CHARLENE EDWARDS HONEYWELL, District Judge.
Petitioner, a Florida prisoner, initiated this action for habeas corpus relief pursuant to 28 U.S.C. Section 2254 (Dkt. 1). Upon consideration of the petition, the Court ordered Respondent to show cause why the relief sought in the petition should not be granted (Dkt. 6). Thereafter, Respondent filed a response (Dkt. 12), to which Petitioner replied (Dkt. 15). After consideration, the petition will be denied.
Petitioner alleges six grounds for relief in his petition:
Petitioner was convicted by a jury of burglary (Respondent's Ex. 1, Vol. I, record p. 56), and sentenced to 15 years in prison (Id., pp. 59-62). His conviction and sentence were affirmed on appeal (Respondent's Ex. 6).
He filed a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure (Respondent's Ex. 8, Vol. I, record pp. 1-48). All claims in the motion were denied except Ground Two, to which the State was directed to respond (Id., record pp. 49-51). After the State responded to Ground Two (Id., record pp. 77-98), Petitioner filed a supplemental claim to his Rule 3.850 motion (Id., record pp. 99-106). The supplemental claim was denied, and an evidentiary hearing ordered on Ground Two (Id., record pp. 112-21). Following the evidentiary hearing (Id., record pp. 133-52), Ground Two was denied (Id., record pp. 153-213). The denial of the Rule 3.850 motion was affirmed on appeal (Respondent's Ex. 12).
Petitioner filed a motion to correct illegal sentence under Rule 3.800(a), Florida Rules of Criminal Procedure (Respondent's Ex. 16, record pp. 1-11). The motion was denied (Id., record pp. 12-20), and the denial affirmed on appeal (Respondent's Ex. 18).
Petitioner thereafter filed his federal habeas petition in this court (Dkt. 1).
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to "prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). 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 v. Taylor, 529 U.S. 362, 412 (2000).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the `contrary to' and `unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Deficient performance is established if, "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. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "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.
Petitioner must demonstrate that counsel's alleged errors prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show 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.
Sustaining a claim of ineffective assistance of counsel on federal habeas review is very 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, 562 U.S. 86, 105 (2011) (citations omitted). See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.") (citation omitted).
If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998) ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.").
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 post-conviction 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."). 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. 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). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
Petitioner contends that the state trial court denied him due process and equal protection by giving a jury instruction on "stealthy entry" that was not supported by the evidence. The instruction he takes issue with stated "You may infer that Matthew Stratis had the intent to commit a crime inside a structure if the entering of the structure was done stealthily and without the consent of the owner or occupant." (Respondent's Ex. 1, Vol. I, record p. 50).
Respondent correctly argues that this claim is procedurally barred (Dkt. 12, p. 16). In his Amended Initial Brief on direct appeal, Petitioner argued that the trial court "committed prejudicial or fundamental reversible error" in giving the instruction on stealthy entry when there was no evidence to support the instruction (Respondent's Ex. 3, pp. 15-22). He cited solely to state cases to support his argument that the facts showed that he did not enter the nail salon by "stealth" as interpreted by Florida law (Id.). He did not, however, present the federal constitutional nature of his claim because he did not indicate in any way that he intended to raise a federal due process or equal protection claim (Id.).
A petitioner must present each federal claim to a state court before raising the claim in federal court. "A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in state courts." Henderson, 353 F.3d at 891 (citation omitted). "The AEDPA requires a state prisoner to exhaust all available state court remedies, either on direct appeal or in a state post-conviction proceeding." Pearson v. Secretary, Dept. of Corrections, 273 Fed. Appx. 847, 849 (11th Cir.2008). As Pearson notes, federal claims must be presented in a manner that alerts the state court that "the ruling under review violated a federal constitutional right." Id. at 849-50. "A state prisoner does not `fairly present' a claim to a state court if that court must read beyond . . . a brief" to find the federal claim. Baldwin v. Reese, 541 U.S. at 32.
As discussed above, Petitioner did not fairly present a federal constitutional claim to the state appellate court because nothing in his argument in his Amended Initial Brief alerted that court to the presence of a federal claim. The federal claim therefore was not exhausted in state court. Accordingly, this claim is procedurally defaulted because the Florida courts would now refuse to hear his federal constitutional claim.
Because Petitioner shows neither cause and prejudice nor manifest injustice to overcome the procedural default, Ground One is procedurally barred from review.
Petitioner contends that the state trial court violated his "rights" by allowing the admission of Williams rule evidence.
Respondent correctly argues that any federal constitutional claim Petitioner now is attempting to raise is procedurally barred (Dkt. 12, p. 19). In his Amended Initial Brief on direct appeal, Petitioner argued that the trial court committed "prejudicial reversible error" and an "abuse of discretion" in allowing the Williams rule evidence (Respondent's Ex. 3, pp. 24-28). He cited solely to state case and statutory law to support his argument that the Williams rule evidence was improperly admitted (Id.). He did not present the federal constitutional nature of his claim because he did not indicate in any way that admission of the Williams rule evidence violated his rights under federal law (Id.). Accordingly, this claim is procedurally defaulted because the Florida courts would now refuse to hear his federal constitutional claim.
Petitioner shows neither cause and prejudice nor manifest injustice to overcome the procedural default. Ground Two is therefore procedurally barred from review.
Petitioner contends that the state post-conviction court erred in denying Ground One of his Rule 3.850 motion. In Ground One of that motion Petitioner alleged that counsel was ineffective during trial in failing to impeach State witness Jamie Christensen with her inconsistent deposition testimony (Respondent's Ex. 8, Vol. I, pp. 3-4). Specifically, Petitioner asserted that Christensen testified at trial that Petitioner had told her that his name was Matthew Sigman, and that the police had not mentioned the name Matthew Sigman to her while they questioned her. He contended that this testimony was inconsistent with Christensen's deposition testimony that the police were "harassing" her and "asking questions about Matthew Sigman."
In denying this claim, the state post-conviction court stated:
(Respondent's Ex. 8, Vol. I, pp. 1-2).
The trial and deposition transcripts support the state post-conviction court's finding that Christensen's trial testimony was not inconsistent with her deposition testimony. During her deposition Christensen testified, in pertinent part, that:
(Respondent's Ex. 8, Vol. I, record pp. 68-69). At trial, the following exchange took place between defense counsel and Christensen:
(Respondent's Ex. 1, Vol. II, transcript pp. 124-25).
The state post-conviction court correctly found that during both trial and her deposition, Christensen consistently testified that police had interrogated her regarding Petitioner. At trial she did not deny that the police asked her about Petitioner. Rather, she answered "Yes" when asked whether Petitioner's name had been "brought up" to her. And she testified that the police showed her a picture of Petitioner. When she testified that Petitioner had told her that his name was Matthew Sigman after she was asked whether "the name Matthew Sigman . . . was a name that was mentioned to [her] on the day that the police questioned [her]," she was not stating that the police never interrogated her regarding Petitioner. Rather, she appears to have been clarifying that she first learned the name Matthew Sigman from Petitioner rather than the police. Accordingly, counsel was not ineffective in failing to impeach Christensen on this issue because her trial testimony was not inconsistent with her deposition testimony.
Petitioner has failed to demonstrate that the state courts' denial of this claim was an unreasonable application of Strickland or based on an unreasonable determination of the facts. Accordingly, Ground Three does not warrant federal habeas relief.
Petitioner alleges that the state post-conviction court "abused its discretion" in denying Ground Two of his Rule 3.850 motion. In Ground Two of that motion Petitioner alleged that Christensen testified for the State because she feared negative consequences if she did not do so (Respondent's Ex. 8, Vol. I, pp. 5-6). In particular, he alleged that the police officers threatened to prosecute Christensen if she failed to cooperate with them (Id.). Petitioner claims that trial counsel was ineffective in failing to cross-examine Christensen concerning this motive for testifying.
Following an evidentiary hearing, the state post-conviction court denied this claim:
Defendant testified that he was dissatisfied that trial counsel did not impeach Ms. Christensen regarding the threat from law enforcement regarding criminal charges if she did not assist law enforcement. (
(Respondent's Ex. 8, Vol. I, record pp. 154-59) (footnote omitted).
The state post-conviction court properly denied this claim as there was no evidence of deficient performance by Attorney Watts. At the evidentiary hearing, Watts testified that his trial strategy was to show that Christensen had participated in the burglary as a lookout for a third person, and that she attempted to protect that third person by readily identifying Petitioner, whom she only recently had met (Id., record pp. 141-43, 145). Watts further testified that although Christensen had stated during her deposition that she cooperated with police because she was "threatened or forced," he made a tactical decision to not ask her about being forced to cooperate with the police (Id.).
Petitioner's claim boils down to one of disagreement with trial counsel's choice as to strategy. However,
Jones v. Secretary, Dept. of Corr., 2011 WL 5420816, at *7 (M.D. Fla. Nov. 9, 2011) (unpublished). Petitioner has the burden of proving that counsel's approach "would have been used by no professionally competent counsel." Id. at *8 (quoting State v. Williams, 797 So.2d 1235, 1239 (Fla. 2001)); Darling v. State, 966 So.2d 366, 382 (Fla. 2007). The relevant question is not whether counsel's choices were strategic, but whether they were reasonable. Putman v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001) (citing Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000)).
Counsel's decision to not question Christensen regarding whether she cooperated with police because she was threatened by them and instead attempt to show that she willingly cooperated with police and identified Petitioner to protect the actual perpetrator was a reasonable strategic decision. Counsel therefore cannot be deemed ineffective. Watts contemplated alternative courses, but decided it was better to focus on the theory of defense that Petitioner was at home with Heather Cuddington at the time of the offense, and Christensen was protecting the real perpetrator by readily identifying Petitioner. See Graham v. Florida Atty. Gen., 2014 WL 2118877, at *5 (M.D. Fla. May 20, 2014) ("Perhaps defendant's post-conviction counsel would have tried the defendant's case differently, and perhaps he would have done more to impeach [the witness]. Perhaps five other criminal defense attorneys would have had five different trial strategies. That does not make any one of them ineffective under Strickland. . . .").
The Court has examined the record in Petitioner's case and finds that it supports the trial court's factual findings and the reasonableness of its legal conclusion. Based upon this record, Petitioner fails to show that his attorney's alleged deficiency rendered the result of his trial unfair or unreliable. Jones, 2011 WL 5420816, at *8; Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (The prejudice component of Strickland focuses on the question of whether "counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.").
The state courts' decisions with regard to this claim were neither contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, Ground Four does not warrant federal habeas relief.
Petitioner contends that the state post-conviction court erred in denying Ground Five of his Rule 3.850 motion. In Ground Five of that motion Petitioner alleged that counsel was ineffective in failing to have a transcript of Christensen's deposition available for trial (Respondent's Ex. 8, Vol. I, p. 12). He asserted that counsel should have used the transcript to impeach Christensen with an inconsistent statement and her motive for testifying.
In denying this claim, the state post-conviction court stated:
(Respondent's Ex. 8, Vol. I, record p. 51).
Petitioner argues that the state post-conviction court's denial of this claim was based on "an unreasonable determination of the facts presented. . . ." (Dkt. 1, docket p. 12). The Court disagrees. Counsel did not attempt to impeach Christensen with her deposition testimony (Respondent's Ex. 1, Vol. II, transcript pp. 123-26). Accordingly, counsel was not ineffective in failing to have a transcript of Christensen's deposition because her deposition testimony was not used to impeach her at trial.
To the extent Petitioner is again asserting that counsel was ineffective in failing to impeach Christensen with an inconsistent statement in her deposition and her motive for testifying against him, the claim fails for the same reasons discussed in Grounds Three and Four above.
Petitioner has failed to demonstrate that the state courts' denial of this claim was an unreasonable application of Strickland or based on an unreasonable determination of the facts. Accordingly, Ground Five does not warrant federal habeas relief.
Petitioner contends that the state post-conviction court erred in denying his supplemental claim to his Rule 3.850 motion. In that claim Petitioner alleged that Section 775.261, Florida Statutes, which requires a "career offender" to register as a "career offender" with the Florida Department of Law Enforcement, was unconstitutional as applied to him (Respondent's Ex. 8, Vol. I, record pp. 99-106). He asserted that because he was designated a "violent career criminal" at sentencing under Section 775.084, Florida Statutes, he also was a "career offender" under Section 775.261(2)(a).
In denying this claim, the state post-conviction court stated:
(Respondent's Ex. 8, Vol. I, record p. 113).
To the extent Petitioner is challenging whether he met the criteria under Florida law for designation as a violent career criminal, Ground Six warrants no federal habeas relief because the claim asserts no federal constitutional claim. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").
To the extent he asserts in his federal habeas petition that his designation as a violent career criminal violates his rights to due process and to equal protection under the United States Constitution, the claim is unexhausted because Petitioner failed to argue a federal constitutional violation when he presented this claim in his supplement to his Rule 3.850 motion and his Initial Brief on appeal (Respondent's Ex. 8, Vol. I, record pp. 99-106; Ex. 9, pp. 11-13). His vague and cursory references to "due process" and "equal protection" in both his motion and Initial Brief did not fairly present to the state courts the federal nature of his claim. See Zeigler v. Crosby, 345 F.3d 1300, 1308 n. 5 (11th Cir. 2003) (finding petitioner failed to exhaust federal nature of his claim because his appellate brief which contained the words "Appellant was denied due process and a fair trial" could be interpreted as asserting a fair trial claim under due process clause of Florida Constitution). State procedural rules preclude Petitioner's returning to state court to present his federal claims and render this claim procedurally defaulted.
Petitioner fails to demonstrate cause and prejudice excusing his default. His failure to proffer specific facts showing an exception to procedural default renders this claim procedurally barred from federal review.
Even if the claim were not procedurally barred, it would fail on the merits. Petitioner essentially contends that his designation as a violent career criminal is unconstitutional because that designation also makes him a "career offender" under Section 775.261, and career offenders are required to register with the Florida Department of Law Enforcement and subject to public notification of their status as a career offender. He argues that the mandatory registration requirement of the statute is unconstitutional as applied to him because the statute "was created to inform the public of certain violent repeat offenders" (see Respondent's Ex. 9, p. 12), and the offense for which he was convicted, burglary in the third-degree, involved no violence.
Section 775.261 is constitutional as applied to Petitioner. The statute is reviewed under the rational basis standard because "a state's publication of truthful information that is already available to the public does not infringe the fundamental constitutional rights of liberty and privacy." Doe v. Moore, 410 F.3d 1337, 1345 (11th Cir. 2005). To survive review under this standard, the registration requirement has to be rationally related to a legitimate government interest. Id.
Florida has a legitimate interest in protecting the public from criminal conduct. See id., ("It has long been in the interest of government to protect its citizens from criminal activity. . . ."). Petitioner argues that the purpose of the statute is to warn the public of "violent offenders," and his burglary conviction involved no violence. He does not, however, support his argument with any law. Section 775.26, Florida Statues, provides:
Nothing in the statute indicates that the Florida Legislature's intent was to limit the registration requirement solely to offenders who have a history of committing "violent" offenses. Burglary is a "forcible felony" under Florida law, see Section 776.08, Florida Statutes, and for purposes of designating a defendant as a violent career criminal the statute provides, in pertinent part, that qualifying offenses include "[a]ny forcible felony, as described in s. 776.08." Section 775.084(1)(d)1.a., Florida Statutes (2018). Florida has a legitimate interest in protecting the public from individuals with a history of committing multiple burglaries.
Section 775.261 is rationally related to protecting the public from criminal conduct because requiring certain repeat offenders to register with the Department of Law Enforcement allows law enforcement to track these individuals and notify the public of repeat offenders in their community. Accordingly, Petitioner has failed to demonstrate that the state appellate court's denial of this claim was contrary to or an unreasonable application of clearly established federal, or was based on an unreasonable determination of the facts.
Any of Petitioner's allegations not specifically addressed in this Order have been determined to be without merit.
It is therefore
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is
2. A Certificate of Appealability (COA) is
