SHERI POLSTER CHAPPELL, District Judge.
This matter comes before the Court upon a petition for habeas corpus relief and supporting memorandum filed pursuant to 28 U.S.C. § 2254 by Justin Collibee ("Petitioner") (Doc. 1; Doc. 2, filed January 30, 2015). Petitioner, a prisoner at the Moore Haven Correctional Facility in Moore Haven, Florida, attacks the conviction entered by the Twentieth Judicial Circuit Court in Collier County, Florida in 2007 for aggravated child abuse (Doc. 1 at 1). Respondent filed a response to the petition (Doc. 15). Petitioner filed a reply (Doc. 20).
Petitioner raises two claims in his petition. Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be dismissed or denied. Because the petition may be resolved on the basis of the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).
On August 27, 2007, Petitioner was charged with aggravated child abuse in violation of Florida Statute § 827.03(2)(Ex. 1 at 22).
On October 16, 2012, Petitioner filed a motion pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion") (Ex. 20). The post-conviction court denied relief (Ex. 25). Florida's Second District Court of Appeal affirmed (Ex. 28). Petitioner signed the instant petition on January 26, 2015 (Doc. 1).
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of a guilty verdict rendered in state court. Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979). Indeed, pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the Supreme Court has also explained that "the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since `a general standard' from [the Supreme Court's] cases can supply such law." Marshall v. Rodgers, 133 S.Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts "must reasonably apply the rules `squarely established' by [the Supreme] Court's holdings to the facts of each case. White, 134 S. Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 28 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.") (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a "doubly deferential" standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
The focus of inquiry under Strickland's performance prong is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Indeed, the petitioner bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," applying a "highly deferential" level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. That is, "[t]he 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." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The AEDPA precludes federal courts, absent exceptional circumstances, from granting habeas relief unless a petitioner has exhausted all means of available relief under state law. Exhaustion of state remedies requires that the state prisoner "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) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)). The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). In addition, a federal habeas court is precluded from considering claims that are not exhausted but would clearly be barred if returned to state court. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed to exhaust state remedies and the state court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, there is a procedural default for federal habeas purposes regardless of the decision of the last state court to which the petitioner actually presented his claims). Finally, a federal court must dismiss those claims or portions of claims that have been denied on adequate and independent procedural grounds under state law. Coleman, 501 U.S. at 750. If a petitioner attempts to raise a claim in a manner not permitted by state procedural rules, he is barred from pursuing the same claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural default will be excused only in two narrow circumstances. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both "cause" for the default and actual "prejudice" resulting from the default. "To establish cause for a procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) (internal quotation marks omitted). To establish prejudice, a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
The second exception, known as the fundamental miscarriage of justice, only occurs in an extraordinary case, where a "constitutional violation has probably resulted in the conviction of one who is actually innocent[.]" Murray v. Carrier, 477 U.S. 478, 479-80 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must "show that it is more likely than not that no reasonable juror would have convicted him" of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, "[t]o be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).
Petitioner asserts that trial counsel was ineffective for attempting to merely cast doubt on the state's case instead of arguing that the victim's mother, Michelle Murphy ("Murphy"), was the person actually responsible for the injuries inflicted on the child (Doc. 2 at 2). Specifically, he claims that:
Id. at 2-3. Petitioner raised this claim in his Rule 3.850 motion (Ex. 20). In response to the motion, the state argued inter alia that defense counsel had not, in fact, suggested that shaken baby syndrome does not exist — rather, counsel had: (1) presented a "multi-faceted" defense demonstrating that Murphy was as likely as Petitioner to have harmed the child out of frustration; (2) asked questions designed to create doubt about the timeframe of when the bleeding in the child's brain had begun; and (3) sought to suggest an alternate cause (other than "shaken baby syndrome") for the bleeding (Ex. 22 at 2-3). The post-conviction court, adopting the state's detailed response, denied the claim (Ex. 25). Florida's Second District Court of Appeal affirmed the post-conviction court's rejection (Ex. 28).
Petitioner does not dispute the post-conviction court's conclusion that defense counsel had sought to cast doubt on the state's case by presenting an explanation for the child's injuries other than Petitioner's actions. However, in the instant petition, Petitioner argues that the state courts missed the point he was trying to make in this claim:
(Doc. 2 at 3-4). In other words, Petitioner merely disagrees with counsel's strategy and believes that counsel should have blamed Murphy for the victim's injuries instead of attempting to show that Petitioner had not committed the crime or that no crime had even occurred. A petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy. Jones v. Barnes, 463 U.S. 745, 752 (1983). The burden is on the petitioner to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Michel v. Louisiana, 350 U.S. 91, 101 (1955) (internal quotations omitted).
Petitioner urges that counsel's decision not to focus the defense on blaming Murphy for the victim's injuries was unreasonable because Murphy is the mother of the victim; has a violent past; was alone with the victim prior to his injuries; has a psychiatric history; and played with the child by tossing him into the air (Doc. 2 at 4). Although Petitioner asserts that "there was plenty of evidence available to the Defense that would show that Michelle Murphy was unstable and unfit to be a responsible mother," he does not provide the Court with any such evidence. To the extent Petitioner relies on an inadmissible report from Child Protective Services ("CPT Report") containing Murphy's self-reported psychiatric history, a review of the report does not indicate that Murphy has a "violent past" as alleged by Petitioner. The report indicates that Murphy told the investigator that she participated in counseling when she was twelve to thirteen years old, was prescribed Zoloft for depression when she was fourteen, and was Baker Acted
Given that Petitioner does not dispute that counsel's strategy was designed specifically to cast doubt on the state's case, and given that Petitioner has not presented any admissible evidence to the Court implicating Murphy in the victim's injuries, under Strickland, this Court refrains from second-guessing what otherwise appears to be sound trial strategy. Claim One is denied. 28 U.S.C. § 2254(d).
Petitioner asserts that he was denied his Sixth and Fourth Amendment rights due to prosecutorial misconduct, including the state's knowing presentation of false or misleading evidence (Doc. 1 at 5). The basis of this claim is unclear. Petitioner does not indicate in his petition what "false or misleading" evidence was presented at his trial.
Even if instant claim is the same as that asserted in Claim Four of Petitioner's Rule 3.850 motion, it is unclear that he actually asserts a Giglio violation. Instead, despite its label, the gravamen of the claim raised in state court was that Petitioner believed there was insufficient evidence to support his conviction. Specifically, Petitioner stated in his Rule 3.850 motion:
(Doc. 20 at 39-34). If this is a sufficiency of the evidence claim, the procedurally correct way for Petitioner to have raised it in state court is by direct appeal. Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995) ("A petitioner requesting a federal court to issue a writ of habeas corpus must have presented his claims to the state courts in a procedurally correct manner."). Florida courts are clear that issues that could have been raised on direct appeal are not cognizable on collateral review. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla. 1995) ("[I]ssues that could have been, but were not, raised on direct appeal are not cognizable through collateral attack."). Moreover, post-conviction proceedings cannot be used as a second appeal. Swafford v. Dugger, 569 So.2d 1264, 1267 (Fla. 1990). A Florida District Court of Appeal's per curiam affirmance of a circuit 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." Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir. 1990). Because Petitioner failed to properly raise this claim in state proceedings, resulting in the application of a procedural bar by the state courts, the claim is likewise procedurally barred from review in this Court.
Even if the Court were to conclude that Petitioner properly raised a Giglio claim in his post-conviction motion as he now urges, the claim fails. See 28 U.S.C. § 2254(B)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). In Giglio v. United States, the Supreme Court held that when the prosecution solicits or fails to correct known false evidence, due process requires a new trial where "the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury[.]" 405 U.S. at 154. On habeas review, a petitioner must meet a more onerous standard to justify relief based on Giglio. The federal habeas petitioner must prove that: (1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned to be false testimony (a Giglio violation); and (2) the error had "substantial and injurious effect or influence in determining the jury's verdict." Trepal v. Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1112 (11th Cir. 2012) (applying the harmless error test that applies to federal habeas review of state convictions set forth in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Petitioner has satisfied neither of these requirements.
This claim appears to be based upon Petitioner's pique that he, not Michelle Murphy, was charged with harming the victim. To the extent Petitioner believes the prosecutor should have elicited testimony from Murphy that she told the Child Protective Team investigation that she played with the victim by tossing him in the air or that she had some psychological problems as a child, there was no testimony presented at trial, perjured or otherwise, on these issues for the prosecutor to correct — even if such would have been admissible at trial.
Moreover, a review of Murphy's testimony indicates that to the extent any false or incorrect testimony was presented, it did not have a substantial and injurious effect on the jury. Petitioner takes particular exception to Murphy's testimony at trial that she had not been cautioned to watch for seizures by the victim's doctor (T. at Supp. I, 21) and notes that the CPT report stated that "Ms. Murphy reported during the last pediatric check-up Landan received his vaccinations and the pediatrician told them that there may be the possibility that Landan may suffer from seizures. She stated the pediatrician instructed them to look for the symptoms of a seizure." (Doc. 23 at 2). This misstatement was corrected by Petitioner when he testified that, six weeks prior to the incident, the victim's doctor had cautioned him to watch for seizures after the victim's vaccination (T. at Supp. II, 13, 31). No evidence was presented at trial suggesting (and Petitioner does not now argue) that the victim was injured as a result of a vaccine-related seizure, and the jury was aware that the victim's doctor had cautioned the parents about the possibility of seizures related to the vaccine. Therefore, Murphy's trial testimony on this issue could not have had a substantial and injurious effect on the jury's verdict. In addition to being subject to dismissal as procedurally barred, Claim Two is denied on the merits.
Any of Petitioner's allegations not specifically addressed herein have been found to be without merit.
Petitioner 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"). "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, Petitioner must demonstrate that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has not made the requisite showing in these circumstances.
Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
1. The Florida Attorney General is
2. Claim One of the petition is
3. Petitioner is
4. The
