CHARLENE EDWARDS HONEYWELL, District Judge.
Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 (Doc. 1). He subsequently filed an amended petition (Doc. 2). The Court ordered Respondent to show cause why the relief sought in the amended petition should not be granted (Doc. 7). Respondent filed a limited response in opposition, incorporating therein a motion to dismiss the petition as untimely (Doc. 9), to which Petitioner replied (Doc. 13). The motion to dismiss was denied (see Doc. 16), and Respondent filed a supplemental response (Doc. 21). Upon consideration, the amended petition will be denied.
Petitioner was found guilty of theft and aggravated battery (Doc. 9-1, p. 3).
Petitioner's motion for post-conviction relief was denied (Doc. 22-4, docket pp. 231-350), and the denial of the motion was affirmed on appeal (Doc. 9-1, p. 68, 70). He thereafter initiated this action by filing a petition for a writ of habeas corpus (Doc. 1). His amended petition (Doc. 2) is now before the Court.
The amended petition raises five grounds for relief:
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).
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
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 Attorney Tucker was ineffective in waiving Petitioner's right to speedy trial against his expressed wishes.
This claim was raised in Ground One of Petitioner's Amended Second Motion for Postconviction Relief (Doc. 22-4, docket pp. 102-04). After an evidentiary hearing (see id., docket pp. 145-225), the state post-conviction court denied the claim as follows:
(Id., docket pp. 233-35).
The state post-conviction court's denial of this claim did not result in a decision that involved an unreasonable application of Strickland, or was based on an unreasonable determination of the facts. Attorney Tucker was not deficient in moving for a continuance without Petitioner's consent because "scheduling issues are the province of counsel." Fayson v. Sec'y, Fla. Dep't of Corr., 568 F. App'x 771, 774 (11th Cir. 2014). "An attorney, acting without consent from his client, may waive his client's right to a speedy trial because `[s]cheduling matters are plainly among those [decisions] for which agreement by counsel generally controls.'" Id., 568 F. App'x at 773 (quoting New York v. Hill, 528 U.S. 110, 115 (2000) (alterations in original)).
Attorney Tucker's decision to move for a continuance was not objectively unreasonable. She began her representation of Petitioner in November 2008, and requested depositions of witnesses in December 2008. However, she was unable to schedule the first deposition until January 23, 2009, three days after the scheduled date for trial (Doc. 22-4, docket p. 164). And additional depositions were scheduled for April 3, 2009 (Id., docket p. 166). Attorney Tucker believed that depositions were "an invaluable tool or resource in preparation for trial[,]" and she would not have been effective if she went to trial without taking the depositions (Id., docket pp. 164-65). In light of these circumstances, Attorney Tucker made a reasonable strategic decision to move for a continuance and waive speedy trial. See Fayson, 568 F. App'x at 774 (counsel's decision to move for continuance and waive speedy trial was not objectively unreasonable "because counsel still had 23 depositions to conduct 5 days before trial, including 2 of the state's key witnesses."); Strickland, 466 U.S. at 690 (1984) ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable").
Even if Attorney Tucker's decision to request a continuance amounted to deficient performance, Petitioner has failed to demonstrate prejudice. There was ample evidence, other than the DNA evidence and Petitioner's own testimony,
The state courts' denial of this claim was not an unreasonable application of Strickland, nor was it based on an unreasonable determination of the facts. Accordingly, Ground One does not warrant federal habeas relief.
Petitioner contends that Attorney Strouf was ineffective in withdrawing the motion for mistrial she made after witness Jacqueline Beiler testified that Petitioner told her that he got jumped earlier in the night and got into another fight later that night. He alleges that Beiler's testimony violated a motion in limine prohibiting the State from introducing evidence that Petitioner had been in another fight earlier on the same night that the offense for which he was being tried had occurred. He opines that the testimony was prejudicial to him and denied him a fair trial because it "characterized him [as] a violent person and damaged his ability to argue self-defense." (Doc. 2, p. 9). He argues that had Attorney Strouf not withdrawn the motion for mistrial, it would have been granted.
This claim was raised in state court as Ground Two of Petitioner's Amended Second Motion for Postconviction Relief (Doc. 22-4, pp. 104-05). In denying the claim, the state post-conviction court stated:
(Doc. 22-4, pp. 122-24) (emphasis in original).
The state post-conviction court concluded that defense counsel was not deficient in withdrawing the motion for mistrial, and there was no prejudice to Petitioner, because the trial court found that Beiler's testimony did not violate the motion in limine, and therefore the motion for mistrial would have been denied had it not been withdrawn. Whether a motion would have succeeded under Florida's standard for granting a mistrial is a question of state law. This Court must defer to the state court's interpretation of state law. See Will v. Sec'y, Dep't of Corr., 278 Fed.Appx. 902, 908 (11th Cir. 2008) ("Although an ineffective-assistance-of-counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, ... we must defer to the state's construction of its own law.'") (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) ("[T]he Alabama Court of Criminal Appeals has already answered the question of what would have happened had [counsel] objected to the introduction of Callahan's statements ... Therefore, [counsel] was not ineffective for failing to make that objection."); Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done ... It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)).
The record supports the state post-conviction court's factual finding that the trial court found that Beiler's testimony did not violate the motion in limine. The motion in limine requested, in pertinent part, instruction from the court prohibiting the State from commenting on a fight involving Petitioner that occurred earlier on the same day as the offense for which Petitioner was on trial, and that was unrelated to the offense (Doc. 22, docket pp. 108-09). The purpose of the request was to prevent any comment on Petitioner's "character, other crimes, wrongs, or acts. . . ." (Id., docket p. 108). The motion in limine was granted (Id., docket p. 125).
During direct examination of Beiler, the prosecutor asked "And what was it that the defendant told you about why he was covered in blood?" (Doc. 22-3, docket p. 142, lines 7-8). Beiler answered "[h]e said that he had got jumped earlier that night, but then he had also stated that he got in another fight later on in the night and that he had basically got the chain that night." (Id., lines 9-12). Defense counsel approached the bench and moved for a mistrial, arguing that Beiler's testimony violated the motion in limine prohibiting any comment on a fight involving Petitioner earlier in the night (Id., lines 14-21). However, after consulting with both co-counsel and Petitioner, defense counsel withdrew the motion for mistrial on the condition that the court instruct Beiler "to not go further and. . .not discuss anything else about being jumped or a fight or that witness's testimony does not somehow convert into a fight. . . ." (Id., docket pp. 144-45).
The trial court reviewed the motion in limine and determined that it requested no comment on "allegations. . .of uncharged conduct including, but not limited to, an unrelated fight which is alleged to have occurred on or about July 25th, 2008 between defendant and individuals who are not appearing at trial." (Id., docket p. 146, lines 7-11). The trial court concluded that the motion in limine had not been violated because Beiler's testimony was "not about a fight, but that [Petitioner] had been jumped earlier." (Id., lines 14-15).
Because the trial court determined that Beiler's testimony did not violate the motion in limine, the state post-conviction court's decision was not based on an unreasonable determination of the facts. And the decision was not an unreasonable application of Strickland, since defense counsel was not deficient for withdrawing a motion for mistrial that would have been denied. Accordingly, Ground Two warrants no relief.
Petitioner contends that Attorney Strouf was ineffective in failing to object to State witness Billy Hamm's "surprise" testimony that Petitioner had asked him to lie at trial on the ground that the testimony amounted to a Brady violation.
Petitioner further contends that Attorney Strouf was deficient in failing to request a continuance "to further investigate or to discover impeachment evidence[,]" and in failing to cross-examine Hamm regarding this testimony. He asserts that the testimony prejudiced him because it "completely undermined" his credibility.
These three sub-claims were raised in state court in Ground Two of Petitioner's Amended Second Motion for Postconviction Relief (Doc. 22-4, pp. 105-07). In denying Ground Two, the state post-conviction court stated:
(Id., docket pp. 235-37) (emphasis in original).
With respect to Ground Three of the instant petition, Respondent first argues that Petitioner failed to exhaust his state court remedies with regard to his sub-claims that Attorney Strouf was ineffective in failing to (1) move to exclude Hamm's testimony as a Brady/discovery violation, and (2) move for a continuance to further investigate the matter, since he did not raise these claims on appeal from the denial of his amended second Rule 3.850 motion (see Doc. 21, pp. 15-16). The Court agrees.
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, 526 U.S. at 842. To exhaust state remedies 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, 348 F.3d at 1358-59 (quoting O'Sullivan, 526 U.S. at 845). See also Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (stating that exhaustion of a claim raised in a Rule 3.850 motion includes an appeal from the denial of the motion). Petitioner did not raise these two sub-claims on appeal from the denial of his amended second Rule 3.850 motion (see Doc. 22-4, docket pp. 539-41). His failure to raise these sub-claims in his Initial Brief resulted in the abandonment of the claims. See Ward v. State, 19 So.3d 1060, 1061 (Fla. 5th DCA 2009) (en banc).
The sub-claims are now procedurally defaulted because any future attempt to exhaust these claims in state court would be futile under Florida's procedural default doctrine, since the state rule requiring submission of an appellate brief bars Petitioner from returning to state court to challenge the denial of this claim in a second appeal of the denial of the Rule 3.850 motion, see Fla. R. App. P. 9.141(b)(3)(C), and any further attempt to raise the claim in another Rule 3.850 motion would be subject to dismissal as untimely and successive. See Fla. R. Crim. P. 3.850(b), (h). And Petitioner has failed to show either cause and prejudice for the default, or that a fundamental miscarriage of justice will result if these sub-claims are not addressed on the merits. Therefore, he is not entitled to federal review of these two sub-claims.
Petitioner, however, did assert on appeal that counsel was ineffective in failing to cross-examine Hamm on his testimony that Petitioner had asked him to lie at trial (see Doc. 22-4, docket pp. 539-41). He therefore exhausted his state remedies with respect to this claim. Accordingly, the claim will be addressed on the merits.
The claim fails on the merits. First, it is vague and conclusory. Petitioner alleges that Attorney Strouf failed to cross-examine Hamm regarding his testimony that Petitioner asked him to lie at trial, but fails to assert the specific questions Attorney Strouf failed to ask, and the information that was omitted as a result of the failure to cross-examine Hamm on this issue. "Mere allegations of inadequate performance during cross-examination are conclusory and do not permit the Court to examine whether counsel's failure prejudiced him." Reid v. Jones, 2018 WL 2437647, at *7 (S.D. Fla. Apr. 23, 2018), report and recommendation adopted, 2018 WL 2435169 (S.D. Fla. May 30, 2018) (citations omitted).
Second, the state post-conviction court's determination that Attorney Strouf's decision not to cross-examine Hamm on this testimony was reasonable trial strategy was not an unreasonable application of Strickland, nor was it based on an unreasonable determination of the facts in light of the evidence presented during the state proceedings. During Hamm's trial testimony, the prosecutor asked to approach the bench (Doc. 22-3, docket p. 220, lines 3-4). At the bench conference, the prosecutor stated that Hamm was going to testify that while he and Petitioner were riding from jail to the trial, Petitioner told him to lie (Id., lines 10-13). Attorney Strouf requested a recess and to proffer the witness (Id., lines 17-21). She also moved to exclude the testimony on the grounds that it was overly prejudicial because it would reveal that Petitioner was transported from jail that morning, and irrelevant because it did not amount to a confession (Id., docket pp. 223-24). The court decided that the testimony was relevant and would be admitted if the witness did not reveal that the conversation took place while he and Petitioner were in custody (Id., docket p. 231, lines 15-20).
During the subsequent proffer of testimony, Hamm testified that while he and Petitioner were riding on the bus from the jail to the courthouse, Petitioner "asked me to lie for him." (Id., docket p. 233, lines 4-20). He further testified that noone else was present during the conversation (Id., docket p. 234, lines 14-17). During cross-examination, he testified that there were 40 other prisoners on the bus, and two officers (Id., docket pp. 234-35). He clarified that Petitioner did not use the word "lie," but rather asked him to testify that Petitioner's girlfriend Chelsey Harris "was lying on him" because Petitioner was "messing with [Hamm's] girlfriend" (id., docket p. 239, lines 2-4), and that Harris "would do anything to put him in prison" because Petitioner "had left her" (Id., docket p. 242, lines 12-14).
When trial resumed, Hamm testified that earlier in the day he had a conversation with Petitioner during which Petitioner asked him to lie and told him specific things he should say (Id., docket p. 261, lines 16-22; docket p. 262, lines 2-4). During cross-examination, Attorney Strouf did not ask Hamm about the alleged conversation he had with Petitioner earlier that day (Id., docket pp. 263-70). Rather, she asked Hamm about the deterioration of his friendship with Petitioner, his omission of important facts when he first spoke to law enforcement, and his prior felonies and crimes of dishonesty (Id., docket pp. 263-65). During closing argument, Attorney Strouf attacked Hamm's credibility by emphasizing that he "showed up in orange," had "three felony convictions and three crimes of dishonesty," was no longer friends with Petitioner after "they had a fight over women," and never said anything to law enforcement about what Petitioner allegedly told him until more than a year after the offense (Doc. 22-3, docket p. 556, lines 2-25; docket p. 557, lines 1-9). She further argued that Hamm's testimony that Petitioner asked him to "lie" was "suspect" and unsupported by any other evidence (Id., docket p. 556, lines 22-25; docket p. 557, lines 1-3).
During the post-conviction evidentiary hearing, Attorney Strouf testified that she believed her options were either to cross-examine Hamm regarding his testimony that Petitioner had asked him to falsely testify, or "ignore the conversation and call Billy Hamm a liar." (Doc. 22-4, docket p. 200, lines 3-6). She was concerned that if she cross-examined Hamm regarding the alleged conversation with Petitioner, the jury may hear that Petitioner was still in jail nearly two years after the offense, and Hamm could come across as believable, which could damage Petitioner's defense (Id., docket p. 276, lines 4-19). Therefore, she decided to not cross-examine Hamm on the alleged conversation, and instead to question him regarding his prior criminal history, bias against Petitioner, and delay in giving his statement to police, then argue his lack of credibility during closing argument (Id., docket p. 276, lines 22-25; docket p. 277, lines 1-6; docket p. 278, 3-12).
Attorney Strouf's decision to not cross-examine Hamm on his testimony that Petitioner had asked him to lie at trial, and the manner of her cross-examination, were strategic decisions entitled to deference. Dorsey v. Chapman, 262 F.3d 1181 (11th Cir. 2001), cert. denied, 535 U.S. 1000 (2002). The only question is whether Attorney Strouf's strategic decision was "reasonable." See Minton v. Sec'y, Dep't of Corr., 271 Fed.Appx. 916, 918 (11th Cir. 2008) ("The Supreme Court has `declined to articulate specific guidelines for appropriate attorney conduct and instead has emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'") (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)).
Her decision was reasonable. She had concerns that if she cross-examined Hamm on this testimony, he may come across as credible, which could corroborate his story that Petitioner asked him to lie. She believed the better approach was to cross-examine Hamm on his damaged relationship with Petitioner, his criminal history that included multiple felonies and crimes of dishonesty, and the long delay in giving his statement to police, then emphasize Hamm's overall lack of credibility during closing argument. Moreover, she was concerned that cross-examining Hamm regarding his alleged conversation with Petitioner on the morning of the trial could result in the jury learning that Petitioner was still detained more than two years after the offense, which could undermine Petitioner's credibility and presumption of innocence. Cf. Estelle v. Williams, 425 U.S. 501, 503-05 (1976) (appearance in prison clothing seriously compromises a defendant's right to the presumption of innocence).
Petitioner has failed to demonstrate that no reasonable attorney would have done as Attorney Strouf did with regard to Hamm's testimony that Petitioner had asked him to lie at trial. Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1239 (11th Cir. 2011) (to show deficient performance, "trial counsel's error must be so egregious that no reasonably competent attorney would have acted similarly."). Accordingly, Petitioner fails to meet his burden of proving that the state court unreasonably applied Strickland or unreasonably determined the facts by rejecting this ground. 28 U.S.C. § 2254(d)(1), (2). Ground Three therefore warrants no relief.
Petitioner contends that Attorney Strouf was ineffective in failing to advise him on the correct number of prior felony convictions that could be used to impeach him. He alleges that although the State indicated it was prepared to impeach him with three prior felony convictions, he told Attorney Strouf that he believed he had only one prior felony conviction. He complains that Attorney Strouf's failure to investigate "the true number of prior offenses" left him no choice but to admit to having three prior felonies, to avoid the jury learning the nature of any of his prior felony offenses. Subsequently, during sentencing, the State admitted that it could only prove one prior felony conviction. Petitioner argues that because he admitted to having three prior felony offenses rather than only one, both his credibility and self-defense theory were tainted.
This claim was raised in Ground Four of Petitioner's Amended Second Motion for Postconviction Relief (Doc. 22-4, docket pp. 107-08). In denying the claim, the state post-conviction court stated:
(Id., docket pp. 237-39) (emphasis in original).
The state post-conviction court found that Attorney Strouf "believed [Petitioner] had three prior felony convictions based on the representations by the State and her own research of [Petitioner's] case[,]" and made a strategic decision "to concede the number of prior felony convictions the State claimed [Petitioner] had, rather than risk impeachment on cross examination." These factual findings are supported by the record and are presumed correct, and Petitioner has not rebutted those findings with clear and convincing evidence to the contrary.
During the second trial, the State informed the court that "it's the state's position the defendant has two prior burglaries of a dwelling, one prior grand theft and two prior petty thefts. So it would be three felonies and two crimes of dishonesty. . . ." (Doc. 22-4, docket p. 608, lines 16-19). The State indicated that it had certified copies of these convictions (Id., docket p. 609, lines 8-15; docket p. 612, lines 1-10). Attorney Strouf indicated that the defense agreed that there was one prior felony burglary conviction and two petty theft convictions, but did not believe there was a second burglary conviction and a grand theft conviction (Id., docket p. 609, lines 2-5; docket p. 611, lines 20-25).
During the first trial, the same issue was discussed between Attorney Strouf, the State, and the court. There, the State indicated that there were two burglaries and one grand theft (Doc. 22-2, docket p. 302, lines 15-16). Attorney Strouf indicated that the defense believed that there was only one burglary and some petit thefts (Id., lines 22-24). The State provided certified convictions to the court (Id., docket pp. 302-04). Attorney Strouf indicated that the defense agreed with the burglary conviction in case number 02-6900 (Id., docket p. 304, lines 12-13), but disagreed with the burglary and grand theft convictions in case number 02-8732 (Id., docket p. 304, lines 16-19; docket p. 305, lines 1-11). When Attorney Strouf indicated that Petitioner was "adjudicated delinquent as a juvenile" in that case, the court stated that "[t]here's nothing juvenile about this one." (Id., lines 6-11). The clerk indicated that the offenses in case number 02-8732 were "upgraded from a juvenile provision packet" and handled in felony court (Id., docket p. 305, lines 24-25; docket p. 306, line 1). The court stated that if the State could get a [finger]print comparison, "you'll have another burglary and another grand theft." (Id., docket p. 307, lines 2-12).
During the evidentiary hearing on Petitioner's post-conviction motion, Attorney Strouf testified that the State was prepared to impeach Petitioner with three prior felony convictions (Doc. 22-4, docket p. 280, lines 10-13). She testified that Petitioner had been arrested in "a number different cases. . .over the years." (Id., lines 21-22). She researched Petitioner's prior convictions by discussing the matter with Petitioner, searching the clerk's system, the Hillsborough County Jail website, and the Department of Corrections website, and looking at what the State had provided (Id., docket p. 280, lines 24-25; docket p. 281, lines 1-16). Until sentencing, Attorney Strouf believed that the burglary and grand theft charges in case number 02-8732 were initiated in a juvenile petition, then subsequently "direct filed" in an adult felony case (Id., docket p. 281, lines 22-25). The state court "allowed the juvenile case to go before the felony court judge and the clerk gave it a CF number which would normally indicate it is an adult felony number." (Id., docket p. 282, lines 4-6). She did not see "anything that said. . .this is a juvenile case." (Id., docket p. 285, lines 24-25). "In [all her] years of practice, [she] had never seen that particular error before. . . ." (Id., docket p. 287, lines 24-25). She "had never seen a juvenile case number end up with a felony conviction number, for anyone who was not direct filed to adult court." (Id., docket p. 299, lines 8-14). Based on her research, she "thought [the State] would be able to introduce the [three prior felonies] and [] thought there would be a problem [if Petitioner admitted to only one prior felony]." (Id., docket p. 284, lines 19-21). Moreover, based on the conversations and the court's comments regarding the matter, she "absolutely believed" that the court was going to allow the State to impeach Petitioner with the nature of his prior offenses unless Petitioner testified that he had three prior felony convictions (Id., docket p. 298, lines 1-7).
As the state post-conviction court determined, Attorney Strouf reasonably believed that the trial court would allow the State to impeach Petitioner if he testified that he had only one prior felony conviction. In Florida, the proper method to impeach a witness who answers the question regarding his prior convictions incorrectly is to offer a certified record of the witness' prior convictions, which will necessarily reveal the nature of the crimes. See Gavins v. State, 587 So.2d 487, 489-90 (Fla. 1st DCA 1991) (citations omitted). The State indicated that it had certified records of the prior convictions and a good faith basis to say that Petitioner had three prior felony convictions. During the first trial, the trial judge stated that case number 02-8732, in which Petitioner was convicted of both burglary and grand theft, was not a juvenile case, and that the State would "have another burglary and another grand theft." Attorney Strouf's own investigation revealed that case number 02-8732 was assigned as a felony case rather than a juvenile case, and she therefore believed that Petitioner had been tried as an adult. And after Attorney Strouf discussed the matter with Petitioner immediately before the trial colloquy regarding Petitioner's decision whether to testify, Attorney Strouf told the court that Petitioner "doesn't have a personal recollection of it, but he is willing to basically state on the stand the number the state has shown us today." (Doc. 22-4, docket p. 614, lines 14-16). Finally, the trial judge during the second trial gave no indication to the parties whether he was or wasn't going to allow the State to impeach Petitioner with three prior convictions if he testified that he only had one prior conviction (See id., docket pp. 608-16).
In light of these circumstances, Attorney Strouf decided that the best strategy was to have Petitioner admit to three prior felony convictions rather than one to avoid the possibility that the court would allow the State to impeach Petitioner with three prior convictions, and risk the jury hearing that Petitioner had two previous convictions for burglary and one for grand theft (See id., docket p. 286, lines 2-11). In light of her experience, Attorney Strouf believed that "it's much more damaging to hear the name of what the charge is" rather than the number of prior felonies (Id., docket p. 283, lines 1-5). And because Petitioner was charged with robbery, she was concerned that the prior burglary and theft convictions "kind of support[] a robbery charge." (Id., lines 11-12).
Petitioner has not attempted to argue that Attorney Strouf's strategy was unreasonable. And "[e]ven if in retrospect the strategy appears to have been wrong, the decision will be held ineffective only if it was so patently unreasonable that no competent attorney would have chosen it." Adams v. Wainright, 709 F.2d 1443, 1445 (11th Cir.1983). Under the circumstances, Attorney Strouf's decision to have Petitioner admit to three prior felony convictions to avoid the possibility of the jury learning the nature of his prior convictions was reasonable trial strategy that is virtually unassailable. Strickland, 466 U.S. at 690 ("Strategic choices made after a thorough investigation are virtually unassailable.").
Petitioner contends that Attorney Strouf was ineffective in failing to "perform any investigation" between the first and second trials, "despite the availability of investigators and support staff in the office of the Public Defender to look into the dispute." (Doc. 2, p. 13). His contention is vague, conclusory, and self-serving because he does not specify what further investigation could have been done, nor state what further investigation would have revealed. He therefore has not carried his burden of showing that Attorney Strouf's decision not to further investigate Petitioner's prior convictions between the first and second trials amounted to deficient performance. Cf. Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir.1985), cert. denied, 479 U.S. 918 (1986) (speculation insufficient to carry the burden of a habeas corpus petitioner as to what evidence could have been revealed by further investigation).
Attorney Strouf testified that "[l]ong before the trial, [she] had researched [Petitioner's] priors." (Doc. 22-4, docket p. 280, lines 24-25). She did not further investigate the matter between the first and second trial because "[b]ased on what [she] had already looked at which was looking at the Banner file, looking at the Hillsborough County Jail records, looking at the conviction on the VOP, [she] did not believe there was something else that needed to be done to look at it differently." (Id., docket p. 285, lines 12-16). Petitioner does not argue or show that Attorney Strouf's investigation before the first trial was inadequate. And "[s]trategic choices to forego further investigation into an issue are not deficient when a reasonable professional judgment based on a sufficient initial inquiry supports the decision to terminate the investigation." Lynd v. Terry, 470 F.3d 1308, 1316 (11th Cir. 2006) (citing Strickland, 466 U.S. at 690-91). Based on what was revealed from her investigation before the first trial, Attorney Strouf reasonably believed further investigation would not reveal new information.
Petitioner has failed to show that Attorney Strouf was deficient in failing to further investigate his prior convictions. Accordingly, he has failed to demonstrate that the state courts' denial of this claim was an unreasonable application of Strickland. Ground Four therefore does not warrant federal habeas relief.
Petitioner contends that his trial attorneys were ineffective in failing to move for a judgment of acquittal on his grand theft conviction on the ground that the State failed to introduce sufficient evidence proving that the value of the stolen property exceeded $300.00. He argues that although the victim testified that the purchase price of his watch was $500.00, and the value of the necklace was $1,000.00, the testimony was legally insufficient because there was no evidence of the "market value" of the watch at the time of the offense, and the victim was not "competent to testify" as to the value of the necklace because it belonged to the victim's father. He opines that had defense counsel moved for a judgment of acquittal, he would have been convicted of petit theft rather than grand theft.
This claim is unexhausted because Petitioner did not raise it in his state post-conviction motion (See Doc. 22-4, docket pp. 101-12). Acknowledging the lack of exhaustion and resulting procedural default, Petitioner argues that he has established the cause and prejudice exception under Martinez v. Ryan, 566 U.S. 1 (2012) (See Doc. 2, pp. 16-17). Ineffective assistance of post-conviction counsel generally does not constitute cause to overcome a procedural default. See Coleman v. Thompson, 501 U.S. 722, 752-55 (1991). Martinez recognizes a narrow, equitable exception to this rule:
Martinez, 566 U.S. at 17.
"To overcome the default, a prisoner must. . .demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 14. See also Duffy v. Sec'y, Dep't of Corr., 729 Fed. App'x. 669, 670 (11th Cir. 2018) ("A defaulted claim is substantial if the resolution of its merits would be debatable among jurists of reason.") (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
Petitioner's defaulted claim of ineffective assistance of trial counsel is not substantial. The jury instruction on theft indicated that "`Value' means the market value of the property at the time and place of the offense, or if that value cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense." (Doc. 22-2, docket p. 170). The victim testified that a few months before the offense, he bought the watch for over $500.00 (Doc. 22-3, docket p. 33, lines 7-8). He further testified that the value of the necklace at the time of the offense was "[r]oughly over a thousand dollars." (Id., lines 15-17). Moreover, Petitioner testified that the value of the cocaine he gave to the victim in exchange for the watch and necklace was $1,400.00 (Doc. 22-3, docket p. 447). This evidence was sufficient to establish the value of the stolen property as more than $300.00 and overcome a motion for judgment of acquittal.
Petitioner argues that the victim "was not competent to testify as to the value of the [necklace]" because the necklace belonged to the victim's father rather than the victim himself (Doc. 2, p. 16). He does not, however, support his argument with any law indicating that the victim was not competent to testify as to the necklace's value solely because the victim's father owned the necklace. Under Florida law, "one's competency to testify as to the value of stolen property is not so much a question of whether he owns the stolen property as it is a question of his personal knowledge of the property. If the lay witness has personal knowledge of the property, he is competent to express an opinion as to the value of [the] property." Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983) (citation omitted). The victim in Petitioner's case had "personal knowledge of the property" because the necklace had "been in [his] family for quite some time." (Doc. 22-2, docket p. 33, line 13). Consequently, the victim was competent to testify as to the value of the necklace, and his testimony regarding the value of the necklace alone established that the total value of the stolen property exceeded $300.00. See Pickett v. State, 839 So.2d 860, 861 (Fla. 2d DCA 2003) (for purposes of establishing theft, "[v]alue may be established by direct testimony of fair market value. . . .") (citation omitted). Moreover, the value of the victim's property was established by Petitioner's testimony that he was willing to accept that property in exchange for cocaine that he valued at $1,400.00. See Toole v. State, 270 So.3d 371, 375 (Fla. 4th DCA 2019) ("`Fair market value' is defined as `[t]he price that a seller is willing to accept and a buyer is willing to pay on the open market and in an arm's-length transaction.'") (quoting Black's Law Dictionary 1785 (10th ed. 2014)).
Petitioner has not shown that a judgment of acquittal on his grand theft conviction would have been granted had trial counsel argued that there was insufficient evidence supporting the jury's determination that the value of the stolen property was greater than $300.00. He therefore fails to demonstrate that his defaulted claim of ineffective assistance of trial counsel is substantial. Consequently, he has not established cause and prejudice to overcome the procedural default. Accordingly, Ground Five is denied.
Any of Petitioner's claims not addressed in the Order have been determined to be without merit.
It is therefore
1. Petitioner's amended petition for a writ of habeas corpus (Doc. 2) is
2. A certificate of appealability is
3. The
