K. MICHAEL MOORE, CHIEF UNITED STATES DISTRICT JUDGE.
Petitioner, Thomas Mitchell Overton ("Mr.Overton") is on death row at the Union Correctional Institution in Raiford, Florida, for the murders of Michael and Susan McIvor. Mr. Overton was convicted in 1999 of two counts of first degree murder, one count of killing an unborn child by injury to the mother, one count of burglary with assault/battery and one count of sexual battery. The matter before the Court is Mr. Overton's Petition for Writ of Habeas Corpus By a Person in State Custody ("Petition") filed November 8, 2013 [DE 8]. The State filed its Response. [DE 11]. Mr. Overton filed a Reply. [DE 12]. This matter has been fully briefed. For the reasons that follow, Mr. Overton's Petition for Writ of Habeas Corpus is
The Florida Supreme Court gave the following recitation of the pertinent facts:
Overton v. State, 801 So.2d 877, 881-884 (Fla.2001).
In response to Mr. Overton's Petition, the State argued that the Petition is barred by the statute of limitations. ([DE 11] at 23-26). Mr. Overton has replied that his Petition was timely filed. However, Mr. Overton asserts that, even if the Court finds that his petition was not timely filed, the Court should consider the merits of his claims. Mr. Overton asserts three equitable grounds which could excuse his untimeliness: (1) the State has waived a timeliness argument, (2) the requirements of Rule 3.851 were not firmly established or regularly followed, and (3) Mr. Overton is innocent of the crimes for which he was convicted.
In 1996, Congress set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). Congress intended AEDPA to further the principles of comity, finality, and federalism. Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (stating that "there is no doubt Congress intended AEDPA to advance these doctrines [comity, finality, and federalism]"). Clearly, Congress created a one-year limitations period that was meant to streamline the habeas review process and to lend finality to state court convictions. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (recognizing that "the 1 year limitation period of § 2244(d)(1) quite plainly serves the well-recognized interest in the finality of state court judgments"); see also H.R. Cong. Rep. No. 104-518, at 111 (1996), reprinted in H.R. Conf. Rep. No. 518, 104th Cong., at 111 (1996). reprinted in 1996 U.S.C.C.A.N. 924, 944 (1996) (explaining that, in enacting AEDPA, Congress wanted "to curb the abuse of the statutory writ of habeas corpus" by adding, among other things, a one-year period of limitation to the time a state prisoner has to seek habeas relief from a state conviction). The AEDPA seeks to eliminate delays in the federal habeas review process. See Day v. McDonough, 547 U.S. 198, 205-206, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006); Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed a one-year limitations period for the filing of an application for relief under § 2254. Accordingly, 28 U.S.C. § 2244(d) provides:
In most cases, including the present case, the limitation period begins to run pursuant to § 2244(d)(1)(A). The Eleventh Circuit has decided that the judgment becomes "final" within the meaning of § 2244(d)(1)(A) as follows: (1) "if the prisoner files a timely petition for certiorari, the judgment becomes `final' on the date on which the Supreme Court issues a decision on the merits or denies certiorari, or (2) the judgment becomes `final' on the date on which the defendant's time for filing such a petition expires." Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002).
The procedural history below details when Mr. Overton's conviction and sentence were final, when the statute of limitations was tolled by § 2244(d)(2), and when his federal habeas petition was filed. Based on this procedural history, the Court concludes that the statute of limitations expired before the Petition was filed. Therefore, it is untimely.
On February 1, 1999, Mr. Overton was found guilty of all charges, including two counts of first degree murder. He was sentenced to death by a vote of eight to four for the murder of Michael Maclvor and a vote of nine to three as to Susan Maclvor. The trial judge found five aggravating factors, no statutory mitigation, and two nonstatutory mitigating circumstances.
On September 13, 2001, the Florida Supreme Court denied Mr. Overton's direct appeal and affirmed his convictions and sentences.
Beginning May 14, 2002, Mr. Overton had one year to file his petition for writ of habeas corpus with this Court or "properly file[]" an application for post-conviction relief in state court or other collateral review with respect to the pertinent judgment or claim which would toll the time for filing his federal habeas petition. See § 2244(d). It is undisputed that, unless tolled, Mr. Overton's AEDPA statute of limitations expired on May 14, 2003.
With the clock running, Mr. Overton did not file an application for post-conviction relief in state court until April 30, 2003. ("April 30 Motion"). ([DE 13-188]). At that time, three hundred fifty-one of Mr. Overton's three hundred sixty-five days had passed. This left Mr. Overton with only fourteen days to file his federal habeas petition once the limitations clock began running again. Of course, for Mr. Overton to have those fourteen days left in his limitations period, his April 30 Motion must have been "properly filed" and "pending."
On June 12, 2003, the circuit court struck Mr. Overton's April 30 Motion from the record because it was "legally insufficient." ([DE 13-194] at 12). The court granted leave to file an "amended motion on or before July 11, 2003." (Id. at 17). On July 10, 2003, Mr. Overton filed an amended Rule 3.851 motion. ("July 10 Motion"). The July 10 Motion was also struck from the record because "the Motion was not signed by the Defendant under oath." ([DE 13-198] at 20). The court again granted leave to file an amended motion. (Id. at 20). Mr. Overton's amended motion was due October 31, 2003. The court noted that "the Defendant's original Motion had been filed timely. And. presumably, Defendant and Counsel have resolved and/or will resolve any issue that would prevent the Defendant from meeting the new filing deadline." (Id. at 20).
On October 30, 2003, Mr. Overton filed a second amended motion to vacate judgment and sentence. ("October 30 Motion").
During the pendancy of the October 30 Motion, Mr. Overton also filed a motion for DNA testing on April 4, 2004. ("DNA motion"). The DNA motion filed pursuant to Rule 3.853. Fla. R.Crim. P. sought the testing of several previously untested items of evidence. On May 17, 2004, the trial court issued an order that denied, in part, and granted, in part, the motion for DNA testing. On August 10, 2004, Mr. Overton filed a second motion that requested DNA testing of the hairs attached to the tape used to bind Susan Maclvor ("second DNA motion"). On August 19, 2004. the trial court denied the second DNA motion. Mr. Overton timely appealed the denial of his motion for postconviction relief and postconviction DNA testing. Overton, 976 So.2d at 536.
On appeal from the denial of postconviction relief, Mr. Overton argued four claims with multiple sub-claims: (I) no full and fair evidentiary hearing, (II) ineffective assistance of trial counsel, (III) Brady violation, and (IV)improper summary denial of several claims. Overton, 976 So.2d at 536-67. On appeal from the denial of postconviction DNA testing, Mr. Overton asserted four additional claims: (I) admissibility of evidence, (II) reasonable probability of acquittal or lesser sentence, (III) evidence from the record, and (IV) entitlement to an evidentiary hearing. In addition, on February 8, 2006, Mr. Overton filed a petition for writ of habeas corpus with the Florida Supreme Court. The habeas petition argued two claims with multiple subclaims: (I) ineffective assistance of appellate counsel and (II) Ring and Apprendi violation with the death penalty statute. The Florida Supreme Court considered the two postconviction appeals and the petition for writ of habeas corpus simultaneously. Overton, 976 So.2d at 536. On November 29, 2007, the court denied relief on all of Mr. Overton's claims. See id. A motion for rehearing was denied on February 25, 2008.
While his appeal and habeas petition was pending at the Florida Supreme
On November 8, 2013, Mr. Overton filed his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody with this Court. The time lapse between the denial of rehearing at the Florida Supreme Court and the filing of the instant Petition was eight days. If Mr. Overton's April 30 Motion was properly filed and pending, his Petition was timely filed with six days to spare. Therefore, a "properly filed" postconviction motion "pending" in the state court would render his Petition timely filed.
Although the federal statute does not define "properly filed," the Supreme Court has construed those words to mean something different from "pending." See Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000); Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
Delguidice v. Fla. Dep't of Corr., 351 Fed. Appx. 425 (11th Cir.2009).
In Artuz, the Supreme Court articulated the difference between claims for relief which are denied on procedural grounds (i.e.: procedurally barred claims) and procedural rules setting forth conditions to filing. See id. at 10-11, 121 S.Ct. 361. Here, Fla. R.Crim. P. 3.851(e) governs the "application or motion" but not the individual claims asserted within the application.
This determination is consistent with Eleventh Circuit precedent regarding certain procedural filing requirements. See Melson v. Allen, 548 F.3d 993 (11th Cir.2008)(vacated on other grounds)(unverified petition did not trigger the tolling provisions of § 2244(d)(2)); Sibley v. Culliver, 377 F.3d 1196 (11th Cir.2004)("The simple fact that Sibley mailed something to the court is surely insufficient to trigger § 2244(d)(2)'s tolling provision") and Hurley v. Moore, 233 F.3d 1295 (11th Cir.2000)("Rather than file a properly sworn motion, Hurley chose to move for rehearing of the denial of the deficient motion. Because Hurley's state post-conviction motion was not properly filed according to the state court's application of the written oath requirement, the one-year statute of limitations under the AEDPA is not tolled"). Here, the determination that Mr. Overton's motion was legally insufficient was made by the judge and thus was not "a mechanical rule enforceable by clerks." Id. at 1337. As a result. Mr. Overton's motion was "properly filed" for AEDPA tolling purposes on April 30, 2003.
However. Mr. Overton must also show that his properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim was "pending." Specifically, the issue here, is whether the April 30 Motion was "pending" for the purposes of § 2244(d)(2) during the period of time that the April 30 Motion was struck (June 12, 2003) and when his July 10 Motion was filed.
Accordingly, the dispositive question is: when does an application for State postconviction or other collateral review cease to be "pending" for purposes of § 2254(d)(2)? The United States Supreme Court has not directly addressed the issue. The Eleventh Circuit has considered a like-minded but not identical issue and determined that a voluntarily dismissed state habeas petition did not toll the limitations period because "there was nothing for the state court to `consider' until he filed his second state habeas corpus claim" and "there was nothing `pending' before the state court during that interim []period." Stafford v. Thompson, 328 F.3d 1302, 1305 (11th Cir.2003). The Court finds the logic of this analysis persuasive.
If, like Mr. Stafford, Mr. Overton's April 30 Motion was not going to be considered
The Court recognizes that this finding contradicts a sister court in the circuit. When faced with a similar set of facts, the Northern District of Florida came to a different conclusion. See Peterson v. Jones, 2015 WL 1061677, *7 (N. D.Fla.2015)("Given petitioner's timely amendment, the state circuit court's order striking petitioner's initial Rule 3.850 motion did not end the proceedings in the circuit court."). However, the Court does not consider Peterson binding or even persuasive for several reasons. Primarily, the Court disagrees with the premise that even though the motion was struck from the record, that action did not "end the proceedings." § 2244(d)(2) is silent about "proceedings" being pending.
Moreover, Peterson relies heavily on Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) but Carey held that the term "pending" as applied in § 2244(d)(2) applies to the time between the ruling of the lower state court and the filing of a notice of appeal to the higher state court.
By contrast, once Mr. Overton's April 30 Motion was struck, the lower court would not review the merits of the claims raised in that motion and neither would a higher court. When granting the State's motion to strike, the trial court denied Mr. Overton's motion to file a corrected motion; instead ordering him to file an amended motion. (See [DE 13-194] at 11-18). Further, the applicable state court rule provided that when the trial court grants leave to amend but if the
Despite the initiation of a postconviction proceeding, the April 30 Motion was no longer "pending" as of June 12, 2003. As such, on June 25, 2003, Mr. Overton's federal statute of limitations expired. Over ten years passed before Mr. Overton's Petition was filed in this Court. Absent statutory tolling, Mr. Overton's Petition is untimely.
However, this is not the end of the matter. Mr. Overton has raised entitlement to equitable relief on multiple grounds. Mr. Overton contends that the Court should excuse his failure to comply with the statute of limitations. (See [DE 12]). As those arguments are complex and would require a significant expenditure of judicial resources, the Court has decided to review the merits of his claims without consideration of the equitable arguments raised by Mr. Overton. See generally Loggins v. Thomas, 654 F.3d 1204, 1215 (11th Cir.2011) ("When relief is due to be denied even if claims are not procedurally barred, we can skip over the procedural bar issues, and we have done so in the past."). After careful review of the petition and regardless of whether Mr. Overton's claims are time-barred, the Court will exercise its discretion because it has determined that "the interests of justice would be better served by addressing the merits" than dismissing the petition as time barred. See Day v. McDonough, 547 U.S. 198, 210, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (citing Granberry v. Greer, 481 U.S. 129, 136, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987)). The Court turns to the merits.
Mr. Overton's habeas corpus petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996) (codified at various provisions in Title 28 of the U.S.Code), which significantly changed the standards of review that federal courts apply in habeas corpus proceedings. Under the AEDPA, if a claim was adjudicated on the merits in state court, habeas corpus relief can only be granted if the state court's adjudication "resulted in a decision that was contrary to. or involved an unreasonable application of. clearly established federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1)-(2). This is an "exacting standard." Maharaj v. Sec'y, Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir.2005). Pursuant to § 2254(d)(1), a state court decision is "contrary to" Supreme Court precedent if it "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an] [opposite] result." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In other words, the "contrary to" prong means that "the state court's decision must be substantially different from the relevant precedent of [the Supreme] Court." Id.
As noted above. § 2254(d)(2) provides an alternative avenue for relief. Habeas relief may be granted if the state court's determination of the facts was unreasonable. "A state court's determination of the facts, however, is entitled to deference" under § 2254(e)(1). See Maharaj, 432 F.3d at 1309. This means that a federal habeas court must presume that findings of fact by a state court are correct; and, a habeas petitioner must rebut that presumption by clear and convincing evidence. See Hunter v. Sec'y, Dep't. of Corr., 395 F.3d 1196, 1200 (11th Cir.2005).
Finally, where a federal court would "deny relief under a de novo review standard, relief must be denied under the much narrower AEDPA standard." Jefferson v. Fountain, 382 F.3d 1286, 1295 n. 5 (11th Cir.2004). Even if the Court believed the Florida Supreme Court's determination to be an incorrect one, under AEDPA deference that alone is not enough to grant habeas relief, the Court must also find that "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 783, 178 L.Ed.2d 624 (2011). In other words, as a condition for obtaining habeas corpus relief from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. See id. (emphasis added). Here, Mr. Overton has failed to meet this burden.
Mr. Overton asserts four claims for federal habeas relief. Mr. Overton grouped his claims by factual issue as opposed to legal claim. This resulted in the Petition lacking the clarity required of a 28 U.S.C. § 2254 petition. See generally 28 U.S.C. § 2254 Rule 2(c). As best the Court can discern, Mr. Overton makes four claims for habeas relief. First. Mr. Overton argues that he was "deprived of his constitutional right to a fair and impartial jury due to the denial of his challenges for cause" and that "appellate counsel was deficient in failing to challenge the denial of change of venue on direct appeal." ([DE 1] at 49). Second, Mr. Overton asserts that he was "deprived of his right to the effective assistance of trial and appellate counsel and his rights to a fair trial and due process of law... due to the admission of unreliable DNA evidence at trial." (Id. at 66). Third, Mr. Overton contends that his trial was unreliable because he was deprived "of the effective assistance of counsel and/or the State's failure to disclose material impeachment evidence and/or the use
In his first claim for federal habeas relief, Mr. Overton argues that he was denied his constitutional right to a fair trial. ([DE 8] at 49). Mr. Overton asserts two bases for his argument: (1) the denial of cause challenges and (2) appellate counsel's failure to challenge the denial of the motion for change of venue on direct appeal.
On January 11, 1999, the trial of the State of Florida versus Thomas Mitchell Overton began. ([DE 13-72] at 24). Prior to the commencement of trial, the court held a hearing to discuss certain security measures to be taken during trial. The State and court security presented testimony that Mr. Overton was a high risk inmate due to the nature of the crimes for which he was accused, the crimes of which he was previously convicted, and a prior escape attempt. The court determined that to insure courtroom security, Mr. Overton would have a shock belt placed under his suit and silenced shackles on his ankles which were hidden from the jury's view with a table skirt. ([DE 13-64] at 32). On the first day of jury selection, a prospective jury pool of 60 persons were called for voir dire. One of those jurors was Harry Russell. The denial of the cause challenge to his sitting as a juror is the subject of this claim. On the second day of jury selection, a prospective jury pool of 33 additional persons were called. One of those jurors was William Heuslein. He too is the subject of this claim.
During jury selection, defense counsel sought to challenge both jurors for cause, the trial court denied the request and counsel had to utilize peremptory challenges to exclude them from sitting on Mr. Overton's jury. Essentially, Mr. Overton's argument here is that because he had to expend peremptory challenges on jurors which should have been excluded for cause, he ultimately did not exclude the jurors he would have liked to have excused had those peremptory challenges remained after Mr. Russell and Mr. Heuslein were excluded for cause.
On direct appeal, the Florida Supreme Court denied this claim.
Overton v. State, 801 So.2d 877, 896 (Fla. 2001). The Court owes deference to the decision of the Florida Supreme Court pursuant to the AEDPA. However, it is simply not enough that a federal habeas petitioner raised a claim in the state courts and now challenges the state court's determination of that claim. To be cognizable, a petitioner must limits his claims in a petition brought pursuant to 28 U.S.C § 2254(a) to those wherein it is alleged that he is "in custody in violation of the Constitution or laws or treaties of the United States." This is not such a case. "Because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise." Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (citations omitted).
"We recognize that federal law does not require reversal where a defendant is forced to use a peremptory challenge on a juror who should have been dismissed for cause." Van Poyck v. Fla., Dep't of Corr., 290 F.3d 1318 (11th Cir. 2002) (citations omitted). Indeed, Ross very clearly and unequivocally states that "[w]e have long recognized that peremptory challenges are not of constitutional dimension. Gray [v. Mississippi], supra, [481 U.S. 648] at 663, 107 S.Ct. [2045] at 2054 [95 L.Ed.2d 622 (1987)]; Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965); Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 29, 63 L.Ed. 1154 (1919)." Ross, 487 U.S. at 88, 108 S.Ct. 2273.
Nonetheless. Mr. Overton asserts that he "is entitled to federal habeas relief." ( [DE 12] at 25). Aside from the argument being contrary to federal law, Mr. Overton has failed to assert that the denial of these two cause challenges resulted in him being tried in front of a biased and partial jury. Mr. Overton does not identify a single juror who served on his jury — as opposed to the two jurors as issue here who did not serve on his jury — who he would have excluded had he still had peremptory challenges left. Instead, Mr. Overton argues a per se rule. Under this rule, a trial court's failure to excuse a juror for cause would result in reversible error absent any showing of prejudice or harm. There is no legal support for this contention. Habeas relief is denied.
Mr. Overton's second sub-claim is that he was denied the effective assistance of appellate counsel when his appellate lawyer did not assert error on direct appeal. ([DE 8] at 61). Mr. Overton argues that because the pre-trial publicity was "obvious on the record" and "leaped out upon even a casual reading of the transcript" appellate counsel was ineffective for failing to raise the issue on direct appeal. Mr. Overton contends that "there is a more than [a] reasonable probability that the outcome of the appeal would have been
On December 30, 1998, defense counsel filed a Motion for Change of Venue. ([DE 13-21] at 23). The motion requested that the court grant a change of venue, or in the alternative, that the court summons jurors from a different jurisdiction for Mr. Overton's trial. The motion asserted that "[t]he pretrial publicity in this case has been and is so extensive that the community in Monroe County has been exposed to circumstances of the offenses herein charged so pervasively that prejudice, bias and preconceived opinions are the natural result." ([DE 13-21] at 24). Attached to the motion were several affidavits from attorneys who were residents of Monroe County and who attested that they were "of the opinion that the Defendant THOMAS M. OVERTON could not receive a fair and impartial trial by jurors drawn from Monroe County, Florida." ([DE 13-21] at 32-34).
The week before trial, defense counsel raised the issue but conceded that "I understand that the c]ourt in these types of motions would normally take under advisement and see what occurs at the particular jury selection." ([DE 13-66] at 5). The court took the motion under advisement and also noted "that we have relocated the case within the circuit from the Upper Keys where the offenses were allegedly committed to the Lower Keys division in part to deal with some of these issues." (Id. at 6). Prior to trial, counsel supplemented his motion with additional newspaper clippings of the pre-trial publicity. Again, the court said it was deferring ruling until "we initiate and attempt to seat a jury." ([DE 13-72] at 27). At the beginning of trial, defense counsel renewed his request for change of venue. The court denied the motion finding that due to the "extensive, exhaustive questioning of the jurors and the granting of cause challenges liberally" there was no basis for a change of venue. ([DE 13-114] at 38).
The trial began in Monroe County. Florida with jurors from Monroe County, Florida. On direct appeal, appellate counsel did not challenge the impartiality of the jurors. In his state habeas petition, Mr. Overton argued that appellate counsel was ineffective for failing to raise error. After citing Strickland v. Washington, the Florida Supreme Court denied relief.
Overton v. State, 976 So.2d 536, 571-72 (Fla.2007). Here, the Florida Supreme Court reviewed the underlying claim (i.e.; the motion for change of venue) and found that because it was without merit, appellate counsel could not have been ineffective for failing to raise a non-meritorious claim. In other words, counsel's performance was not deficient. The Court reviews the decision of the Florida Supreme Court for reasonableness as determined by the AEDPA.
There can be no doubt that this claim is governed by Strickland v. Washington. Further. Mr. Overton's claims are also governed by the deferential standards of the AEDPA. In Strickland, the United States Supreme Court set forth the two-prong test that a convicted defendant must meet to demonstrate that his or her counsel rendered ineffective assistance. First. a defendant "must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Second, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. The Court defines a "reasonable probability" as one "sufficient to undermine confidence in the outcome." Id. And "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052. Following the enactment of the AEDPA, the Supreme Court has clarified the Strickland standard as follows:
Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011). The Court reviews Mr. Overton's claims
After review, the Court finds that the legal standard applied by the Florida Supreme Court is consistent with clearly established federal law.
Philmore v. McNeil, 575 F.3d 1251, 1264-65 (11th Cir.2009)(applying well-established Strickland standards to ineffective assistance of appellate counsel claims). It is axiomatic that counsel cannot be deficient for raising a non-meritorious objection. Owen v. Sec'y for Dep't of Corr., 568 F.3d 894, 915 (11th Cir.2009) ("As the underlying claim lacks merit, [] counsel cannot be deficient for failing to raise it."). Therefore, the Court finds that the Florida Supreme Court's legal determination did not result 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. See 28 U.S.C. § 2254(d)(1).
Further, when the state courts have already answered the question of how an issue would have been resolved under that state's law had appellate counsel done what the petitioner argues he should have done, "federal habeas courts should not second-guess them on such matters" because "it is a fundamental principle that state courts are the final arbiters of state law." Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir.2005)(quotation marks omitted). "A state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved." McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992); Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir.1996) (federal courts entertaining petitions for writs of habeas corpus must follow the state court's interpretation of a state law absent a constitutional violation). Given that the court reviewed the facts and made a legal determination pursuant to state law, the Court reviews the factual findings which served the basis of the Florida Supreme Court's legal determination for reasonableness. If the factual findings were reasonable, then Mr. Overton is not entitled to federal habeas relief.
In denying the claim, the Florida Supreme Court considered two issues: (1) extent and nature of any pretrial publicity and (2) difficulty encountered in actually selecting a jury. Overton, 976 So.2d at 572-74. First, the court found that "the publicity consisted of largely factual articles, rather than inflammatory stories." (Id. at 572). Although, the court acknowledged that "the material did contain some inflammatory items including: (1) many of the stories did mention Overton's past criminal activity as a burglar; (2) a description that Overton "[had] been in trouble since he was a youngster"; (3) a description that Overton was institutionalized for mental health problems in the past; and (4) the DNA results established that there was a one-in-six-billion chance that anyone but Overton committed the crime." (Id.) However, notwithstanding that information, the
In the motion for change of venue, defense counsel attached several news articles regarding the murders of the MacIvors and Mr. Overton's involvement. ( [DE 13-21] at 35-40).
Based on the record, the factual findings of the Florida Supreme Court were not unreasonable. The Court must deny relief. While it is true that some of the news articles painted Mr. Overton in an unfavorable light; it is also true that some did not. Mr. Overton has provided no basis for the Court to grant federal habeas relief on a claim of ineffective assistance of appellate counsel when the state courts have found that the underlying claim had no merit. A federal habeas court may not issue the writ on the basis of a state's interpretation of its own laws and rules, absent extreme circumstances.
Mr. Overton's second claim for federal habeas relief is that his right to a fair trial was violated because unreliable DNA evidence was admitted into evidence during trial. ([DE 8] at 68). Mr. Overton asserts three specific bases for this claim. First, trial counsel failed to prepare for a Frye
Mr. Overton argues two distinct claims of ineffective assistance of counsel. He asserts that trial counsel was ineffective when they failed to challenge the general acceptance of STR DNA test results as reliable in the scientific community during the Frye hearing. Mr. Overton further argues that counsel was ineffective for failing to challenge the testing procedures used by the State's laboratories. When given the opportunity to challenge the procedures used by the State's experts at a Frye hearing, counsel did not ask a single question or attempt to cross-examine the witnesses. Mr. Overton contends that this constitutes deficient performance on the part of counsel.
This argument, however, is very different from challenging the admissibility of the DNA evidence based on the flawed procedures used by the Monroe County Sheriff s department to secure the chain of custody. Trial counsel clearly objected and raised the admissibility of the DNA evidence due to a break in the chain of custody as an issue both before and during trial. However, on direct appeal, appellate counsel did not argue error when the trial court overruled counsel's objections and the DNA evidence was admitted. As such, Mr. Overton raises claims of ineffective assistance of trial counsel and ineffective assistance of appellate counsel.
The Court first considers the ineffective assistance of trial counsel claim. Understanding the theory of Mr. Overton's defense at trial is essential to analyzing this claim. The Florida Supreme Court summarized Mr. Overton's defense below.
Overton, 801 So.2d at 887-89. Essentially, to be a viable defense at trial, the argument was not that the DNA testing itself was unreliable but; instead, that Mr. Overton's DNA was planted on the bedding taken from the crime scene. During postconviction, trial counsel testified that they made a strategic decision to not cross-examine the State's witnesses at the Frye hearing based on Mr. Overton's defense. ([DE 13-292] at 32). The Florida Supreme Court found their strategic decision to be reasonable. The court "conclude[d] that the limited participation of counsel during the Frye hearing did not constitute deficient performance because it was a strategic decision made by counsel." Overton, 976 So.2d at 550.
In order for Mr. Overton to be granted federal habeas relief, he must show: (1) the determination that counsels' decision was strategic was an unreasonable determination of the facts and (2) the determination that counsels' strategic decision was a reasonable decision was an unreasonable application of clearly established federal law. See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991)("The question of whether a decision was a tactical one is a question of fact. See Bundy v. Wainwright, 808 F.2d 1410, 1419 (11th Cir.1987)... [h]owever, whether this tactic was reasonable is a question of law.").
On November 9, 1996, Mr. Overton was arrested for the first degree murders of Susan and Michael MacIvor. Well before trial, the defense knew that the State intended to use DNA evidence as the primary evidence against Mr. Overton. Two years prior to Mr. Overton's arrest, the State of Florida had samples of the bed sheet and mattress pad taken from the crime scene tested by the FDLE in an attempt to match DNA. No DNA match was made at that time. Overton, 801 So.2d at 884. It was not until late 1996, when
Over the next several years, the trial date was continued multiple times. However, even though the defense had an abundance of time to prepare to defend against the DNA evidence, it seemed that little progress was being made. Indeed, the inactivity of defense counsel prompted the original trial judge to draft a "Memorandum of Concern as to Ineffective Assistance of Counsel."
After the case was reassigned to a new judge, more continuances were granted. In February of 1998, the defense "announced an intention to seek independent DNA testing of any possible remaining forensic biological evidence." ([DE 13-10] at 15). However, time passed and the defense never sought to have the remaining evidence tested. Anticipating a challenge to the reliability of its DNA testing at trial, the State requested that the court order the "remaining forensic biological evidence [be] tested by an independent laboratory." (Id. at 16). The court granted the State's motion but gave the defense the opportunity to select the lab that would conduct the testing. The court ordered that the "[d]efense must advise the State by June 5, 1998, of the name of the laboratory it wishes to independently test the remaining biological evidence from the crime scene. If the defense fails to so advise, the State may independently test the evidence." ([DE 13-11] at 3). The deadline came and went without the defense selecting the laboratory where the biological evidence should be tested. The State advised that it planned to proceed with independent testing utilizing a lab of its choosing. Defense counsel was concerned that once the State conducted its testing, there may not be a viable sample left for the defense to test. The defense filed an Emergency Motion to Independently Test the Remaining Forensic Sample. It was at the hearing on the emergency motion that the defense advised that after "[c]onsulting with [their] experts and in meeting with the defendant and cocounsel together we've decided not at this point to test the remaining sample for DNA." ([DE 13-13] at 5). For the first time, defense counsel advised that "we no longer want to test that material for another DNA probe or independent DNA probe, but what we would like to do is independently test whatever material is remaining for purposes to see whether that particular
Over the next six months, both parties conducted tests on the samples and attempted to obtain discovery from each other.
With less than five days before trial, counsel for Mr. Overton was not prepared for the Frye hearing. The State argued that defense counsel was given the opportunity to travel to both the BODE Lab and the FDLE lab to review documents but declined to do so. ([DE 13-67] at 9). The defense asserted that the State provided the discovery so late that trial counsel and the defense expert had little to no opportunity to educate themselves enough to effectively challenge the methods or results of the State's DNA testing. While there was disagreement about why defense counsel was not prepared, it was clear that they were not prepared to challenge the State's DNA evidence at a Frye hearing. Defense counsel made the decision to stand mute during the testimony of the State's experts. Counsel did not ask a single question on cross-examination. Following the hearing, the court found: (1) the jury could be helped and assisted by the expert witness testimony, (2) the scientific principles underlying both the RFLP and the PCR tests and the STR tests are generally accepted within the scientific community, and (3) the witnesses are sufficiently qualified to give an opinion. ([DE 13-70] at 37). The court found that the State's experts satisfied the Frye test and could testify at trial.
At trial, Dr. James M. Pollock (FDLE), Dr. Robert A. Bever (BODE Technology Group), and Elizabeth Curry (BODE Technology Group) testified on behalf of the State. Primarily, they testified about the process of DNA testing and the matching of the DNA collected at the crime scene with the DNA collected from Mr. Overton. Prior to their testimony, defense counsel renewed previous objections regarding, among other things,
During the postconviction proceedings, defense counsel testified regarding their strategic decision to not ask questions on cross-examination at the Frye hearing. Mr. Garcia testified that he and co-counsel made a joint decision to not ask questions at the Frye hearing because "[o]ur discovery wasn't complete as to the DNA" and "we wouldn't attempt to do something that we felt we weren't prepared to do." ([DE 13-272] at 17). Mr. Garcia further testified that the decision by the defense to not put on any witnesses at the Frye hearing was "a tactical decision." ([DE 13-273] at 3). Mr. Garcia acknowledged that even if the Frye motion had been granted as to the STR DNA evidence that there was additional DNA evidence using an older and trusted method of DNA testing (RFLP) performed by the FDLE which would have been admissible even if the newer STR DNA testing had been deemed inadmissible. (See id. at 5).
Further, Mr. Smith testified that the decision not to ask any questions at the Frye hearing was a "strategy" and "ultimately it was my decision." ([DE 13-275] at 25). The decision was made because "it was our position that we were not going to participate and do a half-way job and then maybe it would be found that that was adequate when we didn't personally feel it was adequate." (Id.). Further, counsel made the decision not to participate in the Frye hearing in order to preserve the issue of not getting timely discovery responses for Mr. Overton's direct appeal. ([DE 13-276] at 1). In other words, counsel determined that it was a better strategic decision to not participate at all than to participate somewhat and risk an appellate court later deciding that Mr. Overton was not prejudiced by the lack of discovery because counsel was able to question the witnesses during the Frye hearing, Moreover. Mr. Smith testified, the RFLP DNA testing done by the FDLE was going to be admitted regardless of the outcome of the Frye hearing. In addition, Mr. Smith did not view the chain of custody issue to be a proper discussion for the Frye hearing because he "thought that was to be more of an evidentiary basis at trial. I don't think it had to do with the specific science." (Id. at 16). Mr. Smith also testified that while counsel could have gone to BODE Tech Labs' office to review documents, it seemed a better use of the time left before trial to prepare in "other
Having reviewed the record, the Court cannot find the decision of the Florida Supreme Court unreasonable. It is clear from the record that both of Mr. Overton's attorneys made what they thought was a "strategic" decision to not participate during the Frye hearing. Even if the Court believed the Florida Supreme Court's determination to be an incorrect one, under AEDPA deference that alone is not enough to grant habeas relief. The Court must also find that "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [United States Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 783, 178 L.Ed.2d 624 (2011). Given the record here, the Court would deny this claim even under a more favorable de novo review standard. Where a federal court would "deny relief under a de novo review standard, relief must be denied under the much narrower AEDPA standard." Jefferson v. Fountain, 382 F.3d 1286, 1295 n. 5 (11th Cir.2004).
With the strategic nature of the decision not to participate in the Frye hearing resolved, the Court considers whether the Florida Supreme Court's legal determination — that counsel's strategic decision was reasonable — was a reasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1). On appeal, the Florida Supreme Court found three reasons to support a determination that counsel's strategic decision was reasonable. First, counsel made a strategic decision "not to participate further to properly preserve the issue of the lack of discovery with regard to BODE Lab, which could then be attacked on direct appeal." Overton, 976 So.2d at 550. Second, counsel "understood that even if they were able to prevent the STR DNA testing by the BODE Lab from being admitted into evidence, the RFLP DNA testing by the FDLE Lab would still be admitted and would similarly link Overton to the crime." Id. at 550. Finally, "despite the decision to not participate further during the Frye hearing, other attempts were made by Overton's counsel to exclude these DNA testing results." Id. at 551. The court found this was a reasoned decision because the defense's expert, Dr. Litman had been consulted on the chain of custody issue and "dismissed the dangers of degradation and false positives from an alleged broken chain of custody here." Id. at 552.
The court determined, and the record supports, that counsel made a strategic decision after an investigation. This is in accord with clearly established federal law. See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation."). Based on the information that counsel had at the time they made the decision not to participate in the Frye hearing, counsel exercised reasonable professional judgment. While it is true that counsel did not have the discovery responses that they needed to conduct a thorough cross-examination
Mr. Overton's second subclaim of ineffective assistance of counsel is that appellate counsel was ineffective for failing raise the inadmissibility of DNA evidence due to a break in the chain of custody on direct appeal. ([DE 1] at 89-100). This claim was first raised in Mr. Overton's state habeas petition. Overton, 976 So.2d at 574. Mr. Overton argues that the chain of custody issue "was properly preserved for appeal" but appellate counsel was deficient for failing to raise the issue. The Florida Supreme Court disagreed
Overton, 976 So.2d at 574. The Florida Supreme Court found the claim procedurally barred but also denied the claim on the merits. Typically, "where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim." Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.1994). However, in this instance, the Court finds the procedural bar here does not constitute an independent and adequate state ground. See Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769,
This is a claim of ineffective assistance of appellate counsel. ([DE 1] at 89)(emphasis added). Mr. Overton is required to show that his appellate counsel's performance on direct appeal was deficient and, as a result, he was prejudiced. The first opportunity to do that was in his state habeas corpus petition. "In Florida, a state habeas petition is the proper procedural vehicle for bringing claims of ineffective assistance of appellate counsel, for example, but not for raising claims that should have been brought on direct appeal or in a postconviction motion." See Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000); see also Doyle v. Singletary, 655 So.2d 1120, 1121 (Fla.1995)(ineffective assistance of appellate counsel claims not raised in first habeas petition are procedurally barred from being raised in a subsequent habeas petition). Therefore, to find that Mr. Overton's claim of ineffective assistance of appellate counsel was procedurally barred is not an adequate state ground. Pursuant to state law, the underlying claim regarding the chain of custody would be procedurally barred from review on direct appeal because trial counsel failed to properly preserve the objection at trial. Trial counsel's failure may have also rendered any claim of trial error waived such that appellate counsel's performance would not have been deficient for failing to raise an issue on appeal which had been waived by trial counsel. However, a claim of ineffective assistance of appellate counsel, in and of itself, is not procedurally barred from review.
Turning to the merits, the Court does not need to consider whether trial counsel waived the chain of custody claim by not making a "`contemporaneous, specific objection' during trial at the time of the alleged error." Ultimately, the court determined, even if the trial court erred in not finding a break in the chain of custody, "it is not enough by itself to establish the probability of tampering, which would require the exclusion of evidence." Overton, 976 So.2d at 574. (citations omitted).
In making that determination, the court applied state law to Mr. Overton's claim. This application of state law is one which the Court must defer. When the state courts have already answered the question of how an issue would have been resolved under that state's law had defense counsel done what the petitioner argues he should have done, "federal habeas courts should not second-guess them on such matters" because "it is a fundamental principle that state courts are the final arbiters of state law." Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir.2005) (quotation marks omitted).
Mr. Overton's final sub-claim for habeas relief is that the State withheld "critical impeachment evidence" when it failed to disclose that the FDLE had previously declined to conduct testing on samples collected by Dr. Pope in a different murder case. (Lloyd Chase Allen v. State, 662 So.2d 323 (Fla.1995)). FDLE declined to conduct the testing because of "conflicting labels" and evidence samples not being packaged in "separate containers." This is Mr. Overton's Brady claim. ([DE 1] at 102). Mr. Overton further argues that the State mislead the jury by implying during closing argument that "semen was left on Missy Maclvor's thigh with the reasonable inference that it belonged to Overton as well." This is Mr. Overton's Giglio claim. ([DE 1] at 109). Mr. Overton raised his Brady claim in his state habeas petition and raised his Giglio claim (to the extent this is a Giglio claim) in his successive postconviction motion. The Florida Supreme Court found both of these arguments to be without merit.
Overton, 976 So.2d at 563. Mr. Overton has done very little to show that the determination of the Florida Supreme Court was an unreasonable application of clearly established law or an unreasonable determination of the facts other than to assert conclusory statements such as "had the defense and in turn the judge and jury been made aware of Dr. Pope's reputation for shoddy evidence collection, four jurors who voted for life could have been persuaded to question the State's DNA evidence." ([DE 1] at 103).
Mr. Overton asserts he is "entitled to a hearing on his Brady claim that the State withheld evidence regarding Doc Pope's pattern and practice of shoddy evidence collection techniques." ([DE 1] at 100). However, he provides no basis for such an entitlement. The Court does not find the determination of the Florida Supreme Court to be unreasonable nor does the Court find that Mr. Overton is entitled to an evidentiary hearing in federal court.
As this claim was decided on the merits, habeas relief can only be granted if the Florida Supreme Court's determination "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1)-(2). In making such a determination, the Court may only consider the record that was before the state court. See Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011)("We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.").
If, after review, the Court concludes that Mr. Overton satisfied either 28 U.S.C. § 2254(d)(1) or (d)(2), then the Court should determine if he is entitled to present additional evidence in support of his claim in a federal evidentiary hearing. To be entitled, Mr. Overton must show diligence. See Pope v. Sec'y, Dep't of Corr., 680 F.3d 1271, 1289 (11th Cir. 2012)("In general, our precedent says that when a petitioner requested an evidentiary hearing at every appropriate stage in state court and was denied a hearing on the claim entirely, the petitioner has satisfied the diligence requirement for purposes of avoiding Section 2254(e)(2)."). However, if a petitioner fails to develop the factual basis of a claim in a state court proceeding, an evidentiary hearing is barred. See Williams v. Alabama, 791 F.3d 1267, 1276 (11th Cir.2015)("In this context, the Supreme Court has `explained that "fail" connotes some omission, fault, or negligence' on the part of the petitioner ... [t]hus, `a failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel.'"). Once the entitlement to an evidentiary hearing is resolved, the Court would conduct a de novo review of the claim. Jones v. Walker, 540 F.3d 1277, 1288 n. 5 (11th Cir.2008) (en banc); see also Green v. Nelson, 595 F.3d 1245, 1251 (11th Cir.2010) (finding state court unreasonably determined the facts under 2254(d)(2) and applying de novo review). Here, after reviewing the record before the state court, the Court does not find that Mr. Overton has satisfied 28 U.S.C. § 2254(d)(1) or (d)(2). Therefore, a federal evidentiary hearing is not required. In denying this claim, the Florida Supreme
In Brady, the Supreme Court established three criteria a criminal defendant must prove in order to establish a violation of due process resulting from the prosecution's withholding of evidence. Specifically, the defendant alleging a Brady violation must demonstrate: (1) that the prosecution suppressed evidence. (2) that the evidence suppressed was favorable to the defendant or exculpatory, and (3) that the evidence suppressed was material. United States v. Severdija, 790 F.2d 1556, 1558 (11th Cir.1986). 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 (11th Cir.1987) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). Here, the Florida Supreme Court found that Mr. Overton failed to show evidence that Dr. Pope's prior shortcomings prejudiced him because it would have been cumulative to the information elicited during cross-examination. Overton, 976 So.2d at 563.
At trial, defense counsel cross-examined Dr. Pope at great length regarding his evidence collection procedures. (See [DH 13-121] at 80 & [DE 13-122] at 1-14). Defense counsel elicited on cross-examination that Dr. Pope did not know what date or when he labeled the swabs taken from the crime scene. ([DE 13-122] at 2). Dr. Pope further testified that he failed to make a property receipt that showed, listed, or described the swabs taken off the victim. (Id. at 9). Dr. Pope testified that there was a point in time when the swabs were unable to be located by the Monroe County Sheriff's Department. Dr. Pope also testified that he took the evidence to his home and not to an evidence storage facility. ([DE 13-123] at 21). The swabs were placed in Dr. Pope's personal home refrigerator. Defense counsel cross-examined Dr. Pope regarding his statements that property receipts are "a pain in the butt" as is "paperwork" in general. (Id. at 25). Dr. Pope testified that he took the physical evidence (i.e.; mattress pad, comforter, and bed sheet) to his home to hang them to dry. He further testified that he did not place any paper to catch "trace sweepings" underneath the samples when they were hung to dry. (Id. at 49). Defense counsel also cross-examined Dr. Pope about his taking the mattress pad to Orlando on December 17, 1992 to "have a psychic consultant look at the stuff." (Id. at 53). The transport to Orlando occurred before the mattress pad was given to the FDLE for DNA testing. Clearly, defense counsel effectively cross-examined Dr. Pope such that the jury was aware of his unconventional practices regarding the collection and storage of evidence.
Having reviewed the state court record, the Court cannot find the decision of the Florida Supreme Court unreasonable. The court found that Mr. Overton failed to establish prejudice as required by Brady because the jury was aware of Dr. Pope's "sloppy work" and, therefore, any additional evidence would have been cumulative.
Mr. Overton also argues that the State committed a Giglio violation
Overton v. State, 129 So.3d 1069, *4 (Fla. 2013).
Having reviewed the state court record, the Court finds the Giglio claim unexhausted. While it is true that Mr. Overton's sought additional DNA testing of swabs taken from Mrs. MacIvor's body, he did not assert a Giglio violation. Mr. Overton did not argue the claim as a Giglio violation on appeal. Instead, the claim was argued that the "denial of motion to compel DNA testing was an abuse of discretion where the State failed to follow the trial court's initial order." ([DE 13-361] at 28-39). Therefore, the state courts have not had an opportunity to consider the merits of a Giglio claim.
As. Mr. Overton did not make a Giglio claim in his postconviction proceedings, he is foreclosed from bringing one here. To properly exhaust state remedies. Mr. Overton must fairly present every issue raised in his federal petition to the state's highest court. See Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989) (emphasis added). "When a petitioner fails to properly raise his federal claims in state court, he deprives the State of `an opportunity to address those claims in the first instance' and frustrates the State's ability to honor his constitutional rights." Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1780, 173 L.Ed.2d 701 (2009) (internal citations omitted).
Ordinarily, a federal habeas corpus petition which contains unexhausted claims is dismissed pursuant to Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), allowing Mr. Overton to return to the state forum to present his unexhausted claim. However, such a result in this instance would be futile, since Mr. Overton's unexhausted claim is now incapable of exhaustion at the state level and would be procedurally barred under Florida law. Mr. Overton has already pursued a direct appeal and filed multiple postconviction motions in state court, with the denial of those motions affirmed on
Mr. Overton's third claim for federal habeas relief contains three sub-claims. All three arguments are based on the trial testimony of James Zientek. ([DE 1] at 110-153). First, Mr. Overton asserts that trial counsel was ineffective for "failing to impeach Pesci's statements." (Id. at 111). Second, Mr. Overton contends that the State violated Brady v. Maryland and Giglio v. United States when it failed to disclose that "Pesci is a compulsive, chronic liar, [] the State presented false or misleading testimony in order to obtain Overton's conviction and sentence." As such, Mr. Overton asserts that his due process rights under the Fourteenth Amendment to the United States Constitution was violated. (Id. at 142). Finally, Mr. Overton argues that his due process rights were violated when the court failed to "grant a legally sufficient motion to disqualify" the presiding judge because the judge presiding over Mr. Overton's Rule 3.851 proceedings was also the presiding judge for Mr. Zientek's civil commitment proceedings. (Id. at 133).
James Zientek is a violent sexual offender. ([DE 13-133] at 14]). At the time of Mr. Overton's pre-trial detention, Mr. Zientek was housed at the Monroe County Detention Center awaiting trial on charges of sexual battery, sexual assault, robbery, grand theft auto and resisting arrest without violence. (Id. at 16). While he was incarcerated, he developed a friendship with Mr. Overton. Mr. Zientek testified that Mr. Overton provided him with specific details of the Maclvor murders and showed him the crime scene and autopsy photos. (Id. at 27-28). Mr. Zientek testified that he entered into a plea deal with the State which called for a maximum sentence of seven years. (Id. at 63).
Counsel for Mr. Overton began the cross-examination of Mr. Zientek by asking "[y]ou are a liar, aren't you, sir?" (Id. at 65). Counsel then proceeded to question Mr. Zientek about his use of multiple aliases, his portrayal as being related to the actor, Joe Pesci, and his boasts of being associated with the "mafia" in New York. Mr. Zientek admitted that he had lied to the police, lied to Mr. Overton about being a paralegal, lied about the charges pending against him, and that he had changed his testimony about how Mr.
During closing argument, the State argued that Mr. Zientek's testimony should be believed; not so much because he was a trusted and upstanding member of society worthy of belief but because he knew details not publically available. ([DE 13-145] at 2-6). The State expounded on several details testified to by Mr. Zientek which were not known or would not have been logical to create when fabricating a story. (Id.). The State's argument regarding Mr. Zientek's testimony was a small fraction of closing argument in comparison to the strength of the evidence against Mr. Overton. In the defense closing, counsel sought to discredit Mr. Zientek by referring to him as "Mr. Zientek, Pesci, Stonewall, Gwavacki, whatever else he's calling himself that day." ([DE 13-145] at 26).
Mr. Overton's first sub-claim is that counsel was ineffective for failing to cross-examine Mr. Zientek when it was likely that he copied, verbatim, documents which were in Mr. Overton's cell. Mr. Overton also asserts that defense counsel was ineffective for failing to offer themselves up as witnesses during trial. Mr. Overton avers that because both of his lawyers had seen Mr. Zientek wandering freely around the area of Mr. Overton's cell without him being present, they should have testified about what they had seen so that the credibility of Mr. Zientek's testimony would have been called into question. ([DE 1] at 116-120). Essentially, Mr. Overton alleges that Mr. Zientek had unfettered access to the documents in his cell which contained information not publically available. The trial court rejected both these arguments and the Florida Supreme Court affirmed. See Overton, 976 So.2d at 554-56. The Court considers each argument in turn.
Mr. Overton contends that his counsel was ineffective for failing to impeach Mr. Zientek's testimony and challenge his credibility by questioning him about the misspellings of the identical words used in his "handwritten notes" and the Monroe County police reports. The Florida Supreme Court found the decision not to impeach to have been reasonable.
Overton, 976 So.2d at 555-56. During post-conviction, trial counsel for Mr. Overton testified that they became aware of "similarities in a document written by the police department and notes that were taken by or which [they] received as purported to have been taken by Mr. Pesci." ( [DE 13-292] at 12). However, counsel testified that there was a problem with raising this as an issue before the jury because the police report at issue contained "uncharged, probably unsolved crimes that they were — that the Monroe County Sheriff's Office or other departments were of the opinion that Mr. Overton was guilty of or at least he was a suspect." (Id. at 13). Mr. Smith testified that it was the defense's strategy to not "open the door to other unsolved crimes that Mr. Overton was a suspect of." (Id.). This was clearly a strategic decision. Further, Mr. Garcia testified that prior to trial, the defense filed a motion in limine to preclude the State from mentioning the fact that Mr. Overton was a suspect in other unsolved crimes in Monroe County. ([DE 13-293] at 15). The record shows that it was a consistent defense strategy to not have the jury learn that Mr. Overton was a suspect in other crimes, specifically an open murder investigation.
The Florida Supreme Court found that this was a reasonable strategic decision. The Florida Supreme Court's conclusion is well within the bounds of reasonableness under AEDPA. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2066 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable...."). Mr. Overton has done little to argue that this determination was an unreasonable determination of the facts or an unreasonable determination of clearly established federal law. Further, even if the court's determination on deficiency was unreasonable, Mr. Overton has not shown prejudice. "Prejudice occurs when the challenger has shown `a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. Prejudice results only when counsel's errors were "so serious" that they deprived the defendant of a "fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687,104 S.Ct. 2052. To satisfy the prejudice prong, the "likelihood of a different result must be substantial, not just conceivable." Harrington, 131 S.Ct. at 792. Even if the Court were to find the deficiency determination of the Florida Supreme Court to be unreasonable, a de novo review of the prejudice prong would still require a denial of relief.
However, because the Florida Supreme Court made a determination on the deficiency prong, in order for the Court to grant federal habeas relief, it would have to find that no "reasonable jurist could decide otherwise." Based on the testimony presented, Mr. Overton has failed to meet the burden as required by 28 U.S.C. § 2254. It is certainly reasonable for defense counsel to not want the jury to know that Mr. Overton was a suspect in other unsolved crimes in Monroe County at the
Mr. Overton also asserts that trial counsel was deficient because they failed to advise the court that they had witnessed Mr. Zientek walking around unsupervised in the jail near Mr. Overton's cell. ([DE 8] at 117). Mr. Overton argues that because his counsel had such knowledge that they should have advised the trial court and listed themselves as witnesses so that they could have testified during trial and impeached Mr. Zientek's credibility. The Florida Supreme Court rejected this argument.
Id. at 555. Before trial, defense counsel advised the State of certain witnesses who "claimed to have been capable of corroborating Mr. Overton's claim that Pesci or Zientek went inside his cell." (Id.). Yet, when the State deposed these witnesses, none of them were "able or willing to testify to that." (Id. at 6). During the evidentiary hearing, both defense attorneys testified that neither one of them ever saw Mr. Zientek actually inside Mr. Overton's cell. ([DE 13-276] at 5). Mr. Smith testified that it had not occurred to him to tell the trial judge that Mr. Zientek's testimony regarding his access to Mr. Overton's cell was false because he considered most, if not all, of Mr. Zientek's testimony to be false anyway. Further, Mr. Smith testified that he "wasn't a witness to Mr. Zientek [] being in the cell." ([DE 13-276] at 19). Mr. Garcia testified that he did not recall if he thought he had
The Florida Supreme Court found that Mr. Overton did not show deficiency. Based on the record the Court does not find that determination unreasonable. The point when counsel determines "[w]hich witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess,'" Evans v. Sec'y., Fla. Dep't of Corr., 699 F.3d 1249, 1268 (11th Cir.2012) (quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir.1995) (en banc)). While this case is different from the typical "failure to call a witness" claim, both counsel testified that they either: (1) did not think of themselves as witnesses or (2) they chose not to alert the court as to what they had observed at the Monroe County Jail and make themselves witnesses at trial. In order for the Court to grant habeas relief, it would have to find that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 86, 131 S.Ct. 770. On the record here, the Court does not make such a finding. Habeas relief is denied.
Mr. Overton's second sub-claim for federal habeas relief is that he was convicted and sentenced based on the testimony of an admitted pathological liar. ( [DE 8] at 110). Mr. Overton argues that the State knew Mr. Zientek was a pathological liar and, yet, the State still put on his testimony at trial. Specifically, Mr. Overton alleges that, in 2006 (seven years after Mr. Overton was convicted and sentenced to death), the State put on testimony during a Jimmy Ryce Act
([DE 8] at 141). Even though the testimony at issue was given many years after Mr. Overton was convicted and sentenced, he argues that "[t]he duty to disclose under Brady continued though [sic] postconviction
Overton, 129 So.3d at *2. As the Florida Supreme Court denied this claim on the merits, Mr. Overton would have to show that the determination of the state court
To begin, the Florida Supreme Court correctly identified the clearly established federal law applicable to Mr. Overton's claim. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court established three criteria a criminal defendant must prove in order to establish a violation of due process resulting from the prosecution's withholding of evidence.
At trial, Mr. Zientek was cross-examined by defense counsel. ([DE 13-133] at 66). Counsel very pointedly asked Mr. Zientek was if he was "a liar?" (Id.). Counsel then inquired about each and every alias that Mr. Zientek had ever used. Counsel then inquired; "isn't it true" that when Mr. Zientek held himself out to be a person he was not that he lied. Mr. Zientek testified that he had previously lied to police and he does not have "a lot of respect" for the legal system. (Id. at 69-70). Further, the jury was well aware of the seriousness of the pending charges against Mr. Zientek at the time he testified.
Moreover, the record is clear that Mr. Overton was convicted on February 1, 1999 and sentenced to death on March 18, 1999. ([DE 13-149] at 10-11, [DE 13-154] at 17). On direct appeal, his conviction and sentence were final on December 3, 2001. Overton, 801 So.2d at 877. Mr. Zientek's civil commitment hearing was not held until four years later on January 12, 2006. ([DE 13-314] at 4). Therefore, the record does not show that the State was privy to evidence of Mr. Zientek's psycho-social disorders until well after the verdict. The State cannot be said to have suppressed information which was not known to them.
Under the Due Process Clause, the government may not suppress evidence favorable to an accused when that evidence "is material either to guilt or to punishment." Brady, 373 U.S. at 87, 83 S.Ct. 1194; see also Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972)("(t)he heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request ..."). Here, Mr. Overton has not shown that the State suppressed evidence. The Florida Supreme Court's determination that no suppression of evidence occurred was not an unreasonable application of clearly established federal law.
In addition, the bedrock principle of any Brady claim is that the evidence must have been material. Judicial emphasis is often placed on the materiality standard because it is the most difficult to meet. See Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Evidence is material only if there is a reasonable probability that, had the evidence
The application of the materiality standard was reasonable; as was the factual determinations regarding the exculpatory value of the DNA evidence (FDLE serologist, Dr. James Pollock matched Mr. Overton's DNA to that found at the crime scene "in excess of one in six billion Caucasians, African Americans and Hispanics") and the corroborating testimony of Mr. Green ("[h]e told me he did a burglary at a real exclusive, wealthy, wealthy area down in the Keys. The guy had his own airplane and a private airway and he could land his plane in his front yard.")([DE 13-126] at 28).
The facts support the finding of the state court and Mr. Overton has not shown the determination to be unreasonable. The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold. See Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). When conducting the § 2254(d)(2) analysis "we do not question the propriety of the legal standard the trial court applied ... [i]nstead, we train our attention on the [] underlying factual determinations on which the trial court's decision was premised." See Brumfield v. Cain, ___ U.S. ___, 135 S.Ct. 2269, 2276, 192 L.Ed.2d 356 (2015). Habeas relief is denied.
Mr. Overton's final sub-claim for federal habeas relief is that his due process rights were violated when the postconviction judge refused to disqualify himself. ([DE 8] at 127-28). Mr. Overton's 1999 guilt and penalty phases were presided over by the Honorable Mark H. Jones. Judge Jones was also the presiding judge during Mr. Overton's postconviction motions and evidentiary hearings. In addition, Judge Jones presided over the 2006 Jimmy Ryce Civil Commitment hearing wherein Mr. Zientek was civilly committed as a continued threat to society. When Mr. Zientek's civil commitment was reviewed again in 2011, Judge Jones again presided over the proceedings. This caused Mr. Overton to file a motion to disqualify the judge because he believed that Mr. Zientek's testimony at Mr. Overton's hearing may be "tainted and/or compromised." Mr. Overton contends that Mr. Zientek's role in Mr. Overton's underlying conviction remained a consideration before Judge Jones and the State had argued that Mr. Zientek was "deceitful." ( [DE 8] at 133). At the time of Mr. Overton's hearing, Judge Jones had not yet ruled on Mr. Zientek's continued civil commitment. The Florida Supreme Court found this claim to be without merit.
Overton, 129 So.3d at *1. In his federal habeas petition, Mr. Overton asserts that Judge Jones was required, pursuant to the Code of Judicial Conduct, to disqualify himself. Mr. Overton asserts that Judge Jones was mandated to "disqualify himself in any proceeding `in which the judge's impartiality might reasonably be questioned.' Fla.Code Jud. Conduct. Cannon 3E (1)(a) & (b)." ([DE 8] at 133). In addition, when Mr. Overton sought disqualification in state court, he also cited "Rule 2.330 of the Florida Rules of Judicial Administration." (Id. at 127). The record shows that Mr. Overton's argument has consistently been that Judge Jones was required to recuse himself based on Florida law and Florida's Code of Judicial Conduct. This prohibits federal habeas relief. Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) ("We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."). Moreover, a violation of state law is not a ground for federal habeas relief. Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law...."); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law.").
Nonetheless, even if this were a cognizable claim for federal habeas relief, Mr. Overton has not argued; let alone, shown actual bias. At best, Mr. Overton asserts that he "possessed an objectively reasonable fear that he would not get a fair hearing because Judge Jones had [Zientek's] freedom literally hanging over his head." ([DE 8] at 135). However, simply an appearance or fear of bias is not enough. See Davis v. Jones, 506 F.3d 1325 (11th Cir.2007)(the Supreme Court has not established that an appearance problem violates the Due Process Clause.). Given Supreme Court precedent and the facts of this case, the decision of the Florida Supreme Court was not an unreasonable application of clearly established federal law to the facts of this case under § 2254(d)(1). Habeas relief is denied.
Mr. Overton's final claim for federal habeas relief lacks clarity. After review, the Court concludes that Mr. Overton is asserting an ineffective assistance of trial counsel claim for failing to conduct an investigation into an alibi defense and failing to object to the pre-indictment delay. ([DE 8] at 153). Mr. Overton also claims that newly discovered evidence shows that he is actually innocent of the crimes for which he was convicted. While the Court comprehends Mr. Overton's argument, it is unclear if he is asserting a freestanding
Mr. Overton asserts that his trial counsel was ineffective for failing to conduct a thorough investigation into an alibi defense. Mr. Overton alleges that he was working at the time of the murders. Mr. Overton also asserts that his counsel was ineffective for failing to object to the pre-indictment delay. Mr. Overton contends that the pre-indictment delay precluded him from asserting an alibi defense.
Mr. Overton alleges that he was working at the Amoco station in Tavernier, Florida at the time of the Maclvor murders. Mr. Overton asserts that there were four fellow employees who would have been able to testify that he was working the night shift on August 21-22, 1991. During postconviction, Mr. Overton filed a Second Amended Motion to Vacate Judgment and Sentence. Among other claims, Mr. Overton contended that his trial counsel was ineffective for failing to "promptly investigate numerous alibi witnesses." [DE 13-200] at 40). Specifically, counsel failed to "obtain work records, employee job applications or gas receipts and failed to interview fellow workers who could have corroborated Mr. Overton's alibi." ([DE 13-201] at 1). The Florida Supreme Court found that counsel made a strategic decision not to pursue this alibi defense at trial.
Overton, 976 So.2d at 556-58.
Mr. Smith also testified regarding the Amoco alibi. His testimony was that while counsel considered an alibi defense, "we were unable to come up with specific witnesses." ([DE 13-275] at 26). Mr. Smith testified that they tried to locate the records from the Amoco station but they were "unavailable at that point." (Id. at 26). As it turned out, the "company had changed hands at least once and [] the records ultimately were destroyed." (Id. at 27). Mr. Smith further testified that Mr. Overton had given him the names of his co-workers at the Amoco station and counsel had tried to locate them but there "wasn't anything useful that we felt came out of that." (Id.). Mr. Smith stated that the defense did not list a notice of intent to "rely on alibi" because they "weren't able to come up with any specific alibi witnesses." ([DE 13-276] at 13).
During postconviction, Mr. Overton located three former employees of the Amoco station. David Smerek, the manager of the Amoco, testified that Mr. Overton was employed as a cashier and floor personnel in 1991. Mr. Overton frequently worked the night shift. ([DE 13-277] at 18). Mr. Smerek had no memory of whether Mr. Overton was working on August 21, 1991. Sammie York, co-manager of the Amoco, also testified that she had no memory of whether or not Mr. Overton was working the overnight shift at the time of the murders. ([DE 13-277] at 32). Ms. York moved out of Florida in 1992 and does not know what happened to the time and attendance records of the Amoco after she moved. Lori Figur also worked at the Amoco station in 1991. ([DE 13-283] at 29). Ms. Figur testified that she could not remember if she was working on the day of the murders. She could not remember if Mr. Overton was working on the day of the murders. (Id. at 31).
While Mr. Overton asserts that had his lawyers been effective he could have established an alibi defense, that assertion is wholly unsupported by the record. What is clear from the record is that defense counsel considered and rejected an alibi defense. The rejection of such a defense was simple. There was no evidence to support it. This lack of evidence existed in 1996 when counsel was first appointed to represent Mr. Overton, in 2004 at the time of the postconviction evidentiary hearing, and remains to this day. With the exception of Mr. Overton's testimony at the postconviction evidentiary hearing, the fact that he was working at the Amoco station on the night of the murders has not been established. Certainly, counsel cannot be deemed ineffective for failing to pursue an alibi defense wholly unsupported by the evidence. The decision of the Florida Supreme Court was not an unreasonable application of Strickland. Habeas relief is denied.
Mr. Overton's second sub-claim for federal habeas relief is interrelated to his first sub-claim. Having been unable to show that trial counsel was ineffective for failing to pursue an alibi defense, his second sub-claim is for ineffective assistance of counsel for failing to object to the pre-indictment delay which caused counsel to not be able to pursue the alibi defense. Mr. Overton argues that "[t]he rejection of Overton's claim that counsel was ineffective for failing to challenge the pre-indictment delay because the claim was without merit was based upon an unreasonable
Overton, 976 So.2d at 559-60. Here, Mr. Overton asserts that he "is capable of establishing both actual prejudice and deliberate prosecutorial delay by the State to gain tactical advantage." ([DE 8] at 166). Specifically, Mr. Overton argues that he suffered prejudice "in the form of lost evidence and witnesses' ability to accurately recall important facts surrounding the crime." (Id.). Mr. Overton also asserts that he was "further prejudiced from the extended delay by the State's actively soliciting and procuring testimony through the use of jail house informants." (Id.)
Absent from Mr. Overton's arguments is why the determination of the Florida Supreme Court was unreasonable. In the Petition. Mr. Overton makes a single argument without explanation. Simply, he asserts that the court made an unreasonable determination of the facts. Without more, the Court assumes that Mr. Overton does not take issue with the Florida Supreme Court's application of clearly established federal law. As Mr. Overton has not argued that the court's application of clearly established federal law was unreasonable, the Court will proceed to the factual determinations.
Even if the time and attendance records had been preserved, at best, those records would have shown that Mr. Overton was at work on the night of the murders. However, the records would not conclusively show that Mr. Overton was at work at the time of the murders. The murders took place sometime after 9pm. If Mr. Overton had worked the night shift on the evening of the murders, the night shift did not begin until 11pm; two hours after the Maclvors were last seen alive. ([DE 13-277] at 18).
As far as Lorna Swaby, it was the defense theory at trial that she gave Detective Visco a used condom containing Mr. Overton's sperm several months before the MacIvors' murder. The obvious implausibility of this theory aside, there is no evidence whatsoever to support this allegation. During postconviction, Detective Visco testified that he did not receive a condom from Ms. Swaby. ([DE 13-293] at 29). Moreover, even Mr. Overton himself testified during postconviction that he when he speculated about how the police would have gotten his DNA he had to "think the only way they could have got my DNA was got it from her." ([DE 13-288] at 27). As such, no factual evidence was ever introduced to show that Lorna Swaby provided the police with a DNA sample from Mr. Overton.
Although Mr. Overton called an expert witness who testified generally about the degradation and contamination of DNA evidence, when it came time to testify regarding any specific degradation and contamination of evidence in Mr. Overton's case, the witness was unable to testify that the DNA had degraded. ([DE 13-281] at 36-37). In contrast, the expert who testified on behalf of the State found no significant signs of degradation.
As far as any purposeful delay to gain a strategic advantage by law enforcement, Detective F.K. Jones testified in great detail regarding the leads that were pursued by the Monroe County Sheriff's Office during the pre-indictment period. ([DE 13-274] at 1-11). Mr. Overton was not the only suspect considered by law enforcement.
Clearly, the factual determinations of the Florida Supreme Court are supported by the record. § 2254(d)(2) requires that the Court accord the state trial court substantial deference. If "[r]easonable minds reviewing the record might disagree' about the finding in question, `on habeas review that does not suffice to supersede the trial court's ... determination.'" Rice v. Collins, 546 U.S. 333, 341-342, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006). Habeas relief must be denied.
Mr. Overton's final sub-claim for federal habeas relief is that "the newly discovered evidence considered alongside with the theory of defense at trial undermines confidence
In 1991. Sandra Shaw worked part-time typing for Southeast Investigative Services. Ms. Shaw testified that as part of her duties she would type surveillance reports. Ms. Shaw remembered typing a correspondence letter about the Maclvors around the time of their murders. ([DE 13-329] at 18). After the murders, she spoke with the owner of Southeast Investigative Services who confirmed that the letter she had typed was about the same persons who were murdered in the Florida Keys. (Id. at 21). In 2004, Ms. Shaw was watching television and a show about the Maclvor murders came on. Afterwards, Ms. Shaw contacted the news media to advise that she had some information which may be relevant to the crimes. She also contacted the Innocence Project and eventually connected with Capital Collateral Regional Counsel. (Id. at 28). Ms. Shaw did not remember much of the content of the letter she typed in 1991 other than the name "Maclvor" appeared in the report. (Id. at 39). The letter was addressed to someone who had contacted the investigative agency to see if they would conduct surveillance of the Maclvors. ([DE 13-330] at 5). This was the extent of Ms. Shaw's knowledge regarding the Maclvors. The Florida Supreme Court was unpersuaded.
Overton, 129 So.3d at *3.
To begin, this claim is confounding. Mr. Overton asserted this sub-claim within his claim for ineffective assistance of trial counsel. However, his argument is not so much about trial counsel's effectiveness as it is about actual innocence. Indeed, Mr. Overton does not explain how or what counsel should have done to uncover the alleged surveillance of the MacIvors. He does not argue deficiency for failing to investigate or discover Ms. Shaw before trial. On its face, there is no indication that this is a Strickland claim.
On appeal, the Florida Supreme Court found that Mr. Overton did not plead one of the essential elements of a newly discovered evidence claim. The Court interpreted his claim to be that counsel would have pursued the surveillance and alleged criminal activities of Mr. MacIvor had they known about them. See id. Mr. Overton clearly acknowledges that his argument in state court was simply that "neither Jason Smith or Manuel Garcia had any information that the Maclvors had been under surveillance and that it [sic] if they had known that, they would have investigated further." ([DE 8] at 173). Mr. Overton asserts that the state court should have considered "the effect that this information may have had on the jury" and that the newly discovered evidence, when considered alongside the theory of defense at trial "undermines confidence in the out-come of the trial." (Id. at 174)(emphasis added). Given that this was not plead as a Strickland claim, the Court must deduce that this is an actual innocence claim.
Actual innocence claims are not cognizable for federal habeas relief. "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). A claim of actual innocence is not a freestanding basis for habeas relief but it can excuse the procedural default of an independent constitutional claim. See id. at 404, 113 S.Ct. 853.
Mize v. Hall, 532 F.3d 1184, 1195 (11th Cir.2008). While the Court does not find Mr. Overton's claim to be cognizable here,
The standard adopted by the United States Supreme Court is a "no reasonable juror" standard; however, Mr. Overton has only alleged that Ms. Shaw's testimony may have had an impact on the jury and confidence in the outcome was undermined. This is not enough to establish actual innocence under the fundamental miscarriage of justice exception to the procedural default doctrine. See Schlup, 513 U.S. at 298, 115 S.Ct. 851. Habeas relief is denied.
Accordingly, after due consideration, it is
DONE AND ORDERED in Chambers at Miami, Florida, this 12th day of January, 2016.
The nonstatutory mitigating circumstances found by the trial court were that Overton would be imprisoned for the remainder of his life so there was no danger that he would commit any other violent acts (given "little weight") and Overton's good courtroom behavior/demeanor (given "some weight").
The Court did review the Florida Supreme Court's prejudice analysis and finds it to be reasonable. Even if Mr. Overton had shown that he was working the night shift at the time of the murders, the record shows that there was time for Mr. Overton to have committed the murders and then gone to work at the Amoco station. To prove prejudice, the petitioner "must 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, 104 S.Ct. at 2068. A reasonable probability is one "sufficient to undermine confidence in the outcome." Id., 104 S.Ct. at 2068. Mr. Overton has not shown prejudice.
