STEVEN D. MERRYDAY, District Judge.
Price petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his convictions for kidnapping, for which Price serves eighteen years in prison. Numerous exhibits ("Respondent's Exhibit ____") support the response. (Doc. 7) The respondent correctly argues that some of the grounds are procedurally barred from federal review and that the remaining grounds lack merit. The respondent offers no challenge to the petition's timeliness.
In 2004 Price was arrested for battering his girlfriend. Price struck the victim several times and prevented her from fleeing her apartment by continuing to abuse her. The victim eventually escaped Price and hid in the bushes surrounding the apartment until law enforcement arrived. Two sheriff's deputies arrived and arrested Price after witnessing the badly beaten victim running toward them with Price close behind her. A jury found Price guilty of felony battery, resisting arrest without violence, and kidnapping. Price was sentenced to eighteen years in prison, which was affirmed on direct appeal. (Respondent's Exhibit 6) Price asserted five grounds of ineffective assistance of counsel in a timely Rule 3.850 motion, which was denied and affirmed on appeal. (Respondent's Exhibit 10) Price asserts seven grounds in his habeas petition, two of which are unexhausted.
Price 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, 518-19 (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.
A petitioner 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 respondent opposes grounds five and seven specifically because Price failed to exhaust.
Price claims that his counsel was ineffective for not objecting when photographs of both the victim and her apartment were admitted into evidence. Price contends that the trial court should have excluded the photographs because they were taken the day after the incident and because they were allegedly falsified to support testimony against him. In ground five Price claims that counsel was ineffective for not adequately objecting to the admission of the photographs. In ground seven Price claims that his counsel was ineffective for not filing a motion to suppress the photographs. Because Price presented neither of these claims in his rule 3.850 motion (Respondent's Exhibit 8), the claims are unexhausted and procedurally defaulted.
To overcome this procedural default, Price must show either (1) cause and prejudice or (2) a miscarriage of justice, such as "actual innocence" or "manifest injustice." Rozzelle v. Sec'y Fla. Dep't of Corr., 672 F.3d 1000, 1008 (11th Cir. 2012). Price asserts no argument in either his petition or his reply to avoid this procedural default. Further, no basis for avoiding this default is facially visible from the record. Consequently, Price's claims in grounds five and seven are procedurally barred from federal review.
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. at 694. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-87 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams 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. 685, 693 (2002). Federal courts must afford due deference to a state court's decision. "AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1866 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt'. . . .") (citations omitted).
In a per curiam decision without a written opinion the state appellate court affirmed Price's convictions and sentence on direct appeal. (Respondent's Exhibit 6) Similarly, in another per curiam decision without a written opinion the state appellate court affirmed the denial of Price's subsequent Rule 3.850 motion to vacate. (Respondent's Exhibit 10) 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 784-85 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").
Review of the state court decision is limited to the record that was before the state court.
Pinholster, 131 S. Ct. at 1398. Price bears the burden of overcoming a state court factual determination by clear and convincing evidence. "[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 Price's post-conviction claims warrants deference in this case. (Order Denying Motion for Post-Conviction Relief, Respondent's Exhibits 9)
Price 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.
Price must demonstrate that counsel's error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To meet this burden, Price must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." 466 U.S. at 690-91. Price cannot meet his burden merely by showing that the avenue chosen by counsel proved unsuccessful.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (counsel has no duty to raise a frivolous claim).
Price 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). In determining "reasonableness," a federal petition for the writ of habeas corpus permits an independent assessment of "whether the state habeas court was objectively reasonable in its Strickland inquiry" but 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). Sustaining a claim of ineffective assistance of counsel is very difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at 1410 (A petitioner must overcome this "`doubly deferential' standard of Strickland and the AEDPA."), and Johnson v. Sec'y, Dep't of Corr., 643 F.3d 907, 911 (11th Cir. 2011) ("Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.").
In summarily denying Price's motion for post-conviction relief, the state court specifically recognized that Strickland governs a claim of ineffective assistance of counsel. (Respondent's Exhibit 9 at 2) Because the state court rejected the claims based on Strickland, Price cannot meet the "contrary to" test in Section 2254(d)(1). Price instead must show that the state court unreasonably applied Strickland or unreasonably determined the facts. In determining "reasonableness," a federal petition 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 require that the analysis of each claim begin with the state court's analysis.
Price alleges that his trial counsel was ineffective for not calling Kevin Hunter as a witness. Price alleges that Hunter was present during the incident and that Hunter would have contradicted the victim's testimony. Price alleges that Hunter would have testified (1) that Price was angered after Hunter grabbed Price in a sexual manner, (2) that Price never prevented Hunter or the victim from leaving the residence, and (3) that Price only hit the victim in self-defense after he was threatened when the victim began smashing glass bottles. (Doc. 2 at 3) Price's post-conviction court reasonably applied Strickland and concluded that even if Hunter testified to these facts, Price suffered no prejudice. (Respondent's Exhibit 9 at 3)
Price unconvincingly argues that Hunter's alleged testimony would have undermined the victim's testimony and the trial verdict. The record shows that the victim's testimony was supported by competent and substantial evidence. (Respondent's Exhibit 9 at 4-6) The victim's detailed testimony was corroborated by numerous photographs and by the testimony of the two sheriff's deputies who first arrived on the scene. The post-conviction court found that the deputies' testimony refuted both the allegations that Hunter was at the scene and that Price was acting in self-defense. (Respondent's Exhibit 9 at 6) (citations to the record omitted):
Price also alleges that Hunter would have testified that he helped the victim falsify photographs admitted into evidence. (Doc. 2 at 3) Price's claim is unpersuasive for several reasons. First, the proposition that Hunter would freely incriminate himself by admitting to evidence tampering in open court is unreasonable. Second, the photographs in question were properly authenticated and admitted by the court with the understanding that they were taken the day after the incident. (Respondent's 12 vol. 2 at 52) Lastly, the photographs' accuracy in depicting the victim's injuries was supported by the testimony of Deputies Damato and Dolgos. (Respondent's Exhibit 9 at 6)
The post-conviction court reasonably concluded that Price could not show prejudice. There is no reasonable probability that Hunter's alleged testimony would have impeached the testimony of the victim, Deputy Damato, and Deputy Dologos. Analysis of deficient performance is not necessary because Price shows no prejudice. Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). Consequently, ground one lacks merit.
Price alleges that counsel incorrectly advised him on his right to testify by informing Price that the prosecution would use his prior convictions to impeach him.
The evidence presented against Price was extensive. A significant portion of the victim's detailed testimony was corroborated by testimony of sheriff's deputies who saw the victim run toward them with Price chasing her. (Respondent's Exhibit 12 vol. 2 at 69) The two deputies testified that, although the victim was badly beaten, Price had no visible defensive injuries. (Respondent's Exhibit 12 vol. 2 at 74 and 84) The victim's testimony was also supported by the photographs that were entered into evidence. (Respondent's Exhibit 12 vol. 2 at 49 and 53) The post-conviction court reasonably determined that the evidence was overwhelmingly contrary to Price's proposed testimony.
The post-conviction court properly applied Strickland in finding that Price was not prejudiced by counsel's alleged misadvice. Price fails to show that his self-serving testimony was "sufficient to undermine the outcome of the trial." Strickland, 466 U.S. at 694. Instead, Price's allegation of self-defense is refuted by the abundance of evidence to the contrary. Analysis of deficient performance is not necessary because Price shows no prejudice. Sims, 155 F.3d at 1305. Consequently, ground four lacks merit.
Price claims that his counsel was ineffective for not filing an adequate motion for judgment of acquittal.
Price's allegation of deficient performance is refuted by the record because a review of Florida's kidnapping statute shows that counsel's motion properly challenged the elements of the offense. Florida defines kidnapping as (1) the confinement of a person against his or her will, (2) without lawful authority and, (3) with the intent to "inflict bodily harm upon or to terrorize the victim. . . ." § 787.01(1)(a)(3) Fla. Stat. (2004). Because the prosecution based the kidnapping charge on the allegation that Price confined the victim to facilitate a felony battery, the trial court properly charged the jury (Respondent's Exhibit 12 vol. 1 at 27) on the meaning of "confinement," as defined in Faison v. State, 426 So.2d 963, 965 (Fla. 1983):
Therefore, the prosecution had the burden of proving both confinement and that the confinement facilitated the commission of a felony. Counsel's motion for judgment of acquittal attacked the kidnapping charge by first attacking the state's sufficiency of evidence for the felony battery charge. (Respondent's Exhibit 12 vol. 2 at 87-88) Counsel asserted that "[a]s to the kidnapping charge, I would like to move for a judgment of acquittal based on the fact that [Price] was not committing a felony." (Respondent's Exhibit 12 vol. 2 at 88) Counsel was not deficient for failing to assert that the state's evidence was insufficient to prove each element of kidnapping.
Assuming deficient performance, a review of the record shows no prejudice because the prosecution presented competent evidence to overcome Price's proposed motion. Florida precedent establishes that the standard for a judgment for acquittal is whether the prosecution has "introduce[d] competent evidence inconsistent with the defense's theory." Haugabrook v. State, 827 So.2d 1065, 1068 (Fla. 2nd DCA 2002). The trial court must review the prosecution's evidence in a light most favorable to the state in determining whether "the jury could infer guilt to the exclusion of all other inferences." State v. Law, 559 So.2d 187, 189 (1989). The prosecution is not required to conclusively rebut every possible variation of events inferred from the evidence. Law, 599 So. 2d at 189. The prosecution only needs to offer legally sufficient evidence inconsistent with the defense's theory. 599 So. 2d at 189.
The post-conviction court reviewed the trial transcript and found that the prosecution had presented sufficient evidence. (Respondent's Exhibit 9 at 9) (citations to the record omitted):
The prosecution entered into evidence numerous photographs to support the victim's detailed testimony that Price subjected her to a prolonged beating and precluded her from leaving. (Respondent's Exhibit 12 vol. 2 at 48-54) Deputies Damato and Dologos' testimony corroborated the prosecution's evidence that the victim looked and acted like she had endured a prolonged beating. (Respondent's Exhibit 12 vol. 2 at 69) The deputies also testified that Price had no visible injuries or defensive wounds. (Respondent's Exhibit 12 vol. 2 at 74 and 84) The prosecution provided substantial evidence through photographs and witness testimony supporting the allegation that Price struck the victim multiple times and prevented her from escaping his control by continuing to abuse her. Price shows no prejudice because his counsel advanced a proper motion for a judgment of acquittal and Price's suggested expansion of the motion would not have changed the outcome. Because Price's claim satisfies neither component of Strickland, ground two lacks merit.
After the jury read the verdicts on all three counts, the trial judge observed a significant emotional reaction by the jury after the clerk read not guilty on the kidnapping charge. The trial judge began polling the jury and after the first two jurors disagreed with the not guilty verdict the jury was ordered to conduct further deliberations. (Respondent's Exhibit 12 vol. 2 at 132) Price alleges that his counsel was ineffective for both not moving for a new trial on the kidnapping charge and filing a deficient motion for a mistrial. (Doc 2 at 9) The post-conviction court denied both claims.
The post-conviction court reasonably determined that there was no legal basis for a new trial. (Respondent Exhibit 9 at 9):
The overwhelming evidence for a kidnapping conviction, cited throughout this order, demonstrates that the post-conviction court reasonably determined that the jury verdict was not against the weight of the evidence. The post-conviction court reasonably found no prejudice under Strickland because there was no basis to grant a new trial. Further, because no motion for a new trial would have had merit, Price's counsel was not deficient for failing to assert the motion. See Jones v. Barnes, 463 U.S. 745, 751 (1983). Consequently, this portion of Price's claim lacks merit.
The post-conviction court also reasonably determined that his counsel was not ineffective for filing an allegedly deficient motion for a mistrial. (Respondent's Exhibit 9 at 9-12) (citations to the record omitted):
Review of Florida precedent shows that Price was not prejudiced by counsel's allegedly deficient motion because there was no legal basis for a mistrial in this case. Therefore, the post-conviction court correctly found no error by the trial court.
Price admits in his petition that once a juror voices a disagreement with the verdict the court may order the jury to deliberate further. Brutton v. State, 632 So.2d 1080, 1082 (Fla. 4th DCA 1994). However, Price erroneously asserts that an adequate basis for a mistrial exists when a juror disagrees with the verdict during polling. (Doc. 2 at 9) See Bouie v. State, 540 So.2d 925 (Fla. 3d DCA 1989) (holding that there is no basis for a new trial where a juror states his disagreement with the verdict during polling). In this case, two jurors were polled and both disagreed with the verdict as originally read. After a brief consultation in the jury room the jury returned in less than a minute with a unanimous guilty verdict. (Respondent's Exhibit 12 vol. 2 at 134-35) This is highly suggestive of a scrivener's error by the jury and not the result of "attempted coercion" by the trial court. See Gonzalez v. State, 627 So.2d 63, 64 (Fla. 2d DCA 1993). The post-conviction court reasonably found no prejudice because the proposed motions for a mistrial and a new trial lack a legal basis. Analysis of deficient performance in counsel's motion for mistrial is not necessary because Price shows no prejudice. Sims, 155 F.3d at 1305. Consequently, ground three lacks merit.
Price alleges that counsel was ineffective for not timely objecting to the jury instructions. Price contends that the omission of the lesser-included offense to the kidnapping charge confused the jury and caused a guilty verdict. (Doc. 2 at 14) The respondent correctly asserts (Doc. 7 at 37) that the record directly refutes the allegation that the jury instruction of "false imprisonment" was omitted.
The post-conviction court reasonably applied Strickland in holding that Price failed to show ineffective assistance. The alleged error, concerning the sequence in which the instructions were read, was not prejudicial. See United States v. Marques, 600 F.2d 742, 749 (9th Cir. 1979) (holding that Marques was not prejudiced when the jury instructions were not read in his preferred order). Price alleges that if his trial counsel objected to the jury instructions "the jury would not have become confused and easily led to a verdict of guilty." (Doc. 2 at 15) However, while the instructions were not read in the sequence Price preferred, the trial court properly read each instruction to the jury. Further, the jurors were provided with printed copies of each instruction and guidelines for considering lesser-included offenses. (Respondent's Exhibit 12 vol. 2 at 25-31) Federal courts will not "blindly accept speculative and inconcrete claims" as the basis for ordering a hearing. Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985). Price asserts a speculative claim because he fails to provide a legitimate basis for how the allegedly confusing instructions continued to prejudice him after the jury received printed copies of the correct instructions.
Further, a crucial assumption underlying the jury system is that a jury will follow the trial judge's instructions. Parker v. Randolph, 442 U.S. 62, 73 (1979). The jurors were provided with the correct instructions and Price offers no evidence to overcome the presumption that the jurors followed each instruction. The post-conviction court's finding no prejudice was a reasonable application of Strickland. Analysis of deficient performance is not necessary because Price shows no prejudice. Sims, 155 F.3d at 1305. Consequently, ground six lacks merit.
Accordingly, Price's petition for the writ of habeas corpus (Doc. 1) is
Price 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 of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability ("COA"). Section 2253(c)(2) limits the issuing of a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." To merit a certificate of appealability, Price must show that reasonable jurists would find debatable both (1) the merits of the underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because Price fails to show that reasonable jurists would debate either the merits of the claims or the procedural issues, Price cannot meet Slack's prejudice requirement. 529 U.S. at 484. Finally, Price is not entitled to appeal in forma pauperis because he is not entitled to a certificate of appealability.
Accordingly, a certificate of appealability is
