JAMES D. WHITTEMORE, District Judge.
Petitioner, a state of Florida inmate proceeding prose, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Petitioner challenges his convictions for aggravated battery (great bodily harm with a weapon) and obstructing or opposing an officer without violence, entered in 2003 in the Thirteenth Judicial Circuit, Hillsborough County, Florida. In its response (Dkt.8), Respondent asserts that the petition should be denied. Upon review, the petition must be denied.
On March 27, 2003, the State of Florida filed a felony information charging Petitioner with "aggravated battery (great bodily harm and weappn)" (count one). (Dkt. 10, Ex. 1.) The information specifically charged that in committing the aggravated battery, Petitioner "did intentionally or knowingly cause great bodily harm, permanent disability or permanent disfigurement" to the victim contrary to § 784.045, Fla. Stat. (Id.) The information also charged that "during the course of the commission of the offense [Petitioner] carried, displayed, used, threatened to use, or attempted to use a weapon, to-wit: a knife" and referred to § 775.087(1), Fla. Stat., which permits reclassification of certain offenses if a defendant uses a weapon in such a manner. (Id.) Petitioner was also charged with obstructing or opposing an officer without violence (count two). (Id.)
A jury convicted Petitioner on August 18, 2003. He was sentenced on September 22, 2003, to life imprisonment as a habitual felony offender with a thirty-year term as a prison releasee reoffender on count one, and to time served on count two. (Dkt. 10, Ex. 3.) On September 29, 2003, the trial court resentenced Petitioner to thirty years' imprisonment as a prison releasee reoffender on count one. (Dkt. 10, Ex. 4.)
On May 21, 2004, Petitioner filed a Motion to Correct Sentencing Error under Florida Rule of Criminal Procedure 3.800(b)(2). He alleged in relevant part that the trial court was without jurisdiction to conduct resentencing on September 29, 2003, because he filed a notice of appeal prior to that date, and that the court erred in resentencing him without counsel. (Dkt. 10, Ex. 5.) In an order entered August 11, 2004, the trial court granted Petitioner's Rule 3.800(b)(2) motion as to these claims. (Dkt. 10, Ex. 6.) It appears that an amended sentence was entered on September 20, 2004, reflecting Petitioner's sentence of thirty years' imprisonment as a prison releasee reoffender on count one. (Dkt. 10, Ex. 7, pp. 6-7.) The state appellate court per curiam affirmed Petitioner's judgment and sentence on August 3, 2005. Scott v. State, 908 So.2d 1072 (Fla. 2d DCA 2005) (table).
Petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 on May 4, 2006, raising ten claims of ineffective assistance of trial counsel.
During this time, Petitioner's Rule 3.850 motion remained pending. The state court entered several orders summarily denying some of the claims, directing Petitioner to amend other claims, and instructing the State to respond to numerous claims. (Dkt. 10, Ex. 15, 18.) On May 29, 2009, the court entered an order granting an evidentiary hearing on three of Petitioner's claims. (Dkt. 10, Ex. 19.) The court conducted the evidentiary hearing on October 6, 2009, and entered its final order denying Petitioner's Rule 3.850 motion on December 17, 2009. (Dkt. 10, Ex. 20, 21.) This order of denial was per curiam affirmed on November 19, 2010. Scott v. State, 49 So.3d 249 (Fla. 2d DCA 2010) (table). The mandate issued on December 15, 2010. (Dkt. 10, Ex. 22.)
This petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24, 1996. See Lindh v. Murphy, 521U.S.320, 326-27 (1997). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) sets forth a highly deferential standard for federal court review of a state court's findings of law and fact. It provides that habeas relief may not be granted on a claim adjudicated on the merits in state court unless such determination:
28 U.S.C. § 2254(d)(1)-(2).
The Supreme Court explained the review of a state court's findings referenced in subsection (1) above in Williams v. Taylor, 529 U.S. 362, 412-13 (2000):
A state court's factual findings must also be given deference, as set forth in subsection (2) above. Specifically, a state court's determinations of fact "shall be presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Henderson v. Campbell, 353 F.3d 880, 890-91 (11th Cir. 2003).
In order to pursue federal habeas relief, a state prisoner must exhaust every available state court remedy for challenging his conviction. 28 U.S.C. § 2254(b)(1). "[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State. . . if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c); Pruitt v. Jones, 348 F.3d 1355, 1358 (11th Cir. 2003).
To exhaust state remedies, a petitioner must make the state court aware of both the legal and factual bases for his claim. "To present a federal constitutional claim properly in state court, `the petitioner must make the state court aware that the claims asserted present federal constitutional issues.'" Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)). "[T]he prohibition against raising nonexhausted claims in federal court extends not only to broad legal theories of relief, but also to the specific assertions of fact that might support relief." Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). See also O'Sullivan, 526 U.S. at 848; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999).
Similarly, a federal habeas petition must involve a question of federal law. A state court's interpretation of state laws or rules, when no federal constitutional issue is addressed, does not provide a basis for federal habeas relief. Therefore, a claim that solely involves state law is not cognizable in a § 2254 petition. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)(citing Carrizales v. Wainwright, 699 F.2d 1053, 1054-55 (11th Cir. 1983)).
Claims of ineffective assistance of counsel are reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To obtain relief under Strickland, a petitioner must show that counsel's performance was deficient and that this deficiency prejudiced the petitioner. Id. at 687. In order to show deficient performance, a petitioner must demonstrate that "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id at 690. To demonstrate prejudice, a petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id at 694.
Counsel is presumed to have provided effective assistance. Id at 690. Further, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. If a reviewing court can dispose of a claim of ineffective assistance of counsel on one prong of the Strickland test, the court need not consider the other prong. Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Respondent acknowledges that this petition is timely and that Petitioner has exhausted his claims in state court. Petitioner raises six claims in his petition.
Petitioner alleges that trial counsel provided ineffective assistance because he prejudiced the jury panel against Petitioner and required Petitioner to testify at trial. He contends that counsel told the jury panel Petitioner was guilty and informed them of his seven prior felony convictions, which led the jury panel to view him in an unfavorable light. Petitioner further states that he believed he had no choice but to testify after counsel made these statements. He contends that, absent counsel's ineffective assistance, the outcome of trial would have been different. Petitioner raised this claim in Ground One of his Rule 3.850 motion.
The state court summarily denied the first aspect of this claim, that counsel was ineffective for telling the jury panel that Petitioner was guilty, in an order filed September 10, 2008. The court found that the record refuted Petitioner's claim:
(Dkt. 10, Ex. 15, p. 4.) The record reflects that counsel did not concede Petitioner's guilt in front of the jury panel. Rather, in discussing the presumption of innocence and the State's burden of proof, counsel said that if the State did not meet its burden, the jury would find Petitioner to be not guilty, but would not find him to be innocent. (Dkt. 10, Ex. 2, pp. 24-26.) Counsel did not make any other comments during voir dire suggesting that Petitioner was guilty. Because counsel did not concede Petitioner's guilt before the jury, Petitioner has not shown how counsel can be deemed ineffective for the reasons raised in this portion of Ground One. Therefore, he has not shown that the state court's finding on this part of his claim was contrary to or an unreasonable application of federal law. Petitioner is not entitled to relief on this portion of his claim.
The state court conducted an evidentiary hearing on the remaining part of Petitioner's allegation, that counsel was ineffective for informing the jury of Petitioner's seven prior felony convictions and compelling Petitioner to testify at trial. After hearing testimony from trial counsel and Petitioner, the court denied this portion of the claim.
This case involved a stabbing outside of a club in Tampa, Florida, at approximately 2:30 a.m. on March 5, 2003. The victim, Devon Williams, was a security guard at the club. Petitioner was inside the club that night with two friends. After one of the individuals was ejected, an argument took place between several security guards and the Petitioner and his friends. During this altercation, the victim sprayed tear gas, also referred to as pepper spray, into the group. Petitioner was holding a knife in his hand when he came into contact with the victim, who was cut on the abdomen and wrist.
Petitioner testified at trial that he did not intend to commit battery and that the stabbing was accidental. (Dkt. 10, Ex. 2, pp. 96-97, 102.) Counsel testified at the postconviction evidentiary hearing that the defense was one of "lack of scienter or lack of mens rea." (Dkt. 10, Ex. 20, p. 10.) More specifically, counsel testified that Petitioner indicated that:
(Id.) Counsel further testified that Petitioner intended to testify in support of this defense:
(Id., p. 12.) Counsel stated that he discussed this with Petitioner before selecting a jury, and that Petitioner decided to testify. (Id., pp. 26-27.) As to the decision to inform the prospective jurors of Petitioner's prior convictions, counsel testified that:
(Id., p. 23.) Counsel reiterated that he had no doubt Petitioner wanted to testify at trial, and that he never would have informed the jury panel of Petitioner's prior felony convictions unless he was sure that Petitioner was going to testify. (Id., pp. 22-24, 27.)
The state court found counsel's evidentiary hearing testimony credible.
(Dkt. 10, Ex. 21, pp. 5-6.) Petitioner planned to testify at trial, when the prosecutor would be able to ask him the number of his prior felony convictions for purposes of impeaching his credibility. See § 90.610, Fla. Stat. Given that this information would have come before the jury, the state court found that counsel utilized sound trial strategy in attempting to identify potential jurors who might hold Petitioner's prior felony convictions against him. Petitioners must overcome a significant burden to succeed in attacking counsel's strategic choices. When reviewing a claim of ineffective assistance of counsel, courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Additionally, "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." Strickland, 466 U.S. at 690-91.
Petitioner has not shown that the state court's finding was contrary to or unreasonably applied established federal law or was based on an unreasonable determination of the facts in light of the evidence presented. Consequently, he is not entitled to relief on Ground One.
Petitioner argues that counsel was ineffective for failing to take the deposition of the victim, Devon Williams. Petitioner alleges that when he asked counsel about this, he responded that a deposition was unnecessary because the police reports provided extensively detailed accounts of the investigation. Petitioner argues that, had counsel investigated further, he would have realized that Williams sought medical treatment at a hospital three or four hours after the incident and received stitches in his forearm and abdomen. Petitioner asserts that this information was not included in the police reports. Petitioner alleges that the outcome of trial would have been different if not for counsel's ineffective assistance. Specifically, he contends that the jury would not have found that the victim suffered great bodily harm if counsel uncovered and presented information about Williams's further medical treatment, as well as his hospital medical records, and prepared a defense based on this information.
If the jury did not find that Petitioner caused great bodily harm to the victim, Petitioner would have been subject to less severe punishment. In Florida, aggravated battery is a second degree felony. § 784.045(2), Fla. Stat. As relevant to this case, aggravated battery may be committed in one of two ways:
§ 784.045(1)(a)1-2., Fla. Stat.
A second degree felony may be reclassified as first degree felony if an individual "carries, displays, uses, threatens to use, or attempts to use any weapon or firearm" in the commission of the offense, provided that the use of a weapon or firearm is not an element of the offense itself. § 775.087(1)(b), Fla. Stat. Therefore, if aggravated battery is proven on the theory that a petitioner caused great bodily harm under§ 784.045(1)(a)1., it may be reclassified as a first degree felony in accordance with§ 775.087(1)(b) ifthe petitioner used a weapon in the commission of the offense. However, if aggravated battery is proven on the theory of use of a deadly weapon under § 784.045(1)(a)2., it may not be reclassified as a first degree felony under§ 775.087(1)(b) because the use of a weapon becomes an element of the offense. See Lareau v. State, 573 So.2d 813, 815 (Fla. 1991). Here, the jury found Petitioner guilty of aggravated battery (great bodily harm with a weapon). Therefore, this offense was reclassified as a first degree felony. But if it had not been shown that Petitioner caused great bodily harm, the offense could not have been reclassified.
Relevant to Petitioner's claim is the trial testimony of victim Devon Williams. He testified that he was present during the argument outside the club. (Dkt. 10, Ex. 2, p. 56.) He sprayed pepper spray in an attempt to separate the individuals who were arguing. (Id., p. 57.) Williams testified that Petitioner then approached him from behind and swung at him, after which he again discharged the pepper spray. (Id.) Initially, Williams did not realize that Petitioner had a knife but saw it in Petitioner's hand when he backed away. (Id., pp. 57, 62.) Williams testified that Petitioner struck him in the wrist and abdomen. (Id., p. 58.) Williams also testified that paramedics looked at him that night and told him that he could go to the hospital with them or on his own. (Id., p. 60.) Williams decided to go by himself. (Id.) He received four stitches in his wrist and two or three stitches in his abdomen. (Id., p. 62.) Williams testified that he had scars on his wrist and abdomen as a result of his injuries and showed the jury his scars. (Id., pp. 58, 60-61.)
Petitioner's allegation of ineffective assistance of counsel was raised in Ground Two of his Rule 3.850 motion, which was summarily denied. The trial court found that Petitioner was unable to show that he was prejudiced by counsel's performance because information about the victim's injuries was presented to the jury:
(Dkt. 10, Ex. 19, p. 3.)
Petitioner argues that counsel should have investigated his sole "line of defense," that the victim's injuries did not amount to great bodily harm. This argument was raised in Ground Four of Petitioner's Rule 3.850 motion. In summarily denying this claim, the state court found it was the same argument as that brought in Ground Two of his Rule 3.850 motion:
(Dkt. 10, Ex. 15, pp. 5-6.)
Recognizing that Petitioner's allegations in Grounds Two and Four of his Rule 3.850 motion encompassed the same argument, the trial court reviewed the claim as presented in Ground Two of the Rule 3.850 motion, which it went on to consider and deny on the merits. For the same reasons described in the discussion of Ground Two of his habeas petition, Petitioner has not shown that the state court's resolution of that ground was contrary to or an unreasonable application of established federal law. Accordingly, Petitioner has not demonstrated that he is entitled to relief on Ground Three of his habeas petition.
Petitioner argues that counsel should have interviewed and investigated the paramedics who treated the victim and obtained "EMS run reports" as well as the report of the doctor who saw him. He further contends that counsel should have called the responding paramedics to testify at trial. Petitioner states that this information was relevant to the degree and severity of the victim's injuries and that if the jury heard it, they would have found that the victim did not suffer great bodily harm.
This claim was raised in Ground Eight of Petitioner's Rule 3.850 motion. The state court found that "[t]o the extent that Defendant realleges ineffective assistance of counsel for failure to investigate the victim's injuries, ground eight is denied as this issue is addressed in ground two above." (Dkt. 10, Ex. 15, p. 8.) As addressed in Grounds Two and Three of Petitioner's habeas petition, Petitioner has not shown that the state court's denial of his claim of ineffective assistance of counsel for failing to investigate the victim's injuries was contrary to or an unreasonable application of established federal law. Petitioner is not entitled to relief on this part of Ground Four of his habeas petition.
The state court went on to consider this ground of Petitioner's Rule 3.850 motion inasmuch as he raised a distinct claim of ineffective assistance of counsel for failing to call paramedics as witnesses. After Petitioner amended this portion of his claim, the court summarily denied it:
(Dkt. 10, Ex. 19, pp. 5-6.) The court determined that Petitioner did not suffer prejudice when counsel did not call the paramedics to testify regarding the victim's injuries because the victim told the jury about the extent of his injuries and showed them his scars. Even assuming that paramedics would have testified about the victim's wounds, their testimony would not have changed the victim's first-hand account of the injuries he suffered to his wrist and abdomen and the treatment he received. Based on this information, the jury found that he suffered great bodily harm. Petitioner has not shown the trial court's finding to be an umeasonable application of or contrary to established federal law. Accordingly, Petitioner is not entitled to relief on Ground Four.
Petitioner claims that counsel was ineffective for failing to interview or call potential witnesses Tom Taylor and Odell Mount, who he told counsel were with him at the club. He claims that their testimony would have shown that Petitioner did not intend to injure the victim. Specifically, Petitioner states that Taylor would have testified that the victim was pushed by the crowd and "was actually the aggressor attacking the [Petitioner] once out [of] the club." (Dkt. 1, p. 32.) Petitioner alleges that Taylor was available to testify at trial, and that the outcome of trial would have been different if the jury heard Taylor's testimony because they "could have made a reasonable decision through evidence that victim was actually pushed into [the] weapon and that no intent was caused. . . ." (Id., p. 33.)
Petitioner raised this argument in Ground Nine of his Rule 3.850 motion. The state court conducted an evidentiary hearing on this claim and denied it after considering the testimony of trial counsel and Petitioner. Counsel testified that Petitioner told him he was at the club with Tom Taylor and another person, but that Petitioner did not provide Odell Mount's name. (Dkt. 10, Ex. 20, pp. 15, 33-34.) Counsel additionally testified that when he met with Petitioner the day after being appointed, "the decision was made we were not going to be calling" these witnesses. (Id., p. 36.) He stated that after this meeting, Petitioner did not raise the issue of these potential witnesses again. (Id., p. 37.)
Furthermore, counsel testified that he believed Petitioner informed him that these individuals would not have had information of any value. (Id., p. 16.) While he acknowledged that his notes did not reflect this directly, counsel stated that:
(Id.)
Petitioner testified that he informed counsel there were two witnesses who could testify about the events. (Id., pp. 54-55.) He further testified that he mentioned Odell Mount by name. (Id., p. 54.) Again, the state court found counsel's testimony credible. It denied this claim:
(Dkt. 10, Ex. 21, p. 6.)
The state court found credible counsel's testimony that Petitioner never specifically identified Odell Mount as a potential witness prior to trial. The state court also found credible counsel's testimony that Petitioner conceded to counsel that Tom Taylor did not witness the actual stabbing and that Petitioner made no further mention of Taylor. Based on this information, counsel had no reason to believe that Taylor could provide testimony helpful to the defense. There is no indication that Petitioner provided counsel with additional information concerning Taylor that would have changed counsel's beliefs or led counsel to investigate Taylor further. Additionally, Taylor and Mount did not testify at the evidentiary hearing concerning what their trial testimony would have been. (Dkt. 10, Ex. 20.) Petitioner has not provided any other evidence identifying what testimony they could have provided. See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) ("[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.") (footnotes omitted).
Petitioner has not shown that the state court's finding was contrary to or an unreasonable application of established federal law or was based on an unreasonable determination of the facts. Accordingly, he is not entitled to relief on Ground Five.
Petitioner alleges that the trial court's reclassification of aggravated battery from a second degree felony to a first degree felony based on his use of a weapon during the offense was improper. As discussed in Ground Two, the second degree felony of aggravated battery may be reclassified as a first degree felony under§ 775.087(l)(b), Fla. Stat., ifthe aggravated battery was committed by causing great bodily harm to the victim and a weapon was used in the commission of the offense. But reclassification is improper if the aggravated battery was committed by using a deadly weapon because the use of a weapon becomes an element of the offense.
Petitioner argues that aggravated battery could not have been reclassified under § 775.087(1)(b), Fla. Stat., in his case because use of a weapon was an element of the crime. He presents this issue solely as a matter of state law, contending that the state court erred in applying this specific statutory provision to his case.
Accordingly, it is
It is further ordered that Petitioner is not entitled to a certificate of appealability. A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition. 28 U.S.C. § 2253(c)(1). A district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at§ 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennardv. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made this showing. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal informa pauperis.
