JAMES D. WHITTEMORE, District Judge.
Petitioner, an inmate of the Florida penal system, initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("petition") (Dkt. 1). Petitioner challenges a conviction for attempted robbery with a weapon while masked entered in 2003 by the Thirteenth Judicial Circuit Court, Hillsborough County, Florida. Respondent filed a response to the petition (Dkt. 16). Petitioner filed a reply to the response (Dkt. 23).
The matter is now before the Court for consideration on the merits of Petitioner's claims. An evidentiary hearing is not required for the disposition of this matter. Rules Governing Section 2254 Cases 8(a) (2013).
Petitioner was charged by Supersedes Information with attempted robbery with a deadly weapon while wearing a mask (Resp. Ex. 1, Vol. I at record pp. 12-15). He was found guilty after a jury trial of the lesser included offense of attempted robbery with a weapon while wearing a mask (Id. at record pp. 51-52). He was adjudicated guilty and sentenced as a habitual felony offender to 15 years in prison (Id.> at record pp. 53-61). The state appellate court affirmed the judgment of conviction without written decision (Resp. Ex. 4); Edmunds v. State, 871 So.2d 222 (Fla. 2d DCA 2004) [table].
Petitioner filed a pro se motion for reduction or modification of sentence pursuant to Rule 3.800(c) of the Florida Rules of Criminal Procedure, which the state post conviction court summarily denied (Resp. Ex. 7).
Thereafter, Petitioner filed a pro se motion for post conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("3.850 motion") (Resp. Ex. 8). Subsequently, he filed a supplement to his 3.850 motion (Resp. Ex. 9), followed by an amended 3.850 motion (Resp. Ex. 10). The state post conviction court summarily denied two of the grounds raised in the amended 3.850 motion, and directed the State to respond to the remaining three grounds (Resp. Ex. 11). After the State responded (Resp. Ex. 12), the state post conviction court ordered an evidentiary hearing on the remaining three grounds (Resp. Ex. 13). Prior to the evidentiary hearing, Petitioner filed an "Addendum" to the amended 3.850 motion in which he raised another ineffective assistance of counsel claim (Resp. Ex. 14). The state post conviction court summarily denied the claim raised in Petitioner's "Addendum" (Resp. Ex. 15). Following the evidentiary hearing (Resp. Ex. 16), the state post conviction court denied the amended 3.850 motion (Resp. Ex. 17).
Petitioner timely filed the instant federal petition, pursuant to 28 U.S.C. § 2244(d), raising ten grounds for relief. His petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24,1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Section 104 of the AEDPA amended 28 U.S.C. § 2254 by adding the following provision:
Section 2254, as amended by the AEDPA, establishes a highly deferential standard for reviewing state court judgments. Parker v. Secretary, Dep't of Corr., 331 F.3d 764 (11
Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This language requires an examination of the state court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398-1401 (2011). In addition, § 2254(e)(1) "provides for a highly deferential standard of review for factual determinations made by a state court." Robinson, 300 F.3d at 1342. The federal court will presume the correctness of state court findings of fact, unless the petitioner is able to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). When measured against the AEDPA standard, it is clear that Petitioner's petition is due to be denied.
Petitioner claims that his trial counsel was incompetent and performed substantially below the standard guaranteed by the Sixth Amendment and that he was prejudiced as a result. A petitioner claiming ineffective assistance of counsel must meet the two-part standard for counsel's performance established by Strickland v. Washington, 466 U.S. 668 (1984). To establish a prima facie claim of ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. at 687. Deficient performance is performance which is objectively unreasonable under prevailing professional norms. Id. at 688. Prejudice results when there is "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. The cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are rare. Waters v. Lewis, 46 F.3d 1506, 1511 (11
A § 2254 application cannot be granted unless a petitioner "has exhausted the remedies available in the courts of the State; . . ." 28 U.S.C. 2254(b)(1)(A); Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). In other words, the 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.") (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364 (1995) ("[E]xhaustion of state remedies requires that the state prisoner `fairly present' federal claims to the state courts in order to give the State the `opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]'") (citation omitted).
Under the procedural default doctrine, "if 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 (11
Pre-AEDPA decisions from the Supreme Court establish the framework governing procedural default in federal habeas cases. A procedural default will only be excused in two narrow circumstances. First, Petitioner may obtain federal habeas review of a procedurally defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting from the default. "Cause" ordinarily requires Petitioner to demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court. Henderson, 353 F.3d at 892; Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).
To show "prejudice," Petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his factual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson, 353 F.3d at 892.
Second, 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); Henderson, 353 F.3d at 892. This exception is only available "in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent." Henderson, 353 F.3d at 892. The fundamental miscarriage of justice exception concerns a petitioner's "actual" innocence rather than his "legal" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11
WHETHER THE PETITIONER WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL WHERE THE STATE FAILED TO PRESENT SUFFICIENT COMPETE [SIC] EVIDENCE OF SPECIFIC INTENT TO COMMIT ATTEMPTED ARMED ROBBERY THAT IS INCONSISTENT WITH APPELLANT'S THEORY OF DEFENSE. (Dkt. 1 at p. 5).
Petitioner argues that he was denied due process when the state trial court denied his motion for judgment of acquittal, where the State failed to rebut his reasonable hypothesis of innocence, namely, that he did not intend to commit a robbery, but rather was playing a practical joke on his wife. Petitioner also argues that the evidence was insufficient to support a conviction for attempted robbery with a weapon because the State failed to prove Petitioner intended to deprive another of property.
To the extent Petitioner relies on his state law argument of whether, under Florida law, the court should have granted his motion for judgment of acquittal because the State failed to contradict his reasonable hypothesis of innocence,
To the extent Petitioner argues that there was insufficient evidence to support the attempted robbery conviction, when reviewing an insufficiency of the evidence claim in a habeas petition, a federal court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The court must assume that the jury resolved any evidentiary conflicts in favor of the prosecution, and the court must defer to that resolution. Id.; Johnson v. Alabama, 256 F.3d 1156, 1172 (11th Cir. 2001).
In Florida, "[t]o prove attempted robbery, the State must show that the accused formed the intent to take the victim's property and committed some overt act to accomplish that goal." Fournier v. State, 827 So.2d 399, 400-401 (Fla. 2d DCA 2002) (citation omitted). "[A] defendant's intent is generally a jury question. But the State must present some competent, substantial evidence from which the jury could infer the defendant's intent to deprive the victim of property." Id. (citation omitted).
During trial, the State called Richard Herbert, an assistant manager at Hungry Howie's Pizza, who was working there on the night of August 11, 2002 (Resp. Ex. 1, Vol. II at 97-98). Herbert testified in pertinent part that on that night at approximately 10:30 p.m., a female came up to the door of the store (Id. at 101). The door was locked, and a co-worker, Angel DeJesus, pressed a button underneath the cash register which unlocked the door to let the woman into the store (Id.). The woman entered the store, and the door automatically closed and locked behind her (Id.). The woman appeared "frantic" and "nervous," was "walking back and forth and shaking," and was smoking a cigarette (Id. at 101-02). Herbert told her that she could not smoke inside the store (Id. at 102). The woman went outside to throw away her cigarette (Id.). After she came back into the store, the door again shut and locked behind her (Id. at 103).
Within ten seconds after the woman came back into the store, a man came up to the door of the store wearing a "Halloween" mask, a red jacket, and gloves (Id. at 102-04, 122).
DeJesus testified in pertinent part that when the man at the door could not get in, he "backed up, lifted up his shirt and pulled [the gun] out and pointed it facing all of us." (Id. at 128). He also testified that when the man was trying to enter the store, the woman tried to push the door open (Id. at 133-34). Neither the man outside the store nor the woman inside asked Herbert or DeJesus to give them money (Id. at 135). When DeJesus got up from behind the counter, he saw the man running away (Id. at 129).
Officer Mathew Smith of the Tampa Police Department testified that he responded to a call that the Hungry Howie's store had been robbed (Id. at 143). When he arrived, there were two men and a woman in the store (Id. at 143). The men were Herbert and DeJesus. The woman showed Officer Smith her identification card, which indicated that her name was Jennifer Edmunds (Petitioner's wife) (Id. at 148-49).
Officer John Haggart of the Tampa Police Department testified in relevant part that he received a call that an armed robbery occurred at the Hungry Howie's (Id. at 153). He received information that the suspect was a white male wearing shorts with a red jacket, a Halloween mask, and gloves, and the suspect had a pistol (Id.). When Officer Haggart pulled into the parking lot of a video store adjacent to the Hungry Howie's parking lot, he saw a white male sitting in a truck (Id. at 154). Officer Haggart walked by the vehicle, and the man exited the vehicle and walked into the video store (Id. at 155). Officer Haggart watched the man as he walked up and down the aisles of the video store without stopping to look at any videos (Id. at 156). Officer Haggart then saw the man sit down at a desk where individuals can complete applications for employment (Id.). Officer Haggart then walked over to the man's truck, and he looked through an open window and saw a handgun, gloves, and a red jacket inside the truck (Id. at 157).
Officer Hevel testified in pertinent part that after he arrived at the scene, both Petitioner and Jennifer Edmunds were put into the back of his patrol car (Resp. Ex. 1, Vol. III at 198-99). Officer Hevel activated a video camera in his patrol car which taped Petitioner and Jennifer Edmunds (Id. at 195-200). The video camera recorded for approximately 20 to 30 minutes (Id. at 199-201). The videotape was published to the jury (Id. at 202).
After Officer Hevel testified, the State rested (Id. at 208). Petitioner moved for a judgment of acquittal, which the court denied (Id. at 208-211). The defense rested without presenting any evidence (Id. at 211).
The videotape of Petitioner and his wife in the patrol car was not transcribed (Resp. Ex. at p. 12). However, according to Petitioner's appellate brief, "[m]uch of [Petitioner and his wife's] conversation is unintelligible." (Id.). Petitioner could be heard repeatedly apologizing to his wife (Id.). He also stated that he was committing a prank on her, trying to scare her, because she earlier had committed a prank on him by hiding his truck (Id.). He also stated that he knew the door to Hungry Howie's was locked, he did not expect the store employees' reaction, and he hoped that he would not go to jail for his practical joke (Id.).
The trial record shows that the State presented competent, substantial evidence from which the jury could infer that Petitioner intended to rob the Hungry Howie's. The Hungry Howie's employees' testimony established that Jennifer Edmunds entered the store and appeared very nervous and was shaking. When Petitioner appeared outside the store, he was wearing a mask and gloves, brandishing a gun, and pointing the gun at the employees. Despite the fact that the man at the door was concealed by a mask, holding a gun, and trying to open the locked door, Jennifer Edmunds attempted to open the door. The jury certainly could have inferred from the evidence that Jennifer Edmunds knew that Petitioner was the man at the door, and Petitioner intended to rob the Hungry Howie's, rather than play a practical joke on his wife. Moreover, the jury could have concluded that Petitioner intended to rob the Hungry Howie's from the evidence that he fled the scene with his wife still in the store, did not return to the Hungry Howie's, but instead sat in his truck at an adjacent parking lot, then went into the video store after he was spotted by Officer Haggart, walked around without stopping to look at any videos, and failed to comply with the officers' orders after they approached him with their weapons drawn. See Leon v. State, 68 So.3d 351, 353 (Fla. 2d DCA 2011) ("[E]vidence of flight, concealment, or resistance to lawful arrest after the fact of a crime is admissible as being relevant to consciousness of guilt which may be inferred from such circumstances.") (quoting Twilegar v. State, 42 So.3d 177 (Fla. 2010)).
In sum, the Court finds that in considering the evidence adduced at Petitioner's trial in the light most favorable to the State, any rational trier of fact could conclude beyond a reasonable doubt that Petitioner intended to rob the Hungry Howie's store. Therefore, Petitioner has failed to demonstrate that there was insufficient evidence supporting the attempted robbery conviction.
The state appellate court's decision affirming Petitioner's conviction was not contrary to Supreme Court precedent. Accordingly, Ground One does not warrant relief.
Petitioner contends that he was denied due process when the state post conviction court failed to address 17 claims for relief that Petitioner raised in a supplement to his original 3.850 motion. This claim does not warrant federal habeas relief. It is well established in the Eleventh Circuit that a prisoner's challenge to the process afforded him in a state post conviction proceeding does not constitute a cognizable claim for habeas corpus relief. This is so because such a claim represents an attack on a proceeding collateral to the prisoner's confinement and not the confinement itself. Carroll v. Secretary, DOC, Fl. Attorney Gen., 574 F.3d 1354, 1366 (11th Cir. 2009) (holding that habeas petitioner's claim, that the state court violated his due process rights when it summarily denied his post conviction claim without an evidentiary hearing, did not state a claim on which a federal court may grant habeas relief); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987) (holding that habeas petitioner's claim that errors in Rule 3.850 proceeding violated his right to due process did not state a basis for habeas relief because the claim "[went] to issues unrelated to the cause of petitioner's detention"); Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir.2004) ("[W]hile habeas relief is available to address defects in a criminal defendant's conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for habeas relief.").
Accordingly, Ground Two does not warrant federal habeas relief.
In Ground Three, Petitioner raises seven claims of ineffective assistance of trial counsel. 1. Sub-Claim A
Petitioner contends that trial counsel rendered ineffective assistance by: 1) assuring Petitioner "that he could prove the Petitioner's innocence at trial because the Petitioner had did [sic] nothing wrong;" and 2) leading Petitioner to believe that he would be calling both Petitioner and Petitioner's wife to testify at trial (Dkt. 1 at pp. 11-12). Petitioner asserts that but for counsel's actions he would have accepted the State's plea offer of 74 months imprisonment and not continued to trial. Finally, Petitioner alleges that had he "known that counsel was going to concede the Petitioner's guilt at trial.. .the Petitioner would have accepted the plea offer. . . ." (Id. at p. 12).
In state court, Petitioner raised a similar claim in Ground 1 of his amended Rule 3.850 motion (Resp. Ex. 10). There, Petitioner alleged that his decision to proceed to trial was involuntary because counsel misled Petitioner with regard to the evidence that would be presented on behalf of the defense at trial (Id.). Specifically, Petitioner argued that he would not have proceeded to trial had he known that counsel was: 1) going to concede Petitioner's guilt; 2) not going to call Petitioner's wife to testify; and 3) going to fail to object to the prosecutor arguing facts not in evidence during his closing argument (Id.).
In denying the claim, the state post conviction court stated:
(Resp. Ex. 17 at record pp. 180-81).
Initially, Petitioner's claims that he would have accepted the State's plea offer but for: 1) counsel's assurance that he could prove Petitioner's innocence; and 2) counsel leading Petitioner to believe that Petitioner would testify during trial, are unexhausted because Petitioner never presented them to the state courts. It would be futile to dismiss this case to give Petitioner the opportunity to exhaust these claims in state court because he could have and should have exhausted the claims by raising them in his Rule 3.850 motion.
Petitioner's claims that he would not have proceeded to trial had he known that counsel was going to concede Petitioner's guilt and not going to call Petitioner's wife to testify, however, were presented to the state courts (see Resp. Ex. 10).
"To establish prejudice based on a rejected plea offer, a defendant must `establish a reasonable probability that, absent counsel's alleged ineffective assistance, he would have accepted the plea agreement.'" Harrington v. United States, 415 Fed. Appx. 986, 989 (11th Cir. 2011) (unpublished) (quoting Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991)). The petitioner's "after the fact testimony concerning his desire to plead, without more, is insufficient to establish that but for counsel's alleged advice or inaction, he would have accepted the plea offer." Diaz, 930 F.2d at 835).
With regard to Petitioner's claim that he would not have proceeded to trial had he known that counsel would concede his guilt, the claim fails because counsel never conceded Petitioner's guilt during trial. As explained in Ground Three, Sub-Claim B infra, counsel maintained throughout trial that Petitioner did not intend to commit a robbery, but rather attempted to play a practical joke on his wife. Counsel's argument that Petitioner's gun was merely a BB gun that had no weight and could not harm anyone, supported Petitioner's defense that he was only playing a joke. Further, counsel's argument successfully rebutted the prosecutor's argument that Petitioner was in possession of a deadly weapon at the time of the attempted robbery. Therefore, Petitioner's claim does not warrant relief.
With respect to Petitioner's claim that counsel led him to believe that Jennifer Edmunds would be testifying at trial, and that he would have accepted the State's plea offer had he known she would not be called to testify, the claim likewise does not warrant relief. First, Petitioner presents no evidence which indicates that prior to his conviction he expressed any desire to plead guilty. During the evidentiary hearing on Petitioner's amended 3.850 motion, Petitioner's trial counsel testified that after he conveyed the State's plea offer to Petitioner, Petitioner told him that "he was innocent and that he. . .didn't want to go to prison." (Resp. Ex. 16 at record p. 277). He also testified that despite advising Petitioner that if he proceeded to trial and was found guilty that he could be subjected to enhanced prison sanctions as a habitual felony offender, Petitioner still "wanted to go to trial." (Id. at record p. 278). When Petitioner was asked what he would have done had he known that trial counsel was not going to call Jennifer Edmunds or witnesses from Blockbuster to testify at trial, Petitioner did not unequivocally state that he would have accepted the State's plea offer. Rather, he answered "I would have looked further into pleading. . . ." (Id. at record p. 204).
Second, his allegations regarding this claim are equivocal and inconsistent. Although during cross-examination at the state evidentiary hearing Petitioner testified that trial counsel "told [him] he was going to call Jennifer [Edmunds to testify at trial,]" Petitioner did not allege either in his state amended 3.850 motion or his federal habeas petition that counsel had told him that he would call Jennifer Edmunds to testify. Rather, Petitioner alleged that counsel told him that "it would be necessary to have Mrs. Edmunds testify" (Resp. Ex. 10 at record p. 16), and that "counsel convinced the Petitioner that he would be calling Mrs. Edmunds. . .to testify." (Dkt. 1 at p. 11).
Third, there is evidence in the record to contradict Petitioner's after-the-fact assertion that he did not accept the plea offer because counsel told him that Jennifer Edmunds would testify. During the state evidentiary hearing, counsel testified that he discussed with Petitioner that "we'd possibly call Jennifer Edmunds" if the defense was going to have to introduce the videotape of Petitioner and Jennifer Edmunds' conversation in the back of the police cruiser (Resp. Ex. 16 at record p. 279) (emphasis added). Moreover, Petitioner's assertion that counsel told him that Jennifer Edmunds would testify or that her testimony was "necessary" or "critical" is contradicted by counsel's testimony. Counsel attested that: 1) he did not think it was a good idea to call Jennifer Edmunds to testify at trial or take her deposition because she would "get into facts" regarding her and Petitioner's drug use that "would actually arm the State Attorney with evidence," and possibly testify that she had no money when she entered the Hungry Howie's to allegedly order a pizza; and 2) it was his strategy not to call Jennifer Edmunds to testify, and thereby retain first and last closing argument, if Petitioner's defense was elicited through the videotape (Id. at pp. 276-77, 282).
The state court's denial of this claim was not "contrary to" or an "unreasonable application of" clearly established federal law. Petitioner has failed to establish a reasonable probability that, absent counsel's alleged ineffective assistance, he would have accepted the State's plea offer. Therefore, Petitioner has failed to meet the Strickland standard by showing that he was prejudiced by counsel's alleged misadvice. Accordingly, Sub-Claim A does not warrant relief. 2. Sub-Claim B
Petitioner contends that counsel rendered ineffective assistance during closing argument when he conceded Petitioner's guilt to the charge of attempted robbery with a weapon. Specifically, Petitioner takes issue with defense counsel's following statement:
(Resp. Ex. 1, Vol. III at p. 221). Petitioner asserts that one element the State was required to prove was that Petitioner displayed an item that resembled a weapon. He argues that defense counsel was ineffective in conceding that Petitioner displayed the BB gun when in fact he never did.
Petitioner raised a similar claim in Ground 2 of his amended Rule 3.850 motion (Resp. Ex. 10). In denying the claim, the state post conviction court stated:
(Resp. Ex. 17 at record pp. 181-82).
The state courts' denial of this claim was neither an unreasonable application of Strickland, nor based on an unreasonable determination of the facts. Defense counsel did not concede Petitioner's guilt during closing argument. Rather, counsel argued that Petitioner intended to commit a "practical joke," not a robbery (Resp. Ex. 1, Vol. III at pp. 220-24). Therefore, counsel's argument was not the equivalent of entering a guilty plea on Petitioner's behalf without his consent. Cf. McNeal v. Wainwright, 722 F.2d 674, 677 (11th Cir. 1984) (tactical decision to admit to a lesser offense does not amount to guilty plea without a defendant's consent and the tactical decision does not require client's consent).
Consequently, Petitioner must demonstrate that counsel's decision to concede that Petitioner had "pulled" the BB gun was objectively unreasonable. As defense counsel stated during the post conviction evidentiary hearing, counsel's argument at trial that the gun was a BB gun with "no weight" that was not capable of killing anyone, supported Petitioner's defense that he was playing a practical joke and did not intend intending to commit a robbery (Resp. Ex. 16 at record p. 280). Petitioner has not demonstrated that defense counsel's argument was anything other than reasonable trial strategy. Therefore, he has failed to show that counsel's performance was objectively unreasonable. See Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994) (Counsel's performance strongly presumed to have been reasonable and adequate, and "great" deference must be shown to counsel's choices dictated by reasonable trial strategy.).
To the extent Petitioner argues that counsel was ineffective in stating that Petitioner had displayed the gun (because he allegedly never did so), and that he was prejudiced by the statement because it established the element that he displayed a weapon, the claim is without merit. First, during the post conviction evidentiary hearing, defense counsel testified that Petitioner told him that he did display the gun while outside the door of the Hungry Howie's store (Id. at record pp. 274-76). Second, even if Petitioner did not tell counsel that he displayed the gun, he admitted during the evidentiary hearing that he had the BB gun in his possession in a bag while he was in front of the Hungry Howie's (Id. at record p. 200). The jury was instructed in pertinent part that "[i]f you find that the defendant carried a weapon that was not a firearm and/or a deadly weapon in the course of committing the robbery, you should find him guilty of robbery with a weapon." (Resp. Ex. 1, Vol. I at record p. 38) (emphasis added). Therefore, despite Petitioner's argument to the contrary, the State was not required to prove that Petitioner displayed the gun in order to prove Petitioner was guilty of robbery with a weapon. See State v. Gibson, 452 So.2d 553, 556 (Fla. 1984) ("The elements of the crime [of robbery while armed] do not include displaying the weapon or using it in perpetrating the robbery."), overruled on other grounds by Hall v. State, 517 So.2d 678 (Fla. 1988). Consequently, because Petitioner admits that he carried a gun during the robbery, and there was ample evidence at trial establishing that fact, Petitioner cannot demonstrate that he was prejudiced by counsel's statement that Petitioner "pulled" the gun.
Third and finally, the jury was instructed in pertinent part that "[i]f you find that the defendant carried a B.B. gun in the course of committing the robbery and that the B.B. gun was a deadly weapon, you should find him guilty of robbery with a deadly weapon." (Resp. Ex. 1, Vol. I at record p. 38). The prosecutor argued that Petitioner's gun was a deadly weapon (Resp. Ex. 1, Vol. III at pp. 233, 240). In Florida, robbery with a deadly weapon is "punishable by imprisonment for a term of years not exceeding life imprisonment. . . ." Sec. 812.13(2)(a), Fla. Stat. Defense counsel successfully argued that the gun was not a deadly weapon (Id. at pp. 221, 242). The offense of robbery with a weapon is punishable by a maximum of 30 years in prison. Mathis v. State, 704 So.2d 1114 (Fla. 5th DCA 1998). Therefore, Petitioner benefitted from counsel's argument regarding the BB gun.
Petitioner fails to show either deficient performance or prejudice. Consequently, the Court finds that the state courts' denial of this claim was neither an unreasonable application of Strickland, nor based on an unreasonable determination of the facts. Accordingly, Ground Three, Sub-Claim B does not warrant relief.
Petitioner contends that counsel rendered ineffective assistance in failing to call Jennifer Edmunds to testify at trial. Petitioner asserts that Jennifer Edmunds would have testified that: 1) on the night of the crime, she and Petitioner were on their way home after a day of "partying," they were hungry, and she decided Hungry Howie's would be fast and affordable; 2) she and Petitioner often play practical jokes on each other; 3) Petitioner did not tell her to go into the Hungry Howie's; 4) she was the "keeper of the finances," and she had Petitioner's wallet in her purse on the day of the crime; 5) she was not acting nervous inside the Hungry Howie's until after the employee pulled out the gun and realized that he was aiming it at Petitioner; 6) Petitioner was not attempting to rob anyone, never discussed robbing anyone with her, and would not have robbed anyone because "they were proud parents of new twins, and had five (5) children to think about;" 7) she was "freaked out" after she was arrested and placed in the police car and lead to believe she was going to jail; and 8) she and Petitioner were not in the police car when the officer set up the video camera, and they were not aware that they were being recorded (Dkt. 1 at p. 16).
In state court, Petitioner raised this claim in Ground Three of his amended Rule 3.850 motion (Resp. Ex. 10). In denying the claim, the state post conviction court stated:
(Resp. Ex. 17 at p. 182).
Initially, to prevail on a claim alleging ineffectiveness of counsel for failing to call a certain witness "the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense." Bray v. Quarterman, 265 Fed. Appx. 296, 298 (5th Cir. 2008) (unpublished) (citing Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985)). "The petitioner must also show prejudice, i.e., a `reasonable probability' that the uncalled witnesses would have made [a] difference to the result." Id. (quoting Alexander v. McCotter, 775 F.2d at 603).
Although Petitioner alleges that his wife was available to testify at his trial, the record belies his claim. During her deposition following Petitioner's trial, Jennifer Edmunds testified in pertinent part that at the time of Petitioner's trial she "was in the hospital" because she "had a pancreatic attack" and "a cyst that had hemorrhaged." (Dkt. 1-2, Ex. "G" at Jennifer Edmunds' deposition p. 29). Further, at trial during argument on the admissibility of the State's video tape of Petitioner and Jennifer Edmunds in the back of the police cruiser, defense counsel stated in pertinent part that "I don't have [Jennifer Edmunds], she is not subject to cross-examination and it is highly prejudicial." (Resp. Ex. 1, Vol. II at p. 81).
Petitioner has not presented any evidence that Jennifer Edmunds was available to testify at trial. Consequently, he cannot show deficient performance by counsel. See Williamson v. Moore, 221 F.3d 1177, 1181 (11th Cir. 2000) ("Counsel cannot be said to be ineffective for failing to call an unavailable witness.").
Moreover, even if Jennifer Edmunds was available to testify at Petitioner's trial, Petitioner has not demonstrated that defense counsel's decision not to call her as a witness was anything other than reasonable trial strategy. "[W]hich witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Disagreements by a defendant with counsel's tactics or strategies will not support a claim of ineffective assistance of counsel. A habeas petitioner must overcome a presumption that the challenged conduct of one's counsel was a matter of strategy. Strickland, 466 U.S. at 689; United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). "Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
During the state post conviction evidentiary hearing, defense counsel testified that he determined it was not in Petitioner's best interest to call Jennifer Edmunds as a witness because she used drugs, and knew that Petitioner used drugs, on the day of the robbery, and that would "arm the State" with damaging evidence (Resp. Ex. 16 at record p. 277). Also, he was concerned that if he called Jennifer Edmunds to testify, the State would cross-examine her on the fact that she did not have any money when she entered the Hungry Howie's, and that would weaken Petitioner's position that Jennifer Edmunds went into the Hungry Howie's to purchase a pizza and had no knowledge that Petitioner was about to approach the store (Id. at record p. 282). Finally, counsel made a tactical decision that if the evidence that Petitioner was only playing a practical joke came out through the video tape of Petitioner and Jennifer Edmunds' conversation in the back of the police cruiser (which it did), it would not be worth calling Jennifer Edmunds as any testimony she may have provided would not outweigh the advantage of the defense retaining the right to first and last closing argument (Id. at record pp. 282-83).
Under the circumstances in this case, the Court cannot find that no reasonable lawyer would have decided not to call Jennifer Edmunds to testify on behalf of the defense. Therefore, Petitioner has failed to show deficient performance by counsel.
Moreover, Petitioner has not shown prejudice because he has failed to demonstrate that there is a reasonable probability that, but for counsel's failure to call Jennifer Edmunds to testify, the outcome of the trial would have been different.
Petitioner has not demonstrated that the state courts' adjudication of this ineffective assistance claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court law, or "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." Accordingly, Sub-Claim C does not warrant habeas corpus relief.
Petitioner contends that counsel was ineffective in failing to object to and move for a mistrial based upon the prosecutor's comments during closing argument that Officer Hevel activated and adjusted the camera in his police cruiser while Petitioner and Jennifer Edmunds were sitting in the back seat. Petitioner asserts that Officer Hevel testified that he activated and adjusted the camera before Petitioner and his wife were put into the cruiser, and there was no evidence that the camera was activated or adjusted after Petitioner and his wife were in the cruiser. Therefore, Petitioner argues, trial counsel should have objected to and moved for a mistrial based upon the prosecutor arguing facts not in evidence in his closing statement. He further argues that he was prejudiced by counsel's failure to object to the prosecutor's "false" statements because the prosecutor used them to argue that Petitioner was aware that he was being videotaped, and therefore made false, self-serving statements that he was merely playing a practical joke on his wife.
In state court, Petitioner raised this claim in Ground Four of his amended Rule 3.850 motion (Resp. Ex. 10). In denying the claim, the state post conviction court stated:
(Resp. Ex. 17 at record pp. 182-84).
First, the state post conviction court found that counsel was not deficient in failing to object to the prosecutor's statements because "when taken in context of the entire argument, the State's comments constitute vigorous argument and a fair comment on the evidence." (Resp. Ex. 17 at record p. 183). During trial, Officer Hevel testified that he had a video camera which hung from the ceiling of his police cruiser that was near the rear view mirror on the vehicle's windshield (Resp. Ex. 1, Vol. III at pp. 195-96). The camera usually faced the windshield, but could be adjusted in any direction (Id. at p. 197). A red light flashes when the camera is on (Id.). Officer Hevel testified that he "activated the camera system prior to placing [Petitioner] in [his] car." (Id. at p. 198). Officer Hevel could not recall whether Petitioner's wife was already in his car before Petitioner was in the car (Id. at pp. 198-99). When the prosecutor asked "did you manipulate the actual camera before putting these people in the car?" Officer Hevel answered "Correct. I turned the camera so it actually faced the rear of the car, activated the microphone from the back of the car by this little switch, clicked that little switch and then once they were placed in the car, I just closed the door." (Id. at p. 199). (See Transcript, November 7, 2002, pp. 227-240, attached).
During his closing argument, the prosecutor stated in pertinent part:
(Resp. Ex. 1, Vol. III at pp. 235-37).
Despite Petitioner's argument to the contrary, the prosecutor never stated during closing argument that "Petitioner and his wife were inside the police car, while Officer Hevel adjusted and activated the audio/video tape. . . ." (Dkt. 1 at pp. 20-21). Further, the prosecutor never argued that Officer Hevel testified that he activated and adjusted the camera while Petitioner and his wife were in his police cruiser (Resp. Ex. 1, Vol. III at pp. 227-40). Rather, it is apparent from the trial transcript and the transcript of the post conviction evidentiary hearing that the prosecutor was merely commenting on what the videotape was showing while it was playing for the jury during the prosecutor's closing statement (Id. at 235-37; Resp. Ex. 16 at record pp. 237, 244, 249, 284). Petitioner does not allege that the videotape itself does not show that Officer Hevel adjusted the camera at some point while Petitioner and his wife were in the police cruiser. Therefore, Petitioner has failed to demonstrate that the state court's decision that Petitioner's counsel was not deficient in failing to have objected to the prosecutor's statements was not objectively unreasonable.
Even if counsel's performance was deficient in failing to object to the prosecutor's comments, Petitioner has failed to demonstrate that the state court's determination that Petitioner failed to show prejudice was either an unreasonable application of Strickland, or based on any unreasonable findings of facts. As the state post conviction court found, even if the prosecutor's comments were objectionable, defense counsel rebutted those comments by arguing that the evidence showed Petitioner was put in the police cruiser after the camera was adjusted (Resp. Ex. 1, Vol. III at pp. 225, 246). Further, counsel argued that Petitioner and his wife did not know that there was a camera or microphones in the cruiser because the microphones were hidden, and it was too dark in the cruiser to see the camera (Id. at p. 225). Finally, the state trial court remedied any potential harm from the prosecutor's comments by instructing the jury that the attorneys' arguments were not evidence (Id. at p. 220), and that "[t]his case must be decided only upon the evidence that you have heard from the testimony of the witnesses and have seen in the form of the Exhibits in evidence and these instructions." (Id. at p. 261). See United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) ("Because statements and arguments of counsel are not evidence, improper statements can be rectified by the district court's instruction to the jury that only the evidence in the case be considered." (quotation omitted)).
The Court finds that the state courts' denial of this claim was neither an unreasonable application of Strickland nor based on an unreasonable determination of the facts. Accordingly, Sub-Claim D does not warrant relief.
Petitioner contends that trial counsel was ineffective in failing to object to the "case detective['s]" testimony regarding the distance between Petitioner's residence and the Blockbuster video store in which he was arrested, and the "time of night" Petitioner was in the Blockbuster, as irrelevant (see Dkt. 1 at p. 24).
In state court, Petitioner raised this claim in his Addendum to Previously Filed Pro Se Motion for Post Conviction Relief (Resp. Ex. 14). In denying the claim, the state post conviction court stated:
(Resp. Ex. 15 at record p. 148).
To the extent Petitioner argues that counsel rendered ineffective assistance in failing to object to the testimony regarding the distance between Petitioner's residence and the Blockbuster store, and the time of night Petitioner was in the Blockbuster, the claim is without merit.
With regard to Petitioner's alternative claim, i.e., that counsel should have offered "testimony to minimize the impact" of the officers' testimony, the claim likewise is without merit. Petitioner apparently argues that counsel should have called either an employee of the Blockbuster store in which he was arrested, or a private investigator who could have investigated the employment application procedure at the Blockbuster store, to testify at trial (Dkt. 1 at p. 25). Petitioner appears to assert that an employee or an investigator would have testified either that Petitioner did not attempt to fill out an application at the store, or that the equipment in the Blockbuster allows an individual to submit an application to any Blockbuster store in the United States, and to check the status of a previously submitted application (Id.).
First, "[c]omplaints 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) (citations omitted). Moreover, "evidence 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." United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes omitted). Hence, the "petitioner must first make a sufficient factual showing, substantiating the proposed witness testimony." Percival v. Marshall, 1996 WL 107279 at *3 (N.D. Cal. March 7, 1996), affirmed, 106 F.3d 408 (9th Cir. 1997). "Such evidence might be sworn affidavits or depositions from the potential witnesses stating to what they would have testified." Id.
Petitioner has failed to present evidence of actual testimony or any affidavit from a Blockbuster employee, an investigator, or any other individual attesting either that Petitioner did not complete an application while he was in the Blockbuster, or that the equipment in the Blockbuster could be used to apply for a position at any Blockbuster store or check on a prior application for employment. Therefore, Petitioner only speculates on their proposed testimony and presents no evidence showing that they would have testified as Petitioner hypothesizes.
Second, in light of the strong evidence presented by the State at trial, Petitioner offers no reason to believe that there is a reasonable probability that testimony regarding these matters would have changed the outcome of the trial. See, e.g., United States v. Tavares, 100 F.3d 995, 998, 321 U.S. App. D.C. 381, (D.C.Cir. 1996) (where the record establishes no reasonable probability that the defendant's asserted testimony would have changed the outcome of the trial, the defendant has failed to make a showing of prejudice). Consequently, Petitioner cannot show that he was prejudiced by counsel's failure to present the proposed testimony.
The Court finds that the state courts' denial of this claim was neither contrary to nor an unreasonable application of Strickland. Accordingly, Sub-Claim E does not warrant relief.
Petitioner contends that his decision not to testify was based on misadvice by trial counsel. Specifically, Petitioner asserts that in making his decision not to testify, he relied on counsel's misadvice that: 1) if he testified and incorrectly stated the number of prior felony convictions he had, the nature of his prior felony offenses would be presented to the jury; 2) Petitioner would lose the right to have both first and last closing argument if Petitioner testified; 3) his testimony was not necessary because the video tape of Petitioner and Jennifer Edmunds in the back of the police cruiser was presented at trial; and 4) if he testified, the jury would find him guilty (Dkt. 1 at p. 26). Petitioner argues that counsel's advice that the nature of Petitioner's prior felony convictions would be revealed, and he would lose the right to first and last closing argument if Petitioner testified, were misstatements of the law (Id. at p. 30). He further argues that counsel's advice that Petitioner's testimony was unnecessary, and if Petitioner testified he would be found guilty, "was a patently unreasonable tactical decision." (Id.).
In state court, Petitioner raised a similar claim in Ground Five of his amended Rule 3.850 motion (Resp. Ex. 10). There, Petitioner's claimed that "counsel improperly influenced the defendant's decision not to testify at trial[.]" (Id. at record p. 29). He alleged that during trial, after the State rested and defense counsel's motion for judgment of acquittal was denied, he and defense counsel discussed whether Petitioner would testify (Id. at record p. 31). He alleged that during that discussion "[t]rial counsel simply told the Defendant that (1) I don't want the state to bring up your prior record to the jury; and (2) I want the double closing argument." (Id.). Petitioner then alleged that "counsel never made clear that the state could only ask the number of prior felonies, and, not the nature of those prior felonies." (Id. at record pp. 31-32). He also complained that counsel did not discuss "the pros and cons of the defendant taking the stand to testify," and did not explain that "defendant could take the stand and testify regardless of counsel's personal desires[.]" (Id. at record p. 31).
In denying the claim, the state post conviction court stated:
(Resp. Ex. 17).
With regard to Petitioner's assertion that counsel misadvised him that if he testified and incorrectly stated the number of prior felony convictions he had, the nature of his prior felony offenses would be revealed, the claim is both unexhausted and without merit. In his amended Rule 3.850 motion, Petitioner did not allege that counsel told him that the State could question him regarding the nature of his prior felony convictions. Rather, he alleged that counsel told him "I don't want the state to bring up your prior record to the jury," and did not make it clear that "the state could only ask the number of prior felonies, and, not the nature of those prior felonies." (Resp. Ex. 10 at record pp. 31-32). Therefore, the claim Petitioner raises in the instant federal habeas petition is not the same claim that he exhausted in state court.
Any aspect of Petitioner's claim that was not exhausted and which would clearly be barred if returned to state court must be dismissed. Tower v. Phillips, 7 F.3d at 210. "An issue that was not properly presented to the state court which can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review." Cobbs v. McDonough, 2006 U.S. Dist. LEXIS 52456, 2006 WL 2092381 at *8 (M.D. Fla., July 26, 2006) (citing O'Sullivan v. Boerckel, 526 U.S. at 839-40).
It would be futile to dismiss to give Petitioner the opportunity to exhaust this claim because his claim would be procedurally barred because of the two-year time limitation of Rule 3.850, Whiddon v. Dugger, 894 F.2d 1266 (11th Cir. 1990) (recognizing and applying two-year bar of Rule 3.850), as well as Florida's successive petition doctrine, Zeigler v. State, 632 So.2d 48, 51 (Fla. 1993). Because Petitioner does not allege cause and prejudice for the default, nor is there evidence of "actual innocence," the claim is procedurally barred in federal court.
Even if the claim was not procedurally barred, if would fail on the merits. In Florida, "[c]ertified copies of prior convictions are admissible to impeach a witness who falsely testifies as to the number of crimes for which he has been convicted." Pryor v. State, 855 So.2d 134, 136 (Fla.1st DCA 2003) (citing § 90.610(1), Fla. Stat. (2001)). "The proper method to impeach the witness who answers the question regarding his prior convictions incorrectly, is to offer a certified record of the witness's prior convictions, which will necessarily reveal the nature of the crimes." Tampling v. State, 610 So.2d 100, 101 (Fla. 1st DCA 1992) (emphasis added). Therefore, defense counsel's alleged advice to Petitioner, to wit, that the nature of his prior convictions could be revealed if he inaccurately testified regarding the number of prior convictions, was a correct statement of the law.
With respect to Petitioner's assertion that counsel advised him that if Petitioner testified, Petitioner would lose the right to have both first and last closing argument, the claim is unexhausted. In his amended Rule 3.850 motion, Petitioner did not allege that counsel advised him that he would lose first and last closing if Petitioner testified (Resp. Ex. 10 at record pp. 29-33). Rather, Petitioner only asserted, in pertinent part, that prior to the defense resting without presenting any evidence,
It would be futile to dismiss to give Petitioner the opportunity to exhaust this claim because his claim would be procedurally barred in state court. See Whiddon v. Dugger, 894 F.2d 1266; Zeigler v. State, 632 So. 2d at 51. Because Petitioner does not allege cause and prejudice for the default, nor is there evidence of "actual innocence," the claim is procedurally barred in federal court.
Moreover, even if not procedurally barred, the claim fails on the merits. During the evidentiary hearing on Petitioner's amended Rule 3.850 motion, Petitioner's trial counsel testified that he did not tell Petitioner that he would lose first and last closing arguments if Petitioner testified (Resp. Ex. 16 at record p. 272). Rather, counsel testified that he believed he told Petitioner that they would lose first and last closing arguments if Petitioner's wife testified (Id.). The post-conviction court found counsel's testimony credible (Resp. Ex. 17 at 184-85).
"The factual findings of the state court, including the credibility findings, are presumed to be correct unless [the petitioner] rebuts the presumption by clear and convincing evidence." Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) (citing 28 U.S.C. § 2254(e)(1)). Petitioner has not demonstrated by clear and convincing evidence that the state court's factual determination is incorrect. Counsel, therefore, did not misadvise Petitioner, as Petitioner would have lost first and last closing arguments had Petitioner's wife testified. See Fla. R. Crim. P., Rule 3.250 (2002). Consequently, Petitioner has failed to establish deficient performance.
Finally, with regard to Petitioner's claim that counsel advising him not to testify "was a patently unreasonable tactical decision," the claim is unexhausted. Petitioner did not allege in state court that counsel's advice was unreasonable trial strategy (Resp. Exs. 10, 19). Because Petitioner does not allege cause and prejudice for the default, nor is there evidence of "actual innocence," the claim is procedurally barred in federal court.
Moreover, the claim is without merit. During the state evidentiary hearing, Petitioner's trial counsel testified in pertinent part that he did not think it was a good idea for Petitioner to testify (Resp. Ex. 16 at record p. 288), that "everything [Petitioner] was going to say was [on the videotape of Petitioner and his wife's conversation in the police cruiser]" (Id.), and that he advised Petitioner "that if everything was going the way we wanted to at trial then. . .it probably wouldn't be a good idea for him to testify based on his. . .drug use admissions and his prior convictions." (Id. at record p. 279).
Petitioner's counsel was not deficient for advising Petitioner not to take the stand to testify. Petitioner's defense that he was attempting to play a practical joke on his wife was revealed through the video tape. The credibility of Petitioner's story was crucial to his case. If Petitioner testified, the State would have challenged Petitioner's credibility on cross-examination, and the jury would have learned that he had seven prior felony convictions
Accordingly, for the foregoing reasons, Sub-Claim F does not warrant relief.
Petitioner complains that the cumulative effect of counsel's deficient acts rendered his trial fundamentally unfair. In denying this claim, the state post conviction court stated "as all of Defendant's other grounds of ineffective assistance of counsel were denied by this Court, Defendant's claim of cumulative error must fail." (Resp. Ex. 19 at record p. 895).
Petitioner's claim of cumulative error necessarily fails, since none of his claims of ineffective assistance of counsel have merit. Morris v. Secretary, Dept. of Corrections, 677 F.3d 1117, 1132 (11th Cir. 2012) (where none of individual claims of error or prejudice have merit, "we have nothing to accumulate."). Consequently, Petitioner has failed to demonstrate that the state courts' denial of this claim was contrary to clearly established Supreme Court law, or based on an unreasonable determination of the facts. Accordingly, Sub-Claim G does not warrant relief.
In pages 32 through 37 of Petitioner's federal habeas petition, he appears to submit argument in support of the seven claims of ineffective assistance of counsel raised in Ground Three of the petition (Dkt. 1 at pp. 32-37). Specifically, he appears to argue that he was denied due process during the state post conviction proceedings because he did not receive a full and fair evidentiary hearing on his ineffective assistance of counsel claims, his trial counsel's testimony during the evidentiary hearing was not credible, and the state post conviction court's factual findings were not supported by competent, substantial evidence (Id.).
To the extent Petitioner intended these arguments to constitute separate substantive claims,
Petitioner appears to allege a substantive claim of "actual innocence." The claim is denied. First, a free-standing claim of actual innocence cannot be brought as a substantive claim for relief in a federal habeas action. See Schlup v. Delo, 513 U.S. 298, 315 (1995) ("[A] claim of innocence is . . . `not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'") (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)); United States v. Montano, 398 F.3d 1276, 1284 (11th Cir. 2005) ("Actual innocence is not itself a substantive claim, but rather serves only to lift [a] procedural bar caused by a [petitioner]'s failure to timely file his § 2255 motion.").
Second, Petitioner fails to state a colorable claim of actual innocence. A petitioner in a collateral proceeding who wishes to establish his or her actual innocence to avoid a procedural bar to consideration of the merits of his or her underlying claim must demonstrate that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298. This gateway applies only if the petitioner can demonstrate that "more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537 (2006); see also Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. at 327-28). As the Schlup court held: To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial. Schlup v. Delo, 513 U.S. at 324. Petitioner must establish factual innocence rather than mere legal insufficiency. Id.; Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). In other words, this exception is not available unless "the petitioner shows, as a factual matter, that he did not commit the crime of conviction." Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995) (denying certificate of probable cause) (footnote omitted).
Petitioner has presented no "new reliable evidence" nor do his allegations suggest that any such evidence exists. Instead, Petitioner complains of "counsel's failures, Ms. Edmunds not being called as a witness at trial, [and] the state prosecution utilizing a none [sic] testifying witness (Ms. Edmunds) to substantiate its theory of prosecution." (Dkt. 1 at p. 37). Petitioner's arguments are not based on new reliable evidence and fail to show that "it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623.
ACCORDINGLY, it is ORDERED that:
1. The Petition for Writ of Habeas Corpus is DENIED (Dkt. 1).
2. The Clerk shall enter judgment against Petitioner, terminate all pending motions, and close this case.
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial ofhis petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at§ 2253(c)(2). To make such a showing, Petitioner 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 (lith Cir 2001). Petitioner cannot make the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a COA, he is not entitled to appeal in forma pauperis.
DONE and ORDERED
