Davis v. Dept of Corrections

Filing 19

REPORT AND RECOMMENDATIONS on 28 USC 2254 case re 1 Application/Petition (Complaint) for Writ of Habeas Corpus filed by Jerry Davis, & 11 Amended Complaint Recommending that this petition for habeas corpus relief be denied. Objections to R&R due by 10/1/2009. Signed by Magistrate Judge Patrick A. White on 9/14/2009. (br)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-60874-Civ-COHN MAGISTRATE JUDGE P. A. WHITE JERRY DAVIS, Petitioner, v. WALTER A. McNEIL, : : : : REPORT OF MAGISTRATE JUDGE

Respondent. : ______________________________ Introduction Jerry Davis has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254, challenging the constitutionality of his conviction for aggravated battery entered in Broward County Circuit Court, case no. 03-5866CF10A. This Cause has been referred to the undersigned for

consideration and report pursuant to 28 U.S.C. §636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts. For its consideration of this petition (DE#1), the Court has the response of the state to an order to show cause with multiple exhibits (DE#s16,18,19), and the petitioner's reply (DE#24). The petitioner raises the following 16 claims: 1. He was denied effective assistance of counsel, where his lawyer waived his presence at depositions. He is entitled conviction based to vacatur of his on the prosecution's

2.

Brady1 violation. 3. He was denied effective assistance of counsel, where his lawyer failed to make a contemporaneous objection to strike a prospective juror, and for failing to move for a mistrial prior to the jury being sworn in. He was denied effective assistance of counsel, where his lawyer failed to subpoena eye-witness Karen Duffy and Raul Gomez to testify as defense witnesses at trial. He was denied effective assistance of counsel, where his lawyer failed to object to Detective Anthony Constanzo's testimony regarding the victim's injury. He was denied effective assistance of counsel, where his lawyer failed to secure the Home Depot surveillance video and have it played to the jurors. He was denied effective assistance of counsel, where his lawyer failed to subpoena the emergency room physician who treated the victim in order to establish that the victim's injuries were minor. He was denied effective assistance of counsel, where his lawyer failed to request additional peremptory challenges during the jury selection process. He was denied effective assistance of counsel, where his lawyer failed to impeach the victim with a prior inconsistent statement. He was denied effective assistance of counsel, where his lawyer misadvised him regarding the prosecution's use of the petitioner's prior convictions during trial if the petitioner exercised his constitutional right to testify on his

4.

5.

6.

7.

8.

9.

10.

1

Brady v. Maryland, 373 U.S. 83 (1963).

2

own behalf. 11. His constitutional rights were violated by the court who delegated to the prosecution the discretion to rule on a crucial request from the defense. The prosecution withheld crucial evidence in violation of Giglio2. He was denied effective assistance of counsel, where his lawyer failed to object to the prosecutorial misconduct during closing argument. He was denied effective assistance of counsel, where his lawyer made improper comments during closing argument. His constitutional rights were violated when the prosecution had the victim make an improper show-up identification. His constitutional rights were violated when the court denied the petitioner's judgment of acquittal and refused to reduce the petitioner's charge to battery at the close of the prosecution's case, and at the close of all of the evidence. Procedural History The procedural history of the underlying state court

12. 13.

14.

15.

16.

convictions reveals as follows. On April 18, 2003, the petitioner was charged by Information with the aggravated battery with a deadly weapon of Henry Palmer (Count 1), and the robbery with a deadly weapon of Henry Palmer (Count 2). (DE#17:Ex.1). The petitioner proceeded to trial where he was found guilty as to Count 1, and acquitted as to Count 2, following a jury verdict. (DE#17:Ex.3). He was adjudicated guilty and sentenced as a habitual felony offender and a prison releasee reoffender to a term of 30
2

Giglio v. United States, 405 U.S. 150 (1972).

3

years

in

prison,

with

a

minimum

mandatory

of

15

years.

(DE#17:Ex.7). While a request for a belated appeal was still pending, the petitioner returned to the state court filing a motion to correct illegal sentence pursuant to Fla.R.Cr.P. 3.800(b)(2) challenging the constitutionality of his sentence pursuant to Blakely v. Washington, 524 U.S. 296 (2004). (DE#17:Ex.11). On May 16, 2005, the trial court entered an order denying the motion based on the state's response thereto. (DE#17:Exs.12-13). Meanwhile, the petitioner's request for a belated appeal was granted, and on direct appeal, he raised two claims of trial court error, arguing that the court erred by denying his request to withdraw a accepted peremptory challenge and then backstrike a previously and that his prison releasee reoffender and juror,

habitual felony offender sentences violated his constitutional rights. (DE#17:Ex.14). On March 15, 2006, the Fourth District Court of Appeal affirmed the petitioner's conviction and sentence in a published opinion. Davis v. State, 922 So.2d 454 (Fla. 4 DCA 2006); (DE#17:Ex.16). Discretionary review was denied by the Florida Supreme Court on September 13, 2006. Davis v. State, 939 So.2d 1058 (Fla. 2006); (DE#17:Ex.24). The judgment of conviction became final, for purposes of the federal AEDPA's one year statute of limitations, at the latest on December 13, 2006, ninety days following the affirmance of the convictions and sentences on direct appeal.3

3 For federal purposes, a conviction is final when a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); accord, Bond v. Moore, 309 F.3d 770 (11 Cir. 2002); Coates v. Byrd, 211 F.3d 1225 (11 Cir. 2000). Ordinarily, a petition for writ of certiorari must be filed within 90 days of the date of the entry of judgment, rather than the issuance of a mandate. Supreme Court Rule 13.

4

Prior

to

his

conviction

becoming

final,

the

petitioner

returned to the state court filing his first Rule 3.850 motion for postconviction relief raising claims one through nine of this federal petition, as listed above. (DE#17:Ex.25). During its pendency, he then filed his first motion to amend, adding claims ten through twelve of this federal petition, as listed above. (DE#17:Ex.26). Another motion to amend was filed, adding claims thirteen through fifteen, as listed above. (DE#17:Ex.27). Yet another motion to amend was filed, raising claim sixteen, as listed above. (DE#17:Ex.28). On March 8, 2007, after receipt of the state's response to the Rule 3.850 motion and amendments, the trial court entered an order denying the motion based on the state's response. (DE#17:Ex.30). That denial was per curiam affirmed by the Fourth District Court of Appeal on July 18, 2007 without written opinion and without requiring a response from the prosecution. Davis v. State, 961 So.2d 955 (Fla. 4 DCA 2007)(table); (DE#17:Ex.32). On July 31, 2007, the petitioner next filed a state petition for writ of habeas corpus, raising three claims of ineffective assistance of appellate counsel on direct appeal, for failing to assign as error claims 10, 15, and 16 of this federal petition. (DE#17:Ex.34). On August 17, 2007, the Fourth District Court of Appeal denied the petition on the merits. (DE#17:Ex.35). On October 5, 2007, the petitioner filed a second Rule 3.850 motion re-asserting claims 1, 4, 10, and 14 of this federal petition, response as listed above. (DE#17:Ex.36). that the The be state filed a as thereto, arguing should dismissed

successive and an abuse of procedure. (DE#17:Ex.37). On January 2, 2008, the petitioner filed a motion to amend, reasserting claim 7 of this federal petition. (DE#17:39). On January 4, 2008, the trial court entered an order dismissing the second Rule 3.850 motion for 5

the reasons set forth in the state's response. (DE#17:Ex.38). On January 15, 2008, the trial court also dismissed the petitioner's motion to amend on the basis that it was a successive Rule 3.850 motion. (DE#17:Ex.40). Those dismissals were subsequently per curiam affirmed by the Fourth District Court of Appeal without written opinion. Davis v. State, 980 So.2d 1079 (Fla. 4 DCA 2008)(table); (DE#17:Ex.42). The mandate issued on May 30, 2008. (DE#17:Ex.43). On June 1, 2008, the petitioner then came to this court timely filing this federal habeas corpus petition, raising seventeen claims challenging the trial court's rulings and counsel's effectivenss.4 (DE#1). A more concise amended petition was filed on August 27, 2008, re-asserting the same claims as listed above. (DE#11). The petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Consequently, post-AEDPA law governs this action. Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 1664, 167 L.Ed.2d 585 (2007); Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n .9 (11 Cir. 2007). The respondent concedes correctly that this petition was filed within the one-year limitations period of 28 U.S.C. §2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Artuz v. Bennett, 531 U.S. 4 (2000) (pendency of properly-filed state postconviction proceedings tolls the AEDPA limitations period). It is axiomatic that issues raised in a federal habeas corpus petition must have been fairly presented to the state courts and thereby exhausted prior to their consideration on the merits.

4 See: Adams v. United States, 173 F.3d 1339 (11 Cir. 1999) (prisoner's pleading is deemed filed when executed and delivered to prison authorities for mailing).

6

Anderson v. Harless, 459 U.S. 4 (1982);

Hutchins v. Wainwright,

715 F.2d 512 (11 Cir. 1983). Exhaustion requires that a claim be pursued in the state courts through the appellate process. Leonard v. Wainwright, 601 F.2d 807 (5 Cir. 1979). Both the factual substance of a claim and the federal constitutional issue itself must have been expressly presented to the state courts to achieve exhaustion for purposes of federal habeas corpus review. Baldwin v. Reese, 541 U.S. 27 (2004); Gray v. Netherlands, 518 U.S. 152 (1996); Duncan v. Henry, 513 U.S. 364 (1995); Picard v. Connor, 404 U.S. 270 (1971). These principles will be discussed when relevant in connection with the petitioner's individual claims infra. Facts Adduced At Trial For an appreciation of the plethora of issues raised in this habeas proceeding, a full review of the facts adduced at trial is essential. The victim, Henry Palmer, testified that on April 7, 2003, he was employed as a loss prevention officer at Home Depot, when he observed the petitioner enter and exit through the store's contractor door on several occasions with nothing in his hands. (T.167-170,197).5 Palmer observed the petitioner go to different areas of the store, opening items and then putting them back within a few minutes. (T.171-174). At one point, Palmer observed the petitioner put some merchandise from three or four packages in the front pockets of his shorts. (T.173-174). Although Palmer attempted to determine what had been taken, he was unable to do so, but did notify the assistance manager that the petitioner had been stealing, and also followed the petitioner out of the store. (T.174,177).

5 The letter "T" in this Report, followed by a page number, refers to the trial transcripts in the state forum. The trial transcripts have been provided by the respondent and filed as Exhibit 2 to the appendix. See DE#17.

7

After catching up with the petitioner about six feet outside the entrance to the store, Palmer identified himself and asked to see what was in the petitioner's pocket. (T.175). The petitioner responded by pulling out a box cutter and swiping at Palmer. (T.175-76). Palmer stepped back, but not before being cut, which ultimately required 23 stitches, both internal and external. (T.175,183-84). At that point, however, Palmer did not realize he had been hurt, and continued to follow the petitioner, who kept telling Palmer to leave him alone. (T.178-180). The petitioner then picked up a rock or branch, threatening Palmer with it. (T.176). Meanwhile, a store manager and other personnel had arrived. (T.180). When the manager attempted to grab the petitioner, Palmer cautioned him to be careful as the petitioner had a knife. (T.182). Although the manager may have pushed the petitioner into some bushes, the petitioner was able to get up and run across the street. (T.182-83). Palmer was able to identify the petitioner in court as the individual who cut him.6 (T.193,195). Joseph Griffin, the Home Depot Garden Department Supervisor, and Brian Grannenann, the Assistant Store Manager, testified that they were notified that Palmer needed help in the parking lot. (T.223-224,254-56). Griffin observed the petitioner and Palmer struggling, with the petitioner wielding and swinging a rock at Palmer. (T.225). When Griffin got closer, he grabbed Palmer, pulling him away from the petitioner, at which time, the petitioner then ran with the rock still in his hand. (T.225-26). Griffin and Palmer, however, gave chase, catching up to the petitioner, with Palmer pushing the petitioner to the ground. (T.226). The petitioner however was able to get up and then lunged at Palmer, slicing him across the chest. (T.228). Griffin testified he first saw the knife by the bushes. (T.243).

At trial, Palmer denied being influenced by anyone in making the in-court identification .(T.195-96).

6

8

Grannenann testified however, he first observed the petitioner in the parking lot, during which he was already engaged in a confrontation with Palmer. (T.257-258). He recalled that the petitioner had a large stone or piece of concrete in his hand, motioning as if to throw it. (T.258). Eventually, Grannenann observed the petitioner with a box cutter in his hand, motioning for everyone to step back as he walked towards the bushes. (T.260). Both Griffin and Grannenann followed the petitiner into a small, wooded area near Sunrise Boulevard. (T.262-264,230-31). When the police eventually arrived, both told relayed what had occurred. (T.232). Later, both Griffin and Grannenann identified the petitioner as the assailant. (T.264-65,232). Deputy William Chorba testified that he got a dispatch, which included a description of the assailant, when he observed the petitioner walking breathlessly along some railroad tracks. (T.322323). The petitioner was ordered to stop and get on the ground, which he did. (T.323-24). Eventually, the petitioner was handcuffed and arrested. (Id.). Discussion of the Claims Turning to the merits of the claims raised in the collateral proceeding, Section 104(d) of the AEDPA [28 U.S.C. §2254(d)] sets out a significant new restriction upon the ability of federal courts to grant habeas corpus relief. Under the AEDPA, the standard of review "is `greatly circumscribed and highly deferential to the state courts.' Crawford v. Head, 311 F.3d 1288, 1295 (11 Cir. 2002)." Stewart v. Sec'y Dep't of Corr., 476 F.3d 1193, 1208 (11 Cir. 2007). See also Parker v. Sec'y Dep't of Corr., 331 F.3d 764 (11 Cir. 2003). The AEDPA altered the federal court's role in reviewing state prisoner applications in order to "prevent federal 9

habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). A federal court must afford a high level of deference to the state court's decision. See Ferguson v. Culliver, 527 F.3d 1144, 1146 (11 Cir. 2008); Parker v. Sec. Dept. of Corrections, 331 F.3d at 768. Consequently, a federal court may not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the state court's 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 statutory phrase "clearly established Federal law" "refers to the holdings, as opposed to the dicta, of [the U.S. Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000)(majority opinion by O'Connor, J.). "[A] state court's decision is not `contrary to ... clearly established Federal law' simply because the court did not cite [Supreme Court] opinions.... [A] state court need not even be aware of [Supreme Court] precedents, `so long as neither the reasoning nor the result of the state-court decision contradicts them.'" Mitchell v. Esparza, 540 U.S. 12, 16 (2003)(quoting Early v. Packer, 537 U.S. 3, 7-8 (2002). Even where a state court denies an application for post-conviction relief without written opinion, that decision constitutes an "adjudication on the merits," and is thus entitled to the same deference as if the state court had entered written findings to support its decision. See Wright v. 10

Sec. of Dep't of Corr., 278 F.3d 1245, 1255 (11 Cir. 2002). Moreover, findings of fact by the state court are presumed correct, and the petitioner bears the burden of rebutting that presumption of correctness by clear and convincing evidence. See 28 U.S.C. §2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005); Crowe v. Hall, 490 F.3d 840, 844 (11 Cir. 2007), cert. denied, 889-90 (11th Cir. 2003). As will be demonstrated in more detail infra, the petitioner is not entitled to vacatur on any of the claims presented.7 When viewing the evidence in this case in its entirety, the alleged errors raised in this collateral proceeding, neither individually nor cumulatively, infused the proceedings with unfairness as to deny the petitioner a fundamentally trial and due process of law. The petitioner therefore is not entitled to habeas corpus relief. See Fuller v. Roe, 182 F.3d 699, 704 (9 Cir. 1999)(holding in federal habeas corpus proceeding that where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation), overruled on other grounds, Slack v. McDaniel, 529 U.S. 473, 482 (2000). See also United States v. Rivera, 900 F.2d 1462, 1470 (10 Cir. 1990)(stating actual that "a to not cumulative-error apparent analysis the aggregates result of only the errors were U.S. , 128 S.Ct. 2053 (2008); Henderson v. Campbell, 353 F.3d 880,

determine their cumulative effect."). Contrary to the petitioner's assertions, proceedings fundamentally unfair or unreliable. See Lockhart v. Fretwell, 506

7 Briefly, as narrated previously in this Report, the evidence against the petitioner was more than sufficient to support his convictions. The petitioner has not shown that the result of the trial or appeal would have been affected had counsel proceeded differently. In other words, no deficient performance or prejudice pursuant to Strickland has been established arising from any of the claims raised in this collateral proceedings, nor has a denial of due process been demonstrated. To the contrary, it is clear after independent review of the record that the petitioner received a fair trial, and that no constitutional violations occurred. Consequently, he has failed to demonstrate that he is entitled to habeas corpus relief in this collateral proceeding.

11

U.S. 364, 369-70 (1993). Regarding the majority of the ineffective assistance of

counsel claims raised herein, in

order to prevail as to those

claims, the petitioner must establish: (1) deficient performance that his counsel's representation fell below an objective standard of reasonableness; and (2) prejudice - but for the deficiency in representation, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984); Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000)(en banc). The standard is the same for claims of ineffective assistance on appeal. Matire v. Wainwright, 811 F.2d 1430, 1435 (11 Cir. 1987). A court may decline to reach the performance prong of the standard if it is convinced that the prejudice prong cannot be satisfied. Id. at 697; Waters v. Thomas, 46 F.3d 1506, 1510 (11 Cir. 1995). Prejudice in the sentencing context requires a showing that the sentence was increased due to counsel's error. Glover v. United States, 531 U.S. 198, 203-204 (2001). The Eleventh Circuit reviews an attorney's performance with deference, and looks not for "what is prudent or appropriate, but only what is constitutionally compelled." Hardwick v. F.3d 1127, 1161 (11 Cir. 2003), citing Chandler v. Crosby, 320 United States,

218 F.3d 1305, 1313 (11 Cir. 2000) (en banc)(When assessing a lawyer's performance, "Courts must indulge the strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment."). The court's role in reviewing ineffective assistance of counsel claims is not to "grade a lawyer's performance; instead, [the court] determine[s] only whether a lawyer's performance was within the wide range of professionally competent assistance." Van Poyck v. Florida Dept. of Corrections, 290 F.3d 1318, 1322 (11 12

Cir.), cert. den'd,___ U.S. ___, 123 S.Ct. 70 (2002), quoting, Strickland v. Washington, supra at 690. Review of counsel's conduct is to be highly deferential. Spaziano v. Singletary, 36 F.3d 1028, 1039 1220 (11 (11 Cir. Cir. 1994), and second-guessing should at of the an attorney's presume performance is not permitted. White v. Singletary, 972 F.2d 1218, 1992)("Courts start effectiveness and should always avoid second-guessing with the benefit of hindsight."); Atkins v. Singletary, 965 F.2d 952, 958 (11th Cir. 1992). In claim one, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer waived his presence at depositions. According to the petitioner, he advised counsel he wanted to be present during depositions so that he could discuss areas of examination that needed to be explored, as well as conflicts in the testimony of the deponent with that of the victim. (DE#17:Ex.25:2-3). When the identical claim was raised in the Rule 3.850

proceeding, it was denied by the trial court, based on the state's response, which argued as follows:
...this matter is legally insufficient. The defendant has not identified which depositions he allegedly wished to attend or demonstrated how his absence allegedly prejudiced the defense. Cf., Aldridge v. Wainwright, 777 Cir. 1985)(defendant failed to F.2d 630 (11th demonstrate prejudice from counsel's failure to take depositions, where no demonstration what depositions would have revealed). Further the record reflects that, during trial, Davis' attorney particularly noted that the defendant has been participating in the entire trial, and taking notes to assist her. (See Attachment A; Relevant Excerpts of Trial [R163-387] at R339-340). As neither deficient performance of counsel nor prejudice has been demonstrated, this claim for relief should be summarily DENIED in all respects.

(DE#17:Exs.29:3-4;Ex.30).

That

denial

was

subsequently

per

curiam affirmed on appeal. Davis v. State, 961 So.2d 955 (Fla. 4th 13

DCA 2007)(table); (DE#17:Ex.32). It does not appear from the record that the depositions in this case were taken for the purpose of perpetuating testimony to be introduced at trial, nor has the petitioner alleged that this was the purpose for the depositions taken in this case. Therefore, under Florida's general rule of criminal discovery, Fla.R.Cr.P. 3.220, the petitioner clearly had no unconditional right to be physically present during the taking of the discovery depositions in his case. See Fla.R.Cr.P. 3.220(h)(7). Florida's discovery rule, as it relates to pretrial discovery depositions, provides as follows:
(7) Defendant's Physical Presence.-A defendant shall not be physically present at a deposition except on stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant on a showing of good cause. The court may consider (A) the need for the physical presence of the defendant to obtain effective discovery, (B) the intimidating effect of the defendant's presence on the witness, if any, (C) any cost or inconvenience which may result, and (D) any alternative electronic or audio/visual means available.

Fla.R.Cr.P. 3.220(h)(7). Consequently, the state trial court's decision denying relief was objectively reasonable, and did not result in a decision that was contrary to, or involved an unreasonable application of, the Strickland standard, nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Even if the petitioner had been present at the depositions, no showing has been made that this would have, in fact, altered the outcome of the trial, especially in light of the petitioner's identification by numerous eyewitnesses to the incident. Thus, the state court's 14

rejection of this claim should not be disturbed here. Williams v. Taylor, supra. In claim two, the petitioner asserts that he is entitled to vacatur of his conviction based on the prosecution's Brady8 violation. According to the petitioner, the prosecution withheld the hospital records and photographs of the victim's injury which he claims without further elaboration that they would have provided exculpatory information. (DE#17:Ex.25:4). In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court established three criteria a criminal defendant must prove in order to establish a a violation of due must process resulting (1) from that the the prosecution's withholding of evidence. Specifically, the defendant alleging Brady violation demonstrate prosecution suppressed evidence, (2) that the evidence suppressed was favorable to the defendant or exculpatory, and (3) evidence suppressed was material. F.2d 1556, 1558 (11 Cir. 1986). This duty covers that the not only United States v. Severdija, 790

exculpatory material, but also information that could be used to impeach a key government witness. Giglio v. United States, 405 U.S. 150, 154 (1972). Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Stewart, 820 F.2d 370, 374 (11 Cir. 1987), quoting, United States v. Bagley, 473 U.S. 667, 682 (1985). A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome. United States v. Alzate, 47 F.3d 1103, 1109-1110 (11th Cir. 1995), quoting, United States v. Bagley, 473 U.S. 667, 682 (1985).

8

Brady v. Maryland, 373 U.S. 83 (1963).

15

In this case, the petitioner cannot satisfy any prong under Brady. First, as correctly argued by the prosecution in the Rule 3.850 proceeding, the claim is not only legally insufficient, but also fails on the merits. First, no showing has been made either in the state forum or this habeas proceeding that the subject evidence regarding the victim's injury was exculpatory, much less material. To the contrary, at trial, the jury was able to observe first hand the scar left by the gash caused by the petitioner, which resulted in the victim receiving 23 stitches. Moreover, the record reveals that the defense was adequately prepared for trial regarding the victim's injury in that Palmer was not only deposed by the defense (DE#18:Ex.37-Depo.Palmer:24-37), but also Palmer was questioned at length both during his deposition and at trial regarding the nature of his wound and the medical care received. (T.359-362). Likewise, other prosecution witnesses testified regarding this event, and their observations of the wound itself. (T.176-184,196,226-229,26062,293-94). It is therefore evident that even if the prosecution failed to disclose the subject information, this would not have affected the outcome of the trial. Rather, it might have been more inculpatory than exculpatory because it would have affirmed the victim's testimony regarding the nature and extent of his wounds. When the claim was raised in the Rule 3.850 proceeding, the trial court denied the claim based on the state's response thereto, which argued in pertinent part as follows:
...The State would contend this claim is legally insufficient. There was has been no showing that the State possessed and/or `withheld' these matters from the defense, and it is clear that the defense could have obtained these records through due diligence, given the fact that Davis' counsel deposed the victim, Henry Palmer, and Palmer testified in detail concerning his wound and the medical treatment he had received for it.... Further, the State would contend that Davis has failed to demonstrate that these matters were at all material. While the defendant was charged with aggravated battery,

16

the prosecution's theory was that Davis had committed such act by his use of a deadly weapon, to-wit: a box cutter, to slash the victim, and/or his causing the victim permanent disfigurement, by virtue of the fact that the slash that the defendant had made to the victim's chest, with said box cutter, had resulted in a permanent scar....Davis has failed to demonstrate that the contents of Palmer's medical records would have contained any material evidence which would have created a reasonable probability of a different trial result, and, accordingly, this claim for relief should be summarily DENIED in all respects.

(DE#17:Ex.37:4-5). Under the totality of the circumstances present here, even if the prosecution had produced the photographs of the victim's injury and the hospital records where the victim received treatment for his injury, and further assuming counsel had introduced this evidence at trial, no showing has been made that it would have affected the guilt phase portion of the trial. Consequently, the rejection of the claim in the state forum was not in conflict with clearly the established court federal law or based must on an unreasonable be denied determination of the facts in light of the evidence presented in state proceeding. Relief therefore pursuant to 28 U.S.C. §2254(d). (2000). To the extent the petitioner further argues that the evidence was essential to discredit or otherwise impeach the eyewitnesses, no showing has been made in the state forum or in this habeas proceeding that any of the witnesses testified falsely nor that the prosecution suborned perjury. A different and more defense-friendly standard of materiality applies where the prosecutor knowingly used perjured testimony, or failed to correct what he subsequently learned was false testimony. Where either of those events has happened, the falsehood is deemed to be material "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 17 Williams v. Taylor, 529 U.S. 362

103 (1976) (emphasis added); accord, Giglio v. United States, 405 U.S. 150, 154 (1972); Napue v. Illinois, 360 U.S. 264, 271 (1959). As the Supreme Court has held, this standard of materiality is equivalent to the Chapman v. California, 386 U.S. 18, 24 (1967), "harmless beyond a reasonable doubt" standard. Bagley, 473 U.S. at 679, n. 9. In this case, no such showing has been made. The victim testified regarding his recollection of the events, and was subject to vigorous has cross-examination been made that it by the defense. have Even if, from as the maintained by the petitioner, these items had been provided, no showing would differed testimony adduced at trial. To the contrary, it is not unreasonable to conclude that the evidence would have been more harmful than beneficial to the defense. Consequently, this claim fails on the merits and supra. In claim three, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer failed to make a contemporaneous objection to strike a prospective juror, and for failing to move for a mistrial prior to the jury being sworn in. According to the petitioner, venireperson Raphael Santiago gave an unfavorable answer to a voir dire question, which should have resulted in the entire venire panel being dismissed. (DE#25:5). The trial transcript reveals that venireperson Santiago should not be disturbed here. See Williams v. Taylor,

initially indicated during questioning by the prosecutor that, given his profession as a television cameraman, he could not be impartial because "the chances are that individuals who are appearing in criminal court are on the wrong side of the law." (T.59). Immediately thereafter, a motion was made by counsel for another defendant, joined in by petitioner's counsel, to strike the panel and for a mistrial, but the request was denied by the trial court as premature, who then read the presumption of innocence 18

instruction

to

the

venire

panel.

(T.59-63,88-127).

Moreover,

petitioner's counsel inquired of the panel whether anyone else shared Santiago's views, to which prospective juror Ruoss stated he agreed with Santiago, but that he could "presume innocence." (T.89). Review of the record reveals that no other prospective juror agreed with Santiago's views, nor did they indicate an inability to follow the court's presumption of innocence instruction, as well as the burden of proof. Moreover, Ruoss was stricken by the prosecution and Santiago was stricken by the defense. (T.116-17). Furthermore, at the conclusion of the jury selection process, but prior to their being sworn in, a colloquy was conducted on the record wherein the petitioner, in response to the court's questions, indicated under oath that he was satisfied with the jury selection process, but for jurors Seabright and Solberg, and was satisfied with counsel's services in this regard. (T.124-125). At no time did the petitioner express discontent with counsel's actions regarding Santiago and Ruoss. Under these circumstances, where the jurors in question were stricken from the panel, and where the other prospective jurors indicated that they could follow the court's presumption of innocence instruction, no showing has been made in the state forum nor in this habeas proceeding that further argument by counsel regarding striking the entire venire panel or seeking a mistrial would have been successful. Consequently, absent a showing of prejudice under Strickland, the state postconviction court's conclusion that "it is entirely speculative whether any renewed motion to strike the panel would have been granted, especially as the record fails to offer any support for such motion," and therefore "no viable claim of ineffective assistance of counsel has been presented," is neither contrary 19 to nor an unreasonable

application

of

federal

constitutional

principles.

Strickland,

supra. Consequently, this claim should be denied. Williams v. Taylor, supra. In claim four, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer failed to subpoena eye-witness Karen Duffy and Raul Gomez to testify as defense witnesses at trial. According to the petitioner, these two witnesses' account of the incident was entirely at odds with that of the victim. (DE#17:Ex.25:6-7). The petitioner has provided no affidavit in the state forum, nor in this habeas proceeding, to establish that the witnesses would have testified favorably for the defense. Such a bare and conclusory allegation, bereft of record support, is subject to summary dismissal. Machibroda v. United States, 368 U.S. 487 (1962). To the contrary, as conceded correctly by the petitioner in the state forum, counsel was not ineffective for advising him that these witnesses would have provided corroboration that the petitioner was, in fact, in an altercation with the victim Palmer. Federal law clearly holds that tactical or strategic choices like the one complained of here cannot support a collateral claim of ineffective assistance. McNeal v. Wainwright, 722 F.2d 674 (11 Cir. 1984); United States v. Costa, 691 F.2d 1358 (11 Cir. 1982); see also United States v. Hughes, 635 F.2d 449, 452 11th Cir. 1981). When the claim was raised in the Rule 3.850 proceeding, the trial court denied the claim based on the prosecution's response, which argued in pertinent part as follows:
...The record reflects that prior counsel had deposed all three of these individuals, and that none of them

20

could have offered testimony which would have materially impeached the victim. (See Attachment D; Depositions of Kareyn Duffy, Raul Gomez and Pedro Leon). Further, it should be noted that, at the trial, Davis not only declined to testify on his own behalf, but also stated that he did not wish defense counsel to present another available witness, because he wished defense counsel to maintain the `sandwich' closing argument position (see Attachment A; Transcript at R336-340), an option he would have lost, had these witnesses testified. Accordingly, no viable claim of ineffective assistance of counsel has been presented, and this claim for relief should be summarily DENIED in all respects.

(DE#17:Ex.29:6-7). Independent prosecution's review 3.850 of the depositions reveals attached that the to the

Rule

response

subject

witnesses recounted their observation that the petitioner was, in fact, engaged in an altercation with Palmer, swinging something at him. (See: Depo. not Duffy:11; be Depo.Gomez:9-10). here. Under these these circumstances, counsel's strategic decision not to call these witnesses should second-guessed Moreover, witnesses would not have cast doubt on the evidence adduced at trial so that there testimonies would not have affected the guilt phase portion fo the trial. Consequently, no prejudice has been established pursuant to Strickland resulting from counsel's failure to call them to testify as a defense witnesses. Finally, the petitioner's proffered testimony that the

witnesses would have provided contradictory evidence regarding their recollection of the incident does not alter the outcome of the proceedings, given the evidence adduced at trial. See Fugate v. Head, 261 F.3d 1206, 1239, n.54 (11th Cir. 2001)(fact that other witnesses could have been called proves only that short-comings of trial counsel can be identified, is not while the shortcomings of can be identified, perfection standard effective

assistance). Thus, the state court's rejection of this claim should not be disturbed here. Williams v. Taylor, supra. 21

In claim five, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer failed to object to Detective Constanzo's testimony regarding the extent and severity of the victim's injury. According to the petitioner, the

detective should have been precluded from testifying in this regard because the detective was not a "medical expert." (DE#17:Ex.25:7). When the identical claim was raised in the Rule 3.850

proceeding, it was denied based on the state's response, which argued that the claim was "legally insufficient" because the record reflected that the detective was dispatched to the scene and testified as to his own observations of Palmer's wound. (DE#17:Ex.29:7). This conclusion was not error, as the record reveals that the detective indicated that Palmer received "a laceration to his left pec, probably about four or five inches long and cut all the way down to the muscle." (T.294). According to the detective, he observed that the wound was "wide open, probably about two inches and you could see, you know, cut through the skin through the fat layer and then the actual muscle, you could see underneath." (T.294). During cross examination, the detective acknowledged that in his incident report "minor laceration" was reflected regarding the victim's injuries, but explained that if "you don't hit the box right, you get what you don't want." (T.300). However, during redirect, the detective further clarified that in the report, he did detail the nature and extent of the injury the victim received, including that the victim had received stitches and was transported by ambulance to the hospital. (T.304). On the record before this court, no prejudice has been established arising from counsel's failure to further object to or cross-examine the detective regarding his recollection of the victim's injury. Moreover, the defense capitalized on the reference 22

to a "minor laceration" during closing argument in support of the theory that the prosecution had failed to establish the charge of aggravated battery. However, as was the prerogative of the jury, it rejected the defense presented and instead believed the strong evidence admitted by the state. Consequently, the rejection of the claim in the state forum was not contrary to nor an unreasonable application of federal constitutional principles and should therefore not be disturbed here. Williams v. Taylor, supra. In claim six, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer failed to secure the Home Depot surveillance video and have it played to the jurors. According to the petitioner, had this video been introduced into evidence at trial, the jury could have viewed it and then weighed the credibility of the prosecution witnesses. (DE#17:Ex.25:8). The claim was rejected by the trial court, based on the prosecution's response that it was "legally insufficient" and alternatively, that no showing had been made that an actual videotape of the incident exists." (DE#17:Ex.26:7). To the contrary, the victim explained that the store had surveillance cameras inside the store, but none outside, which is where the incident occurred. (T.175-78,206-07). Consequently, on the record before this court, neither deficient performance nor prejudice has been established arising from counsel's failure to pursue this issue. The state court's rejection of the claim should not be disturbed here. Williams v. Taylor, supra. In claim seven, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer failed to subpoena the emergency room physician who treated the victim in order to establish that the victim's injuries were minor, and not the result of being slashed. 23

As in claim four above, the petitioner has provided no affidavit in the state forum, nor in this habeas proceeding, to establish that the physician would have testified as proffered. Such a bare and conclusory allegation, bereft of record support, is subject to summary dismissal. Machibroda v. United States, 368 U.S. 487 (1962). To the contrary, it is evident that the laceration was not minor as it required 23 stitches, both internally and externally. In fact, the physician's testimony in this regard could have actually hurt the defense because it would have drawn attention to the gruesome nature of the injury and whether it could have been fatal or not. Federal law clearly holds that tactical or strategic choices like the one complained of here cannot support a collateral claim of ineffective assistance. McNeal v. Wainwright, 722 F.2d 674 (11 Cir. 1984); United States v. Costa, 691 F.2d 1358 (11 Cir. 1982); see also United States v. Hughes, 635 F.2d 449, 452 11th Cir. 1981). When the claim was raised in the state Rule 3.850 proceeding, it was denied on the finding that the petitioner had failed to establish that had the physician been called, the outcome of the proceeding would have been different. (DE#17:Ex.29-30). In other words, that the petitioner would have been acquitted of all charges. Under the circumstances present here, that finding was not error and should not be disturbed here. Williams v. Taylor, supra. In claim eight, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer failed to request an additional peremptory challenge during the jury selection process, after exhausting the ten challenges provided by the court. According to the petitioner, counsel should have requested an additional challenge so that the 24 defense could strike one

additional prospective juror from the venire panel. (DE#17:Ex.25:910). As the United States Supreme Court has recently reaffirmed, there is no constitutional right to peremptories or any specific number of them. Rivera v. Illinois, ___ U.S. ___, 129 S.Ct. 1446 (Mar. 31, 2009). Peremptory challenges are not constitutionally protected fundamental rights. Ross v. United States, 487 U.S. at 88. Rather, they are but one state-created means to the constitutional end of an impartial jury and a fair trial. Georgia v. McCollum, 505 U.S. 42, 57 (1992). See also United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000). Because peremptory challenges are within the States' province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. Ross v. United States, 129 S.Ct. at 1454 quoting, Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982)(internal quotation marks omitted); see also, Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991). As the Supreme Court has noted, the Due Process Clause, safeguards not the meticulous observance of state procedural prescriptions, but "the fundamental elements of fairness in a criminal trial." Spencer v. Texas, 385 U.S. 554, 563-564 (1967). The Supreme Court has also repeatedly stated that the right to a peremptory challenge may be withheld altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. See Frazier v. United States, 335 U.S. 497, 505, n. 11 (1948); United States v. Wood, 299 U.S. 123, 145 (1936). Florida to both law provides both in cause and peremptory proceedings. Review challenges, challenges sides involved criminal

See Busby v. State, 894 So.2d 88, 98 (Fla. 2004). of when the it record here indicates the that during allow jury to

selection, defense counsel had already used all of its peremptory requested 25 that court him

backstrike9 a potential juror Solberg. (T.121-123). The defense requested that the court permit him to withdraw a peremptory challenge against potential juror Solberg so that the peremptory could then be used to strike venireperson Seabright. (T.123). However, the trial court denied the request. (Id.). Moreover, the record reveals that the defense did not ask for additional peremptory challenges. When the it identical was claim by was the raised trial in the Rule 3.850 the

proceeding,

denied

court

based

on

prosecution's response, which argued in pertinent part that the claim was "legally insufficient," and further argued that:
Davis has not identified what juror allegedly `should' have been stricken with this challenge, or alleged, or demonstrated, that the absence of this challenge resulted in the seating of an actually biased juror. See e.g., Jenkins v. State, 824 So.2d 977 (Fla. 4th DCA 2002), rev. den'd, 842 So.2d 844 (Fla. 2003). Accordingly, no viable claim of ineffective assistance of counsel has been set forth, and this claim for relief should be summarily DENIED in all respects.

(DE#17:Ex.29:8-9). That decision was subsequently per curiam affirmed on appeal. Davis v. State, 961 So.2d 955 (Fla. 4 DCA 2007)(table); (DE#17:Ex.32). It is true that the petitioner neither alleged nor

demonstrated in relation to this claim which juror it wanted to strike, nor how the juror was biased. This court assumes for purposes of this claim that it was juror Seabright that it wanted stricken as evident by the trial record. However, the fact that

9 In Florida, backstriking is the term commonly used to describe a peremptory challenge of a juror who has been previously accepted by the challenging party. See i.e., Dobek v. Ans, 475 So.2d 1266 (Fla. 4 DCA 1985).

26

Seabright sat on the jury did not produce an impartial jury or a constitutional error. The petitioner never challenged Seabright for cause in the trial court, only asserting at the conclusion of jury selection that an additional peremptory challenge was needed to strike Seabright as an undesirable juror. (T.122-126). There is no indication whatever that juror Seabright was not impartial. The petitioner has failed to establish that his constitutional right to an impartial jury was violated. Moreover, even if counsel had requested an additional peremptory challenge, no showing has been made either in the state forum or this habeas proceeding that the court would have granted the request thereby enabling the petitioner to strike Seabright. Thus, no prejudice pursuant to Strickland has been established arising from counsel's failure to pursue this issue. Therefore, the denial of the claim in the state Rule 3.850 should not be disturbed here. Williams v. Taylor, supra. In claim nine, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer failed to impeach the victim with a prior, inconsistent, spontaneous statement he gave to the investigating officers minutes after the incident. (DE#17:Ex.25:10). Neither in the state forum nor in this habeas proceeding does the petitioner identify the spontaneous statement that should have been used to impeach the victim during trial. Such a conclusory allegation is subject to summary dismissal. Machibroda v. United States, 368 U.S. 487 (1962). When the identical claim was raised in the state forum, it was denied by the trial court based on the state's response which argued that the claim was "legally insufficient" and, therefore, summary dismissal was warranted. (DE#17:Ex.29:9). Trial counsel did in fact challenge various portions of the state witnesses' trial testimony as contradictory to the that 27

witness' earlier deposition testimony or contradictory with trial testimony of other witnesses. Trial counsel advised the jury during closing argument that all these discrepancies should be considered in conjunction with the lack of physical evidence. Thus, counsel's performance cannot be deemed deficient for failing to point out each and every possible inconsistency, regardless how slight. See Jones v. Cain, 227 F.3d 228, 230-31 (5 Cir. 2000)(holding that defense counsel's failure to impeach prosecution witnesses with their inconsistent statements in police reports did not constitute ineffective assistance of counsel, where alleged discrepancies between testimony of witnesses and data in police report approached inanity). Even if this Court were to assume for purposes of this federal proceeding that counsel's performance was deficient as alleged, the petitioner is not entitled to relief in that he cannot satisfy the Strickland prejudice-prong.10 Given the entire cross-examination of all state witnesses, and strong closing argument which emphasized the various inconsistencies in the case (T.348-358), the petitioner has not shown a reasonable probability that the outcome would have been different had trial counsel cross-examined and/or otherwise impeached the victim with an unidentified spontaneous statement. Strickland, 466 U.S. at 694. To the contrary, review of the record reveals that counsel vigorously cross-examined the victim drawing particular attention to inconsistencies in his testimony and statement, as well as, in relation to the testimonies provided by other witnesses. (T.200-03,208-10,213-15). Counsel's performance was not constitutionally ineffective, and even if so, no prejudice
10 The prejudice component of the Strickland test for ineffective assistance of counsel requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. at 693-94. It is not enough for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Id.

28

has been established in this regard. In conclusion, the denial of postconviction relief by the trial court on the identical grounds of ineffective assistance of trial counsel raised here, which rulings were affirmed by the state appellate court, were not in conflict with clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Relief must therefore be denied pursuant to 28 U.S.C. §2254(d). See Williams v. Taylor, 529 U.S. 362 (2000). See also Knowles, U.S. , 129 S.Ct. at 1420. In claim ten, the petitioner asserts that he was denied effective assistance of counsel, where his lawyer misadvised him regarding the prosecution's use of the petitioner's prior convictions during trial if he exercised his constitutional right to testify on his own behalf. According to the petitioner, counsel misadvised him that, if he testified, details surrounding his prior convictions would be revealed to the jury, including the fact that two of the priors were at the same Home Depot store. (DE#17:Ex.26:2). He further claims counsel intimidated and/or otherwise coerced him into waiving his right to testify. When the identical claim was raised in the Rule 3.850

proceeding, the trial court denied the claim based on the state's response, which argued in pertinent part as follows:
...The State would contend that this matter is legally insufficient, and that Davis' failure to formally proffer the nature of any trial testimony he could have offered renders this claim subject to summary denial under such precedents as Oisorio v. State, 676 So.2d 1363 (Fla. 1996) and Jackson v. State, 711 So.2d 1371 (Fla. 4th DCA 1998). More importantly, however, is the fact that this matter is refuted by the record. The record reflects that this Court conducted an extremely detailed colloquy with Davis concerning his decision whether or not to testify....Thus, as the record

29

reflects that, despite any alleged misadvisement by counsel, Davis was aware that the jury would not learn the nature of his prior convictions should he testify, this claim for relief should be summarily DENIED in all respects.

(DE#17:Ex.29:9-10). The denial of this claim by the state court was affirmed on appeal. Davis v. State, 961 So.2d 955 (Fla. 4 DCA 2007)(table); (DE#17:Ex.32). It is well settled that a criminal defendant has a fundamental constitutional right to testify in his or her own behalf at trial. Rock v. Arkansas, 483 U.S. 44, 49-52 (1987); United States v. Teague, 953 F.2d 1525, 1532 (11 Cir. 1992) (en banc). This right is personal to the defendant, and cannot be waived by the trial court or defense counsel. Teague, supra; Brown v. Artuz, 124 F.3d 73, 77-78 (2 Cir. 1997). Thus, every criminal defendant is privileged to testify in his own defense, or refuse to do so. Faretta v. California, 422 U.S. 806, 834 n. 45 (1975), quoting, Harris v. New York, 401 U.S. 222, 225 (1971). The burden of ensuring that a criminal defendant is informed of the nature and existence of the right to testify rests upon trial counsel, and is therefore a component of effective assistance of counsel. Teague, 953 at 1533; Sexton v. French, 163 F.3d 874, 882 (4 Cir. 1998). The proper vehicle for an argument that a defendant's right to testify was violated by his trial counsel is a claim of ineffective assistance of counsel, which requires analysis under Strickland v. Washington, 466 U.S. 668 (1984). Gallego v. United States,174 F.3d 1196 (11 Cir. 1999)(citing Teague, 953 F.2d at 1534); Brown, 124 F.3d at 79-80; Sexton v. French, 163 F.3d 874, 882 (4 Cir. 1998). United States v. Tavares, 100 F.3d 995, 998 (D.C. Cir.1996). As long as an attorney advises a petitioner of his right to testify and does not prevent a petitioner from testifying, his 30

strategic decision not to call petitioner as a witness is entitled to great deference. See Gallego v. United States, 174 F.3d 1196, 1197 (11 Cir. 1999)(noting that ineffective assistance of counsel occurs when "counsel refused to accept the defendant's decision to testify and refused to call him to the stand, or where defense counsel never informed the defendant of his right to testify"). Review of the record indicates that after the state had rested and after the petitioner's motion for judgment of acquittal was denied, the trial court conducted an extensive colloquy on the record, advising the petitioner of his constitutional right to present evidence and witnesses at trial, and to testify on his own behalf. (T.335-336). When asked whether he wanted to testify on his own behalf at trial, the petitioner stated on the record that he would not be testifying on his own behalf. (T.336). Thus, after being fully advised of his right to testify, the petitioner affirmatively stated on the record that he had elected not to testify at trial. Moreover, such advice of counsel was clearly reasonable under the circumstances, amounting to proper trial strategy, given the fact that the petitioner's credibility certainly would have been subject to attack by the prosecution. See Strickland, 466 U.S. at 689-91; United States v. Costa, 691 F.2d 1358, 1364 (11 Cir. 1982). Further, it appears that counsel's decision against calling witnesses and presenting evidence at trial may have been a strategic decision so that the defense would be afforded both the first and last closing arguments to the jury. This Court must be highly deferential to such strategic decisions of counsel, which decision was reasonable under the circumstances of 377 this F.3d case, 1317, not amounting (11 to constitutionally 2004)(finding ineffective not representation. See Kelley v. Secretary for Dept. of Corrections, 1353 Cir. petitioner prejudiced by any deficient performance by counsel where counsel adequately investigated case, and counsel elected, as matter of 31

defense strategy, to not put on defense witnesses so that they might take advantage of state procedural rule allowing defendant to make first and last closing arguments when defense is not presented), cert. denied, 545 U.S. 1149 (2005). Even if this Court were to find that counsel's advice to the petitioner regarding his right to testify was in someway deficient, the petitioner has not been prejudiced by the alleged deficient performance of counsel.11 Through strong cross-examination of the state witnesses and during an impassioned closing argument, defense counsel vigorously pursued the defense that the state had failed to prove beyond a reasonable doubt that the petitioner had committed the crimes for which he had been charged, and was, in fact, innocent, drawing particular attention to the inconsistencies in the victim's testimony. In fact, the jury acquitted on one of the two offenses. As was the prerogative of the jury, it rejected the defense presented as to the aggravated battery charge and instead believed the strong evidence admitted by the state, which included testimony of the victim and observation of the slash inflicted upon the victim by the petitioner. This Court must defer to the jury's judgment as to the weight and credibility of the evidence. See Wilcox v. Ford, 813 F.2d 1140, 1143 (11 Cir. 1987), citing, Jackson v. Virginia, 443 U.S. at 326. In light of the strong evidence admitted at trial, there is no reasonable probability that the result of the proceeding would have been different had the petitioner testified and made a blanket assertion of innocence.12

11 To show prejudice, a petitioner must show more than simply that counsel's conduct might have had "some conceivable effect on the outcome of the proceeding." Strickland v. Washington, 466 U.S. 668, 693 (1984). 12 The petitioner has not alleged either in the state forum nor in this habeas proceeding what the substance of his testimony would have been had he testified at trial. This court can only speculate that the petitioner would have

32

Counsel's performance was not constitutionally ineffective, as alleged. See Strickland, supra. Consequently, the state court's rejection of this claim should not be disturbed in this collateral proceeding. Williams v. Taylor, supra. In claim eleven, the petitioner asserts that his

constitutional rights were violated by the court who delegated to the prosecution the discretion to rule on a crucial request from the defense. The claim was raised in the petitioner's Rule 3.850

proceeding, and denied by the state court, based on the state's response thereto, which argued correctly that the claim could have been, but was not raised on direct appeal, and therefore was procedurally barred from review in the collateral proceeding. (DE#17:Ex.29:10-11). It is well established in Florida that claims that could have, and should have, been raised on direct appeal are procedurally barred from collateral review. The failure of a federal habeas petitioner to adhere to state procedural rules governing the proper presentation of claims will bar federal review of those claims in a subsequent federal habeas corpus proceeding. See Wainwright v. Sykes, 433 U.S. 72 (1977); Sims v. Singletary, 155 F.3d 1297, 1311 (11 Cir. 1998). The federal habeas court must defer to the state court's interpretation of its procedural rules, and must enforce those rules as well as enforcing the procedural rulings of the state courts. See Lindsey v. Smith, 820 F.2d 1137 (11 Cir. 1989). See also Agan v. Vaughn, 119 F.3d 1538, 1549 (11 Cir. 1997)(holding that "state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.").
maintained his innocence. Such a conclusory allegation is subject to summary dismissal. Machibroda, supra.

33

Finally, this Court cannot presume that a Florida court ignores its own procedural rules when the court issues only a onesentence denial of relief. Such a ruling does not suggest that the state court resolved the issue on the federal claim presented. See Coleman v. Thompson, 501 U.S. 722, 735-36, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Kight v. Singletary, 50 F.3d 1539, 1544-1545 (11 Cir. 1995)(applying procedural bar where state court's summary dismissal did not explain basis for ruling); Tower v. Phillips, 7 F.3d 206, 209 (11 Cir. 1993)(applying bar where state court did not rule on claims presented). "[W]hen it is obvious that the unexhausted claim would be procedurally barred in state court due to a state-law procedural default, [the district court] can forego the needless `judicial ping-pong' and just treat those claims now barred by state law as no basis for federal habeas relief." Kelley v. Secretary for Dept. of Corr., 377 F.3d 1317, 1351 (11 Cir. 2004)(internal quotation marks omitted). The federal court must apply a procedural bar to the claims that either have been explicitly ruled procedurally barred by the highest state court considering the claims, Harris v. Reed, 489 U.S. 255 (1989), or are not exhausted but would clearly be barred if returned to state court. Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991). Thus, the claim is unexhausted and procedurally barred from review here. To overcome a bar, the petitioner must establish either cause and prejudice or a fundamental miscarriage of justice exception to justify its review. O'Sullivan v. Boerckel, 526 U.S. 838, 848-49 (1999); see also Coleman v. Thompson, 501 U.S. 722, 750-51 (1991). No such showing has been made here.13
Even if it were not barred, the claim appears to be a reiteration of the arguments raised in connection with claims three and eight above and should be denied for the reasons expressed therein. The trial court did not err in inquiring of the prosecution if it had any objections to the defense's request
13

34

In claim twelve, the petitioner asserts that the prosecution withheld crucial evidence in violation of Giglio14. According to the petitioner, the prosecution presented perjured testimony at trial when it allowed Deputy Monica Jean to testify that she did not know whether the petitioner had been taken to the hospital afer his arrest. (DE#17:Ex.26:5-6). The petitioner maintains this testimony directly conflicted with Deputy Jean's deposition testimony wherein she declared that the petitioner had not been taken to the hospital. (Id.). The claim was rejected by the trial court in the Rule 3.850 motion based on the state's response which argued in pertinent part that the claim was legally to of insufficient the as the petitioner's knowingly Moreover, Jean's allegation presented independent failed perjured review demonstrate testimony. the record prosecution that

(DE#17:Ex.29:11). reveals

Deputy

testimony was not perjurious. To the contrary, the trial court record reveals that Deputy Jean could not recall whether the petitioner had been taken to the hospital. There is nothing of record in the state forum nor in this habeas proceeding to estab