GARY R. JONES, Magistrate Judge.
Petitioner initiated this case by filing a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.) In his petition, Petitioner contends that his trial counsel was ineffective based on three grounds. (Id.) Respondent filed a response, ECF No. 13, along with relevant portions of the state-court record. (ECF Nos. 13-1-13-3.) Upon due consideration of the petition, response, and state-court record, the undersigned recommends that the petition be denied.
In August 2011 Petitioner was charged with burglary of an occupied dwelling (Count 1) and grand theft (Count 2). (ECF No. 13-1 at 14.) Petitioner proceeded to a jury trial on his charges in February 2012, and he was found guilty as charged. (Id. at 37.) At sentencing, the trial court found that Petitioner qualified for sentencing as a Prison Releasee Reoffender, and he was sentenced to 15 years in prison for Count 1 and five years in prison for Count 2, to run concurrent with the sentence for Count 1. (Id. at 55-64.)
Petitioner filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(b)(2) in November 2012. (ECF No. 13-2 at 259-62.) The trial court denied that motion on November 13, 2012. (Id. at 266-67.)
Petitioner filed a direct appeal to the First District Court of Appeal ("First DCA") on November 30, 2012. (ECF No. 13-3 at 8-21.) The First DCA per curiam affirmed without opinion on July 3, 2013, and the mandate followed on July 19, 2013. (Id. at 32, 34.)
Petitioner then filed multiple motions for post-conviction relief, which were stricken. (Id. at 41-124, 160-61.) The trial court ruled on his fourth amended motion for post-conviction relief, denying the motion on November 21, 2014. (Id. at 153-59.) Petitioner appealed the denial of his motion to the First DCA, which per curiam affirmed without opinion on February 26, 2015. (Id. at 218.) The mandate followed on March 24, 2015. (Id. at 217.)
On June 12, 2014, Petitioner filed a petition alleging ineffective assistance of appellate counsel with the First DCA. (Id. at 219-27.) The First DCA denied this petition on the merits on July 3, 2014. (Id. at 238.)
Petitioner then submitted the instant petition to prison officials for mailing on April 3, 2015. (ECF No. 1.)
The role of a federal habeas court when reviewing a state prisoner's application pursuant to 28 U.S.C. § 2254 is limited. Williams v. Taylor, 529 U.S. 362, 403-04 (2000). Under section 2254(a), federal courts "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
Additionally, federal courts must give deference to state court adjudications unless the state court's adjudication of the claim is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
With regard to factual findings, under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state prisoner's application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Under § 2254(e)(1), the petitioner must advance clear and convincing evidence that the state court's factual determination was "objectively unreasonable" to rebut the presumption that the determination was correct. Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011); 28 U.S.C. § 2254(e)(1). "`[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'" Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
As to legal findings, as mentioned above, a petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of the federal claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). "[C]learly established Federal law, as determined by the Supreme Court of the United States," refers only to holdings (rather than dicta) of the Supreme Court, but decisions of lower federal courts may be considered to the extent that they demonstrate how those courts applied Supreme Court holdings. Hawkins v. Alabama, 318 F.3d 1302, 1309 (11th Cir. 2003); see also Carey v. Musladin, 549 U.S. 70, 74-77 (2006).
"Under § 2254(d)(1)'s `contrary to' clause, we grant relief only `if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'" Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). For § 2254(d)(1), clearly established federal law includes only the holdings, not the dicta of Supreme Court decisions. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). "Under § 2254(d)(1)'s `unreasonable application' clause, we grant relief only `if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Jones, 753 F.3d at 1182 (alteration in original) (quoting Williams, 529 U.S. at 413).
The Supreme Court has interpreted § 2254(d) as requiring that "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). "[A]n `unreasonable application' of [Supreme Court] holdings must be `objectively unreasonable,' not merely wrong; even `clear error' will not suffice." Woodall, 134 S.Ct. at 1702. In other words, Petitioner must establish that no fairminded jurist would have reached the Florida court's conclusion. See Richter, 562 U.S. at 102-03; Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257-58 (11th Cir.2012). "If this standard is difficult to meet, that is because it was meant to be." Richter, 562 U.S. at 102.
In light of Gill, the "unreasonable determination of facts" standard plays a limited role in habeas review because the district court considers the reasonableness of the trial court's fact-finding only to the extent that the state court's ultimate conclusion relied on it. 633 F.3d at 1292. A federal habeas court can consider the full record before it to answer "the only question" that matters: "whether the state court's determination [was] objectively unreasonable." Id. at 1290.
Because Petitioner's claims allege ineffective assistance, a review of the applicable law is necessary. Under Strickland v. Washington, to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate that (1) his counsel's performance was below an objective and reasonable professional norm, and (2) he was prejudiced by this inadequacy. Strickland, 466 U.S. 668, 686-96 (1984). The court may dispose of the claim if a defendant fails to carry his burden of proof on either the performance or the prejudice prong. Id. at 697.
To show counsel's performance was unreasonable, a defendant must establish that "no competent counsel would have taken the action that his counsel did take." Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). "The relevant question is not whether counsel's choices were strategic, but whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no "absolute rules" for determining whether counsel's actions were indeed reasonable, as "[a]bsolute rules would interfere with counsel's independence-which is also constitutionally protected—and would restrict the wide latitude counsel have in making tactical decisions." Putnam v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001). "To uphold a lawyer's strategy, [the Court] need not attempt to divine the lawyer's mental processes underlying the strategy." Chandler v. United States, 218 F.3d 1305, 1314 n.16 (11th Cir. 2000) (en banc). "No lawyer can be expected to have considered all of the ways [to provide effective assistance]." Id.
Id.
To show prejudice, a defendant must show more than simply that counsel's unreasonable conduct might have had "some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Instead, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability is defined as a probability sufficient to undermine confidence in the outcome." Id.
When the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief is a difficult one. Harrington, 562 U.S. at 102. The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough because "[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 562 U.S. at 100 (internal quotation marks omitted). And "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102.
A federal habeas court "must determine what arguments or theories supported or, [if none were stated], could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. So long as fairminded jurists could disagree about whether the state court's denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id. Stated another way, only if "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents" may the federal court grant relief. Id.
Even without the deference due under § 2254, the Strickland standard for judging the performance of counsel "is a most deferential one." Id. at 105. When combined with the extra layer of deference that § 2254 provides, the result is double deference, and the question becomes whether "there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. 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 a state court denied on the merits is found to merit relief in a federal habeas proceeding.
Before bringing a habeas action in federal court, a 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. 28 U.S.C. § 2254(b)(1), (c). Exhaustion requires that prisoners give the state courts a "full and fair opportunity" to resolve all federal constitutional claims by "invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To properly exhaust a federal claim, a petitioner must fairly present the claim in each appropriate state court, thereby affording the state courts a meaningful "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).
Petitioner contends that his trial counsel, Leslie Cowan, was ineffective for failing to call Virginia Slaughter, his mother, as an alibi witness because Ms. Slaughter would have testified that Petitioner was in another county over two hundred and fifty miles away from the scene of the crime at the time it was committed. Petitioner alleges that he called his mother during the estimated time of the crime, and cell phone records would have also confirmed that he was in a different county when he called his mother. Petitioner says that had Ms. Slaughter been able to testify, there is more than a reasonable probability that the outcome of the proceeding would have been different. (ECF No. 1 at 3-4.)
In rejecting this claim on post-conviction review, the state court relied on the testimony of the victim, Ricky Robbins, as well as the DNA evidence from the crime scene. At trial Mr. Robbins testified that the perpetrator was a tall white male in his late twenties or early thirties with red hair and a medium build. Although Mr. Robbins was unable to identify Petitioner in a photo lineup, the State argued that the description matched Petitioner. (ECF No. 13-3 at 154-55.)
Additionally, evidence was presented that prior to the burglary the victim's door was pried open with a tool, and a crowbar was found in the apartment that was believed to belong to the suspect and used to pry open the door. After Petitioner was developed as a suspect, his DNA was taken and compared to DNA from the crowbar. A crime lab analyst testified at trial that Petitioner's DNA matched the major contributor from the DNA on the crowbar and that it was very possible that the last person who touched the crowbar was the major DNA contributor. (Id. at 155-56.)
(Id. at 156) (footnote omitted).
Considering the state court already denied this claim on the merits, the Court must give the state court's finding double deference so that the question for this Court becomes whether "there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105. Here, a reasonable argument exists that counsel satisfied Strickland's deferential standard and, therefore, that the state court's rejection of Petitioner's argument and application of Strickland was not objectively unreasonable.
As discussed above, to prevail on this claim of ineffectiveness of counsel, Petitioner must show (1) that his counsel's performance was below an objective and reasonable professional norm, and (2) that Petitioner was prejudiced by this inadequacy. Strickland, 466 U.S. at 686. The Court may dispose of the claim if Petitioner fails to carry his burden of proof on either the performance or the prejudice prong. Id. at 697. Here, as the state court properly concluded, Petitioner failed to satisfy the prejudice prong of the Strickland test.
To show prejudice, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability is defined as a probability sufficient to undermine confidence in the outcome." Id. at 693.
Although Petitioner argues that the outcome at trial would have been different had his trial counsel called his mother as an alibi witness, the only support Petitioner offers to show that this testimony would have resulted in the conclusion that Petitioner was in a different county at the time of the crime is his own conclusory allegations. But as the trial court in rejecting Petitioner's claim in his post-conviction motion correctly noted, testimony from Petitioner's mother that he called her from a different county at the time of the alleged crime would not prove that he was actually in a different county.
Based on the evidence supporting Petitioner's conviction—including DNA evidence matching Petitioner's DNA found on a crowbar inside the victim's apartment and the fact that Petitioner matched the victim's description of the perpetrator—and the lack of any evidence supporting Petitioner's claim that he was actually in a different county at the time of the crime, the Court finds that Petitioner has failed to show he was prejudiced by his counsel's failure to call Petitioner's mother as an alibi witness.
To grant habeas relief, the Court must find that the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). Because Petitioner has failed to prove the prejudice prong of the Strickland test, nothing Petitioner has presented demonstrates that the state court's rejection of this ineffective assistance claim was "so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Burt, 134 S. Ct. at 12 (quoting Harrington, 131 S. Ct. at 787). The Court therefore concludes that there is a reasonable argument that his counsel satisfied Strickland's deferential standard, so Petitioner is not entitled to federal habeas relief on ground one.
Petitioner next contends that his trial counsel was also ineffective for failing to investigate and obtain video surveillance recordings from the Days Inn Hotel in Crystal River, Florida, which would have shown that Petitioner's vehicle was in the parking lot of the Days Inn at the time the offense occurred and that Petitioner was, therefore, in a different county.
In rejecting this claim on post-conviction review, the state court reasoned that
(ECF No. 13-3 at 157) (citations omitted). The First DCA per curiam affirmed without opinion. (Id. at 217-18.)
Here, as with ground one, a reasonable argument exists that counsel satisfied Strickland's deferential standard and, therefore, that the state court's rejection of Petitioner's argument and application of Strickland was not objectively unreasonable. As the trial court correctly concluded, Petitioner's statements about the video surveillance and the availability of the surveillance footage months later were speculative. Additionally, although Petitioner now says that the footage would have shown his car in the parking lot, Petitioner said in a different motion for post-conviction relief that the surveillance would have shown that he was not at the Days Inn or its parking area.
Based on the speculative and contradictory nature of Petitioner's assertions, Petitioner has failed to satisfy Strickland's performance prong. In other words, Petitioner has failed to show that his counsel's conduct was below an objective and reasonable professional norm. To meet the standard, Petitioner must show that "no competent counsel would have taken the action that his counsel did take." Grayson, 257 F.3d at 1216.
Petitioner has failed to show that his counsel acted unreasonably in not conducting further investigation into this alleged surveillance footage and not subpoenaing any video or that no other competent counsel would have decided not to conduct any additional investigation into the alleged video footage. See Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In an ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments."). Therefore, Petitioner has failed to show deficient performance.
Because Petitioner has not shown deficient performance, the Court need not address the prejudice prong. The Court finds that the state court's decision denying this claim on post-conviction review is not contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. See 28 U.S.C. § 2254(d)(1). The Court therefore concludes that Petitioner is not entitled to federal habeas relief on ground two.
Petitioner lastly contends that his trial counsel was ineffective for failing to investigate for "favorable crime scene evidence." Petitioner says that the suspect allegedly touched several items within the home of the victim—the light switch, bedroom door knob, and items in the trash can—but his counsel failed to have any of these other items tested for DNA or fingerprints. Petitioner says that this evidence would have proven that he was not the person who touched the items in Mr. Robbins' home and would have exonerated him. (ECF No. 1 at 7-8.)
In rejecting this claim on post-conviction review, the state court reasoned that
(ECF No. 13-3 at 157-58) (citations omitted). The First DCA per curiam affirmed without opinion. (Id. at 217-18.)
Again, because the state court already denied this claim on the merits, the Court must give the state court's finding double deference so that the question for this Court becomes whether "there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105. Here, a reasonable argument exists that counsel satisfied Strickland's deferential standard despite failing to investigate all items touched by the suspect for forensic evidence.
Without addressing whether counsel's performance was deficient for failing to investigate these additional items, the Court agrees with the state court that Petitioner has failed to show that he was prejudiced by his counsel's conduct. To show prejudice, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability is defined as a probability sufficient to undermine confidence in the outcome." Id. at 693. Petitioner has failed to make this showing.
Although Petitioner argues that this additional evidence indicating a lack of his DNA or fingerprints on other items in the apartment would have led to his acquittal, this Court disagrees based on the testimony of the DNA analyst and the DNA evidence linking Petitioner to the crime scene. As the trial court noted, even if these other items had been tested and Petitioner's DNA and fingerprints were not found on these items, that would not prove that Petitioner did not touch the items or that he was not in the apartment.
Thus, while Petitioner makes the conclusory allegations that there is a reasonable probability that the results of the trial would have been different, it is unclear how any additional investigation into these other items would have made a difference. This is particularly true in light of the fact that the actual evidence at trial—the match of Petitioner's DNA to the DNA on the crowbar and the fact that Petitioner matched the description of the perpetrator provided by the victim—was sufficient for the jury to find Petitioner guilty as charged.
Accordingly, the Court concludes that the state court's determination that Petitioner failed to show he was prejudiced by his counsel's failure to conduct this additional investigation is not contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. See 28 U.S.C. § 2254(d)(1). Thus, Petitioner is not entitled to federal habeas relief on ground three.
Section 2254 Rule 11(a) provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.
The undersigned finds no substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, the undersigned recommends that the district court deny a certificate of appealability in its final order.
Rule 11(a) also provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Thus, if there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully
