STEVEN D. MERRYDAY, District Judge.
McGirt applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his convictions on forty-five counts of RICO, burglary, grant theft, and various forms of forgery, for which convictions McGirt is imprisoned for life. Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 7) The respondent admits the application's timeliness. (Response at 3, Doc. 7)
With the goal of stealing checks and credit cards, McGirt established a criminal enterprise comprising himself, his wife (Jennifer McGirt), and other members of his wife's family. The enterprise committed (1) a series of car burglaries outside of churches and daycare facilities and (2) a home burglary. The members of the enterprise were charged with cashing forged checks and using stolen credit cards. The trial lasted eight days and involved more than thirty witnesses. The evidence established crimes against (1) Heather Jo Brown, whose car was burglarized and her purse was stolen after she parked outside of a daycare center on June 1, 2004; (2) Toni Walsh, whose car was burglarized and whose purse was stolen when she took her son to kindergarten on August 17, 2004; (3) Christina Ann McDowell, whose car was burglarized and whose purse was stolen when she and her husband went to their children's school for a birthday party on August 20, 2004; (4) Judith Crowley, whose car was burglarized and whose baby bag (containing her purse, wallet, and cell phone) was stolen when she dropped-off her daughter at her pre-kindergarten school on September 10, 2004; (5) Jack Blanchard, whose Pinellas Park home was burglarized as he slept and whose roommate's pants and wallet were stolen on September 13, 2004; (6) Gail O'Conner, whose car was burglarized and whose purse was stolen while she was teaching tennis to children on September 14, 2004; and (7) Marsha McArthur, whose car was burglarized and whose purse was stolen while she was attending a church funeral dinner on September 17, 2004.
Law enforcement investigators identified Andre and Jennifer McGirt as possible suspects. While conducting an undercover surveillance, the police observed the McGirts commit the McDowell burglary. The police arrested the couple after following the McGirts to their home. Because she was on probation when arrested, Jennifer McGirt remained in jail. Andre McGirt was released on bond. While Jennifer McGirt was in jail, the police monitored telephone conversations between Andre McGirt and her. The monitoring produced incriminating evidence against Andre McGirt.
Andre and Jennifer McGirt were charged in a fifty-count information with (1) violating Florida's Rico statute; (2) committing many burglaries, thefts, and forgeries; (3) uttering forged checks; and (4) using stolen credit cards. Jennifer McGirt testified against Andre McGirt in exchange for a favorable plea agreement. The state's evidence against McGirt consisted primarily of testimony from Sonya West, William Reynolds, Alfonso Williams, Michelle Gramling and Jennifer McGirt, who were members of the enterprise. The prosecution introduced photographs and surveillance recordings from Wal-Mart and K-Mart. The recordings showed both McGirt with some of the above-identified members of the enterprise soon after several of the burglaries and some members of the enterprise using stolen credit cards to purchase or attempt to purchase merchandise. Neither this evidence nor the testimony of some of the store cashiers showed that McGirt himself used a stolen credit card at the stores. Similarly, no burglary victim was able to identify who committed the relevant burglary, and no bank teller was able to identify McGirt as cashing a forged check. The prosecution withdrew four of the counts before trial. The jury convicted McGirt of forty-five counts and acquitted on one count. Andre McGirt's defense was (1) that the evidence showed no involvement in racketeering, (2) that no money trail connected him to the stolen items, and (3) that the physical evidence, including surveillance tapes and photographs, did not show him committing a crime. McGirt argued that all of the testimonial evidence against him came from his wife and her family, who were biased against him because of self-interest and racial animus (Jennifer McGirt is Caucasian and Andre McGirt is African-American).
McGirt's state motion for post-conviction relief was summarily denied without an evidentiary hearing because the court determined that each claim was refuted by the record. The state court correctly rejected McGirt's claims of ineffective assistance of counsel because McGirt, as the leader of the criminal enterprise, is liable for an act by a member of his enterprise if the act was in furtherance of the enterprise. Most of McGirt's grounds for relief in his Section 2254 application show a misunderstanding about a principal's liability for an act by a participant in a criminal enterprise. This misunderstanding undermines much of his application.
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, 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, ___ U.S. ___, 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, ___ 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 on direct appeal affirmed McGirt's convictions and sentence. (Respondent's Exhibit 7) Similarly, in another per curiam decision without a written opinion the state appellate court affirmed the denial of McGirt's subsequent Rule 3.850 motion to vacate. (Respondent's Exhibit 16) The state appellate court's per curiam affirmances warrant 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 784S85 ("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."), and Bishop v. Warden, 726 F.3d 1243, 1255S56 (11th Cir. 2013) (describing the difference between an "opinion" or "analysis" and a "decision" or "ruling" and explaining that deference is accorded the state court's "decision" or "ruling" even if there is no "opinion" or "analysis").
Review of the state court decision is limited to the record that was before the state court.
Pinholster, 131 S. Ct. at 1398. McGirt 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 McGirt's post-conviction claims warrants deference in this case. (Order Denying Motion for Post-Conviction Relief, Respondent's Exhibit 14)
McGirt 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.
McGirt 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, McGirt 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. McGirt 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)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
McGirt 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, ___ U.S. ___, 134 S.Ct. 191 (2013).
In summarily denying McGirt's motion for post-conviction relief, the state court specifically recognized that Strickland governs a claim of ineffective assistance of counsel. (Respondent's Exhibit 14 at 2) Because the state court rejected the claims based on Strickland, McGirt cannot meet the "contrary to" test in Section 2254(d)(1). McGirt 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.
McGirt alleges that trial counsel rendered ineffective assistance by not investigating, deposing, and calling as a witness Eugene McGirt (a brother of McGirt), whom he alleges would have testified to having forged the check stolen from Gail O'Connor. Based on a misunderstanding about the law of principals, McGirt argues that his brother's testimony (that the brother forged the check) would have refuted the prosecution's evidence that a state witness saw McGirt forge the check. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 2S5) (citations to record omitted) (brackets original):
The post-conviction court rejected this claim because, whether McGirt, as the leader of the enterprise and as a principal, or his brother forged the check is irrelevant to McGirt's liability for the crime because he is liable for any act committed in furtherance of the enterprise. McGirt argues that his convictions, based on his liability as a principal, are invalid because the information did not charge him as a principal. Under Florida law the information need not designate that the defendant is charged as a principal. "[A] person is a principal in the first degree whether he actually commits the crime or merely aids, abets or procures its commission, and it is immaterial whether the indictment or information alleges that the defendant committed the crime or was merely aiding or abetting in its commission, so long as the proof establishes that he was guilty of one of the acts denounced by the statute." State v. Roby, 246 So.2d 566, 571 (Fla. 1971). See Hodge v. State, 970 So.2d 923, 927 (4th DCA 2008) (quoting Roby). See also State v. Larzelere, 979 So.2d 195, 215 (Fla. 2008) ("Under Florida law, a person who is charged in an Indictment or Information with commission of a crime may be convicted on proof that she aided or abetted in the commission of such crime.") (citations omitted). As a consequence, the post-conviction court reasonably applied Strickland by determining that trial counsel was not ineffective for not investigating, deposing, and calling Eugene McGirt. McGirt is entitled to no relief under ground one.
McGirt alleges that trial counsel rendered ineffective assistance by not investigating, consulting, and presenting the testimony of a handwriting expert even though McGirt gave counsel sufficient money to hire an expert. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 6) (citations to record omitted):
For the reasons stated under ground one, the post-conviction court reasonably applied Strickland by determining that McGirt proved no deficient performance because McGirt, as a leader of the enterprise and principal, is liable for an act committed in furtherance of the enterprise. McGirt is entitled to no relief under ground two.
McGirt alleges that trial counsel rendered ineffective assistance by not investigating, deposing, and presenting the testimony of Virginia Vanhoose (Jennifer McGirt's grandmother) and asserts that her testimony would establish that McGirt was financially secure and without the need to commit the charged crimes. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 6S7) (citations to record omitted):
Strickland requires proof of both deficient performance and consequent prejudice. The post-conviction court rejected McGirt's claim after determining that counsel did not perform deficiently. The court further determined that, based on McGirt's statements and the extensive incriminating evidence, McGirt failed to prove that he was prejudiced by counsel's not investigating, deposing, and presenting the testimony of Virginia Vanhoose. Because he does not show that the post-conviction court unreasonably applied Strickland, McGirt is entitled to no relief under ground three.
McGirt alleges that trial counsel rendered ineffective assistance by not impeaching Jennifer McGirt with her juvenile adjudication of a "prior check charge" to refute her testimony that McGirt taught her how to forge checks. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 8) (citations to record omitted):
The post-conviction court determined that, as a matter of state evidentiary law, the juvenile adjudication was unusable for impeachment purposes. As a general principle, an alleged violation of state law fails to assert a constitutional issue because the admissibility of evidence in a state trial is largely a matter for the state to decide without federal intervention. See McCullough v. Singletary, 967 F.2d 530, 535S36 (11th Cir. 1992) ("A state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved."), cert. denied, 507 U.S. 975 (1993), and Marshall v. Lonberger, 459 U.S. 422, 438, n. 6 (1983) ("[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules."). Federal review is available only in extreme circumstances. "[I]t is normally <within the power of the State to regulate procedures under which its laws are carried out,' and its decision in this regard is not subject to proscription under the Due Process Clause unless <it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Patterson v. New York, 432 U.S. 197, 201S202 (1977). The post-conviction court reasonably applied Strickland by determining that McGirt proved no deficient performance because counsel could not use a juvenile adjudication to impeach Jennifer McGirt.
In his reply (Doc. 11) McGirt argues that the inability to impeach Jennifer McGirt violated his rights under the Confrontation Clause as interpreted in Davis v. Alaska, 415 U.S. 308 (1974). McGirt asserted no Confrontation Clause argument in his motion for post-conviction relief. Consequently, this argument is unexhausted.
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."). See also 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.").
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). Because McGirt shows no basis for overcoming the procedural default, federal review of ground four is procedurally barred.
McGirt alleges that trial counsel rendered ineffective assistance by not objecting and moving for a mistrial based on the prosecutions knowing use of perjured testimony. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 8S10) (citations to record omitted):
The post-conviction court reasonably applied Strickland by determining that McGirt proved no prejudice. Once again, McGirt's claim is undermined by his misunderstanding about a principal's liability for an act by a participant in a criminal enterprise. Moreover, McGirt's Giglio claim is based on an unproven premise, specifically, that Detective Prescott testified falsely. Detective Prescott testified that during a monitored telephone conversation between McGirt and his wife McGirt stated that the Gail O'Connor check had been cashed. The conversation occurred on September 16th, however, the undisputed evidence proves that the check was not cashed until two days later. As a consequence, McGirt claims that Detective Prescott was lying about the telephone conversation. The undisputed evidence proves the falsity of the statement that the check had been cashed before the telephone conversation, but the evidence does not prove that Detective Prescott lied about the conversation. The evidence equally suggests that McGirt lied to his wife about cashing the check. Because he does not show that the post-conviction court unreasonably applied Strickland, McGirt is entitled to no relief under ground five.
McGirt alleges that trial counsel rendered ineffective assistance by not objecting and moving for a mistrial based on the prosecutor's misstatement of fact during closing argument. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 10S12) (citations to record omitted) (brackets original):
The post-conviction court reasonably applied Strickland by determining that McGirt proved no deficient performance and the court's ruling is consistent with federal practice. Closing argument is designed to "assist the jury in analyzing, evaluating and applying the evidence." United States v. Pearson, 746 F.2d 787, 796 (11th Cir. 1984). While a prosecutor may not go beyond the evidence presented to the jury, the prosecutor is not limited to a bare recitation of the facts; he may comment on the evidence and express the conclusions he contends the jury should draw from the evidence. United States v. Johns, 734 F.2d 657, 663 (11th Cir. 1984). Even if counsel's performance was deficient, McGirt shows no prejudice because he fails to show that the jury would have acquitted him if counsel had objected to the prosecutor's closing argument. Because he does not show that the post-conviction court unreasonably applied Strickland, McGirt is entitled to no relief under ground six.
McGirt challenges the cumulative effect of trial counsel's errors. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 12):
The post-conviction court's rejection of this claim is proper. McGirt can prove cumulative error only by showing two or more errors. "Without harmful errors, there can be no cumulative effect compelling reversal." United States v. Barshov, 733 F.2d 842, 852 (11th Cir. 1984), cert. denied 469 U.S. 1158 (1985). See Conklin v. Schofield, 366 F.3d 1191, 1210 (11th Cir. 2004) ("[T]he court must consider the cumulative effect of [the alleged errors] and determine whether, viewing the trial as a whole, [petitioner] received a fair trial as is [his] due under our Constitution."). Because each individual claim of error lacks merit, McGirt cannot show cumulative prejudicial effect. See Mullen v. Blackburn, 808 F.2d 1143, 1147 (5th Cir. 1987) ("Mullen cites no authority in support of his assertion, which, if adopted, would encourage habeas petitioners to multiply claims endlessly in the hope that, by advancing a sufficient number of claims, they could obtain relief even if none of these had any merit. We receive enough meritless habeas claims as it is; we decline to adopt a rule that would have the effect of soliciting more and has nothing else to recommend it. Twenty times zero equals zero."). The state court properly rejected each claim of ineffective assistance of counsel. As a consequence, cumulative error is not possible and McGirt is entitled to no relief under ground seven.
McGirt asserts entitlement to relief under Giglio v. United States, 405 U.S. 150 (1972), because the prosecutor knowingly used perjured testimony, specifically, the testimony of Detective Prescott as discussed in ground five. The post-conviction court denied this claim as follows (Respondent's Exhibit 14 at 12):
The respondent argues that this ground is procedurally barred from federal review because, as the post-conviction court ruled, McGirt should have raised the claim on direct appeal. A petitioner requesting a federal court to issue a writ of habeas corpus must present each claim to the state courts in the procedurally correct manner. Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995). The procedurally correct way to raise a claim of trial court error is on direct appeal.
Before a claim is procedurally barred from federal review, a state court must reject reviewing the claim based on the procedural deficiency. "[T]he mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: `The state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.'" Harris v. Reed, 489 U.S. 255, 262 (1989), quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). Also, the state court must state that it is enforcing the procedural rules. "[I]f <it fairly appears that the state court rested its decision primarily on federal law,' this Court may reach the federal question on review unless the state court's opinion contains a <plain statement' that its decision rests upon adequate and independent state grounds." Harris v. Reed, 489 U.S. at 261, quoting Michigan v. Long, 463 U.S. 1032, 1042 (1983). Consequently, citing to the state procedural rule and stating that the claim "could have been raised on direct appeal" or in some prior proceeding is insufficient. Harris v. Reed, 489 U.S. at 266. See also Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.) ("[W]here a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim."), cert. denied, 513 U.S. 1061 (1994). Consequently, the initial question is whether the state court issued a "plain statement" applying the independent and adequate state procedural bar. The state court's order contains a "plain statement" that invokes the state's procedural default rule and that declines to consider the claim based on the default rule, specifically, that the claim "could and should have been raised on direct appeal and thus [is] procedurally barred from consideration in a post-conviction motion." (Respondent's Exhibit 14 at 12) The post-conviction court's decision was summarily affirmed on appeal (Respondent's Exhibit 16), which decision is entitled to deference. See Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir. 1990) (A state appellate "court's per curiam affirmance of the trial court's ruling explicitly based on procedural default is a clear and express statement of its reliance on an independent and adequate state ground which bars consideration by the federal courts."). Consequently, federal review of ground eight is procedurally barred.
In his "Notice of Supplemental Authority" (Doc. 12) McGirt cites a state court decision that permits raising a Giglio claim post-conviction and that reverses a post-conviction court's rejection of the claim as procedurally defaulted. The review of McGirt's Section 2254 application is governed by the state court decisions issued in his criminal proceedings, not state court decisions issued in an unrelated proceeding. Moreover, the case McGirt cites is distinguishable because the alleged falsity of Detective Prescott's testimony is not based on the post-trial discovery of a fact. The discrepancy between when the check was supposedly cashed and when it was actually cashed was apparent on the face of the record.
Nevertheless, the claim lacks merit. Detective Prescott testified that, during a monitored telephone conversation between McGirt and his wife, McGirt stated that the Gail O'Connor check had been cashed, but the undisputed evidence proves that the check was not cashed until two days later. As determined in ground five, the undisputed evidence proves the falsity of the statement that the check had been cashed before the telephone conversation, but the evidence does not prove that Detective Prescott lied about the conversation. The evidence equally suggests that McGirt lied to his wife about cashing the check. As a consequence, McGirt does not prove that a Giglio violation occurred.
To summarize, McGirt fails to meet his burden to show that the state court's decision was an unreasonable application of controlling Supreme Court precedent or an unreasonable determination of fact. Burt v. Titlow, 134 S.Ct. 10, 15S16 (2013), recently recognized that this burden is very difficult to meet:
Accordingly, McGirt's application for the writ of habeas corpus (Doc. 1) is DENIED. The clerk must enter a judgment against McGirt and close this case.
McGirt 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, McGirt 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, McGirt is entitled to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. McGirt must obtain permission from the circuit court to appeal in forma pauperis.
ORDERED.
