JAMES D. WHITTEMORE, District Judge.
Petitioner, an inmate in the Florida Department of Corrections proceeding pro se, initiated this action by filing a petition for writ of habeas corpus under 28 U.S.C.§ 2254 (Dkt. 1). He challenges his convictions for first degree murder, armed burglary of a dwelling, and aggravated assault, entered in the Twelfth Judicial Circuit, Manatee County, Florida, in 2006. Upon review, the petition must be denied.
Petitioner was charged with one count of first degree murder (count one), one count of armed burglary of a dwelling (count two), and two counts of aggravated assault (counts three and four). (Dkt. 12, Ex. 18, Vol. I, at pp. 44-48.) A jury convicted Petitioner of counts one, two, and four, and found him not guilty of count three. (Id., at pp. 130-31.) He was sentenced to consecutive terms of life imprisonment on counts one and two and a concurrent term of five years' imprisonment on count four. (Id., at pp. 133-142.) The state appellate court per curiam affirmed his convictions and sentences. (Dkt. 12, Ex. 4.) Petitioner filed a state habeas petition alleging ineffective assistance of appellate counsel, which the state court appellate court denied. (Dkt. 12, Exs. 6, 7.) Petitioner filed a motion and an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 12, Exs. 8, 9.) The state court considered these motions together and summarily denied them. (Dkt. 12, Ex. 10.) The state appellate court per curiam affirmed the order of denial. (Dkt. 12, Ex. 14.) Petitioner timely
This petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24, 1996. See Lindh v. Murphy, 521 U.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 has explained this deferential standard:
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Additionally, "the focus ... is on whether the state court's application of clearly established federal law is objectively unreasonable ... an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). See Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state court decision." Williams, 529 U.S. at 412.
The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell, 535 U.S. at 693. In other words, "AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 130 S.Ct. 1855, 1866 (2010).
A state court's factual findings must also be given deference, and a petitioner bears the burden of overcoming a state court's factual determination by clear and convincing evidence. 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).
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. See § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[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."). See also Henderson, 353 F.3d at 891 ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted). A state prisoner "`must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). 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." Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court "by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such claim on federal grounds, or simply by labeling the claim `federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (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 established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). The petitioner must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
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. See id. at 689-90. 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. at 690. Sustaining a claim of ineffective assistance of counsel is difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citations omitted). If a 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).
Petitioner was convicted of first degree murder in the May 9, 2004 stabbing death of his ex-girlfriend, Jeanette Conwell. Petitioner made incriminating statements both prior to and after receiving warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1996). He moved to suppress these statements, arguing that they were obtained in violation of his Fifth Amendment rights. Specifically, Petitioner moved to suppress his pre-Miranda statements, which concerned his involvement and the location of a knife, on the basis that they were made during the functional equivalent of custodial interrogation. Petitioner's post-Miranda statements included an admission that he stabbed Conwell with a knife he took from her house, as well as additional statements about his involvement, the events prior to the murder, and his lack of intent to kill Conwell. He moved to suppress these statements on the basis that he invoked his right to remain silent before making them. After conducting an evidentiary hearing, the state trial court denied Petitioner's motion. The state appellate court rejected Petitioner's claim that this denial was erroneous.
Police located Petitioner at a motel in Sarasota, Florida, on the day of the murder. Detective Lieutenant Keith Davis testified that when he knocked on the motel room door, it opened and he saw Petitioner. (Dkt. 12, Ex. 18, Vol. II, at pp. 12-13.) Davis testified that, "I told him that he knew why we were here." (Id., at p. 13.) Petitioner lowered his head. (Id.) Davis testified that members of the media had arrived at this time and were positioning a vehicle and cameras at the motel entrance. (Id., at p. 14.)
Davis placed Petitioner on the bed inside the room. (Id.) He testified that Petitioner's head was hung and it seemed as if he was "giving up." (Id.) Davis's testimony indicated that he told Petitioner, in an attempt to console him, that he knew Petitioner had a drug problem. (Id., at p. 15.) Davis testified that, in response, Petitioner stated that was not why he did it, and started to cry. (Id.)
The police were aware that a knife or sharp object had likely been used in the murder. (Id., at p. 16.) Another detective in the motel room asked Davis whether he should search for the knife. (Id., at pp. 15-16.) This question was directed at Davis. (Id., at p. 16.) Petitioner responded to the statement first, saying that it was not in the room. (Id.) Davis responded directly to the other detective and told him to start searching. (Id., at pp. 16-17.) Petitioner then stated that it was out at the historical place on 15th Street. (Id., at p. 17.)
Petitioner was taken to a police car parked in the motel parking lot. Davis testified that he read Petitioner his Miranda warnings from a card while Petitioner was inside the parked car. (Id., at pp. 17-19.) At this time, Davis testified, Petitioner still appeared to be emotional. (Id., at p. 19.) Additionally, several officers and detectives were present, and members of the media were located at the entrance of the motel. (Id.) Davis testified that Petitioner appeared to be uncomfortable with this activity. (Id.) After he gave Petitioner Miranda warnings, Davis asked Petitioner whether, having these rights in mind, Petitioner wished to talk to them now. (Id., at p. 18.) In response, he testified, Petitioner "made a comment that he didn't want to say any more right now." (Id.) Davis was certain that Petitioner included the words "right now" in his response. (Id., at pp. 18, 31.) Davis stopped speaking to Petitioner at that time. (Id., at pp. 19, 32.)
Sergeant James Wilkinson, along with Detective Michael Skoumal, began an interview with Petitioner at the police station about thirty minutes after Davis talked with Petitioner in the police car. (Id., at p. 36.) This interview was tape recorded, and portions of the tape were played during the hearing. The interview began with Wilkinson reminding Petitioner that he had been read Miranda warnings and asking him if he understood those rights. Wilkinson testified, after listening to this portion of the tape, that Petitioner nodded his head at that time. (Id., at p. 38.)
Petitioner testified that officers questioned him prior to giving him Miranda warnings: "Asking me where — where was the knife, tell them what happened, why did I do it, things of that nature." (Id., at p. 48.) Petitioner testified that, after Davis gave him Miranda warnings, he said he did not want to talk and did not equivocate in any way. (Id., at p. 48, 53-54.) Petitioner further testified that, at the police department, he was not re-advised of Miranda, did not want to initiate any conversation, and did not get the impression that he had any choice whether to speak with police. (Id., at p. 49.) Petitioner testified that the officers asked him questions before they started recording the interview. (Id.) He also testified that he did not nod his head when asked if he wanted to speak. (Id., at p. 50.)
However, on cross-examination, Petitioner testified that he could not recall the statements made by Davis or the other detective at the motel, and did not recall making incriminating statements there. (Id., at pp. 50-53.) He stated that he did not recall Davis reading him his rights at all. (Id., at pp. 53-54.) Petitioner testified that at the police station, he did not recall Wilkinson reminding him that he had been read his Miranda warnings, that he did not know if it was his voice on the tape that was played during the hearing, and that he did not remember anything about the police department. (Id., at pp. 54-55.) Petitioner agreed that he could not testify that he was coerced or pressured by the police because he did not remember anything. (Id., at p. 55.) He also did not recall responding with a statement about his lack of intent to kill Conwell when asked if he wanted to talk. (Id., at pp. 55-56.)
The state court rejected Petitioner's argument that his pre-Miranda statements made in the motel room were impermissibly obtained during the functional equivalent of custodial interrogation:
(Dkt. 12, Ex. 18, Vol. IX, at pp. 222-23.)
The record supports the state court's conclusions. The Fifth Amendment states that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Miranda provides that the prosecution "may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444. Accordingly, if a person in custody is subject to interrogation, he must be informed that he has the right to remain silent. Id. at 467-68. Miranda warnings must be given to a suspect who is subject to questioning or its functional equivalent:
Rhode Island v. Innis, 446 U.S. 291, 300-302 (1980) (footnotes omitted) (emphasis original).
The record reflects that, in the motel room, Petitioner was in custody but was not provided Miranda warnings. However, the record supports the state court's conclusion that Petitioner was not subject to the functional equivalent of questioning at the time he made incriminating statements. Accordingly, law enforcement was not required to provide Miranda warnings to Petitioner, and his statements were not improperly obtained.
To the extent that there were conflicts in the evidentiary hearing testimony, the state court implicitly credited Davis's testimony over that of Petitioner in making its findings. A state court's credibility determinations are presumed to be correct and must be given deference in federal habeas proceedings. See Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over" that of the petitioner.); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) ("Findings by the state court concerning historical facts and assessments of witness credibility are ... entitled to the same presumption according findings of fact under 28 U.S.C. § 2254(d).").
The court relied on Davis's testimony in finding that his comments to Petitioner were part of an attempt to make a connection with him so as to minimize the risk of problems during the arrest. Davis's comment, "I know you have a drug problem" was not a question, did not seek information from Petitioner, and did not refer to the murder or other crimes. Consequently, as the state court determined, there is no basis to find that Davis should have known his remark was reasonably likely to elicit an incriminating response.
The record also supports the state court's conclusion that Petitioner's comments about the location of the knife were not improperly obtained. In Innis, a suspect was arrested following a report that a man with a sawed-off shotgun robbed a taxi driver. Officers driving the suspect in a police vehicle discussed the nearby location of a school and the danger of a child potentially finding the shotgun. Innis, 446 U.S. at 294-95. The suspect offered to reveal the location of the weapon. Id. at 295. The Supreme Court held that the officers' discussion was not the functional equivalent of interrogation because there was no evidence to support the conclusion that the officers "should have known that their conversation was reasonably likely to elicit an incriminating response" from the suspect. Id. at 302.
The record supports the state court's finding that the officers engaged in a brief discussion concerning investigative protocol in front of Petitioner but did not engage in any questioning, as well as the state court's determination that this conversation did not amount to the functional equivalent of questioning because there is no basis to conclude that the officers should have known their comments were reasonably likely to elicit an incriminating response.
Accordingly, Petitioner does not show that his pre-Miranda statements were obtained in violation of his Fifth Amendment rights. Consequently, he fails to demonstrate that the state appellate court's rejection of his challenge to the denial of his motion to suppress his pre-Miranda statements was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts.
Petitioner argues that his statements at the police station were unlawfully or involuntarily obtained because they were made after he invoked his right to remain silent when Davis gave him Miranda warnings in the motel parking lot. The state court rejected this argument:
(Dkt. 12, Ex. 18, Vol. IX, at pp. 223-25.)
Once a suspect invokes the right to remain silent, questioning must cease. Miranda, 384 U.S. at 473-74. However, a suspect's invocation of this right must be made unambiguously and unequivocally. See Davis v. United States, 512 U.S. 452, 459 (1994) (stating that a "suspect must unambiguously request counsel."). Davis's rule that a suspect must make an unambiguous request when invoking the right to counsel also applies in the context of invoking the right to remain silent. See Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010); Owen v. Fla. Dep't of Corr., 686 F.3d 1181, 1192-93 (11th Cir. 2012); Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994).
"An unequivocal and unambiguous invocation of the right to remain silent is one articulated `sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request' to exercise his right to remain silent and terminate the interrogation, not that it might be a request to remain silent." Owen, 686 F.3d at 1194 (quoting Davis, 512 U.S. at 459) (emphasis in original). Absent an unequivocal invocation, law enforcement is not obligated to stop questioning. See Coleman, 30 F.3d at 1424 ("A suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent. If the statement is ambiguous or equivocal, then the police have no duty to clarify the suspect's intent, and they may proceed with the interrogation.").
A suspect's right against self-incrimination may be waived if done so "voluntarily, knowingly, and intelligently." Miranda, 384 U.S. at 444. Two considerations affect the review of a suspect's waiver of his constitutional rights. First, the waiver must be voluntary "in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Moran v. Burbine, 475 U.S. 412, 421 (1986). Second, the waiver must be knowing and intelligent so as to have been "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Id. The "totality of the circumstances surrounding the interrogation" must demonstrate an uncoerced choice and the requisite level of comprehension. Id. However, because "[t]he sole concern of the Fifth Amendment ... is governmental coercion," it follows that "[t]he voluntariness of a waiver of [the Fifth Amendment] privilege has always depended on the absence of police overreaching, not on `free choice' in any broader sense of the word." Colorado v. Connelly, 479 U.S. 157, 170 (1986).
The record supports the state court's conclusion that Petitioner's statements at the police department were not improperly obtained because, under the circumstances, he did not clearly and unambiguously invoke his right to remain silent when read his Miranda rights.
Furthermore, the testimony that the court found credible indicates that, when he was read Miranda warnings inside the police car, Petitioner was still in an emotional state. A number of law enforcement officers were in the motel room and on the grounds outside, and media vehicles and cameras were on site. It was in this setting that Petitioner told Davis he did not want to say anymore "right now." Petitioner's language, particularly when considered under these circumstances, indicated that he simply did not wish to talk right then and there, as opposed to not wanting to talk at all.
Furthermore, Petitioner fails to show that he is entitled to relief on his argument that the record contains no evidence of a voluntary waiver of his right to remain silent. He appears to allege his comments were improperly elicited by officers during the interview at the police department.
The record further supports the state court's alternative conclusion that, even assuming Petitioner's statement that he did not want to say anymore right now could have been construed as a clear invocation of his right to remain silent, the statements he made at the police station were not improperly obtained. A suspect's invocation of his right to remain silent does not necessarily prevent the resumption of questioning in the future. The Supreme Court considered whether a suspect's invocation of his right to remain silent forecloses all future questioning of the suspect in Michigan v. Mosley, 423 U.S. 96 (1975). That decision provides that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored.'" Id. at 104. In determining that the suspect's right was scrupulously honored and resumed questioning was proper, Mosley considered that the initial interrogation stopped immediately upon the suspect's invocation of his right to remain silent, that a significant amount of time passed prior to the resumption of questioning, that the suspect was again read his rights prior to further questioning, and that upon resuming questioning, the suspect was questioned by a different officer about an unrelated crime. Id. at 104-07. See also Gore v. Sec'y, Dep't of Corr., 492 F.3d 1273, 1297 (11th Cir. 2007).
The record reflects that after Petitioner told Davis that he did not want to say anymore right now, Davis stopped speaking with him. Petitioner was removed from the scene and taken to the Sarasota Police Department. There, he was interviewed by two different officers about thirty minutes later. These officers reminded Petitioner that Davis gave him Miranda warnings, and according to Wilkinson's testimony, Petitioner nodded when asked if he recalled the Miranda warnings given to him. The interview transcript also indicates that when asked if he wished to speak to the officers, Petitioner responded by stating that he did not intend to kill Conwell.
Whether a suspect's invocation of his right to remain silent has been scrupulously honored is determined on a case-by-case basis by considering the totality of the circumstances, and the absence of a single factor addressed in Mosley is not determinative. See Gore, 492 F.3d at 1298-99. Considering the Mosley factors, Petitioner cannot show that, even assuming he previously invoked his right to remain silent, this right was not scrupulously honored or that his subsequent statements were unlawfully procured. Furthermore, as addressed, Petitioner fails to demonstrate that he did not voluntarily waive his right to remain silent or that his statements were involuntary or coerced. He does not show that his statements were obtained in violation of his constitutional rights.
Accordingly, Petitioner has not shown that the state appellate court's rejection of his challenge to the denial of his motion to suppress his post-Miranda statements was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. He has not demonstrated entitlement to relief on the claims raised in Ground One.
The state trial court denied Petitioner's motion for judgment of acquittal, in which he asserted that the State failed to present sufficient evidence of premeditation.
Respondent contends that Petitioner's claim concerns only state law, and that he failed to exhaust this argument when he did not present the issue to the state appellate court as involving federal law. However, this claim is considered exhausted because the state standard of review for a sufficiency of the evidence claim is identical to the federal standard of review:
Mulnix v. Sec'y, Dep't of Corr., 254 Fed. App'x 763, 764-65 (11th Cir. 2007).
The Due Process Clause of the Fourteenth Amendment prohibits a criminal conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court established the standard of review in a federal habeas corpus proceeding in which a petitioner challenges the sufficiency of the evidence:
Jackson v. Virginia, 443 U.S. 307, 324 (1979).
Sufficiency of the evidence claims are governed by the substantive elements of a criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16. "Although each element of the offense must be established beyond a reasonable doubt, see Bishop v. Kelso, 914 F.2d 1468, 1470 (11th Cir. 1990), the State is not required to rule out every hypothesis except that of the guilt of the defendant, see Jackson, 443 U.S. at 326." Johnson v. Alabama, 256 F.3d 1156, 1172 (11th Cir. 2001). If the record contains facts supporting conflicting inferences, the jury is presumed to have resolved those conflicts in favor of the State and against the defendant. Id. Accordingly, federal courts must defer to the judgment of the jury in assigning credibility to witnesses and weighing the evidence. Id.
The Florida Supreme Court has defined premeditation as:
Carpenter v. State, 785 So.2d 1182, 1196 (Fla. 2001) (quoting Norton v. State, 709 So.2d 87, 92 (Fla. 1997)).
The State presented evidence of premeditation, including evidence indicating that Petitioner was upset with Conwell prior to the murder and armed himself as he attempted to find her on the morning of the murder. During the early morning hours that day, Petitioner asked a girlfriend, Cynthia Lyons, for a ride to Conwell's house, but Lyons refused. (Dkt. 12, Ex. 18, Vol. VII, at pp. 527-28.) Lyons testified that Petitioner had talked to her about Conwell over the past few weeks, saying that Conwell kept calling the police on him and that something needed to be done about her. (Id., at p. 528.) At about 5:00 a.m. on the day of the murder, Petitioner entered Conwell's house, where her daughter Teneal Manning and Manning's boyfriend Calvin Brown were present. Once inside, Petitioner took a knife from the kitchen and confronted Manning and Brown in a bedroom. (Dkt. 12, Ex. 18, Vol. V, at pp. 331-38, 345.) He demanded to know Conwell's location from Manning, who told him Conwell was at work. (Id., at p. 337.) Petitioner exited the house and returned to the car he was driving. His passenger, Angelica Leyva, testified that Petitioner said his girlfriend left him for another man, and made statements such as, "how could she do this, and he wasn't going to be putting up with her shit." (Dkt. 12, Ex. 18, Vol. VI, at p. 415.) She stated that Petitioner was "really mad" and was hitting the steering wheel as he drove. (Id., at pp. 415-16.) On the way to the nursing home where Conwell was working, Petitioner drove quickly and tailgated a car occupied by two other employees on the way to work, Oralia Brantley and Nelda Peay. (Dkt. 12, Ex. 18, Vol. VII, at pp. 508-09, 520.)
The State's evidence also reflected, however, that Petitioner presented a calm demeanor, conversed with others, and concealed the knife upon arriving at the nursing home and attempting to gain access inside the facility. When Brantley confronted Petitioner about his driving, he said that he did not have a problem with her, and was there to see his fiancee. (Dkt. 12, Ex. 18, Vol. VII, at p. 521.) Petitioner pressed a buzzer for several minutes in order to enter the facility. (Dkt. 12, Ex. 18, Vol. VI, at p. 417.) Tina Cunningham, who opened the door for him along with another employee, testified that he was "very calm" and "very polite," and that he said he wanted to see his fiancee. (Id., at pp. 398-400.) Neither Leyva nor the nursing home employees saw Petitioner with a weapon, and he later confessed to police that he had the knife in his pocket. (Id., at pp. 404, 420; Dkt. 12, Ex. 18, Vol. VII, at p. 515.)
Additionally, the State presented evidence that, once inside the building, Petitioner immediately sought out Conwell and stabbed her. Petitioner was seen approaching Conwell after he entered the nursing home. (Id., at p. 522.) A couple of minutes later, he was observed fleeing while Conwell, bleeding from her side, sought help. (Id., at pp. 522-23.) The State presented evidence that Conwell's wounds were indicative of five separate stabbing thrusts. (Dkt. 12, Ex. 18, Vol. VI at p. 378.) Conwell's stab wounds included several that were close to or damaged her heart and lungs, and two to her back. (Id., at pp. 375-76.) Additionally, the evidence indicates that Petitioner had time to reflect at Conwell's house and as he drove to the nursing home, while he spoke with other employees and waited to enter the facility, and in the course of confronting Conwell.
Viewing this evidence in the light most favorable to the State, a rational trier of fact could find it sufficient to prove premeditation. Accordingly, Petitioner fails to demonstrate that the state trial court erred in denying his motion for judgment of acquittal and therefore does not show a due process violation based on insufficient evidence to sustain his conviction. Therefore, Petitioner does not show that the appellate court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Petitioner is not entitled to relief on Ground Two.
In Ground Three, Petitioner alleges that appellate counsel was ineffective. Claims that appellate counsel provided ineffective assistance are analyzed under the two-part test set forth in Strickland. Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish a claim, Petitioner must show that appellate counsel's performance was objectively unreasonable, and that there is a reasonable probability that, but for this performance, Petitioner would have prevailed on his appeal. Smith, 528 U.S. at 285-86.
In sub-claim (A), Petitioner claims that appellate counsel should have argued that the trial court erred by permitting the State to introduce into evidence "gruesome" photographs of the victim. He contends that, because the manner in which Conwell was murdered was not contested, the photographs were not relevant to any issue in dispute. Petitioner's federal habeas petition does not identify the specific photographs to which he refers. When he raised this claim in his state habeas petition, Petitioner again failed to identify the photographs, but cited to the portion of the trial transcript where the State introduced crime scene photographs during the testimony of Detective Jim Curulla. (Dkt. 12, Ex. 6, at p. 3; Dkt. 12, Ex. 18, Vol. V, at pp. 255-57.) Accordingly, Petitioner's federal habeas claim is construed to involve the photographs he indirectly referenced in his state habeas petition. In sub-claim (B), Petitioner asserts that appellate counsel should have argued that, during closing arguments, the prosecutor made an improper comment involving personal opinion.
However, trial counsel indicated he had no objection to the introduction of photographs during the portion of Curulla's testimony cited by Petitioner. (Dkt. 12, Ex. 18, Vol. V, at pp. 255-58.)
Appellate counsel cannot be deemed ineffective for failing to raise issues that were not properly preserved in the trial court, as such a decision is based on the reasonable conclusion that the appellate court will not consider an un-preserved claim on the merits. See Diaz v. Sec'y, Dep't of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005); Atkins v. Singletary, 965 F.2d 952, 957 (11th Cir. 1992); Francois v. Wainwright, 741 F.2d 1275, 1285-86 (11th Cir. 1984). Petitioner provides no basis to conclude that appellate counsel would have believed that these issues would be heard despite the lack of preservation.
Petitioner argues that appellate counsel was ineffective for not arguing that, during the testimony of Conwell's daughter Teneal Manning, the State revealed evidence of his prior crimes or bad acts.
(Dkt. 12, Ex. 18, Vol. V, at pp. 328-330.) It appears that the prosecutor asked the question believing it to be relevant to the charge of armed burglary of a dwelling. But the question was withdrawn, and the court provided a curative instruction.
Petitioner does not show how appellate counsel was ineffective for failing to argue that evidence of prior bad acts was improperly presented. Contrary to Petitioner's characterization of the proceedings, no evidence of Petitioner's prior bad acts was presented to the jury. He therefore cannot show that his proposed claim would have been meritorious so as to result in a different outcome on appeal. This is especially so given the significant evidence of guilt presented at trial. On the charge of aggravated assault of Calvin Brown, Brown testified that, while Petitioner held the knife, he directed statements at Brown that caused Brown some degree of fear for his life. (Dkt. 12, Ex. 18, Vol. VII, at pp. 549-51.)
As to the charge of first degree murder, in addition to the evidence discussed in Ground Two, supra, the State presented Petitioner's incriminating statements, including his admission to stabbing Conwell, and the testimony of Davis and Wilkinson about the incriminating statements made to them. (Dkt. 12, Ex. 18, Vol. VI, at pp. 433-36; Dkt. 12, Ex. 18, Vol. VII, at pp. 563-64, 567-79.) The State also presented Cynthia Lyons's testimony that Petitioner confessed to her that he stabbed Conwell, and testimony that blood found inside the car Petitioner was driving matched Conwell's DNA profile. (Dkt. 12, Ex. 18, Vol. V, at pp. 308-310; Dkt. 12, Ex. 18, Vol. VI, at pp. 466-67; Dkt. 12, Ex. 18, Vol. VII, at pp. 531.)
Given these circumstances, Petitioner has not shown that counsel should have raised this claim on direct appeal or that doing so would have resulted in a different outcome. Appellate counsel is not required to raise every non-frivolous issue on appeal. Heath, 941 F.2d at 1130-31. Rather, "effective advocates `winnow out' weaker arguments" even when such arguments may have merit. Id. at 1131. Therefore, appellate counsel may choose to focus on the strongest claims while excluding those that may have a lower chance of success or detract from more viable arguments. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983). Furthermore, appellate counsel cannot be deemed ineffective for failing to raise issues "reasonably considered to be without merit." United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). Accordingly, Petitioner fails to demonstrate either prong of Strickland. Because Petitioner does not show that the state appellate court's rejection of this claim was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts, he is not entitled to relief on Ground Three, sub-claim (C).
Petitioner asserts that counsel provided ineffective assistance during jury selection. He contends that counsel was ineffective for failing to properly question juror Brian Keller during voir dire, for failing to realize Keller's bias and request that he be excused from jury service, and for failing to preserve the issue for appellate review. During voir dire, Keller indicated that he had read or heard something about Petitioner's case. (Dkt. 12, Ex. 18, Vol. III, at pp. 88-89.) Accordingly, the trial court conducted individual voir dire with Keller, during which he stated that he saw a newspaper article concerning the case. (Dkt. 12, Ex. 18, Vol. IV, at pp. 189-91.) Keller was selected to the jury and served as the foreperson. Petitioner raised this claim of ineffective assistance in his postconviction motion, which the state court summarily denied:
(Dkt. 12, Ex. 10, at pp. 5-8) (court's footnotes omitted). The state court's order accurately reflects the exchange between the court and Keller. After the court questioned Keller, neither the prosecutor nor defense counsel asked him any questions about the article or his ability to be impartial. (Dkt. 12, Ex. 18, Vol. IV, at p. 191.)
As the state court found, Petitioner failed to show that he was prejudiced by counsel's performance because there is no evidence that Keller was actually biased. While a criminal defendant is entitled to a trial by an impartial jury, "[i]t is not required ... that the jurors be totally ignorant of the facts and issues involved ... It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). Therefore, to exclude a member of a jury panel for cause, a party "must demonstrate that the juror in question exhibited actual bias by showing either an express admission of bias or facts demonstrating such a close connection to the present case that bias must be presumed." United States v. Chandler, 996 F.2d 1073, 1102 (11th Cir. 1993). The party challenging the prospective juror has the burden of demonstrating actual bias. Irvin, 366 U.S. at 723. Similarly, to be entitled to postconviction relief in state court when claiming that a juror was not impartial, the party must prove bias. "[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased." Carratelli v. State, 961 So.2d 312, 324 (Fla. 2007).
Accordingly, to establish prejudice, Petitioner must show that Keller was actually biased. Petitioner appears to argue that the mere fact Keller saw a newspaper article demonstrates bias. In further support of his claim, Petitioner argues that the article was more detailed than Keller's description of it, and that it provided information about Petitioner's prior criminal acts and Conwell's petition for protection from domestic violence. However, Petitioner does not show entitlement to relief, even assuming that the article Keller saw contained more information than he described.
Lastly, because Petitioner does not show Keller was actually biased, counsel cannot be deemed ineffective for failing to object so as to preserve the issue for appeal. See Carratelli, 961 So.2d at 324.
It is therefore
It is further
(Dkt. 12, Ex. 18, Vol. X, at p. 3.)
(Dkt. 12, Ex. 18, Vol. X, at p. 3.)
(Dkt. 18-1, at dkt. pp. 1-2.)
However, Petitioner did not raise this claim on direct appeal. (Dkt. 12, Ex. 2.) Accordingly, the claim is unexhausted due to his failure to invoke one full round of the established state review process. See Pruitt, 348 F.3d at 1358-59. Because state procedural rules do not provide for successive direct appeals, his claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Petitioner does not demonstrate that either exception to the procedural default doctrine applies. Notwithstanding this bar, Petitioner fails to demonstrate entitlement to relief. At the evidentiary hearing, Detective Davis testified that he read Petitioner the following from a rights advisement form:
(Dkt. 12, Ex. 18, Vol. II, at p. 18.) Petitioner argued before the state trial court that the warnings provided to him were inadequate because they failed to clearly inform him that he had the right to talk to an attorney before any questioning. However, police officers are not required to recite any precise language when giving Miranda warnings, so long as they communicate those rights to the suspect. Florida v. Powell, 559 U.S. 50, 60-61 (2010). Here, Petitioner was expressly told that he had the right to talk with an attorney, that an attorney would be appointed to represent him before any questioning, and that he could exercise his rights at any time. Taken together, these warnings sufficiently relayed to Petitioner that he could speak with an attorney before questioning. Accordingly, Petitioner does not show that the state court's conclusion was erroneous or that he would be entitled to relief on this claim.
(Dkt. 12, Ex. 18, Vol. VIII, at p. 643.) However, Petitioner did not refer to this statement when he raised his claim of ineffective assistance of appellate counsel in the state court. (Dkt. 12, Ex. 6.) Petitioner cannot use his federal habeas petition to argue new facts in support of his ineffective assistance claim, see Anderson v. Harless, 459 U.S. 4, 6 (1982), or raise new claims of ineffective assistance. See Footman v. Singletary, 978 F.2d 1207, 1211 (11th Cir. 1992). Notwithstanding this bar, the record reflects that trial counsel did not object to this comment. (See Dkt. 12, Ex. 18, Vol. VIII, at p. 643.) Therefore, a claim that this statement constituted impermissible prosecutorial comment was not preserved for appellate review. For the same reasons addressed here, appellate counsel cannot be deemed ineffective for failing to raise an un-preserved issue on appeal.
