STEVEN D. MERRYDAY, District Judge.
Michael Aumuller petitions for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state conviction for first-degree murder. Aumuller alleges one ground of trial court error and one ground of ineffective assistance of trial counsel. Numerous exhibits ("Respondent's Exhibit__") support the response. (Doc. 10)
(Respondent's Exhibit 6, pp.1-7) A jury convicted Aumuller of first-degree murder for which he serves life imprisonment.
Aumuller contends that the trial judge's rejection of an intervening cause jury instruction resulted in a violation of Aumuller's right to due process. Aumuller raised this issue on direct appeal but argued only a violation of state law. The failure to present to the state court a federal due process claim challenging the jury instruction renders the claim unexhausted. Before a federal court may grant habeas relief, a federal habeas petitioner must exhaust every available state court remedy for challenging his conviction, either on direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1)(A), (C). "[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted)). To exhaust a claim, a petitioner must present the state court with the particular legal basis for relief in addition to the facts supporting the claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
The requirement that a federal habeas corpus petitioner exhaust available state court remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court "by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such claim on federal grounds, or by simply labeling the claim `federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (2004). A petitioner must "do more than scatter some makeshift needles in the haystack of the state court record." McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (quotations and citations omitted).
In his direct appeal brief Aumuller failed to alert the state appellate court of a federal due process claim. See Anderson v. Harless, 459 U.S. 4, 5-6 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made."). Aumuller's failure to present to the state court the federal component of ground one deprived the state court of a "full and fair opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Boerckel, 526 U.S. at 845. Consequently, the exhaustion requirement remains unsatisfied, Henry, 513 U.S. at 365, rendering ground one procedurally defaulted.
Under the procedural default doctrine, "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimension. United States v. Frady, 456 U.S. 152 (1982). In other words, he must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892.
A petitioner may obtain federal habeas review of a procedurally defaulted claim, without a showing of cause or prejudice, if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's "actual" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
Aumuller fails to demonstrate cause and prejudice excusing the default of his federal claim. Carpenter, 529 U.S. at 451; Carrier, 477 U.S. at 49-96. He neither alleges nor shows that the fundamental miscarriage of justice exception applies. Henderson, 353 F.3d at 892. Because Aumuller fails to proffer specific facts showing an exception to procedural default, ground one is procedurally barred from federal review.
Aumuller's remaining ground is exhausted and entitled to review on the merits.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, 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, ___ U.S. ___, 131 S.Ct. 770, 786-87 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.
The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. A federal court must afford due deference to a state court's decision. "AEDPA prevents defendants — and federal courts — from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, ____ U.S. ____, 130 S.Ct. 1855, 1866 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .") (citations omitted).
In a per curiam decision without a written opinion the state appellate court affirmed the denial of Aumuller's Rule 3.850 motion to vacate. (Respondent's Exhibit 16) The state appellate court's per curiam affirmance warrants deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784-85 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").
Review of the state court decision is limited to the record that was before the state court.
Pinholster, 131 S. Ct. at 1398. Aumuller bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[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." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Aumuller's post-conviction claims warrants deference in this case.
Aumuller claims ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." 466 U.S. at 690. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." 466 U.S. at 690.
Aumuller must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Aumuller must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Aumuller cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable . . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
Aumuller must prove that the state court's decision was "(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or (2) . . . 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). Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (A petitioner must overcome this "`doubly deferential' standard of Strickland and the AEDPA."), and Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("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 was denied on the merits in state court is found to merit relief in a federal habeas proceeding.").
Aumuller contends that his trial counsel rendered ineffective assistance (1) by proposing an inapplicable special jury instruction, (2) by failing to "substantially" investigate the victim's cause of death and not presenting "the fruit" of that investigation to the jury, and (3) by introducing no evidence that another person confessed to the crime.
Aumuller testified at trial that he gave Crouse the heroin that she, in turn, sold to the victim. Trial counsel pursued an "independent act" defense and requested an "independent act" jury instruction.
The state post-conviction court rejected this claim in Aumuller's Rule 3.850 motion:
(Respondent's Exhibit 12, pp. 4-5) (court's record citations omitted)
Aumuller shows no entitlement to an abandonment defense.
Elizabeth Bosek, J.D., et al., FLORIDA JURISPRUDENCE, CRIMINAL LAW — SUBSTANTIVE PRINCIPLES AND OFFENSES, § 285 (2d ed. 2011) (footnotes omitted) (citing Carroll v. State, 680 So.2d 1065, (Fla. 3d DCA 1996) and Dixon v. State, 559 So.2d 354 (Fla. 1st DCA 1990)). The indictment charged Aumuller with first-degree murder by drug distribution. The trial judge instructed the jury that "the lesser crimes indicated are murder in the second degree, manslaughter, and sale of heroin." (Respondent's Exhibit 22, Vol. 3, pp. 446-47) Because abandonment is not a defense to the charged offense, trial counsel had no basis to either pursue the defense or request an abandonment instruction. Aumuller offers no evidence establishing that the abandonment defense would have resulted in his acquittal. He satisfies neither Strickland's deficient performance requirement nor prejudice requirement to support a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 691-92. The state post-conviction court neither unreasonably applied Strickland nor unreasonably determined the facts in rejecting this claim. 28 U.S.C. § 2254(d)(1), (2).
Aumuller contends that his trial counsel rendered ineffective assistance by not investigating either "red flags" about the victim's death
The state post-conviction court denied this claim in Aumuller's Rule 3.850 motion:
(Respondent's Exhibit 12, pp. 8-9) (emphasis in original) (court's record citations omitted)
"Complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978)
Aumuller presents no evidence establishing that trial counsel failed to investigate the applicable law, the facts of the case, or the medical evidence. He likewise offers no evidence supporting his speculative assertion that trial counsel rendered ineffective assistance by not retaining either a toxicologist or a pathologist. Aumuller speculates about the testimony of both a toxicologist and a pathologist. He presents no evidence showing that either expert would have testified as he hypothesizes. See United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) ("[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or an affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.") (footnotes omitted). Aumuller fails to demonstrate that trial counsel's performance fell outside the bounds of reasonable professional judgment. See Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th Cir. 2001) (holding that petitioner did not establish ineffective assistance based on defense counsel's failure to call an expert witness because petitioner failed to show that counsel's decision was so patently unreasonable that no competent attorney would have chosen that strategy), cert. denied, 535 U.S. 1000 (2002). Aumuller offers no evidence establishing that the proposed testimony of either a toxicologist or pathologist would have resulted in his acquittal. He satisfies neither Strickland's deficient performance requirement nor prejudice requirement to support a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 691-92. The state post-conviction court neither unreasonably applied Strickland nor unreasonably determined the facts in rejecting this claim. 28 U.S.C. § 2254(d)(1), (2).
Aumuller alleges that his girlfriend, Heather Crouse, testified before the grand jury that Aumuller committed the underlying felony (unlawful distribution of heroin). He claims that before trial he received a copy of two recorded statements in which Crouse both confessed to a fellow jail inmate (Lisa Morande) that she (Crouse) committed the underlying felony
The state post-conviction court denied this claim in Aumuller's Rule 3.850
(Respondent's Exhibit 12, pp. 2-3) (court's record citations omitted)
Even assuming that Crouse's recorded statements were admissible and that trial counsel performed deficiently by not introducing the statements at trial, Aumuller shows no resulting prejudice. Both Connaughton and Aykroyd testified to Aumuller's participation in the drug sale. (Respondent's Exhibit 22, Vol. 1, pp.146, 188-95) Detective Faugno testified about Aumuller's admission to the police that he obtained the heroin and sold the heroin to Aykroyd. (Respondent's Exhibit 22, Vol. 2, pp. 279-80) Aside from his own speculation, Aumuller provides no evidence establishing that either Crouse or her mother was available or willing to testify, nor has he submitted a sworn affidavit from either witness. Ashimi, 932 F.2d at 650. See also Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (rejecting ineffective assistance of counsel claim based on an alleged failure to investigate a witness because petitioner did not present an affidavit from the witness demonstrating that he would have provided testimony helpful to the defense); United States v. Porter, 924 F.2d 395, 397 (1st Cir. 1991) (holding that failure to interview a witness could not constitute ineffective assistance without a showing that the investigation would have helped defendant). "[M]ere speculation that missing witnesses would have been helpful is insufficient to meet the petitioner's burden of proof." Streeter v. United States, 335 Fed. App'x 859, 864 (11th Cir. 2009)
Accordingly, Aumuller's petition for the writ of habeas corpus (Doc. 1) is DENIED. The clerk must enter a judgment against Aumuller and close this action.
Aumuller is not entitled to a certificate of appealability ("COA"). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a COA. Section 2253(c)(2) permits issuing a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a COA, Aumuller must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Aumuller is entitled to neither a certificate of appealability nor an appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Aumuller must obtain permission from the circuit court to appeal in forma pauperis.
