CHARLES J. KAHN, Jr., Magistrate Judge.
Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 1) and supporting memorandum (doc. 2). Respondent filed an answer, submitting relevant portions of the state court record. (Doc. 20). Petitioner replied. (Doc. 24). 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 petition should be denied.
On August 10, 2007, a Florida grand jury indicted petitioner in Escambia County Circuit Court Case No. 07-CF-4037, with the First Degree Premeditated Murder with a Weapon of Daryl Dulaney. (Doc. 20, Ex. A, pp. 1-2).
On July 27, 2010, petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. G, pp. 1-38). The state circuit court denied relief. (Id., pp. 42-122). The Florida First District Court of Appeal ("First DCA") per curiam affirmed on December 7, 2011, without a written opinion. Smith v. State, 78 So.3d 540 (Fla. 1st DCA 2011) (Table) (copy at Ex. J). The mandate issued February 16, 2012. (Ex. L).
Petitioner filed his federal habeas petition on July 27, 2012. (Doc. 1, p. 1). The petition raises five grounds for relief — four claims of ineffective assistance of trial counsel and one claim of newly discovered evidence. (Doc. 1). Respondent asserts that each of petitioner's claims fails for one or more of the following reasons: (1) the claim is insufficiently pled; (2) the claim does not present an issue cognizable on federal habeas review; (3) the claim is procedurally defaulted; (4) the claim is without merit. (Doc. 20).
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, 130 S.Ct. 1171, 1173, 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. 930, 954, 127 S.Ct. 2842. 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.
Ground One of the petition asserts that trial counsel was ineffective for failing to present the following evidence: (1) the result of a tire track comparison showing that tracks found in front of the carport (where the victim was shot) did not match the tire tracks of the vehicle petitioner drove that evening/morning, and (2) the result of a gunshot residue test showing that no residue was found on petitioner. (Doc. 1, pp. 5-8). Petitioner asserts that trial counsel was aware of both test results, but did not present them at trial. (Doc. 1, p. 6). The parties agree that this claim was adjudicated on the merits in petitioner's Rule 3.850 proceeding. (Doc. 1, pp. 5-8; Doc. 20, p. 12). Respondent asserts that petitioner is not entitled to federal habeas relief, because the state court's rejection of his claim was consistent with Strickland. (Doc. 20, pp. 12-14). Petitioner concedes in his reply that he "is unable to meet the requirements of section 2254(d)(1)" as to counsel's failure to present the tire track comparison evidence, and by this concession abandons that aspect of his ineffective assistance claim. (Doc. 24, p. 3). Given petitioner's concession, the court will address only that aspect of petitioner's ineffective assistance claim relating to counsel's alleged failure to present evidence that petitioner tested negative for gunshot residue.
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. A 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).
When a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 131 S. Ct. at 788. As the Richter Court explained:
Id. (citations omitted).
Petitioner raised this claim as Issue One of his Rule 3.850 motion. (Ex. G, pp. 4-6). The state court denied relief without an evidentiary hearing. The court's written order discussed the two-pronged test for ineffective assistance claims articulated in Strickland v. Washington, (Ex. G, pp. 42-43), and explained why petitioner's allegations failed to meet that standard, as follows:
(Ex. G, pp. 44-46) (footnotes omitted). The state appellate court summarily affirmed.
Petitioner argues that the state court's rejection of his claim is unreasonable because: (1) it is grounded in the court's improper speculation that counsel's failure to present the gunshot residue results was a tactical decision made after determining the evidence was not probative (doc. 1, pp. 6-7); and (2) it is grounded in the court's unreasonable determinations that counsel's decision not to present the evidence was reasonable and that petitioner was not prejudiced by counsel's inaction. With regard to the latter, petitioner emphasizes that during the jury's deliberation, the jury sent a note to the judge asking if petitioner had been tested for gunshot residue and, if so, the result of the test. (Doc. 1, pp. 6-7; see also Doc. 20, Ex. A, p. 31A (jury note asking: "Was Mr. Smith tested for gun residue? & the results if he was.")).
The state court took as true petitioner's allegations that a gunshot residue test was performed on petitioner, that the test was negative, and that counsel was aware of the negative result. Petitioner takes issue with the state court's factual finding that counsel's failure to present the gunshot residue evidence was likely the product of a strategic choice, and argues that this finding was speculation because "the trial court cited no record support for its determination that counsel's action was tactical and failed to attach portions of the record to support its findings." (Doc. 1, p. 7).
Petitioner has not put forth any evidence, much less clear and convincing evidence, to rebut the state court's factual finding that defense counsel likely made a strategic decision not to introduce the gunshot residue test result. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."); Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998) ("The question of whether an attorney's actions were actually the product of a tactical or strategic decision is an issue of fact, and a state court's decision concerning that issue is presumptively correct."). Petitioner cannot genuinely argue that the state court's reliance on some of petitioner's own factual allegations was unreasonable. As the state court's finding does not contradict the record evidence, this court will defer to its determination that counsel's inaction was the product of a tactical choice.
Similarly, the state court's conclusion — that petitioner failed to overcome the presumption that under the circumstances counsel's failure to introduce the gunshot residue test result might be considered sound trial strategy — is consistent with Supreme Court precedent and is entitled to deference under the AEDPA. 28 U.S.C. § 2254(d)(1). As the Supreme Court stated in Richter:
Richter, 131 S. Ct. at 790 (citing Wiggins v. Smith, 539 U.S. 510, 525, 123 S.Ct. 2527, 156 L. Ed. 2d 471 (2003)). The Eleventh Circuit explained further:
Harvey, v. Warden, Union Corr. Inst., 629 F.3d 1228, 1238-39 (11th Cir. 2011).
Contrary to petitioner's argument (doc. 1, pp. 6-7; doc. 24, p. 4), there was nothing improper or unreasonable about the state court's basing its decision that petitioner failed to meet Strickland's performance prong on strategic considerations that could be gleaned from the record without hearing testimony from counsel as to his actual thinking. See Richter, 131 S. Ct. at 790 (holding that state court reasonably could conclude, from strategic considerations gleaned from the record, that counsel's action (or inaction) was reasonable without testimony from counsel as to his actual thinking). In light of the record, including the length of time (over six hours) and circumstances intervening the shooting and petitioner's arrest, a court could reasonably conclude that counsel's decision not to use petitioner's gunshot residue test as part of his alibi defense was reasonable.
Petitioner emphasizes the jury's "concern" during deliberations about the presence of gunshot residue on petitioner, and argues that it was unreasonable to conclude competent counsel could find the test result not probative. (Doc. 1, pp. 6-7). Petitioner's reliance on "the harsh light of hindsight" to cast doubt on counsel's perspective during the presentation of petitioner's alibi defense is precisely what Strickland and the AEDPA seek to prevent. Richter, 131 S. Ct. at 789 (citing cases); Strickland, 466 U.S. at 689 (counseling against judging trial counsel's performance with the benefit of hindsight); Yarborough, 540 U.S. at 8, 124 S. Ct. at 6 ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight."); Bell v. Cone, 535 at 698, 122 S. Ct. at 1852 (same). Further, "trial advocacy is not a science, but an art; there are few `right' answers in the proper way to handle a trial." Harvey, 629 F.3d at 1238 (quoting Strickland, 466 U.S. at 693, 104 S. Ct. at 2067 ("Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.")). There is a reasonable argument that petitioner's defense counsel satisfied Strickland's deferential standard.
Petitioner has not shown "that the state court's ruling . . . 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 787; see also id. at 786 ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." (quoting Yarborough, 541 U.S. at 664, 124 S.Ct. 2140)). The state court's rejection of petitioner's ineffective assistance 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 on Ground One.
Petitioner alleges that various aspects of the three eyewitnesses' trial testimony were inconsistent with their respective pretrial statements to police and with each other's trial testimony. (Doc. 1, pp. 8-9). Petitioner describes the inconsistencies as either the witnesses' including more "critical" details in their trial testimony than in their pretrial statements to police and depositions, or the witnesses' failing to recall "critical" details at trial that were included in their pretrial statements. (Id., p. 9). Petitioner faults trial counsel for failing to "collectively use[ ] the inconsistencies of their testimonies to illustrate the witnesses were being untruthful as to what transpired." (Id., p. 8). Petitioner asserts that the Rule 3.850 court misconstrued his claim as alleging that counsel failed to properly impeach witnesses, and "in doing so, has insufficiently addressed the allegations of Petitioner's claim." (Id., p. 8). Respondent asserts that federal habeas relief should be denied because this claim is insufficiently pled (doc. 20, pp. 14-16) and without merit (id., pp. 16-21).
Respondent asserts that petitioner's claim is insufficiently pled because petitioner "failed to state which witnesses his counsel failed to cross-examine regarding inconsistencies between their statements to law enforcement and trial testimony." (Doc. 20, p. 16). Petitioner describes the witnesses that are the subject of his claim as "the three (3) witnesses" (doc. 1, p. 9) who were "in close proximity to each other on the night of the homicide" (id., p. 8) and "only a few feet away" from the shooting (id., p. 9). Other than petitioner and the victim Mr. Dulaney, the only individuals in Mr. Dulaney's carport at the time petitioner shot Mr. Dulaney were Savory McCuff, Timothy Rease and Curtis Sheffield. Petitioner clarifies in his reply that his claim in state court and here involves counsel's failure to properly impeach McCuff, Rease and Sheffield. (Doc. 24, p. 8). In light of this record, the court finds that petitioner's ineffective assistance claim is sufficiently pled and is the same claim petitioner presented to the state court in his Rule 3.850 motion.
The clearly established Federal law governing ineffective assistance claims is the Strickland standard, outlined above.
Petitioner raised this claim as Issue Two of his Rule 3.850 motion. (Ex. G, pp. 7-18). Regarding witness Savory McCuff, petitioner alleged that McCuff added the additional fact in his deposition and trial testimony that petitioner, just prior to shooting the victim, made random remarks that confused McCuff, for example, "You know how the `Gs' carry," and that McCuff figured petitioner was intoxicated. (Doc. 20, Ex. G, pp. 9-10).
The state court denied relief without an evidentiary hearing. The court's written order discussed the two-pronged test for ineffective assistance claims articulated in Strickland v. Washington, (Ex. G, pp. 42-43), and explained why petitioner's allegations failed to meet that standard, as follows:
(Ex. G, pp. 46-50) (footnotes omitted). The state appellate court summarily affirmed.
Petitioner asserts that the state court misinterpreted his claim when it characterized him as faulting counsel for "fail[ing] to properly impeach witnesses." (Doc. 1, p. 8). Petitioner states that his claim is, instead, that "[c]ounsel could have collectively used the inconsistencies of their testimonies to illustrate the witnesses were being untruthful as to what transpired," (id.), and that "counsel was deficient for failing to impeach them at trial with their prior statements." (Id., p. 10). Petitioner did not specify in his Rule 3.850 motion, or here, exactly how counsel should have "used" the witnesses' prior statements (whether through interrogation on cross-examination, introduction of the prior statements into evidence, or argument to the jury). Regardless, the state court properly construed and adjudicated on the merits all aspects of petitioner's claim. The state court's decision is entitled to deference under the AEDPA's standard of review.
The state court's findings of fact are amply supported by the record and are presumed correct. Petitioner has not rebutted the presumption of correctness with clear and convincing evidence to the contrary. As to petitioner's claim concerning impeachment of McCuff with his prior statement to police, the court concluded, reasonably, that petitioner failed to establish deficient performance because his allegations did not demonstrate McCuff's prior statement was inconsistent with his trial testimony. McCuff's alleged pretrial statement to police (as related by petitioner in his Rule 3.850 motion at Ex. G, pp. 7-9), did not say petitioner was silent and, more significantly, does not show McCuff was asked by police, as he was asked at trial by the prosecutor, whether petitioner "sa[id] anything that was unusual." (Compare Ex. G, pp. 7-9, with Trial Tr., Ex. B, p. 31). "`To testify later in greater detail in response to detailed questions is not inconsistent.'" United States v. Jacoby, 955 F.2d 1527, 1539 (11th Cir. 1992) (holding that witness' grand jury testimony was not admissible under Federal Rules of Evidence as a prior inconsistent statement, where trial testimony was not inconsistent with, but merely provided greater detail than, grand jury testimony) (quoting United States v. Leach, 613 F.2d 1295, 1305 (5th Cir. 1980)). This principle is consistent with Florida law, as noted in the state court's decision.
The state court also determined, reasonably, that counsel's failure to impeach Rease with Rease's prior statements to police was not deficient, because petitioner failed to establish that the proffered "impeachment" would have been allowed. First, to the extent petitioner faults trial counsel for failing to question Rease at trial about inconsistencies among Rease's various pretrial statements, petitioner fails to establish deficient performance, because counsel could impeach Rease only with prior statements that were inconsistent with Rease's statements
Finally with regard to Curtis Sheffield, the state court reasonably concluded that counsel was not deficient for failing to impeach Sheffield with the conflicting testimony of McCuff and Rease, because "impeaching" a witness with the testimony of another witness is not proper, nor is asking a witness to comment on the veracity of another witness' testimony. See Brockington, supra; Boatwright v. State, 452 So.2d 666, 668 (Fla. 4th DCA 1984) (holding that it is clearly error for one witness to testify as to the credibility of another witness).
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 on Ground Two.
Petitioner claims counsel was ineffective for failing to call Crystal Young (who was lying down in the victim's home at the time of the shooting) to testify that she ran to the door upon hearing the shots and found Mr. Dulaney lying on the ground but did not see petitioner. The parties agree that this claim was adjudicated on the merits in petitioner's Rule 3.850 proceeding. (Doc. 1, pp. 10-12; Doc. 20, p. 21). Respondent asserts that petitioner is not entitled to federal habeas relief, because the state court's rejection of his claim was consistent with Strickland. (Id., pp. 21-23). Petitioner concedes in his reply that he "is unable to meet the requirements of section 2254(d)(1)" as to Ground Three (doc. 24, p. 20), and by this concession abandons this claim. In light of petitioner's abandonment, federal habeas relief should be denied as to Ground Three.
Petitioner claims counsel was ineffective for failing to ask State witness Joanna Shoemo whether complaints petitioner made to her concerning Mr. Dulaney were out of concern or ill will. (Doc. 1, p. 12). Petitioner is referring to the following exchange during trial:
(Ex. B, pp. 19-20). Petitioner alleged in state court, as he does here, that "immediately" upon hearing this, he:
(Ex. G, pp. 21-22). Petitioner asserts that the State referred to Ms. Shoemo's testimony in closing argument in arguing that petitioner's shooting of Mr. Dulaney was premeditated.
The parties agree that this claim was adjudicated on the merits in petitioner's Rule 3.850 proceeding. (Doc. 1, pp. 12-14; Doc. 20, pp. 23-24). Respondent asserts that petitioner is not entitled to federal habeas relief, because the state court's rejection of the claim was consistent with Strickland. (Id.).
The clearly established Federal law governing ineffective assistance claims is the Strickland standard, outlined above.
Petitioner raised this claim as Issue Four of his Rule 3.850 motion. (Ex. G, pp. 21-24). The state court denied relief without an evidentiary hearing. (Ex. G, pp. 51-52). The court's written order discussed the two-pronged test for ineffective assistance of counsel claims articulated in Strickland v. Washington, (Ex. G, pp. 42-43), and explained why petitioner's allegations failed to meet that standard, as follows:
(Ex. G, pp. 51-52) (footnotes omitted). The state appellate court summarily affirmed.
Again, the state court's findings of fact are amply supported by the record and are presumed correct. Petitioner has not presented clear and convincing evidence to rebut the presumption of correctness. Although petitioner challenges the state court's finding that counsel made a strategic decision not to question Shoemo about the nature of petitioner's complaints, petitioner's own allegations demonstrate that counsel was aware (by petitioner telling him at trial) what petitioner believed Shoemo would say, and that counsel chose as a matter of trial strategy not to press Shoemo for details.
The state court also reasonably determined that counsel's decision not to question Shoemo about the nature of petitioner's complaints was reasonable. From the perspective of defense counsel, acting on petitioner's request was highly risky. Petitioner expected counsel to make a spur-of-the-moment decision to ask Shoemo a question in front of the jury that counsel had not asked her before, and to take petitioner's word for it that the answer would be as petitioner expected. Counsel's conduct was in keeping with one of the most basic and well-known rules of trial advocacy: "Never ask a question for which you do not know the answer." Ward v. Whitley, 21 F.3d 1355, 1362 (5th Cir. 1994) (addressing that concept in the context of cross-examination and noting, "Every experienced trial lawyer realizes that that rule is honored more in the breach than the observance."); Schlup v. Bowersox, No. 4:92cv443-JCH, 1996 WL 1570463, at *43 (E.D. Mo. May 2, 1996) (trial counsel "prudently chose not to ask [the witness] additional questions to which he did not know [the witness' answer."); United States v. Brant, Civ. Nos. 91-cv-5859 and 91-cv-6673, and Crim. Nos. 89-cr-111-02 and 89-cr-111-01, 1993 WL 313369, at *2 (E.D. Pa. July 30, 1993) ("There is . . . an ancient principle of cross-examination, recognized by advocates for millennia: never ask a question to which you do not already know the answer." (citing Cicero on Cross-Examination (Irving Younger trans & ed.), in The Litigation Manual: A Primer for Young Trial Lawyers 532 (John G. Koetl ed., 2d ed. 1989))). Any reasonable attorney would recognize the soundness of counsel's decision not to ask the question.
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 on Ground Four.
Petitioner claims he has newly discovered evidence that warrants a new trial. (Doc. 1, pp. 16-19). Respondent asserts this claim is based on state law and is not cognizable on federal habeas review. (Doc. 20, pp. 25-27). Respondent further asserts that this claim is procedurally defaulted, because petitioner never presented the state courts with a federal constitutional basis for his newly discovered evidence claim. Petitioner concedes in his reply that he does not meet the requirements for federal habeas relief on this claim (doc. 24, p. 26), and by this concession abandons this claim. In light of petitioner's abandonment, federal habeas relief should be denied as to Ground Five.
Federal habeas relief should be denied as to Ground One (relating to the tire track comparison results), Ground Three and Ground Five, as petitioner has abandoned theses claims. (Doc. 24, pp. 3, 20, 26). Federal habeas relief should be denied as to petitioner's remaining claims (Ground One relating to the gunshot residue test result, Ground Two and Ground Four), because petitioner has not demonstrated that the state court's rejection of his claims was contrary to Strickland, involved as unreasonable application of Strickland, or was based on an unreasonable determination of the facts.
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 petition for writ of habeas corpus (doc. 1), challenging the judgment of conviction and sentence in State of Florida v. Dana Gamaliel Smith, Escambia County, Florida Circuit Court Case Number 07-CF-4037, be DENIED, and the clerk be directed to close the file.
2. That a certificate of appealability be DENIED.
(Ex. G, pp. 9-10 (quoting trial transcript at Ex. B, p. 31)).
