CHARLES J. KAHN, Jr., Magistrate Judge.
Before the court is an amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. 5). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 23). Petitioner has not replied, although invited to do so. (See Doc. 25). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration of all issues raised by petitioner, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to federal habeas relief, and that the amended petition should be denied.
On October 27, 2004, petitioner was charged by amended information filed in Walton County Circuit Court Case Number 04-CF-664, with (1) Trafficking in Methamphetamine (200 grams or more) between November 1, 2002 and August 28, 2003, (2) Unlawful Possession of Listed Chemical (Acetone) on August 28, 2003, and (3) Possession of Drug Paraphernalia on August 28, 2003.
On December 5, 2006, petitioner filed a counseled motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. H, pp. 1-9). The circuit court held an evidentiary hearing and denied relief in an order rendered May 20, 2011. (Id., pp. 278-407). The Florida First District Court of Appeal ("First DCA") per curiam affirmed on March 13, 2012, without a written opinion. Burgess v. State, 83 So.3d 712 (Fla. 1st DCA 2012) (Table) (copy at Ex. J). The mandate issued March 29, 2012. (Ex. J).
Petitioner initiated this federal habeas proceeding on October 16, 2012. (Doc. 1). Petitioner's counseled amended petition, filed on October 30, 2012, raises one ground for relief: (1) "The Trial Court Wrongly Denied The Defendant's Rule 3.850 Motion When The Defendant Alleged That His Attorney Failed To Subpoena A Material Witness To Testify." (Doc. 5, pp. 4-8). Respondent filed an answer, asserting that to the extent petitioner faults trial counsel for failing to call Agent Hatton as a witness, petitioner's claim is without merit because the state court's rejection of this claim was neither contrary to, nor involved an unreasonable application of Strickland, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Respondent asserts that to the extent petitioner faults trial counsel for telling the jury in opening statement that Hatton would offer testimony exonerating petitioner, the claim is unexhausted and without merit. (Doc. 23, pp. 15-26).
Federal courts may issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. Section 2254(d) provides, in relevant part:
28 U.S.C. § 2254(d) (2011).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000).
Id., 529 U.S. at 412-13 (O'Connor, J., concurring).
Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L. Ed. 2d 1003 (2010); Bowles v. Sec'y for Dep't of Corr., 608 F.3d 1313, 1315 (11th Cir. 2010).
After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L. Ed. 2d 263 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). If the state court decision
If the state court decision is not contrary to clearly established federal law, the federal habeas court next determines whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4, 122 S.Ct. 1843, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law). An objectively unreasonable application of federal law occurs when the state court "identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case" or "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). A state court, however, may "decline to apply a specific legal rule that has not been squarely established by [the Supreme Court]" without running afoul of the "unreasonable application" clause. Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L. Ed. 2d 251 (2009).
When faced with a state appellate court's summary affirmance of a trial court's decision, the "unreasonable application" standard focuses on the state court's ultimate conclusion, not the reasoning that led to it. See Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011) (citing Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L. Ed. 2d 624 (2011)). The federal court must determine what arguments or theories supported or could have supported the state court's decision, and then ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior Supreme Court decision. See Richter, 131 S. Ct. at 786; see also Gill, 633 F.3d at 1292 (holding that the federal district court may rely on grounds other than those articulated by the state court in determining that habeas relief was not warranted, so long as the district court did not err in concluding that the state court's rejection of the petitioner's claims was neither an unreasonable application of a Supreme Court holding nor an unreasonable determination of the facts). In sum, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S. Ct. at 786-87.
Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where 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." 28 U.S.C. § 2254(d)(2). As with the "unreasonable application" clause, the federal court applies an objective test. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state court decision based on a factual determination "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding."). The "unreasonable determination of the facts" standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill, 633 F.3d at 1292.
When performing review under § 2254(d), the federal court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court's factual finding and, when guided by AEDPA, "conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence"). Neither the Supreme Court nor the Eleventh Circuit has interpreted how § 2254(d)(2) and §2254(e)(1) interact in the context of fact-based challenges to state court adjudications. Cave v. Sec'y for Dep't of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit recently declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate court's summary affirmance, where it found that the validity of the state court decision was not premised on the trial court's unreasonable fact finding, and that the petitioner failed to demonstrate "by clear and convincing evidence that the record reflect[ed] an insufficient factual basis for affirming the state court's decision." Gill, 633 F.3d at 1292.
Only if the federal habeas court finds that the petitioner satisfied AEDPA and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a). "If this standard is difficult to meet, that is because it was meant to be." Richter, 131 S. Ct. at 786.
In Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set out a two-part inquiry for ineffective assistance claims. The petitioner must show that (1) his counsel's performance was constitutionally deficient, and (2) the deficient performance prejudiced the petitioner. Id., 466 U.S. at 687. "First, petitioner must show that `counsel's representation fell below an objective standard of reasonableness. Second, petitioner must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L. Ed. 2d 144 (1986) (quoting Strickland, 466 U.S. at 668, 694).
Trial "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland at 690, 104 S. Ct. at 2066. "To overcome that presumption, a defendant must show that counsel failed to act reasonably considering all the circumstances." Cullen v. Pinholster, ___ U.S. ____, 131 S.Ct. 1388, 1403, 179 L. Ed. 2d 557 (2011) (quotation marks and alterations omitted). "[T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Burt v. Titlow, ___ U.S. ____, 134 S.Ct. 10, 17, 187 L. Ed. 2d 348 (2013) (quotation marks and alterations omitted).
With regard to prejudice, the Strickland court emphasized that a defendant must show a "reasonable probability" of a different result. A reasonable probability is one that sufficiently undermines confidence in the outcome. Id. at 694, 104 S. Ct. at 2068. "The likelihood of a different result must be substantial, not just conceivable." Richter, 131 S. Ct. at 792.
Petitioner claims trial counsel was ineffective when he failed to subpoena and call FDLE Agent Barry Hatton to testify at trial, after telling the jury in opening statement that they would hear testimony from Hatton that Jesse Lusk, the husband of the State's key witness Susan Lusk, told Hatton that the meth oil found on the Lusk's property belonged to Susan. Petitioner raised both aspects of this claim (counsel's failure to call Hatton and counsel's promising Hatton's testimony in opening statement) in his state postconviction motion. There, petitioner faulted counsel for failing to secure the testimony of Officer Hatton, and argued petitioner was prejudiced because Hatton's testimony "would have created reasonable doubt as to the testimony of the State's key witness and would have helped establish that the [sic] Mrs. Lusk was responsible for the drugs and paraphernalia found on their property." (Ex. H, p. 16). Petitioner argued further that without Hatton's testimony, he "was unable to adequately demonstrate Mrs. Lusk's motivation to give false testimony regarding [petitioner's] involvement in the charged offenses." (Id.). Petitioner argued that counsel's error "was exacerbated by counsel's opening statement, when he told the jury to expect such testimony." (Id. pp. 16-17; see also Ex. H, pp. 258-67 (petitioner's post-evidentiary hearing written closing argument)). Defense counsel's opening statement at trial provided, in relevant part, as follows:
(Ex. B, pp. 29-30).
The state court held an evidentiary hearing (Ex. H, pp. 124-158), and denied relief as follows:
(Ex. H, pp. 279-284) (footnotes omitted). The First DCA summarily affirmed.
All of the state court's factual findings are supported by the state court record. Petitioner has not presented clear and convincing evidence that any factual finding is incorrect, nor has he shown that any factual determination is unreasonable. Thus, § 2254(d)(2) provides no basis for federal habeas relief. With regard to the first element of § 2254(d)(1), the state court's decision was not contrary to clearly established federal law, because the state court utilized the Strickland standard. The only remaining question is whether the state court's application of Strickland was objectively unreasonable.
Petitioner's counseled habeas petition argues that the state court's rejection of his claim was unreasonable, because: (1) the state court did not "negate the Defendant's ultimate assertion . . . that trial counsel's failure to subpoena Agent Hatton left Susan Lusk's testimony unchallenged" (doc. 5, pp. 6-7); and (2) counsel's failure to call Hatton deprived petitioner of showing that petitioner's name was never mentioned during Hatton's investigation of the case (doc. 5, pp. 6-8). The court will address each of these arguments in turn, but will first address an issue that appears dispositive of the case.
One of the state court's bases for denying relief was that petitioner failed to show he was prejudiced by counsel's failure to subpoena/call Hatton to testify, because it was unlikely Hatton's testimony would have been admissible under state evidentiary law. Petitioner's counseled petition does not challenge the state court's conclusion that Hatton's testimony would likely have been excluded under state law. Even if petitioner did challenge this conclusion, this court is required to defer to the state court's resolution of this state law issue.
"[A] state court's interpretation of state law . . . binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L. Ed. 2d 407 (2005); see also Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L. Ed. 2d 508 (1975) ("State courts are the ultimate expositors of state law," and federal courts must abide by their rulings on matters of state law) (citations and footnote omitted); Carrizales v. Wainwright, 699 F.2d 1053, 1055 (11th Cir. 1983). Although an ineffective assistance of counsel claim is a federal constitutional claim which the court considers in light of the clearly established law 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." Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (explaining, in the context of an ineffective assistance of appellate counsel claim, that "[o]n the one hand, the issue of ineffective assistance — even when based on the failure of counsel to raise a state law claim — is one of constitutional dimension," but, "[o]n the other hand, the validity of the claim [counsel] failed to assert is clearly a question of state law, and we must defer to the state's construction of its own law.") (citations omitted);
Here, as in Alvord, Callahan, and Herring, the state court has already answered the question of what would have happened had defense counsel sought to introduce Agent Hatton's proposed testimony — the prosecutor would have objected on hearsay grounds (as the prosecutor did when counsel referenced Hatton's proposed testimony in opening statement) and the objection would have been sustained. The state court's conclusion that Hatton's proposed testimony likely would have been excluded shows that counsel's failure to subpoena/call Hatton caused no prejudice. The state court's rejection of petitioner's ineffective assistance claim on this basis was a reasonable application of Strickland and provides a sufficient basis to deny federal habeas relief without reaching petitioner's additional arguments. The court will nonetheless address the merits of the arguments raised in petitioner's amended petition, for purposes of completeness.
Petitioner first argues that the state court's denial of relief was unreasonable, because the court's analysis "does not negate the Defendant's ultimate assertion . . . that trial counsel's failure to subpoena Agent Hatton left Susan Lusk's testimony unchallenged." (Doc. 5, pp. 6-7). Petitioner asserts that "proof of guilt to the exclusion of a reasonable doubt went unchecked by trial counsel's failure to subpoena Agent Hatton"; and that "Agent Hatton's expected testimony would have indeed supported the Defendant's theory of defense" (doc. 5, p. 7), by "supplying reasonable doubt as to the prosecution's accusations against the Defendant" (doc. 5, p. 5). To the extent petitioner suggests defense counsel could have used Hatton's testimony concerning Jesse Lusk's out-of-court statement as substantive exculpatory evidence that the meth oil seized from the shed was Susan Lusk's and not petitioner's, petitioner's argument fails because the state court concluded Hatton's testimony would have been excluded as inadmissible hearsay under state evidentiary law if submitted for that purpose.
Petitioner's next argument is that the state court's denial of relief was unreasonable, because petitioner demonstrated Hatton's testimony "would have negated the veracity of Susan Lusk's testimony in two respects," namely, by showing Susan Lusk "had a reason to be less than truthful in that Lusk was offered a favorable plea agreement for testimony against the Defendant;" and by showing that Lusk "was being less than truthful as Susan Lusk's husband Jess[e] Lusk had only implicated his own wife as being in possession of the manufacturing substances." (Doc. 5, p. 8).
The record conclusively refutes petitioner's contention that Hatton's testimony would have shown that Susan Lusk was offered a favorable plea agreement for testimony against petitioner. Neither Hatton's pre-trial deposition testimony, nor Hatton's postconviction evidentiary hearing testimony made mention of Susan Lusk being offered a plea agreement. (Ex. H, pp. 130-38). In fact, there is no evidence in the record that at the time of petitioner's trial, Susan Lusk had been offered a favorable plea agreement for testimony against petitioner. To the contrary, the trial transcript establishes that at the time Susan Lusk testified, she had not been offered a plea agreement but was merely hoping her attorney was making an effort to negotiate one. (Ex. B, pp. 196-98). In any event, evidence of Susan Lusk's motive to lie was elicited from Susan Lusk herself during defense counsel's aggressive cross-examination of her. Defense counsel had Susan Lusk admit that: (1) deputies found methamphetamine and drug paraphernalia inside her dresser drawer when they executed the search warrant at the Lusk's property, (2) Lusk had been using meth for eight months before she was arrested, (3) Lusk was presently under indictment for trafficking in over 200 grams of methamphetamine, unlawful possession of listed chemicals, and possession of drug paraphernalia, (4) Lusk's husband Jesse Lusk had been convicted of the same crimes and was sentenced to fifteen years in prison on the trafficking charge and to five years in prison on the remaining charges and (5) Lusk was hoping her attorney was attempting to negotiate a plea agreement with the prosecutor. (Ex. B, pp. 195-198). During closing argument, defense counsel emphasized Susan Lusk's bias and motive to lie, telling the jury that "Susan Lusk has told you a story, a story just to assist her in her plea negotiations." (Ex. B, pp. 287-88). Defense counsel also emphasized to the jury evidence (a deputy's testimony) that when Susan Lusk was arrested, she lied to deputies by denying use of methamphetamine, because she was afraid. Defense counsel argued that Susan Lusk was even more afraid now that criminal charges were pending against her and her husband had been convicted and sentenced to prison, and that her fear of being sent to prison was motivating her to lie about petitioner's involvement so she could garner favor with the prosecutor. (Id.). Hatton's testimony would not have shown that Susan Lusk "had a reason to be less than truthful in that Lusk was offered a favorable plea agreement for testimony against the Defendant." (See Doc. 5, p. 8).
The record also refutes petitioner's contention that Hatton's testimony would have impeached Susan Lusk's credibility by showing that Jesse Lusk implicated only Susan as possessing the manufacturing substances and did not implicate petitioner. (Doc. 5, pp. 7-8). The evidence at the postconviction evidentiary hearing establishes that had defense counsel called Hatton and questioned him about the fact that petitioner's name did not come up during Hatton's interview of Jesse Lusk after Jesse mentioned the meth oil belonged to Susan Lusk, Hatton would have explained that there was no reason petitioner's name
(Ex. H, pp. 131-134). On cross examination, Hatton testified:
(Ex. H, p. 136).
The state court's conclusion — that had Hatton testified it would have added little, if anything, to the defense's impeachment of Susan Lusk's credibility — was a reasonable application of Strickland's prejudice prong.
All in all, this court cannot say that no fairminded jurist could agree with the state court's determination that Hatton's proposed testimony would not have made a difference in the outcome of petitioner's trial. The trial transcript demonstrates that Jesse Lusk's purported statement was not inconsistent with Susan Lusk's testimony that petitioner manufactured methamphetamine in the shed for her and Jesse's consumption. In addition, several other witnesses corroborated Susan Lusk's testimony and implicated petitioner in the trafficking of methamphetamine and ancillary crimes.
Marvin Williford, an investigator in the narcotics division of the Walton County Sheriff's Office, testified that on August 27, 2003, a search warrant was executed on the property of Jesse Lusk and Susan Lusk. (Ex. B, pp. 45-46). On Jesse and Susan Lusk's property was a mobile home, a storage shed and a prefabricated metal shed. (Id., p. 47). The prefabricated shed housed what appeared to be an operational methamphetamine lab. (Id., p. 48). The shed consisted of numerous precursor chemicals for making methamphetamine. (Id., pp. 48-50). Williford testified to several items seized from the shed including paraphernalia and other listed precursor chemicals for methamphetamine. (Id., pp. 50-64).
Caleb Davidson, a former deputy with the narcotics division of the Walton County Sheriff's Office, testified that he was present when the search warrant was executed on the Lusk's property. (Id., p. 95). Sergeant Davidson was the primary investigator who searched the shed where the methamphetamine lab was located. (Id.). Davidson testified that petitioner's vehicle was recognized and located next to the shed. (Id., p. 105). Davidson testified that two weeks after the search warrant was executed on the Lusk's property, Davidson served a search warrant on petitioner's home on September 16, 2003. (Id., p. 111). Davidson found chemicals necessary to make methamphetamine, numerous Pyrex dishes with markings (razor blade scrapings) consistent with scraping methamphetamine, containers with bi-layered liquid and drug paraphernalia. (Id., pp. 115-117). The items looked like a disassembled methamphetamine lab. (Id., p. 117).
Bruce Maddox, a former deputy with the narcotics division of the Walton County Sheriff's Office, testified that he was involved with the search and seizure that occurred at the Lusk's property, but did not search the main house. (Id., p. 134). Maddox's primary objective was to maintain the evidence log during the seizure. (Id.). Maddox testified that petitioner's name appeared in several areas of the field operation plan. (Id., p. 136). The field operation plan was essentially an overview of the premises to be searched and the underlying circumstances regarding the search. (Id., pp. 137-38).
Lauri Dean testified that she lived with her husband in a trailer which sat on property owned by Gary and Angela Burgess. (Id., pp. 141-42). Dean had a portable building or storage shed on the property. (Id., p. 142). Between April 1, 2003, and April 15, 2003, the portable shed disappeared from the property. (Id., p. 143). The shed was later recovered by the Walton County Sheriff's Department. (Id., p. 141).
James Lusk testified that he was the father of Jesse Lusk, who lived with his wife Susan on James Lusk's property that was the subject of law enforcement's search and seizure. (Ex. B, p. 145). James Lusk testified that the shed or portable building that was found on his property during the August 27, 2003 search was not his shed. (Id.). Prior to the execution of the search warrant at his property, Mr. Lusk saw petitioner and petitioner's brother Gary at Jesse Lusk's house. After Mr. Lusk's property had been searched, and after his son Jesse and Jesse's wife Susan had been arrested, Mr. Lusk again saw petitioner on the same property moving items out of the shed. (Id., p. 148). Mr. Lusk also saw petitioner removing glassware from Jesse and Susan's residence.
Joni Burgess testified that she married petitioner on the Sunday prior to the beginning of petitioner's trial. (Ex. B, p. 169). Mrs. Burgess admitted to using methamphetamine with petitioner, and acknowledged receiving methamphetamine from petitioner. (Id., pp. 169-170).
Susan Lusk testified that she was married to Jesse Lusk. (Ex. B, p. 172). During the middle part of 2002, Susan Lusk and her husband separated for a brief time, and Jesse moved in with his friend Carmen Adams. (Id., p. 173). Susan Lusk and her husband began reconciling around November of 2002. (Id., p. 173). Susan Lusk admitted that during her reconciliation with Jesse she learned that Jesse had begun smoking methamphetamine. (Id., p. 174). Susan Lusk visited the home of Carmen Adams and learned that Jesse Lusk received methamphetamine from petitioner. (Id.). Susan Lusk admitted to using methamphetamine herself, and to receiving the drug from petitioner. (Id., p. 175). Susan Lusk smoked methamphetamine with her husband and petitioner on several occasions. (Id., pp. 175-76). At first, Susan Lusk and her husband smoked methamphetamine only on the weekend. (Id., p. 176). After a few months of this recreational usage, in April of 2003, petitioner moved a shed onto the Lusk's property and began manufacturing methamphetamine in the shed. (Id., p. 177). Susan Lusk testified that Jesse and petitioner told her that the previous owners of the shed were renting from petitioner's brother Gary, and gave them the shed because they (the previous owners) were behind on their rent. (Id., p. 178). Susan Lusk testified that the shed was locked and that both her husband and petitioner had keys to the shed where the methamphetamine was being manufactured. (Id., p. 179). After petitioner brought the shed to the Lusk's property, the Lusks did not have to purchase methamphetamine anymore, but instead purchased the precursor materials needed to manufacture methamphetamine and gave them to petitioner who, in return, manufactured the methamphetamine and gave it to the Lusks for free. (Id., pp. 179-180). Petitioner told the Lusks what supplies to purchase, and they purchased them. (Id.). Susan Lusk testified that she saw Jesse Lusk in the shed when petitioner was manufacturing methamphetamine. (Id., p. 180). Petitioner manufactured methamphetamine about once per week. (Id.). Susan Luck testified that the goblin depicted in one of the pictures of the shed taken during execution of the search warrant was drawn by another individual named Chip Robinson, but petitioner had painted on it. (Id., pp. 184-85). Susan Lusk stated that the goblin was designed to stand for methamphetamine. (Id., p. 185).
Carmen Adams testified that he knew petitioner on a personal level. (Ex. B, p. 211). Adams testified that Jesse Lusk moved in with him (Adams) in early 2002 after separating from his wife, and that Lusk reconciled with his wife in approximately November of 2002. (Id., pp. 214-15). During the time Lusk resided with Adams, petitioner frequently visited Adams' residence, brought methamphetamine with him, and the three smoked it. (Id., p. 213). This continued during the period the Lusks were reconciling, and Susan Lusk began using methamphetamine as well. (Id., p. 214). Jesse Lusk eventually moved out of Adams' residence and moved back in with his wife. (Id., pp. 214-15). After Lusk moved out, Adams visited Lusk at his home. (Id., p. 215). Adams observed a shed on Lusk's property, and observed petitioner and Jesse Lusk go into the shed. (Id., p. 215). The shed was locked. (Id., p. 215). Adams did not see anyone but petitioner and Jesse Lusk go into the shed. (Id., p. 216). Adams smelled an odd odor coming from the shed. (Id., p. 216). There is a strong smell associated with the production of methamphetamine. (Id., p. 67). Adams testified that at one point petitioner asked him if he (petitioner) could borrow a flat bed trailer. (Id., p. 218). The trailer was big enough to transport a shed. (Id.). Adams testified that he received methamphetamine from petitioner during "the whole period" from when Jesse Lusk moved in with him (Adams), during Lusk's residence with him, and after Lusk moved out. (Id., pp. 214, 219). Petitioner asked Adams to purchase matches and other products for petitioner to make methamphetamine, but Adams declined. (Id., p. 217). The striker plates off of matchbooks are used in methamphetamine production. (Id., p. 54).
Teresa Pribbenow testified that she was employed with the Florida Department of Law Enforcement in Pensacola, Florida in the crime laboratory unit. (Ex. B, p. 233). Pribbenow was a forensic drug chemist. (Id.). Pribbenow tested some of the contents that were seized from the shed on the Lusk's property. (Id., pp. 237-39; see also Williford's testimony at Ex. B, pp. 45-55). The total weight of the methamphetamine in the shed was 609.6 grams. (Id.).
The foregoing demonstrates that had Hatton testified to Jesse Lusk's statement, there is no reasonable probability the outcome of petitioner's trial would have been different. The state court reasonably concluded that neither counsel's failure to call Hatton, nor counsel's reference to Hatton in opening statement, undermines confidence in the jury's verdict.
The state court's rejection of petitioner's claim was not contrary to Strickland, did not involve an unreasonable application of Strickland, and was not based on an unreasonable determination of the facts. Petitioner is not entitled to federal habeas relief.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." 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 petitioner in this case fails to make a 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, 120 S.Ct. 1595, 1603-04, 146 L. Ed. 2d 542 (2000) (explaining the meaning of this term) (citation omitted). Accordingly, the court should deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. That the amended petition for writ of habeas corpus (doc. 5), challenging the judgment of conviction and sentence in State of Florida v. Christopher Grey Burgess, Walton County, Florida, Circuit Court Case Number 04-664, be DENIED, and the clerk be directed to close the file.
2. That a certificate of appealability be DENIED.
Petitioner's postconviction counsel argued that Agent Hatton's testimony was admissible impeachment evidence — because Lusk's out-of-court statement to Hatton was "inconsistent" with Susan Lusk's testimony at trial and showed Susan Lusk's motivation to testify falsely against petitioner. (Ex. H, pp. 36-37, 141-45). Postconviction counsel also argued that "[w]henever you have statements that are material to a defendant's theory of defense, even hearsay statements could be potentially admissible if they're [sic] reliability is such that it protects the Court from danger of hearsay." (Ex. H, pp. 141-45). Petitioner presented the state court with state law cases which petitioner contended supported his position that Hatton's testimony was admissible as impeachment: McCray v. State, 919 So.2d 647 (Fla. 1st DCA 2006) (holding that police officer's testimony concerning the description the victim's mother gave to him of petitioner was not hearsay under Fla. Stat. § 90.801(1)(c), because it was used to impeach the mother's trial testimony rather than to prove the content of the mother's description); Freeman v. State, 858 So.2d 319 (Fla. 2003) (holding that trial counsel's failure to subpoena a witness (who failed to appear at sentencing) was partly a tactical decision to prevent the State from knowing who the defense witnesses were); Morrison v. State, 818 So.2d 432 (Fla. 2002) (interpreting Fla. Stat. §§ 90.608(2) and 90.801(1)(c), and holding that the defendant could attempt to attack a State witness' credibility by asking the witness if a detective had told her she herself was a suspect in the crime). (Ex. H, pp. 75-123). Postconviction counsel's written closing argument also cited to Fla. Stat. 90.608(1), which provides that a party may attack the credibility of a witness by "[i]ntroducing statements of
