STEVEN D. MERRYDAY, District Judge.
Alfonso Kareem Williams ("Williams") applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his conviction for attempted first degree murder based upon claims of ineffective assistance of counsel. Respondent opposes the application and provides the appendix record of Williams' state court proceedings in support of his response. (Docs. 8, 11) Respondent admits the application's timeliness (Response at 4, Doc. 8) but asserts that some of Williams' claims for relief were not fully exhausted in the state courts and are now procedurally barred from federal review. Respondent further argues correctly that all of the claims can be denied on the merits. Williams' reply (Doc. 13) fails to provide any additional basis for granting habeas relief.
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, 412S13 (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, 693 (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, 131 S.Ct. 770, 786S87 (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 v. Taylor, 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." Bell v. Cone, 535 U.S. at 694. 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, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 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 on direct appeal affirmed Williams' convictions and sentence. (Respondent's Exhibit 9)
Review of the state court decision is limited to the record that was before the state court:
Pinholster, 131 S. Ct. at 1398. Williams 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 William's post-conviction claims warrants deference in this case. (Orders Denying Motion for Post-Conviction Relief, Respondent's Exhibits 12, 15, 20 and 24)
An applicant must present each claim to a state court before raising the claim in federal court. "[E]xhaustion of state remedies requires that petitioners `fairly presen[t]' 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." Duncan v. Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518S19 (1982) ("A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error."), and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) ("[T]he applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated."). Also, a petitioner must present to the federal court the same claim presented to the state court. Picard v. Connor, 404 U.S. at 275 ("[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts."). "Mere similarity of claims is insufficient to exhaust." Duncan v. Henry, 513 U.S. at 366.
An applicant must alert the state court that he is raising a federal claim and not just a state law claim.
Baldwin v. Reese, 541 U.S. 27, 32 (2004). As a consequence, "[i]t 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." Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) ("The exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.") (citations omitted).
Finally, presenting a federal claim to a state court without the facts necessary to support the claim is insufficient. See, e.g., Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983) ("The exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in support of the writ before the federal court.").
The failure to properly exhaust each available state court remedy causes a procedural default of the unexhausted claim. O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) ("Boerckel's failure to present three of his federal habeas claims to the Illinois Supreme Court in a timely fashion has resulted in a procedural default of those claims."); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) ("[W]hen it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, we can forego the needless `judicial ping-pong' and just treat those claims now barred by state law as no basis for federal habeas relief."); Kennedy v. Herring, 54 F.3d 678, 684 (1995) ("If a claim was never presented to the state courts, the federal court considering the petition may determine whether the petitioner has defaulted under state procedural rules."), appeal after remand, Kennedy v. Hopper, 156 F.3d 1143 (11th Cir.), cert. denied sub nom Kennedy v. Haley, 526 U.S. 1075 (1999).
Each of Williams' grounds for habeas relief 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.
Williams 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 691S92. To meet this burden, Williams 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 690S91. Williams cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220S21 (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)). The required extent of counsel's investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210, 1267 (11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S.Ct. 2126 (2015):
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
Williams 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 (An applicant must overcome this "`doubly deferential' standard of Strickland and the AEDPA."), 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."), and Pooler v. Sec'y, Dep't of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) ("Because we must view Pooler's ineffective counsel claim — which is governed by the deferential Strickland test — through the lens of AEDPA deference, the resulting standard of review is "doubly deferential."), cert. denied, 134 S.Ct. 191 (2013).
Because the state court correctly recognized at the outset of each of its orders denying post-conviction relief that Strickland governed each claim of ineffective assistance of counsel, Williams cannot meet the "contrary to" test in Section 2254(d)(1). (Respondent's Exhibit 12 at 2; Exhibit 15 at 1-2; Exhibit 20 at 2) Williams instead must show that the state court unreasonably applied Strickland or unreasonably determined the facts. In determining "reasonableness," a federal application for the writ of habeas corpus authorizes determining only "whether the state habeas court was objectively reasonable in its Strickland inquiry," not an independent assessment of whether counsel's actions were reasonable. Putnam v. Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002). The presumption of correctness and the highly deferential standard of review requires that the analysis of each claim begin with the state court's analysis.
Williams raises the following two claims of ineffective assistance of trial counsel: (1) that his counsel was ineffective for allowing a biased juror on the jury that tried his case and (2) that his counsel was ineffective for not seeking to exclude, on the basis of State misconduct, victim Samer Saleh's identification of Williams as the person who shot him. These claims, never presented to the state courts (see Respondents' Exhibits 11, 12, 15, 19, 20), are procedurally defaulted in state court and procedurally barred from federal habeas review. The time has expired for raising these claims in a Rule 3.850 post-conviction motion in state court. See Florida Rule of Criminal Procedure 3.850(b) (requiring filing of a Rule 3.850 motion within two years of the conviction's becoming final). Asserting Martinez v. Ryan, 132 S.Ct. 1309 (2012), Williams asserts that his claims should still be reviewed even though he has not properly exhausted them because he was not appointed counsel to prepare his state post-conviction motion. Martinez allows a prisoner to establish cause by showing 1) that counsel was not appointed in the initial collateral review proceeding or 2) that appointed post-conviction counsel was ineffective under Strickland. 132 S.Ct. at 1318. Nevertheless, when a petitioner attempts to establish cause with regard to an underlying ineffectiveness of trial counsel claim, the claim must be "a `substantial one,' which is to say the prisoner must demonstrate that the claim has some merit." Id. at 1318. Williams is unable to do so because the factual allegations forming the basis of his claims fail to demonstrate either deficient performance or prejudice under Strickland.
Juror Dennis Lusk stated that he could not be 100% sure that he could be fair and impartial in deciding the case because he had once been the victim of an attack by a gang of youths while trying to recover his wife's stolen bicycle. (Trial Transcript, pp. 75-6, Respondent's Exhibit 3) Counsel strategically chose not to have the juror stricken for cause based on this single voir dire response. This strategic choice was not unreasonable in light of Mr. Lusk's statement — in response to additional voir dire questioning — that he could follow the judge's instruction on the defendant's right to remain silent, that he would not think that Williams must have done something or he would not be there, and that the charge absolutely could be a mistake. (Id. at 121) "Counsel's strategic decisions will not be second-guessed on collateral attack." Johnson v. State, 769 So.2d 990, 1001 (Fla. 2000). Furthermore, even if Williams were able to show deficient performance by counsel in this instance, he makes no showing whatsoever that there is any reasonable probability that the outcome of his trial would have been different had Mr. Lusk not served on the jury. Therefore, Williams fails to demonstrate that this claim of ineffective assistance of trial counsel has merit or, rather, is a "substantial" one.
Williams next asserts that trial counsel was ineffective for not seeking to exclude, on the basis of State misconduct, victim Samer Saleh's identification of Williams as the person who shot him. Williams argues that the investigating detectives' use of a single surveillance photo of him in a photopack that included a photo of five other individuals was highly suggestive and irreparably tainted the victim's identification of him. Williams again fails to demonstrate that this is a "substantial" claim of ineffective assistance. At the suppression hearing on this issue, Mr. Saleh testified that there was no doubt in his mind that Williams was the person who shot him and that his in-court identification was based on his memory of the crime and not on the photopack. (Id. at 19-21) In light of this testimony, Williams fails to show any reasonable probability that the identification testimony would have been suppressed had counsel challenged on the ground of state misconduct. Consequently, Williams fails to show prejudice. Finally, Williams does not qualify for the fundamental miscarriage of justice exception because he has no new and reliable evidence of actual innocence. Schlup v. Delo, 513 U.S. 298, 321-22, 130 L. Ed. 2d 808, 115 S.Ct. 851 (1995).
Williams asserts that his trial counsel was ineffective for not investigating and calling Catina Porter as a defense witness at trial to show that it was not Williams who shot the victim. This claim was raised by post-conviction counsel in his motion to supplement petitioner's Rule 3.850 motion. (Respondent's Exhibit 19) The motion to supplement was granted by the trial court, and the claim was considered and rejected on the merits after an evidentiary hearing. (Respondents' Exhibits 17, 18, 20) Williams fails to provide any valid basis for disturbing that ruling.
The trial court properly found that, even assuming that counsel was aware of the existence of Ms. Porter and that his choice to not investigate her amounts to deficient performance, Williams still must prove that the absence of investigation was so prejudicial as to render an unjust result. After hearing testimony from Ms. Porter, the trial court found that, even if presented at trial, the testimony would not have altered the outcome of the trial. (See February 25, 2005 Transcript, pp. 49-57) Ms. Porter testified that before the subject shooting she witnessed a physical altercation between a group of white and black males during which another black male was holding a gun but that she was not present at the location of the subject shooting. Thus, her testimony regarding the identity of the shooter is relevant only as to who she witnessed with a gun during the earlier altercation at the Amoco station, not at the actual site of the shooting. Ms. Porter's account of the events that she witnessed was included in the police report that Williams' counsel reviewed (see Respondent's Exhibit 20 at 3) and, consequently, counsel would have been able to determine that Ms. Porter would not be a useful defense witness because she did not see the shooting. Therefore, counsel's decision to not call Ms. Porter was a strategic one that is not be second-guessed on collateral attack. Johnson, 769 So. 2d at 1001. The state court's denial of relief was neither contrary to, nor an unreasonable application of, Strickland, and Williams is entitled to no relief.
To summarize, Williams fails to meet his burden to show that the state court's decision was either an unreasonable application of controlling Supreme Court precedent or an unreasonable determination of fact. As Burt v. Titlow, 134 S.Ct. 10, 15-16 (2013), recognizes, an applicant's burden under Section 2254 is very difficult to meet:
Accordingly, Williams' application for the writ of habeas corpus (Doc. 1) is
Williams 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 application. 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, Williams must show that reasonable jurists would find debatable both the merits of the underlying claims and 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, Williams is entitled to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is
ORDERED.
