence in this case
concerning Petitioner’s mind, and the Florida courts reviewed it in a not
unreasonable manner, consistent with controlling federal law.
The postconviction court took testimony about the Flynn and practice effects
and found no prejudice. The postconviction trial court held:
This Court does not find that [trial] counsel was deficient in not
presenting experts to argue the Flynn Effect and Practice Effect. As
mentioned above, the Defendant scored above 70 on all the IQ tests he
took, and when the scores were adjusted by [defense expert] Dr.
Kasper, the Defendant only scored below 70 on one of the adjusted test
scores. The Court does not find that the Trial Court would have come
38
to any different conclusion with regard to weighing the mitigation and
aggravation of it had been presented with information about the Flynn
Effect and Practice Effect.”
Doc. 37 at 106–07.
The finding was affirmed by the Wright II court, which held that:
[T]he expert testimony indicated that Wright’s first IQ score was his
most accurate and that all of his subsequent IQ scores fell in the range
derived from his first IQ score after adjusting for the SEM,
notwithstanding any practice effect or Flynn effect concerns.
Furthermore, there was testimony that Wright’s IQ examinations were
far enough apart in time that they would not have been affected by the
practice effect.
Wright II, 213 So. 3d at 906.
To sum up the discussion of Petitioner’s mental state which is set forth in
various arguments in Grounds One, Two and Three, about the best that can be said
for his case was found in 2009 by the Wright I court. There the Florida Supreme
Court noted: “Thus, although we recognize that certain evidence may indicate
some inability for Wright to premeditate daily activities, we conclude that the
mental health evidence does not eradicate the evidence that he committed these
murders in a cold, calculated, and premeditated manner.” Wright I, 19 So. 3d at
277.
39
This record contains the testimony of at least seven mental health experts
who opined on Petitioner’s mental state. 14 The Florida courts quite properly found,
and reasonably relied upon, the extensive evidence showing no ID, and the courts
did so in a manner true to the controlling U.S. Supreme Court standards.
PETITIONER’S GROUND FOUR
Ground Four states that trial counsel rendered ineffective assistance in the
penalty phase by failing adequately to challenge evidence offered in aggravation. 15
While incarcerated pending the instant trial, Petitioner was involved in two very
violent jailhouse aggravated batteries, for which he was convicted separately. The
State presented these in aggravation at the penalty phase. The first battery
involved inmate Cassada who testified that Petitioner and others beat him nearly to
death, which placed him in a coma for 30 days. A37–A38 at 159–162. Petitioner
and one other inmate were convicted of the Cassada aggravated battery. The
second involved a very violent battery upon jail deputy Connelly committed by
Petitioner alone, for which he was convicted. Evidence was that Petitioner struck
14
Dr. Mary Kasper testified in both the 2012 and 2015 ID hearings. Drs. Michael Kindeln and
Michael Gamache testified at the 2015 hearing. Drs. Joel Fried, Alan Waldman, William
Kremper, and Joseph Sesta testified in the 2005 penalty phase hearings. See Doc. 36 at 10–11.
15
To quote the petition: “Ground Four: Trial counsel provided prejudicial ineffective assistance
during the penalty phase of Wright’s capital trial when they failed to challenge evidence argued
in aggravation. The state court’s resolution of Wright’s claim was an unreasonable application
of clearly established federal law, including Strickland v. Washington, 366 U.S. 668 (1984) and
Wiggins v. Smith, 539 U.S. 510 (2003). Further, in many respects, the state court made an
unreasonable determination of facts in light of the state court record.” Doc. 36 at 123.
40
Connelly, knocking him unconscious, and then struck him repeatedly thereafter.
Connelly was hospitalized, and went on light duty work and then retired, still
receiving mental health counseling in his retirement due to the incident. A37 at
141–48.
At the postconviction phase, Petitioner argued that his lawyers were
ineffective in not mitigating this evidence, primary by calling two inmates as
witnesses. These inmates would have testified that Petitioner was only one of
many in the Cassada attack, and that officer Connelly taunted and provoked
Petitioner prior to the attack. The state circuit court granted Petitioner a hearing on
these arguments, and found no Strickland violation. B16 at 2760–63.
At this postconviction hearing, two inmates testified that Connelly verbally
harassed Petitioner. One inmate testified Connelly started the assault by throwing
the first punch. B10 at 1692–96; B11 at 1813–28.
Petitioner’s trial counsel (handling both the jail battery cases and the instant
case) testified he was aware of the information concerning Connelly allegedly
provoking the assault, but that Connelly’s alleged provocation did not “justify a
guard being beat half to death,” and the two inmates were poor witnesses in the jail
battery trials. According to the lawyer, their “minimal mitigation” did not amount
“to a hill of beans.” B13 at 2147–48, 2171. The trial lawyer had cross-examined
Connelly intently during the aggravated battery trial, and “that had already been
41
explored” and it was not successful in front of a jury. Doc. 37 at 64–65; B13 at
2144. Before the court at the murder penalty phase, in contrast, the trial counsel
said that “I see very little profit in doing so unless the provocation were very
extreme. And, as I recall, it was not and certainly not—it wasn’t physical
provocation . . . . It was more taunting and, you know, playing games with people.”
Doc. 37 at 65; B13 at 2145. In the penalty phase, these facts were “not of the
degree that I think is mitigating.” B13 at 2147.
The Florida Supreme Court affirmed this ruling. Wright II, 213 So. 3d at
908–09, finding in part:
This claim is meritless. Competent, substantial evidence supports
the postconviction court’s findings.
First, Wright has failed to establish prejudice. None of the evidence
presented during the postconviction evidentiary hearing negates the fact
that Wright had previous convictions for battery. Furthermore, even if
those prior convictions were omitted, the trial court still considered
Wright’s contemporaneous convictions for first-degree murder of the
other victim, carjacking, kidnapping, and robbery with a firearm in
finding the prior violent felony conviction aggravating circumstance.
As the postconviction court noted, the contemporaneous convictions
were arguably more serious than the convictions Wright claims were
not properly rebutted. . . . [T]wo of the three aggravating circumstances
found below are among the weightiest aggravating circumstances. [cite
omitted] In addition, the previously undiscovered evidence concerning
the attack on Cassada would have been merely cumulative to the
concessions elicited from Cassada during penalty phase crossexamination and the evidence presented by Wright’s trial counsel.
Specifically, evidence was introduced that one other person was
convicted in connection with the attack on Cassada, and Cassada
conceded that perhaps five individuals attacked him and he did not
know whether Wright actually struck him. . . .
42
Moreover, the record reflects that Wright’s trial counsel made a
tactical decision to not present the testimony of other inmates
concerning Connelly’s alleged provocation of Wright. Wright’s trial
counsel testified that he did not consider the provocation sufficient
justification for Wright to attack Connelly, and even if it were,
presentation of such evidence would not have changed the fact that
Wright was convicted for the attack. Furthermore, Wright’s trial
counsel represented Wright in the case concerning his attack on
Connelly and presented those witnesses in that case. Thus, Wright’s
penalty phase counsel were well aware of the inmates’ testimony when
they elected to not present the inmates as penalty phase witnesses. In
addition, Wright’s lead penalty phase counsel testified that he did not
consider the inmate witnesses to be good witnesses. The decision to not
present rebuttal witnesses concerning the prior conviction for attacking
Connelly was a reasonable tactical decision.
Therefore, the
postconviction court’s findings that Wright’s counsel were not
ineffective for failing to present additional witnesses concerning
Wright’s prior battery convictions are supported by competent,
substantial evidence.
Wright II, 213 So. 3d at 908–09. This sound finding is not an unreasonable
application of clearly established federal law. “A petitioner cannot establish that
the outcome of the proceeding would have been different when ‘[t]he new
evidence largely duplicated the mitigation evidence at trial.’” Raulerson, 928 F.3d
at 999 (citing Cullen v. Pinholster, 563 U.S. 170, 200 (2011)).
43
PETITIONER’S GROUNDS FIVE AND SIX
Grounds Five and Six contend that Petitioner suffered ineffective assistance
of trial counsel by his lawyers’ failure to impeach two jailhouse informantwitnesses during trial, Wesley Durant and Byron Robinson. 16
Concerning Ground Five, witness Durant was an inmate barber at the jail.
He testified Petitioner confessed to the murders during a haircut. A26 at 3721–25.
Durant testified that jail guard Faulkner overheard this confession, told Durant he
needed to contact detectives, and Faulkner “got the ball rolling” with the homicide
detective. A26 at 3728–29. On cross examination, Petitioner’s trial counsel
elicited that Durant had ten felonies including two crimen falsi, had two pending
serious charges, was seeking “help” on his charges; refused to give a taped
statement until he got a deal, and denied seeing news reports about the case. Trial
counsel then elicited that Durant earlier admitted to seeing news reports, and
16
To quote the petition: “Ground Five: Wright received prejudicially ineffective assistance of
counsel when trial counsel failed to impeach state witness Wesley Durant. The state court’s
resolution of Wright’s claim was an unreasonable application of clearly established federal law,
including Strickland v. Washington, 366 U.S. 668 (1984). Further, in many respects, the state
court made an unreasonable determination of facts in light of the state court record.” Doc. 36 at
130.
Ground Six states: “Wright received prejudicial ineffective assistance of counsel when trial
counsel failed to impeach a jailhouse informant who indicated that he was going to commit
perjury. The state court’s resolution of Wright’s claim was an unreasonable application of
clearly established federal law, including Strickland v. Washington, 366 U.S. 668 (1984).
Further, in many respects, the state court made an unreasonable determination of facts in light of
the state court record.” Doc. 36 at 136.
44
further that Durant was mistaken about Petitioner’s hair style and his knowledge of
the codefendants. A26 at 3735–59.
At the postconviction hearing, jail guard Faulkner testified he had overheard
no haircut confession or other confession by Petitioner. B10 at 1717–19.
Petitioner’s trial counsel testified at the hearing and understood at the time “that
the officer was present and apparently the conversation was reported to him, but he
did not actually hear any admissions made by . . . the defendant. That was my
understanding. Where that came from, I’m not sure.” B13 at 2155. Trial counsel
testified that in calling any other witness beyond the defendant, he always weighed
“losing the sandwich.” That means in Florida parlance losing both opening and
rebuttal closings (i.e. closing both first and last) which former Florida procedure
entitled a defendant to do if he called no witnesses beyond himself in his case.
B13 at 2175.
Also at the postconviction hearing Durant’s nephew, an inmate, testified.
He stated that Durant is untrustworthy and a known “snitch.” B10 at 1747–48.
The nephew spoke with defense lawyers prior to trial but was never called. B10 at
1749–50.
Similarly, Ground Six asserts ineffective assistance due to failure to properly
impeach witness Robinson. Robinson testified that he was a cell mate of
45
Petitioner, and Petitioner confessed to the murders. A28 at 4201. Towards the end
of the trial, defense counsel informed the court they had recently spoken to several
jail inmates, who claimed to have information about Robinson and another state
witness. A30 at 4502–03. After Petitioner testified in his defense, defense counsel
asked for a court colloquy in which it was discussed with Petitioner whether to call
these impeachment witnesses, and it was noted on the record “that he does not
wish to present any further witnesses, thus, preserving first and last closing[.]”
A30 at 4640–43.
At the postconviction hearing four inmates testified. Doc. 36 at 137. One
testified that Robinson stated an intent to “jump into somebody’s case” to help
himself. Id. at 138. Another testified Robinson was a known “snitch” and he
heard Robinson say he was going to jump into Petitioner’s case and lie. This
witness informed Petitioner about the Robinson statements prior to trial. Two
others testified similarly. B11 at 1802–06. Trial counsel at the postconviction
hearing testified he had no recollection of his tactical reasons for not calling these
inmate witnesses, but did recall some of the inmates were facing very serious
charges and would not talk to the defense, and their testimony was of limited
value. B13 at 2148–51.
46
The postconviction court found Petitioner failed to establish either
deficiency or prejudice under Strickland concerning these witnesses. Doc. 37 at
92–97. The Florida Supreme Court affirmed, stating:
Competent, substantial evidence supports the postconviction court’s
findings that Wright has not established deficiency with regard to the
decision to not present witnesses to impeach the credibility of Durant
or Robinson. Rather, the record reflects that the decision was the
product of reasonable trial strategy. For instance, trial counsel testified
that he felt “Durant was such an easy target and so incredible” that he
was not going to look for any witnesses to impeach him. The record
further reflects that trial counsel extensively and successfully crossexamined Durant with the goal of discounting his credibility. In
addition, trial counsel testified that they rejected the presentation of
additional witnesses, with Wright’s approval, to preserve opening and
closing remarks. Moreover, trial counsel testified that he did not
consider inmates to be strong witnesses and the he did not consider their
testimony sufficient to justify sacrificing the retention of opening and
closing remarks.
Wright also did not suffer prejudice. As an initial matter, Wright
testified that he never confessed to either Durant or Robinson.
Therefore, any testimony concerning the credibility of Durant or
Robinson with regard to Wright’s alleged confession would have been
merely cumulative to Wright’s testimony.
Wright’s attorneys
extensively cross-examined each of them and even if their testimony
was completely discredited, there were still other non-prisoner
witnesses who testified that Wright confessed to them. Furthermore,
this Court has previously concluded that prejudice was not established
for failure to object to improper guilt phase prosecutorial comments
when the evidence of guilt was strong. [citation omitted] Here, the
remaining evidence of guilt was strong because, among other evidence,
Wright’s fingerprints were found on the car, he possessed the murder
weapon, and blood attributed to one of the victims was found on a shoe
attributed to Wright. Thus, this claim fails.
47
Wright II, 213 So. 3d at 909–10. This conclusion is based in controlling federal
law, is based in a fair review of the entire record, and is reasonable given the
deference due to trial counsel.
Review of these trial lawyers’ strategic decisions is done in a “highly
deferential” manner, applying “a strong presumption . . . of reasonable professional
assistance.” Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 928 (11th Cir. 2011),
(quoting Strickland, 466 U.S. at 689). Experienced trial lawyers know that
“considering the realities of the courtroom, more is not always better.” Raulerson,
928 F.3d at 998, (quoting Chandler v. United States, 218 F.3d 1305, 1319 (11th
Cir. 2000) (en banc)). Accordingly, Petitioner is not entitled to relief on Grounds
Five and Six.
PETITIONER’S GROUND SEVEN
Petitioner’s Seventh Ground claims that trial counsel was constitutionally
ineffective in failing to object to the prosecutor’s closing argument regarding
Petitioner’s character or propensity to commit violence.17 The reader will recall
the factual setting of the instant case: A weekend crime spree where Petitioner
burgled a house and did a drive-by shooting of local rival Carlos Coney with the
Ground Seven states: “Defense counsel’s failure to object to the improper argument regarding
Wright’s propensity to commit violence constituted ineffective assistance of counsel. The state
court’s resolution of Wright’s claim was an unreasonable application of clearly established
federal law, including Strickland v. Washington, 366 U.S. 668 (1984). Further, in many respects,
the state court made an unreasonable determination of facts in light of the state court record.”
Doc. 36 at 141.
17
48
stolen pistol, then kidnapped and shot the victims with the pistol, ditching their car
and needing a ride which caused him to engage in a third shooting to carjack a ride
home. Thus the admitted res gestae involved three disparate shootings in a short
period of time, all which tied Petitioner to the main murder weapon.
Petitioner contends that the prosecutor’s closing argument, which was not
objected to due to Strickland-level ineffectiveness, crossed the line from evidence
summation to an argument that Petitioner had a propensity or character for
violence. The prosecutor referred to Petitioner as a ‘hoodlum,” “murderer,” “coldblooded,” and a “criminal.” A31 at 4819, 4820, 4823, 4835; A32 at 4839, 4851.
Concerning Petitioner’s testimony about self defense in the drive-by shooting of
the rival, the prosecutor argued, “Well, that’s crap. It doesn’t make any sense. He
stole the gun on Thursday. He used the gun on Friday. He shot a man with it. He
certainly doesn’t have any problems shooting people. He shot Carlos Coney.”
A31 at 4822–23. The Petitioner also complains about other “propensity
arguments” which are set forth below.18
18
The prosecutor argued concerning Petitioner’s self-defense testimony: “When you have a
carjacking and murder like this that’s senseless, it’s an irrational act, and you cannot for the life
of you understand why that happened. You’ll never understand why T.J Wright chose to shoot
Carlos Coney or chose to shoot [the two murder victims]. It’s—it’s an irrational thing to do.”
A31 at 3824. “Carlos Coney and Bennie Joiner both know the guy. He shoots them, a man that
he knows. The man—the police come, he goes, ‘Yeah, who shot you?’ ‘T.J. Wright shot me.’
Okay, It wasn’t a mystery. So how’s he going to refute that? Say he didn’t shoot him? So he
does the next best thing. Well, I thought maybe [Coney] was going for something. You know,
you can’t believe T.J. This guy wants you to believe that somebody that he has an acrimonious
relationship with, they don’t get along, he’s driving by, sees the guy, has a gun in his car, and
49
The prosecutor’s closing was not objected to. Petitioner raised this objection
first in his direct appeal. The Florida Supreme Court addressed the matter in the
broader context of extrinsic evidence/collateral crimes. Wright I, 19 So. 3d at 295.
Concerning the prosecutor’s closing, the Wright I court addressed Florida state law
evidentiary standards. It stated, “Multiple statements that Wright ‘certain[ly]
doesn’t have any problems shooting people’ lean toward an impermissible
propensity-toward-violence argument.” Id. “[W]hen [the State] cast Wright as a
violent character who acts upon his desire to shoot people, the State abused
[favorable rulings] by inappropriately taking it beyond the edge of propriety in
contradiction of the evidence doctrine of Florida.” Id. The Florida Supreme Court
concluded that the comments were harmless error because no contemporaneous
objection was lodged, and the similarities between the related crimes did not
become a feature of the trial. Id. It concluded the unpreserved comments did not
rise to fundamental error. Id.
Petitioner asserted in his state postconviction motion that failure to object to
these prosecutorial statements in the guilt phase closing arguments was ineffective
tells his buddy turn around and go back, I want to talk to him. Bull crap. He wanted to shoot
him. That’s why he told [the driver] turn around. That’s exactly what he did. He shot him.”
A31 at 4827–28.
Later, when summing evidence related to the Winter Haven/Mendoza carjacking, the
prosecutor stated: “But the second time, when you look at this map, after he dumped [the
victims’] car on Bolender Road and went and carjacked the Mexicans, he comes up to right
there, and that’s when he flees. That’s where he shoots at Mr. Mendoza and the owner of the car
who’s since died in a car accident. That’s where he shoots at him.” A31 at 4829.
50
assistance of counsel under Strickland. Petitioner received a hearing on the merits
of this argument. Trial counsel testified that, as a general rule, he was reluctant to
object to the prosecutor’s closing argument lest the same objections be visited
upon him. He also did not tactically think it was wise to let the jury think that he is
being obstructive, and “trying to pull the wool over their eyes.” B13 at 2166.
After reviewing the transcripts, trial counsel stated in hindsight, he should have
objected to the comments. B13 at 2166–67. In denying the claim, the
postconviction court noted the state’s evidence included Petitioner’s admissions
describing his involvement, evidence that clearly tied the Petitioner to the murder
weapon, his fingerprints were on the victim’s car, and the victim’s blood was on
his shoes: “The Court finds no reasonable probability that, but for counsel’s
deficiency with regard to the un-objected to comments of the prosecutor that the
result of the proceeding would have been different.” B16 at 2748. After reviewing
the record on this point, the Florida Supreme Court found no prejudice. Wright II,
213 So. 3d at 911.
This state court holding is not contrary to or an unreasonable application of
clearly established federal law. Given the crime spree that was proven here (and
no claim is now made that collateral evidence or extrinsic evidence is grounds for
relief), the closing argument comments were factual, accurate, and a fair summary
of what the jury had heard. There is no basis for relief in this seventh ground.
51
PETITIONER’S EIGHTH AND NINTH GROUNDS
In Ground Eight, Petitioner contends his death sentence is unconstitutional
under Hurst v. Florida, 136 S. Ct. 616 (2016)19 and in his ninth ground, 20
Petitioner claims the Florida death penalty is unconstitutional under Ring v.
Arizona, 536 U.S. 584 (2002). In a nutshell, Hurst and Ring require every fact
supporting a death penalty, i.e. aggravators, etc., to be determined and found by a
jury as fact-finder, not a jury sitting as an advisory jury. In other words, all
predicates and facts to support the death penalty require a jury finding. See Hurst,
136 S. Ct. at 621–22. Hurst, which came after Ring and after Petitioner’s
sentencing, invalidated part of the Florida death penalty statute and required a full
jury finding on every contested factual element of the death penalty.
But Hurst is entirely inapt here because Petitioner elected a strategy to
forego the jury finding at the penalty phase, believing his best chances were with
the bench. Here Petitioner clearly and at length, waived his right to proceed with a
19
This ground states: “Ground Eight: Wright’s death sentence is unconstitutional under Hurst v.
Florida. The state court’s resolution of Wright’s claim was an unreasonable application of
clearly established federal law, including Hurst v. Florida, 136 S. Ct. 616 (2016), Ring v.
Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000). Further, in
many respects, the state court made an unreasonable determination of facts in light of the state
court record.” Doc. 36 at 144.
20
“Ground Nine: The trial court erred in denying Wright’s motions that the Florida’s death
sentencing statutes are unconstitutional under the fifth, sixth, and fourteenth amendments of the
United States constitution as shown in Ring v. Arizona. The state court’s resolution of Wright’s
claim was an unreasonable application of clearly established federal law, including Ring v.
Arizona, 536 U.S. 584 (2002) and Apprendi v. New Jersey, 530 U.S. 466 (2000). Further, in
many respects, the state court made an unreasonable determination of facts in light of the state
court record.” Doc. 36 at 152.
52
jury at penalty phase. He gave up his right to jury findings at the penalty stage.
Instead, he opted for strategic reasons to have the judge make findings in the
penalty phase. In effect he opted for a bench trial on that subject. The Florida
Supreme Court quite properly found “Wright knowingly, intelligently, and
voluntarily waived his right to a penalty-phase jury . . . . Wright concedes that he
waived his right to a penalty-phase jury, thus barring this claim.” Wright I, 19 So.
3d at 297. Thus Hurst and Ring afford Petitioner nothing.
One cannot fault Petitioner for opting against jury consideration at the
penalty phase. He testified at length and the jury by its verdict chose to disbelieve
every material thing he said. Further, the jury had already found the existence of
two death phase aggravators. By its verdicts of armed kidnapping with a firearm
and robbery with a firearm the jury had already established two aggravating
circumstances: 1) a previous conviction of another capital felony or one involving
the use or threat of violence to a person, and 2) commission of the murder for
pecuniary gain.
Petitioner’s main argument appears to suggest his jury trial waiver at the
penalty phase was improper and not knowing, due to ID that became apparent only
after the penalty phase was well underway. See Doc. 36 at 146–50. Although
contrary to the record as a whole, this argument cites mostly the postconviction
testimony of Petitioner’s defense lawyers. But during this extensive factual waiver
53
at the time of the penalty phase the defense lawyer stated that Petitioner was lucid,
and did understand, and did give a knowing waiver of the jury at penalty phase.
See A33 at 5092 (“[Petitioner] appears and has appeared for the last several days to
be articulate, bright, [and] aware of what’s going on in his reasoning.”). Both
defense lawyers and the defense investigator stated to the court that they had seen
nothing “which would indicate this to be other than a knowing, intelligent, and
voluntary waiver at this point[.]” Id. at 5093–94. And Petitioner’s reasons for
asking the jury to be discharged before the penalty phase were rational: Petitioner
told his lawyer “[h]e felt they didn’t like him, that they were going to recommend a
death penalty, that they had already made up their minds, they weren’t going to be
fair, and he wanted to waive his right to a jury recommendation.” Doc. 37 at 63.
Because Petitioner waived his right to a jury during the penalty phase, Hurst
and Ring do not provide Petitioner grounds for relief. The state courts’ holdings on
this matter are not contrary to or an unreasonable application of clearly established
federal law. There is no basis for relief on Grounds Eight and Nine.
PETITIONER’S TENTH GROUND
In his final ground Petitioner asserts cumulative error deprived him of a fair
trial, especially in light of the ineffective assistance of counsel he received. 21
21
“Ground Ten: Cumulative error deprived Wright of the fundamentally fair trial guaranteed
under the sixth, eighth, and fourteenth amendments. The state court’s resolution of Wright’s
claim was an unreasonable application of clearly established federal law, including Strickland v.
54
Although this ground does appear to be exhausted, it contains no content in the
amended petition, nor substantive content in the memorandum, beyond matters
already considered and found to be wanting. Doc. 36 at 154–56; Doc. 38 at 73–75.
In his memorandum, Petitioner argues that the Florida Supreme Court, in
reviewing this ground, adopted a “nonsensical standard of proof for cumulative
error claims . . . .” Doc. 38 at 73. The amended petition fails entirely to state
which errors, insufficient in themselves but cumulatively sufficient, exist or fall
under this ground. In the undersigned’s view, this non-list is not surprising.
Petitioner received an energetic, detailed, and vigorous defense, handled with
thoughtfulness and fairness by the Florida state courts. There were no errors
presented that could cumulate or conglomerate to create a grounds for relief under
ground number ten.
The amended petition is without merit and denied. No issue or ground
presented would give reasonable jurists cause to conclude there is any basis for
relief or any portion with merit. Title 28 U.S.C. § 2253(c)(2) permits the Court to
issue a certificate of appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.” That showing has not been made
here. See generally Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.
Washington, 366 U.S. 668 (1984). Further, in many respects, the state court made an
unreasonable determination of facts in light of the state court record.” Doc. 36 at 154.
55
Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Therefore, the undersigned denies a
certificate of appealability, and denies a request to proceed on appeal in forma
pauperis. Petitioner must obtain permission from the court of appeals to proceed
in forma pauperis.
DONE AND ORDERED at Tampa, Florida, on August 19, 2020.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
56
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