STEVEN D. MERRYDAY, District Judge.
Charles L. Simmons applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 4) and challenges the validity of his state conviction for sexual battery on a child less than twelve, for which conviction Simmons serves life imprisonment. Numerous exhibits ("Respondent's Exhibit __") support the response. (Doc. 9) The respondent admits the application's timeliness. (Doc. 9, p. 6)
Simmons lived with the victim and her mother. When the victim was eight years old, Simmons twice had the victim perform oral sex on him. Simmons was arrested and charged with sexual battery by a person eighteen or older on a child less than twelve. A jury convicted Simmons and the judge sentenced him to life imprisonment.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Simmons's application. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:
In Williams v. Taylor, 529 U.S. 362, 412S13 (2000), the Supreme Court interpreted this deferential standard:
"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, 693 (2002). "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) ("The critical point is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question. . . .") (citing Richter); Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) ("And an `unreasonable application of' those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.") (citing Woodall, 572 U.S. at 419). Accord 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 we are 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 v. Taylor, 529 U.S. at 412.
The purpose of federal review is not to re-try the state 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 v. Cone, 535 U.S. at 694. A federal court must afford due deference to a state court's decision. "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, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt'. . . .") (citations omitted).
When the last state court to decide a federal claim explains its decision in a reasoned opinion, a federal habeas court reviews the specific reasons as stated in the opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) ("[A] federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable."). When the relevant state-court decision is not accompanied with reasons for the decision, the federal court "should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume that the unexplained decision adopted the same reasoning." Wilson, 138 S. Ct. at 1192. "[T]he State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision. . . ." Wilson, 138 S. Ct. at 1192.
In a per curiam decision without a written opinion the state appellate court on direct appeal affirmed Simmons's conviction and sentence. (Respondent's Exhibit 9) In another per curiam decision without a written opinion the state appellate court affirmed the denial of Simmons's Rule 3.850 motion for post-conviction relief. (Respondent's Exhibit 15) The state appellate court's per curiam affirmances warrant deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."), and Bishop v. Warden, 726 F.3d 1243, 1255S56 (11th Cir. 2013) (describing the difference between an "opinion" or "analysis" and a "decision" or "ruling" and explaining that deference is accorded the state court's "decision" or "ruling" even absent an "opinion" or "analysis").
As Pinholster, 563 U.S. at 181-82, explains, review of the state court decision is limited to the record that was before the state court:
Simmons bears the burden of overcoming by clear and convincing evidence a state court's fact determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Simmons's post-conviction claims warrants deference in this action. (Respondent's Exhibit 11, Order Denying Rule 3.850 Motion for Post-Conviction Relief)
Simmons claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There 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, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[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." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.
Simmons must demonstrate that counsel's alleged error 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." 466 U.S. at 691. To meet this burden, Simmons 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." 466 U.S. at 694.
Strickland cautions that "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." 466 U.S. at 690-91. Simmons cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel's investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S.Ct. 2126 (2015):
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty to raise a frivolous claim).
Under 28 U.S.C. § 2254(d) Simmons must prove that the state court's decision was "(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or (2) . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Sustaining a claim of ineffective assistance of counsel 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." Richter, 562 U.S. at 106. See also Pinholster, 563 U.S. at 202 (An applicant must overcome this "`doubly deferential' standard of Strickland and [the] AEDPA."), Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding."), and Pooler v. Sec'y, Dep't of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) ("Because we must view Pooler's ineffective counsel claim — which is governed by the deferential Strickland test — through the lens of AEDPA deference, the resulting standard of review is "doubly deferential."), cert. denied, 134 S.Ct. 191 (2013).
In denying Simmons's motion for post-conviction relief, the state court recognized that Strickland governs a claim of ineffective assistance of counsel. (Respondent's Exhibits 4E and 4G) Because the state court correctly recognized that Strickland governs each claim of ineffective assistance of counsel, Simmons cannot meet the "contrary to" test in Section 2254(d)(1). Simmons instead must show that the state court unreasonably applied Strickland or unreasonably determined the facts. In determining "reasonableness," a federal application for the writ of habeas corpus authorizes determining only "whether the state habeas court was objectively reasonable in its Strickland inquiry," not an independent assessment of whether counsel's actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002). The presumption of correctness and the highly deferential standard of review requires that the analysis of each claim begin with the state court's analysis.
Appellate counsel wrote a letter to Simmons in which counsel states that "perhaps there does exist some newly discovered evidence that might discredit the alleged victim." Simmons contends that this statement indicates that his trial counsel rendered ineffective assistance by not utilizing some unspecified evidence at trial. Simmons further contends that his trial counsel rendered ineffective assistance by not objecting at trial when the state allegedly bolstered the victim's credibility.
The state post-conviction court summarily denied Simmons's claim of ineffective assistance of trial counsel based on appellate counsel's letter as follows (Respondent's Exhibit 11, Order Denying 3.850 Motion for Post-conviction Relief, pp. 3-4):
As the state court noted, appellate counsel's letter does not advise Simmons that evidence exists that trial counsel failed to either discover or utilize. The letter only suggests that such evidence might exist. Simmons establishes neither that his trial counsel performed deficiently nor that he suffered prejudice from counsel's alleged error. Consequently, Simmons cannot obtain relief because Strickland's requirements remain unsatisfied. Simmons fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts by rejecting this claim of ineffective assistance of trial counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Simmons contends that his trial counsel rendered ineffective assistance by not objecting at trial when the state allegedly bolstered the victim's credibility. Although Simmons included this allegation in his amended Rule 3.850 motion, the state post-conviction court neither construed the allegation as an independent substantive claim for relief nor addressed the merits of the allegation in its order denying the amended Rule 3.850 motion. (Respondent's Exhibit 11, Order Denying 3.850 Motion for Post-conviction Relief, pp. 3-4) Consequently, the claim requires de novo review because "the present controversy falls outside of [Section] 2254(d)(1)'s requirement that [the federal court] defer to state court decisions that are not contrary to, or an unreasonable application of, clearly established federal law." Davis v. Sec'y, Dep't of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003) (citation omitted). See also Cone v. Bell, 566 U.S. 449, 472 (2009) (explaining that "[i]f the state court did not reach the merits of a petitioner's claim based on some ground that is not adequate to bar federal review, we must review the claim de novo."); Williams v. Ala., 791 F.3d 1267, 1273 (11th Cir. 2015) (noting that "[u]nder § 2254(d), AEDPA's deferential standard of review is limited to claims that have been `adjudicated on the merits' in state court.").
The record shows that trial counsel strategically chose to not object to the prosecutor bolstering the victim's credibility. During the trial the prosecutor, trial counsel, and the trial judge discussed the admissibility of such testimony as follows (Respondent's Exhibit 2, pp. 238, 252-58):
Counsel's foregoing an objection to bolstering the victim's credibility was a strategic decision entitled to deference. Dorsey v. Chapman, 262 F.3d 1181 (11th Cir. 2001), cert. denied, 535 U.S. 1000 (2002); Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001). The only question is whether counsel's strategic decision was "reasonable." See Minton v. Sec'y, Dep't of Corr., 271 F. App'x 916, 918 (11th Cir. 2008)
Even assuming that counsel performed deficiently by not objecting, Simmons fails to demonstrate that such objection and exclusion of the challenged testimony would have resulted in his acquittal. Absent a showing of prejudice, Simmons cannot obtain relief because Strickland's requirements remain unsatisfied. Simmons fails to meet his burden of proving that the state court either unreasonably applied Strickland or unreasonably determined the facts by rejecting this claim of ineffective assistance of trial counsel. 28 U.S.C. § 2254(d)(1), (d)(2).
Simmons contends that his appellate counsel rendered ineffective assistance by not raising on direct appeal a claim of ineffective assistance of trial counsel. Simmons alleges that "Florida's deliberate relegating ineffective assistance of trial counsel claims outside the guaranteed direct appeal process" violates his federal rights to the effective assistance of counsel, due process, and equal protection. The respondent correctly asserts that this ground is unexhausted and procedurally barred because Simmons did not raise the ground in the state courts. In his reply Simmons neither contests the respondent's assertion of the procedural bar nor asserts entitlement to an exception to overcome the default. Simmons replies that he "does not take issue with this ground." (Doc. 20, p. 8) Accordingly, Simmons is not entitled to federal review of ground one.
Simmons contends that the trial court lacked jurisdiction under state law to either enter a judgment or impose a sentence, resulting in a violation of his federal constitution rights to due process and equal protection. The respondent opposes this ground as procedurally barred because Simmons did not raise the ground in the state court both at trial and on direct appeal. In his reply Simmons "concedes that he did not raise this issue before the trial court or on direct appeal." (Doc. 20, p. 17) Consequently, ground three is unexhausted and procedurally defaulted. Because Simmons satisfies neither the cause and prejudice exception nor the fundamental miscarriage of justice exception to overcome the default, he is not entitled to relief.
Accordingly, Simmons's amended application for the writ of habeas corpus (Doc. 4) is
Simmons is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Simmons must show that reasonable jurists would find debatable both the merits of the underlying claims and the procedural issues she seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Simmons is entitled to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is
ORDERED.
