Wm. TERRELL HODGES, Senior District Judge.
McNeal petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his convictions for trespass with a human being in the structure (Count I),
The victim was McNeal's ex-girlfriend with whom he had fathered a son. A couple of months after they separated McNeal appeared at the victim's apartment shortly before midnight and demanded to see his son. The victim refused because it was too late in the evening. Despite the victim's verbal refusal, McNeal gained entry into the apartment. The victim escaped to a neighbor's apartment. McNeal threatened to kill the victim. The victim called the police from the neighbor's apartment. McNeal left the premises before the police arrived.
Around 3:00 a.m. the victim was awakened by a loud "pow" outside of her bedroom window and the sound of glass shattering. She grabbed her children and again fled to a neighbor's apartment. While trying to awaken her neighbor, McNeal approached her carrying a "long gun" and he hit her. The neighbor "dragged" the victim to safety inside the neighbor's apartment. After this incident the police discovered (1) that the glass in the bedroom window was broken, (2) that the window frame was bent, and (3) that a hole now existed in the blinds covering the victim's bedroom window, the blanket covering the blinds, and the ceiling above the window. When asked what caused the hole, a detective testified that the "pattern was consistent with a shotgun at close range." Respondent's Exhibit C at 238-39.
On direct appeal McNeal's appointed counsel filed a brief (Respondent's Exhibit D) that is consistent with the requirements of Anders v. California, 386 U.S. 738 (1967). The state appellate court per curiam affirmed the conviction and sentence without a written opinion. Respondent's Exhibit F. A few months later McNeal petitioned for the writ of habeas corpus, in which he alleged the denial of the effective assistance of appellate counsel. The petition was denied. Respondent's Exhibit Z and CC. Thereafter McNeal petitioned for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure, in which he alleged the denial of the effective assistance of trial counsel. Respondent's Exhibit J. Both McNeal's motion for the appointment of counsel and his motion for reconsideration were denied. Respondent's Exhibits K-N. As a consequence of the denials, McNeal represented himself at the evidentiary hearing. The denial of post-conviction relief was affirmed per curiam without a written opinion. Respondent's Exhibit P and W.
McNeal timely filed his federal petition. Ground one alleges ten sub-claims of ineffective assistance of trial counsel. Ground two alleges one claim of trial court error. The respondent argues that many of the sub-claims of ineffective assistance of trial counsel are procedurally barred from federal review and that ground two fails to assert a federal claim reviewable in a petition under Section 2254.
A petitioner 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 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).
A claim barred by a procedural default in state court remains barred in federal court, absent a demonstration of "actual cause and prejudice" or "manifest injustice." Murray v. Carrier, 477 U.S. 478, 492 (1986); Engle v. Isacc, 456 U.S. 107 129 (1981); Wainwright v. Sykes, 422 U.S. 72 (1977); Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993).
In his two replies (Doc. 15 and 18) McNeal contests the unfairness of applying the doctrine of procedural default to preclude the review of his grounds for relief because, as a pro se litigant, he did not understand the requirements for properly developing his claims in state court. Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309, 1317 (2012) (brackets original), agrees with McNeal's assessment of a pro se litigant's likely inability to meet each procedural requirement.
McNeal might overcome the procedural default by showing "cause and prejudice" because he was denied the appointment of counsel in his state Rule 3.850 motion for post-conviction relief, which proceeding is, under Florida jurisprudence, the first opportunity to raise a claim of ineffective assistance of trial counsel.
Martinez, 132 S. Ct. at 1318. Because he was denied counsel in his post-conviction proceeding, McNeal meets the "cause" requirement under Martinez. But to fully overcome the procedural default, McNeal must also meet the "prejudice" requirement. To meet this burden McNeal must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." 132 S. Ct. at 1318. Whether McNeal meets his burden is addressed when each relevant ground is reviewed.
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). 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, ___ 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 on direct appeal affirmed McNeal's convictions and sentence. (Respondent's Exhibit F) Similarly, in another per curiam decision without a written opinion the state appellate court affirmed the denial of McNeal's subsequent Rule 3.850 motion to vacate. (Respondent's Exhibit W) 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. McNeal 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 McNeal's post-conviction claims warrants deference in this case. (Order Denying Motion for Post-Conviction Relief, Respondent's Exhibit P)
McNeal 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.
McNeal 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 691-92. To meet this burden, McNeal 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. McNeal 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).
McNeal 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 (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.").
The state court conducted an evidentiary hearing and denied the claims of ineffective assistance of counsel. In denying relief the post-conviction court found that Strickland governs each claim of ineffective assistance of counsel (Respondent's Exhibit P at 3-4), and as a consequence McNeal cannot meet the "contrary to" test in Section 2254(d)(1). Instead McNeal 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 requires that the analysis of each claim begin with the state court's analysis.
McNeal alleges that trial counsel rendered ineffective assistance by not establishing a proper foundation to impeach the state's witnesses. McNeal alleges that the trial testimony presented by the state's witnesses-Teresa Clinton, Sean Crowder, Eric Ellison, and Annette Lockhart-was "substantially different testimony than they gave previously[, s]pecifically statements given to the police and during depositions." McNeal contends that with proper preparation trial counsel "would have been able to impeach said witnesses statements regarding what really occurred at the scene of the crime. . . ."
The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 4-5) (citations to record omitted):
Both trial counsel's decision to cross-examine and counsel's manner of cross-examining are strategic decisions entitled to deference. Dorsey v. Chapman, 262 F.3d 1181 (11th Cir. 2001), cert. denied, 535 U.S. 1000 (2002). The only question is whether counsel's strategic decision was "reasonable." Minton v. Sec'y, Dep't of Corr., 271 Fed. App'x 916, 918 (11th Cir. 2008) ("The Supreme Court has <declined to articulate specific guidelines for appropriate attorney conduct and instead has emphasized that the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'") (quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003). McNeal has never identified-neither during the state Rule 3.850 proceeding nor in his federal petition-which pre-trial statements allegedly conflict with each witness's trial testimony so that impeachment was possible. As a consequence, the post-conviction judge reasonably applied Strickland by deferring to trial counsel's strategic decision.
McNeal alleges that trial counsel rendered ineffective assistance by not adequately arguing for a judgment of acquittal. The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 5-6) (citations to record omitted) (brackets original):
McNeal's motion for post-conviction relief (Respondent's Exhibit J at 6-7) is devoid of details to support a claim that trial counsel failed to adequately argue for a judgment of acquittal. As a consequence, the post-conviction judge reasonably applied Strickland in finding that this claim was conclusory.
In his federal petition, for the first time McNeal specifically complains that, in arguing for a judgment of acquittal, trial counsel should have challenged the trial court's accepting a police officer as an expert witness to testify about the damage caused by the gunshot. The respondent is correct that this argument is both unexhausted and procedurally defaulted. Under Martinez McNeal meets the "cause" requirement to overcome the procedural default, but whether he also meets the "prejudice" requirement will be address later under ground two, which alleges that the trial court abused its discretion by accepting the police officer as an expect witness.
McNeal alleges that trial counsel rendered ineffective assistance by (1) not seeking a severance of the felony possession of a firearm charge from the other counts and (2) not objecting to the amending of the information at trial. The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 6-7) (citations to record omitted):
The transcript of the pre-trial hearing fully supports the post-conviction judge's determination that, despite cautions from both the trial judge and trial counsel, McNeal insisted on a single trial for both the felony possession of a firearm charge and the other charges. (Respondent's Exhibit B at 228-31). As a consequence, the post-conviction judge reasonably applied Strickland by determining that trial counsel's performance was not deficient.
McNeal alleges that trial counsel rendered ineffective assistance by not withdrawing because of a conflict between them, specifically based on counsel's alleged failure to properly investigate the case. The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 7):
The post-conviction court's determination is consistent with federal jurisprudence. The Sixth Amendment right to counsel is a fundamental right. United States v. Cronic, 466 U.S. 648, 654 (1984) ("An accused's right to be represented by counsel is a fundamental component of our criminal justice system."), Argersinger v. Hamlin, 407 U.S. 25, 32 (1972) ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours."). However, the Sixth Amendment does not guarantee that a defendant will receive the appointment of counsel of his choice, Wheat v. United States, 486 U.S. 153 (1988), or that the defendant will have a meaningful attorney-client relationship. Morris v. Slappy, 461 U.S. 1 (1983). See also United States v. Cronic, 466 U.S. at 657, n.21 ("[T]he appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such."). But a criminal defendant is entitled to the assistance of an attorney who has no interest other than that of the defendant's.
A conflict of interest must be actual, not merely potential. "[T]he possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). Consequently, to prevail on a claim of conflict of interest, a petitioner must show (1) that there was an actual conflict and (2) that the conflict adversely effected counsel's performance.
To prove an actual conflict, "[t]he defendant must make a factual showing of inconsistent interests and must demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence that favors an interest in competition with that of the defendant." Buenoano v. Singletary, 74 F.3d 1078, 1086 n.6 (11th Cir. 1996) (citations omitted). "To prove adverse effect, a habeas corpus petitioner must show: (1) the existence of a plausible alternative defense strategy or tactic that might have been pursued; (2) that the alternative strategy or tactic was reasonable under the facts; and (3) a link between the actual conflict and the decision to forgo the alternative strategy of defense." Pegg v. United States, 253 F.3d 1274, 1278 (11th Cir. 2001), cert. denied, 535 U.S. 970 (2002).
McNeal shows neither an actual conflict nor an adverse effect. The post-conviction court correctly determined that McNeal's complaint about trial counsel was a disagreement over the handling of the case and not an actual conflict of interest. Consequently, the state court's ruling was neither an unreasonable determination of the facts nor an unreasonable application of clearly established law.
McNeal alleges that trial counsel rendered ineffective assistance by not ordering a complete record for the appeal. The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 7):
The state post-conviction court found that, as a matter of fact, "the complete trial record was ultimately provided to the appellate court" and determined that, because the appellate court had a complete record, McNeal "cannot demonstrate prejudice." McNeal must provide clear and convincing evidence to overcome the state court's finding of fact. 28 U.S.C. § 2254(e)(1) ("[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."). McNeal provides no evidence that warrants rejecting the state court's factual determination that the appellate court possessed a complete record. McNeal provides no basis for rejecting the state court's determination that McNeal cannot show prejudice. Consequently, the state court's ruling was neither an unreasonable determination of the facts nor an unreasonable application of Strickland.
McNeal alleges that trial counsel rendered ineffective assistance by not objecting to the sentencing scoresheet. The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 7-8):
McNeal's contention that the state court improperly used prior convictions to enhance his sentence is an issue not reviewable in federal court except under limited circumstances. A sentence within legislatively mandated guidelines is presumptively valid. Rummel v. Estelle, 445 U.S. 263, 272 (1980). If a sentence is within the statutory limits, state courts have wide discretion in determining "the type and extent of punishment for convicted defendants." Williams v. New York, 337 U.S. 241, 245 (1949). Consequently, federal habeas corpus review of an asserted violation of state sentencing law is limited.
McCullough v. Singletary, 967 F.2d 530, 535-36 (11th Cir. 1992), cert. denied, 507 U.S. 975 (1993). Accord Rodwell v. Singletary, 114 F.Supp. 1308, 1311 (M.D. Fla. 2000) ("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."). Even if McNeal is correct that the state court failed to properly apply the state's sentencing guidelines, the "federal courts cannot review a state's alleged failure to adhere to its own sentencing procedures." Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (citations omitted). The calculation of McNeal's sentence in accord with the state sentencing guidelines is a matter of state law and not reviewable by a federal petition for the writ of habeas corpus.
McNeal alleges that trial counsel rendered ineffective assistance by not filing a pre-trial motion to suppress the window blinds and the blanket that covered the blinds. McNeal contends that both items should have been suppressed because neither was tested for "gunpowder residue or any other forensic evidence. . . ." The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 8) (citations to record omitted):
Defense counsel testified at the post-conviction evidentiary hearing that, because the blinds and blanket each had a single hole and no testing was conducted for gunshot residue, he was able to argue that the state had failed to prove that McNeal had fired a shotgun. (Respondent's Exhibit O at 173) As a matter of trial strategy, defense counsel used the lack of testing to bolster his argument.
The term "strategy" is broadly defined. "By <strategy,' we mean no more than this concept: trial counsel's course of conduct, that was neither directly prohibited by law nor directly required by law, for obtaining a favorable result for his client." Chandler v. United States, 218 F.3d at 1314 n.14. See also Felker v. Thomas, 52 F.3d 907, 912 (11th Cir. 1995) ("Within that wide range of reasonable professional assistance [that is constitutionally acceptable], there is room for different strategies, no one of which is <correct' to the exclusion of all others.") and Stanley v. Zant, 697 F.2d 955, 964 (11th Cir. 1983) (holding that choosing a specific line of defense to the exclusion of others is a matter of strategy). Trial counsel must decide which strategic and tactical option to pursue, such as deciding which witness or defense to present. See e.g., Dingle v. Sec'y, Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007) (" Even if counsel's decision appears to have been unwise in retrospect, the decision will be held to have been ineffective assistance only if it was `so patently unreasonable that no competent attorney would havechosen it.'"), quoting Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983). Consequently, the state court's ruling was neither an unreasonable determination of the facts nor an unreasonable application of Strickland.
McNeal alleges that trial counsel rendered ineffective assistance by not arguing that the numerous charges in the information violated his right to be free from double jeopardy. The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 9) (citations to record omitted):
The federal petition contains the same conclusory allegation. McNeal fails to identify which counts he contends violated his right to be free from double jeopardy. McNeal fails to substantiate his claim that counsel performed deficiently and that he was prejudiced. Consequently, the state court's ruling was neither an unreasonable determination of the facts nor an unreasonable application of Strickland.
McNeal alleges that trial counsel rendered ineffective assistance by not objecting to the prosecutor's "persistent and improper comments on alleged facts that were not in evidence. . . ." The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 9-10) (citations to record omitted):
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). The prosecutor's comment that "he did it" is no more than the prosecutor's permissible conclusion drawn from the evidence.
The trial judge instructed the jury before closing argument that the attorneys' arguments were not evidence. (Respondent's Exhibit C at 303) In the context of the trial, the prosecutor's comment, even if improper, neither rendered the trial fundamentally unfair nor infected the trial with such unfairness that the conviction amounts to a denial of due process.
McNeal fails to show that, if counsel had objected to the prosecutor's closing argument, the jury would have acquitted him. Consequently, McNeal fails to meet his burden of proving that the state court unreasonably applied controlling Supreme Court precedent or unreasonably determined the facts in rejecting this claim. See 28 U.S.C. § 2254(d).
McNeal alleges that trial counsel rendered ineffective assistance by not asserting "vindictive prosecution." In the state proceeding this claim was based on three reasons. In the federal petition McNeal relies on only the claim that the prosecutor added more counts in an amended information after McNeal insisted on a trial. The state post-conviction court rejected this claim as follows (Respondent's Exhibit P at 10-11) (citations to record omitted):
The state post-conviction court's decision is consistent with controlling federal jurisprudence, as explained in United States v. Goodwin, 475 U.S. 368, 380 (1982).
Goodwin rejects creating a presumption of vindictiveness when charges are added before trial, as compared to a presumption of vindictiveness when charges are added after a successful appeal. See Blackledge v. Perry, 417 U.S. 21 (1974). McNeal must present evidence to overcome the lack of a presumption of vindictiveness. McNeal presents no basis for inferring vindictiveness. See also United States v. Barner, 441 F.3d 1310, 1321 (11th Cir. 2006) ("Since Barner has shown nothing more than his assertion of rights through pre-trial motions, followed by augmentation of the charges against him, there are no compelling factors which would justify invoking the presumption of prosecutorial vindictiveness."). As a consequence, defense counsel had no basis for asserting a claim of "vindictive prosecution." McNeal fails to meet his burden of proving that the state court unreasonably applied controlling Supreme Court precedent or unreasonably determined the facts in rejecting this claim. See 28 U.S.C. § 2254(d).
McNeal alleges that the "trial court abused its discretion when it qualified Detective Kimberly Hires as an expert witness for shotgun pellets and patterns." The respondent correctly argues that this substantive claim of trial court error is unexhausted because McNeal never raised this claim on direct appeal. McNeal makes no attempt to overcome this procedural default.
McNeal did present this claim under the guise of ineffective assistance of appellate counsel based on appellate counsel's failure to challenge the trial court's accepting the witness as an expert witness. (Respondent's Exhibit Z) Following a thorough response (Respondent's Exhibit AA), the appellate court summarily rejected the claim without comment. (Respondent's Exhibit CC) The federal petition asserts no claim based on the ineffective assistance of appellate counsel.
However, McNeal asserts this claim under the guise of ineffective assistance of trial counsel based on trial counsel's failure to object to the trial court's accepting the witness as an expert witness. As discussed earlier under sub-part B of ground one, McNeal's failure to include this claim of ineffective assistance of trial counsel in his motion for post-conviction relief might be excused under Martinez. But to fully overcome the procedural default, McNeal must also meet the "prejudice" requirement. To meet this burden McNeal must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." 132 S. Ct. at 1318.
McNeal stood little chance of precluding the trial court from accepting the police officer as an expert witness.
Ramos v. Sec'y, Dep't of Corr., 441 Fed. App'x 689, 693 (11th Cir. 2011). Under Strickland McNeal must prove both deficient performance and resulting prejudice. McNeal cannot show that defense counsel performed deficiently. Defense counsel objected when the witness was initially tendered as an expert, and after the prosecutor established a greater foundation, the trial court accepted the witness as an expert notwithstanding defense counsel's renewed objection. (Respondent's Exhibit C at 236-38) As a consequence, McNeal's fails to meet his burden under Strickland to prove his claim of ineffective assistance of trial counsel regarding the trial court's accepting the police officer as an expert witness.
Accordingly, McNeal's petition for the writ of habeas corpus (Doc. 1) is
IT IS SO ORDERED
DONE AND ORDERED.
