G.R. SMITH, Magistrate Judge.
Reginald Lynch, currently incarcerated at Coffee Correctional Facility in Nicholls, Georgia, seeks habeas relief from his Chatham County conviction for murder and possession of a firearm during a crime. Doc. 1 at 1-2; see also Lynch v. State, 291 S.E.2d 672 (Ga. 2012) (affirming criminal conviction). He has exhausted his state court remedies, having challenged the effectiveness of his appellate counsel through a state habeas petition. Doc. 1 at 3 (after a hearing, the state habeas court denied his petition on the merits); id. at 5 & 7 (the Georgia Supreme Court denied his application for a certificate of probable cause to appeal). He now seeks habeas relief from this Court, id. at 5, 7, and the State opposes.
"`Reggie Lynch, shot me.'" That's what victim Marcus Givens told Detective Dantzler when Givens was discovered lying mortally wounded in an alley. Lynch, 731 S.E.2d at 674. A second officer, Star Corporal Angel Grant, also heard Givens identify his shooter. Id. Another witness, Tiffany Davis (a relative of both Lynch and Givens), explained that on the day before, the two men had argued and "Lynch [had] told her that he was going to kill the victim." Id. Finally, Givens' cousin Leisha Givens testified that Givens had told her at the scene that Lynch had shot him, and that she had seen Lynch leaving the scene of the shooting in a white truck. Id. Based on that evidence, the Georgia Supreme Court affirmed Lynch's conviction. Id.
Lynch argued to the state habeas court that his appellate counsel was deficient for failing to raise on appeal several defects in his trial counsel's performance. Doc. 1 at 3. In particular, appellate counsel should have argued that trial counsel erred in failing to object, on Confrontation Clause grounds, to the testimony that Givens identified Lynch as his shooter. Also, appellate counsel should have challenged trail counsel's failure to object to a detective's testimony that invaded the province of the jury. Doc. 1 at 3. The state habeas court denied relief, and the Georgia Supreme Court denied him a certificate of probable cause. Id. (habeas denied); doc. 11-8 (denial of certificate of probable cause).
Lynch retreads those state-habeas grounds in support of his current petition. Doc. 1 at 5, 7. The State opposes, contending that the judgment of the state habeas court
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) bars federal courts from granting habeas relief to a state petitioner on a claim that was adjudicated on the merits in state court unless the state court's adjudication:
28 U.S.C. § 2254(d).
"AEDPA's standard is intentionally difficult to meet." Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (internal quotes and cites omitted). "[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, 562 U.S. 86, 103 (2011); id. at 102-03 (federal habeas review exists as "a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal."); see also White v. Woodall, 572 U.S. __, 134 S.Ct. 1697, 1702 (2014) (the "unreasonable application" of clearly established federal law under § 2254(d)(1) "must be objectively unreasonable, not merely wrong; even clear error will not suffice."); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (same).
As to the "facts" prong, the inquiry focuses not on whether "the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold." Shiriro v. Landrigan, 550 U.S. 465, 473 (2007); see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (it is not sufficient that "the federal habeas court would have reached a different conclusion in the first instance." Rather, the state court's decision must be "objectively unreasonable"). State factual findings have been found "unreasonable" under § 2254(d)(2) when the direction of the evidence, viewed cumulatively, was "too powerful to conclude anything but [the petitioner's factual claim]," Miller-El v. Dretke, 545 U.S. 231, 265 (2005), and when a state court's finding was "clearly erroneous," Wiggins v. Smith, 539 U.S. 510, 528-29 (2003); see Landers v. Warden, 776 F.3d 1288, 1294 (11th Cir. 2015).
AEDPA's requirements reflect a "presumption that state courts know and follow the law." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). "When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong." Woods, 135 S. Ct. at 1376. This is especially true for claims of ineffective assistance of counsel,
Finally, sandbagging is prohibited. Petitioners must submit their claims to the state courts first. New claims advanced to a federal habeas court but not to the proper state court face dismissal on exhaustion, if not procedural default, grounds.
Lynch contends appellate counsel was ineffective for failing to raise on appeal his claim that (1) trial counsel deficiently failed to object to Confrontation Clause-violating testimony from the lead detective; and (2) trial counsel failed to object when the detective testified that the evidence pointed to Lynch. Doc. 1. These arguments were raised before, and addressed on the merits by, the state habeas court. See Doc. 8-2 (petitioner's brief to the state habeas court), 11-7 (state court decision denying habeas corpus relief), & 11-8 (Georgia Supreme Court's denial of application for certificate of probable cause).
The police found Marcus Givens lying in an alley suffering from multiple gunshot wounds. He "appeared to be in serious pain, and his voice sounded gurgled," apparently due to blood in his lungs and throat. Lynch, 731 S.E.2d at 674. One of the responding officers asked for his name, and Givens responded "Reggie Lynch." Id. He clarified "Reggie Lynch, shot me" and repeated this statement at least three times before succumbing to his injuries. Id., see also id. (one responding officer initially thought he said "Reggie Leck" because his voice was so garbled by his injuries). Lynch argued in his state petition that Givens' identification was "made while two police officers were responding to [his] shooting. There was no evidence presented at trial that there were any steps taken that indicate the police believed there was an ongoing emergency . . . [Givens'] statements to the police were therefore testimonial and should not have been admitted." Doc. 11-4 at 6-7; see also doc. 1 at 5 ("This statement was testimonial" and thus did not fall under a hearsay exception). That argument fails.
The state habeas court held that:
Doc. 11-7 at 2-3.
The state habeas court's rejection of Lynch's Confrontation Clause claim is perfectly consistent with, not an unreasonable application of, clearly established federal law as determined by the Supreme Court. In Michigan v. Bryant, 562 U.S. 344 (2011), the Court applied its Confrontation Clause precedents to a set of facts almost identical to those presented by this case. There, as here, officers encountered a gun-shot victim in a public setting (there a gas station parking lot, here an alley) who appeared to be in great pain and who spoke only with difficulty. Id. at 348-49. The victim in Bryant, as in this case, identified the man who had shot him in response to the informal, on-scene questioning by the responding officers. In both Bryant and in this case the whereabouts of the armed perpetrator was unknown to the police. The Bryant Court concluded that because the circumstances surrounding the police-victim interaction "objectively indicate that the `primary purpose of the interrogation' was `to enable police assistance to meet an ongoing emergency,'" id. at 349, 377-78, not to gather evidence for trial, id. at 358, the victim's statements did not constitute "testimonial hearsay" that implicates the Sixth Amendment Confrontation Clause. See id. at 353-54 (the Sixth Amendment right to confront "the witnesses" against the defendant applies only to "testimonial statements" — solemn declarations made for the purpose of establishing some fact for later use at trial — not to "nontestimonial" statements made in response to police questioning whose chief purpose is to discover "what is happening" during an emergency situation rather than "what happened" on a past occasion) (citations and internal quotations omitted).
But even if this Court were to find the victim's statements to be testimonial in nature, the state habeas court's decision was nevertheless neither contrary to nor an unreasonable application of clearly established federal law. The Supreme Court has never held that dying declarations — even if testimonial — are subject to the Confrontation Clause. In fact, the Court has on more than one occasion suggested that dying declarations fall within one of two historical exceptions to the Sixth Amendment's bar against testimonial hearsay. Bryant, 562 U.S. at 351 n. 1 (noting that while it had not had the opportunity to rule definitively on the matter, its prior opinions "suggested that dying declarations, even if testimonial, might be admissible as a historical exception to the Confrontation Clause."); Giles v. California, 554 U.S. 353, 358-59 (2008) (recognizing as a historical exception to the Confrontation Clause the common law principle allowing the introduction of out-of-court testimonial statements from a witness whose absence the defendant wrongfully procured, and suggesting that the common law's allowance of unconfronted dying declarations constitutes a second such exception); Crawford v. Washington, 541 U.S. 36, 56 n. 6 (2004) (referencing the common law practice of allowing the admission of dying declarations as an exception to a defendant's confrontation right, but declining to decide in that case whether the Sixth Amendment incorporated that historical exception). Many lower courts have also recognized that the Supreme Court has "hinted that dying declarations may fall within an exception to the constitutional bar against testimonial hearsay." Walker v. Harry, 462 F. App'x 543, 545-46 (6th Cir. Feb. 13, 2012); see also Haynes v. Bergh, 2014 WL 6871263 at * 22 (E.D. Mich. Dec. 5, 2014).
Clearly, the state habeas court was correct in finding that the failure of Lynch's counsel to raise a Confrontation Clause challenge to the victim's dying declaration was not offensive to any "clearly established" law as determined by the Supreme Court. Lynch is therefore not entitled to federal habeas relief on this claim. 28 U.S.C. § 2254(d)(1). Hence, trial counsel had no legal basis for imposing an objection to its admission, see Jones v. Barnes, 463 U.S. 745, 751 (1983) (there is no "constitutional right to compel appointed counsel to press nonfrivolous points"), and appellate counsel was not deficient for failing to raise a meritless argument that trial counsel was ineffective. Strickland, 466 U.S. at 687.
On direct examination, the prosecutor asked Detective Tobar:
Doc. 11-3 at 91 (Trial Transcript Vol. II at 343). Trial counsel did not object to the question, but during his cross-examination of Tobar he elicited testimony about the two other suspects the State had investigated as potential perpetrators of the shooting. Id. at 92-101 (Trial Transcript Vol. II at 344-354).
In his state petition, Lynch argued that this exchange was "tantamount to testifying that [Lynch] is guilty," had "the effect of bolstering the state's witnesses because Tobar testified that the evidence and the witness only implicate Lynch," despite the fact that there was no physical evidence against Lynch and "Tobar had no knowledge of the case other than what he is repeating from other witnesses." Doc. 11-4 at 12-13. At the state habeas evidentiary hearing, appellate counsel conceded that such testimony was a conclusion that should have been left to the jury, and that he had missed the issue. Doc. 8-3 at 21 (State Habeas Evid. H'g Vol. I at 19). Petitioner seized upon this admission as proof appellate counsel was defective, doc. 11-4 at 13 ("Appellate counsel was deficient for not raising this issue. He did not have [a] strategy because it was an issue he did not consider."), see also doc. 1 at 7, contending that the fact that his first trial ended in a hung jury demonstrates the evidence was not overwhelming and Tobar's improper testimony, as the final witness in the State's case-in-chief, was the figurative straw that broke the camel's back. Doc. 11-4 at 13-14. Hence, appellate counsel's failure to harp on Tobar's testimony cost him his appeal, meeting Strickland's prejudice prong. Id. at 14.
This argument is without merit. As discussed by the state habeas court:
Doc. 11-7 at 3 (internal cites omitted).
That court therefore concluded that appellate counsel's performance — even if deficient for failing to raise trial counsel's strategic decision to forgo objecting in lieu of addressing Tobar's testimony on cross-examination — did not materially alter the outcome of the appeal. That conclusion was not an unreasonable application of the law or an unreasonable determination of the facts in light of the evidence available at trial. 28 U.S.C. §§ 2254(d)(1) & (2); see also Strickland, 466 U.S. at 694 (a defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."); Matire v. Wainwright, 811 F.2d 1430, 1434 (11th Cir. 1987) (same).
Indeed, even if appellate counsel should have raised the issue, petitioner cannot demonstrate that the outcome of the appeal would have been any different. Detective Tobar's testimony that the evidence pointed to Lynch — particularly after trial counsel's attempt on cross-examination to muster the slightest doubt that another shooter could have done the deed — did not alone tip the scales, given the State's overwhelming evidence of Lynch's guilt. See Lynch, 731 S.E.2d at 674 (statements by the victim that Lynch shot him and by a witness that Lynch told her he planned to kill the victim, the victim told her Lynch shot him, and that she saw Lynch drive away from the scene "was sufficient to enable the jury to find [him] guilty of the crimes for which he was convicted beyond a reasonable doubt.").
Because Lynch has shown no prejudice — much less "clear and convincing evidence" of it, see 28 U.S.C. § 2254(e)(1); Jones, 834 F.3d at 1311 — resulting from appellate counsel's oversight (of an argument that would have changed nothing about the outcome of his appeal), he has not demonstrated counsel was ineffective. Strickland, 466 U.S. at 687-88, 694; see also Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004) ("[A]ttorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. That the errors had some conceivable effect on the outcome of the proceeding is insufficient to show prejudice.").
Reginald Lynch has failed to show that the state habeas court's denial of his ineffectiveness claims was contrary to, or unreasonably applied, controlling United States Supreme Court precedent. See 28 U.S.C. § 2254(d). His claim of ineffective assistance of appellate counsel (doc. 1) is without merit and, accordingly, his § 2254 petition (doc. 1) should be
This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned "Objections to Magistrate Judge's Report and Recommendations." Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp., 648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x 542, 545 (11th Cir. 2015).
Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1331 (11th Cir. 2016). Prejudice is shown if "`but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Rivers v. United States, 2016 WL 2646647 at * 1 (S.D. Ga. May 9, 2016) (quoting Strickland, 466 U.S. at 687). That requires a "substantial," not just "conceivable," likelihood of a different result. Harrington, 131 S. Ct., at 791.
