JAMES D. WHITTEMORE, District Judge.
Petitioner, an inmate of the Florida penal, system proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging convictions for armed burglary, attempted murder, first-degree murder, and shooting within an occupied building entered in 2004 by the Tenth Judicial Circuit Court, Polk County, Florida (Dkt. 1). Respondent filed a response to the petition (Dkt. 9) with exhibits (Dkt. 10), and Petitioner filed a reply to the response (Dkt. 15). Upon consideration, the petition will be denied.
On August 20, 2004, a jury convicted Petitioner of armed burglary, attempted murder, first-degree murder, attempted home invasion robbery, and shooting within an occupied building (Resp. Ex. 23, Vol. I at record pp. 226-30). Petitioner was sentenced to a term oflife imprisonment on both the first-degree murder count and the armed burglary count, a term of25-years' imprisonment on the attempted home invasion robbery count, a term of20-years imprisonment on the attempted murder count, and a term of 15-years imprisonment on the shooting within an occupied building count (Id. at record pp. 263-73). On July 26, 2006, the state appellate court affirmed without written opinion (Resp. Ex. 4); Williams v. State, 935 So.2d 11 (Fla. 2d DCA 2006) [table].
On March 7, 2007, Petitioner filed a motion for post-conviction relief pursuant to Florida Rules of Criminal Procedure, Rule 3.850 ("Rule 3.850 motion"), alleging six claims ofineffective assistance of trial counsel (Resp. Ex. 8 at "Exhibit A").
Petitioner filed a petition for belated appeal of the February 1, 2010 Final Order, which the appellate court granted on October 27, 2010 (Resp. Ex. 17). On February 17, 2012, the appellate court affirmed the denial of the state post-conviction court's Final Order (Resp. Ex. 20); Williams v. State, 104 So.3d 100 (Fla. 2d DCA 2012) [table]. The appellate court mandate issued on March 14, 2012 (Resp. Ex. 22).
Petitioner filed his federal habeas petition in this Court on April 27, 2012, raising six grounds for relief (Dkt. 1):
1. The state trial court erred in finding that probable cause was demonstrated in the affidavit for a warrant to be issued to search the Petitioner's home and that the items seized therein were admissible (Ground One);
2. The state trial court erred in not granting defense counsel's motion for a mistrial on the ground that the prosecutor published a misleading verdict form to the jury during closing argument (Ground One (a));
3. Trial counsel was ineffective
a. in failing to have Petitioner evaluated for competency (Ground Two);
b. in failing to move to dismiss the charges on the ground that Petitioner was denied a timely first appearance hearing (Ground Two (a));
c. in failing to call Petitioner's father, Warren Williams, and step-mother, Rose Williams, to testify at the hearing on Petitioner's motion to suppress (Ground Two (b)); and
d. in failing to call Warren and Rose Williams to testify at trial (Ground Two (c)).
The petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Under AEDPA, habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) sets forth a highly deferential standard for federal court review of a state court's findings oflaw and fact. It provides that habeas relief may not be granted on a claim adjudicated on the merits in state court unless such determination:
28 U.S.C. § 2254(d)(1)-(2).
The Supreme Court has explained the deferential review of a state court's findings:
Williamsv. Taylor, 529 U.S. 362, 412-13 (2000). A state court's factual findings must also be given deference. Specifically, a state court's determinations of fact "shall be presumed to be correct," and the habeas petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(l); Henderson v. Campbell, 353 F.3d 880, 890-91 (11th Cir. 2003).
To have a facially valid claim alleging ineffective assistance of counsel, Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington v. Richter, 131 S.Ct. 770, 788 (2011). As the Richter Court explained:
Id. (citations omitted).
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 oflast 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 ofboth 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 federalhabeas 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 ofrelief and the specific factual contention that supports relief. Kelley v. Secy, 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 oflaw on which he relies or a case decjding 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]fthe 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, 256F.3d1135, 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 ofa procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage ofjustice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlupv. 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.
Respondent contends that Petitioner's federal habeas petition is time-barred. The Court disagrees.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one year statute oflimitations for seeking federal habeas corpus relief from a state-court judgment. 28 U.S.C. § 2244(d)(1). Lawrence v. Florida, 549 U.S. 327, 331 (2007). The limitation period runs from the latest of . . . "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." 28 U.S.C. § 2244(d)(1)(A). Additionally, "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
For purposes of§ 2244(d), Petitioner's state judgment became final on March 5, 2010, upon expiration of the time for taking a timely appeal of the amended judgment entered on February 3, 2010. See Bridges v. Johnson, 284 F.3d 1201, 1202 (11th Cir. 2002) (where petitioner did not seek direct review of his judgment of conviction, judgment became "final" for purposes of§ 2244 on the date his 30-day right to appeal expired); McGee v. State, 684 So.2d 241 (Fla. 2d DCA 1996) (treatingjudgmentand sentence as final when time for appeal expired); Gustv. State, 535 So.2d 642 (Fla. 1st DCA 1988) (holding that when a defendant does not appeal his conviction or sentence, the judgment and sentence become final when the 30-day time period for filing an appeal expires).
A period of 235 days elapsed between the date the judgment became final and the date that the state appellate court granted Petitioner's petition for belated appeal (of the Rule 3.850 proceedings) on October 27, 2010.
Following the homicide of Reginald Alexander on July 28, 2000, Detective Kneale obtained a search warrant of Petitioner's home on July 31, 2000 (Resp. Ex. 23, Vol. 2 at record pp. 138-39). The search warrant was obtained largely based on information obtained from two witnesses, Ruth Jordan and Stephanie Howard (Id. at record pp. 141-42). The search warrant was executed at Petitioner's home on August 1, 2000 (Id. at record p. 135). Defense counsel filed a motion to suppress the evidence seized from Petitioner's home (Id. at record pp. 135-37). The state trial court held a hearing on the motion to suppress (Id. at record pp. 147-223). During the hearing, defense counsel argued that the affidavit for a search warrant did not demonstrate probable cause (Id. at record pp. 153-79). At the conclusion of the hearing, the trial court denied the motion to suppress (Id. at record pp. 200-12).
Petitioner contends that the trial court erred in failing to suppress the evidence seized at his home because the search warrant affidavit did not demonstrate probable cause, apparently because the information was provided to law enforcement by witnesses whose reliability was not established in the affidavit.
"[W]hen the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. at 494 (footnotes omitted). In order to be entitled to federal habeas review of a Fourth Amendment claim, the petitioner must demonstrate that he "was denied an opportunity for a full and fair litigation of that claim at trial and on direct review." Id. at 495 n.37.
Petitioner was provided an opportunity for a full and fair litigation of his Fourth Amendment claim before the state trial court and appellate court (see Resp. Ex. 23, Vol. 2 at record pp. 147-223; Ex. 2).
Petitioner contends that the state trial court erred in denying Petitioner's motion for mistrial, made on the ground that during closing argument the prosecutor showed the jury a verdict form that listed all charges in the Indictment, but only showed the box on the verdict form indicating guilty. Petitioner argues that the verdict form tainted the jury by instilling in their minds that guilty was the only possible verdict on all charges, and therefore deprived Petitioner a fair trial.
Petitioner raised this claim on direct appeal (Resp. Ex. 2). The state appellate court rejected it without discussion (Resp. Ex. 4).
Respondent contends that to the extent Petitioner attempts to assert a federal claim, it is unexhausted because Petitioner did not present the federal constitutional nature of his claim to the state courts (Dkt. 9 at p. 18). The Court agrees.
Trial counsel did not present a federal constitutional claim to the trial court when moving for a mistrial (Resp. Ex. 23, Vol. 7 at transcript p. 1154). Additionally, when Petitioner challenged the denial of the motion for mistrial on direct appeal, he did not fairly present a federal constitutional violation to the appellate court (Resp. Ex. 2 at pp. 18-20). His Initial Briefcited solely to a state case, which was not decided on federal grounds (Id.). Petitioner did not indicate in any way that he intended to raise a federal claim, and nothing in his argument would have alerted the state appellate court to the presence of a federal 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. 27, 32 (2004).
As discussed above, Petitioner's Initial Brief on direct appeal did not fairly present a federal constitutional claim to the state appellate court, and nothing in Petitioner's argument alerted the state appellate court to the presence of a federal claim. Petitioner's cursory and vague statement in his Initial Brief that "the State clearly violated the defendant's right to a fair trial . . ." (Resp. Ex. 2 at p. 19) was no more than a "needle in a haystack," and insufficient to present fairly to the state appellate court a federal constitutional issue. See McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005) (exhaustion requires a habeas petitioner to do more than scatter some makeshift needles in the haystack of the state court record) (citation omitted); Zeigler v. Crosby, 345 F.3d 1300, 1308 n.5 (11th Cir. Fla. 2003) (petitioner's state court brief which stated that he "was denied due process and a fair trial . . ." was "insufficient to present fairly to the state court the federal constitutional issue" because "this language could just be asserting a fair trial claim under the Florida Constitution and Florida's Due Process Clause"). Therefore, Petitioner failed to exhaust his federal claim.
Petitioner is now barred by state procedural rules from returning to state court to exhaust his federal claim because a second direct appeal of this issue is not available and would be untimely, and the claim may not be raised in a state post-conviction motion. See Smith v. State, 741 So.2d 585 (Fla. 5th DCA 1999) (recognizing prohibition against successive appeals); Claughton v. Claughton, 393 So.2d 1061, 1062 (Fla. 1980) ("The general law and our procedural rules at both the trial and appellate levels are designed for one final judgment and one appeal."); Seminole County Bd. of County Comm `Rs v. Long, 422 So.2d 938, 942 (Fla. 5th DCAl 982) ("The [Florida] constitution gives litigants the right to one appeal from initial judicial action."); Fla. R. App. P. 9.140(b)(3) (defendant wishing to appeal a final judgment must do so within "30 days following rendition of a written order"); Fla. R. Crim. P. 3. 850(c) ("This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence."); Harmon v. Barton, 894F.2d1268, 1270 (11th Cir.), cert. denied, 498 U.S. 832 (1990) (under Florida law, an issue which could have been raised on direct appeal may not be reviewed in a Rule 3.850 motion). Petitioner's federal claim is therefore procedurally defaulted. Consequently, absent an exception to the procedural default, the claim is barred from review in this Court.
Petitioner has failed to show either cause and prejudice for the default, or that a fundamental miscarriage of justice will result if the claim is not addressed on the merits. Therefore, he is not entitled to federal review of this claim. Accordingly, Ground One(a) does not warrant federal habeas relief.
Petitioner contends that trial counsel was ineffective in failing to have Petitioner evaluated to determine whether Petitioner was competent to proceed to trial. In state court, Petitioner presented this claim as Ground One "A" of his Rule 3.850 motion (Resp. Ex. 8 at record pp. 43-44).
(Resp. Ex. 16 at record pp. 330-31).
The state post-conviction court's determination that Petitioner failed to demonstrate deficient performance was not objectively unreasonable, and was not based on an unreasonable determination of the facts. During the evidentiary hearing on the Rule 3.850 motion, Petitioner's trial counsel testified that 1) he did not recall Petitioner ever asking him to get a psychological evaluation of Petitioner, and 2) nothing in the notes in his file indicated that Petitioner asked for a psychological evaluation (Resp. Ex. 15 at record p. 296). Additionally, counsel testified that "[t]here was never any indication that [Petitioner] was having any trouble understanding the concept of the process or the people involved or assisting me in any way in forming the defense or evaluating the case" and "there was never any doubt in my mind [Petitioner] understood what was going on. There was no issue of competency as far as I could see." (Id. at record pp. 297-98). Although Petitioner testified that during trial he "wasn't aware of what was going on" (id. at record p. 285), and prior to trial he told counsel that he "didn't understand what was going on up until trial so I didn't feel as though I would understand what was going on in trial" (id. at record p. 286), Petitioner admitted on cross-examination that at times he did not have any trouble discussing his case with counsel (id. at record p. 291), and that he never sought psychological care while in prison (id. at record p. 290-91).
The state post-conviction court found counsel's testimony more credible than Petitioner's testimony. The state court's credibility determination is presumed correct. See Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over" the petitioner's.), cert. denied, 526 U.S. 1047 (1999); Devierv. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993)("Findings by the state court concerning historical facts and assessments of witness credibility are . . . entitled to the same presumption accorded findingsoffactunder28 U.S.C. § 2254(d)."), cert. denied, 513 U.S. 1161 (1995). Relying only upon his unsupported contention of incompetency, Petitioner fails to overcome the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(l).
Additionally, the state post-conviction court's determination that Petitioner failed to demonstrate prejudice was not objectively unreasonable. "In order to demonstrate prejudice from counsel's failure to investigate his competency, [a] petitioner has to show that there exists `at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.'" Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989) (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir. 1988)). The federal standard for competency to stand trial is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational, as well as factual, understanding of the proceedings against him. See Godinez v. Moran, 509 U.S. 389, 396-97 (1993) (citing Dusky v. United States, 362 U.S. 402 (1960)(percuriam);Drope v. Missouri, 420 U.S. 162, 171 (1975)). The Florida standard for competency to stand trial is the same. See Fla. Stat, Section 916.12(1) ("A defendant is incompetent to proceed within the meaning of this chapter if the defendant does not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her or him.").
Petitioner does not demonstrate that any mental infirmity rendered him unable to understand the proceedings or consult with counsel. Although during the state evidentiary hearing Petitioner testified that he was depressed (Resp. Ex. 15 at record p. 286), no presumption exists that depression is sufficient to raise a question regarding a defendant's competency to stand trial. See Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995) ('"Not every manifestation of mental illness demonstrates incompetence to stand trial; rather, the evidence must indicate a present inability to assist counsel or understand the charges.'") (quoting Card v. Singletary, 981 F.2d 481, 487 (11th Cir. 1992); United States ex rel. Foster v. DeRobertis, 741F.2d1007, 1012 (7th Cir.1984)). Petitioner cannot satisfy Strickland's prejudice prong with mere speculation or conclusory allegations. See Hill v. Lockhart, 474 U.S. 523 (1985) (conclusory allegations of ineffective assistance of counsel are insufficient to raise a constitutional issue); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).
Petitioner has failed to show that the state post-conviction court's denial of this ineffective assistance of trial counsel claim was an unreasonable application of Strickland or based on an unreasonable determination of the facts. Accordingly, Ground Two does not warrant federal habeas relief.
Petitioner contends that counsel was ineffective in failing to move to dismiss the charges against Petitioner on the ground that Petitioner was denied a timely first appearance hearing. In state court, Petitioner presented this claim as Ground One "D" of his Rule 3.850 motion (Resp. Ex. 8 at record pp. 51-53). In denying the claim, the state post-conviction court stated:
(Resp. Ex. 9 at record pp. 66-67).
Initially, the record appears to belie Petitioner's contention that he did not receive a timely first appearance hearing. Rule 3.130 (a), Fla.R.Crim.P., provides, in pertinent part, that "every arrested person shall be taken before a judicial officer, either in person or by electronic audiovisual device in the discretion of the court, within 24 hours of arrest." According to the record, Petitioner was arrested on September 11, 2001 (Resp. Ex. 23, Vol. I at record pp. 1, 67), and his first appearance hearing was held on September 12, 2001 (Id. at record p. 2).
Additionally, even if Petitioner did not receive a timely first appearance hearing, the state court has answered the question ofwhat would have happened had defense counsel moved to dismiss the charges on the ground that Petitioner did not receive a timely first appearance hearing — the motion would have been denied.
Petitioner has not shown that the state court's decision involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts. Accordingly, Ground Two(a) does not warrant federal habeas relief.
Petitioner contends that counsel was ineffective in failing to call Petitioner's father, Warren Williams, and step-mother, Rose Williams, to testify at 1) the hearing on Petitioner's motion to suppress, and 2) at trial. Petitioner asserts that these witnesses would have testified that Petitioner was home with them at the time of the crime.
In state court, Petitioner presented these claims, or similar claims, in both Ground One "B" and Ground One "F" ofhis Rule 3.850 motion (Resp. Ex. 8 at record pp. 44-46, 55-57). With regard to his claim that counsel should have called these witnesses during the hearing on his motion to suppress, Petitioner asserted that he "demanded that these people [Warren and Rose Williams] be received by the courts at the suppression hearing and be voluntarily tested for DNA purposes to make an 100% match of 13f or 13 to negate the State's purported assumption thatthe 12 of 13 DNA found on the shorts seized "improperly" from a known residence of Nicholas Williams belonged solely to the victim." (Id. at record p. 56).
(Resp. Ex. 9 at record p. 67) (emphasis in original).
In summarily denying claim 2 of the Rule 3. 850 motion, the state post-conviction court stated in pertinent part:
(Resp. Ex. 9 at record pp. 64-65) (footnote omitted) (alterations and emphasis in original).
The state post-conviction court's denial of this claim was not objectively unreasonable. At the conclusion of the hearing on Petitioner's motion to suppress, the state trial court granted Petitioner leave to file an amended motion to suppress to pursue a Franks claim (Resp. Ex. 23, Vol. 2 at record pp. 212-21). There is no indication in the record that defense counsel was granted leave to amend the motion to suppress to raise any argument other than a Franks claim. The state post-conviction therefore found that counsel could not amend the motion to suppress to assert the ground Petitioner allegedly told counsel to pursue, namely, that the DNA evidence discovered on Petitioner's shorts should be suppressed because it was Petitioner or his parents' DNA rather than the victim's DNA. Accordingly, the state post-conviction court concluded that counsel did not render deficient performance. Petitioner raised this claim on appeal (Resp. Ex. 18), and the appellate court affirmed without a written opinion (Resp. Ex. 20).
The state courts have answered the question of what would have happened had defense counsel attempted to move to amend the motion to suppress to assert the ground Petitioner wanted counsel to pursue — the motion would have been denied. Consequently, Petitioner has failed to establish deficient performance. See Callahan v. Campbell, 427 F.3d at 932.
Additionally, Petitioner has failed to demonstrate prejudice. Petitioner has offered no more than a conclusory and speculative assertion that the DNA found on his shorts "could have been" his DNA, Warren Williams' DNA, or Rose Williams' DNA. He has not alleged or presented any evidence demonstrating or suggesting that the DNA found on the shorts came from anyone other than the victim.
Petitioner has failed to show that the state courts' denial of this ineffective assistance of trial counsel claim was an unreasonable application of Strickland or based on an unreasonable determination of the facts. Accordingly, Ground Two(b) does not warrant federal habeas relief.
Ground Two(c) likewise does not warrant relief. After conducting an evidentiary hearing, the state post-conviction court denied Petitioner's claim that trial counsel was ineffective in failing to call alleged alibi witnesses Warren and Rose Williams to testify at trial. In denying the claim, the state post-conviction court stated:
(Resp. Ex. 16 at record pp. 331-32) (emphasis in original). Petitioner appealed the state post-conviction court's denial of his Rule 3.850 motion, and the appellate court per curiam affirmed the denial without written opinion (Resp. Ex. 20). This Court finds that the state courts' denial of this claim was neither an unreasonable application of Strickland, nor based on an unreasonable determination of the facts.
During the Rule 3. 850 evidentiary hearing, Warren Williams testified that on the night of the crime, he was at home watching television with Petitioner and Rose Williams (Resp. Ex. 15 at record pp. 269-70). He testified that Petitioner was watching television with them between 11:00 and 12:00 o'clock, then left the room to lie down on a sofa (Id. at record p. 270).
Rose Williams testified that on the night of the crime, she and Warren Williams were watching a movie in their bedroom with Petitioner between approximately 11:00 and 12:00 o'clock (Id. at record pp. 278-79). She stated that after the movie ended, Petitioner went into the living room and on to the couch (Id. at record pp. 279, 282). She further testified that she never talked to Petitioner's attorney and did not even know his name (Id. at record p. 282). She admitted, however, that she "might have called [Petitioner's attorney] a couple times just to ask him what was going on" but "talked to an assistant." (Id. at record p. 283).
Petitioner testified that on the night of the crime he was home watching "Comic View." (Id. at record p. 289). He stated that the show was on "11:00 to 12:00 then probably re-run again probably 1:00-2:00 in the morning." (Id.). He further testified that he told counsel that he was with Warren and Rose Williams on the night of the crime, and that he wanted counsel to call them as witnesses (Id. at record p. 291). Petitioner denied he told counsel that he was with Ruth Jordan on the night of the crime (id.), and denied giving an officer a statement that he was present during the shooting, but did not kill the victim (Id. at record pp. 293-94).
Counsel testified that his file contained "a notation concerning alibi" that included "two names . . . [Petitioner's] father and . . . Ruth Jordan." (Id. at record p. 298). Counsel stated that he did not pursue Ruth Jordan as an alibi witness because she had given a statement to law enforcement that on the night of the crime she had driven Petitioner to his grandmother's house, dropped him off there, and picked him up later that night (Id. at record pp. 298-99). Counsel did however talk to Petitioner's father, Warren Williams (Id. at record pp. 299-300). According to counsel, Williams stated that he saw Petitioner on the night of the crime, but "fell asleep off and on during the course of the evening and ultimately . . . went to bed and . . . couldn't really say one way or the other where [Petitioner] was." (Id. at record p. 300). Counsel recalled speaking to Rose Williams "a number of times" regarding "the progress of the case," but did not recall and did not have any notes indicating whether he spoke to her regarding an alibi (Id. at record pp. 301-02). Counsel opined that in light of 1) Petitioner's alleged statement to a detective admitting that he was present at the scene of the crime, 2) the statements from Petitioner's co-defendants placing Petitioner at the scene of the crime, and 3) the victim's blood on Petitioner's shorts, it would have been difficult to pursue an alibi defense (Id. at record pp. 300-01).
The state post-conviction court found "trial counsel's testimony to be more credible than the Defendant's witnesses." (Resp. Ex. 16 at record p. 332). "Determining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review. Federal habeas courts have `no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.'" Consalvo v. Sec '.Y for Dep 't ofCorr., 664 F.3d 842, 845 (11th Cir. 2011) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). Therefore, the state post-conviction court's credibility determinations may not be disturbed unless they are unreasonable in light of the evidence. Gore v. Sec '.Y for Dep 't ofCorr., 492 F.3d 1273, 1300 (11th Cir. 2007).
Petitioner has not shown by clear and convincing evidence that the state court's credibility determinations were unreasonable.
Additionally, Petitioner has failed to demonstrate prejudice. In light of the strong evidence placing Petitioner at the scene of the crime, Petitioner cannot show that Warren and Rose Williams' testimony would have likely changed the result of the trial. This is especially true because Warren Williams is Petitioner's father, and Rose Williams is Petitioner's step-mother, and their testimony would likely have been viewed with suspicion by the jury. See, e.g., Ball v. United States, 271 Fed. App'x 880, 884 (11th Cir. 2008) (unpublished) ("Ball's alibi witnesses were all close family members with a strong motive to fabricate an alibi defense for him. As such, their testimony would not have been particularly compelling and would have been subjected to vigorous impeachment.").
This Court cannot say that the state courts' rejection of this claim was an unreasonable application of Strickland. Accordingly, Ground Two(c) does not warrant federal habeas relief.
ACCORDINGLY, it is
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is
2. The Clerk shall enter judgment against Petitioner, terminate all pending motions, and close this case.
