JOHN ANTOON, II, District Judge.
Petitioner, Benjamin E. Smith ("Smith"), initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Respondents filed a Response to the Petition in accordance with this Court's instructions. (Doc. 13). Smith thereafter filed a Reply to the State's Response (Doc. 16), and then an Amended Reply to the State's Response. (Doc. 18). For the reasons set forth below, the petition is denied.
The procedural history is lengthy and spans nearly twenty years. In August 1998, a grand jury returned an indictment charging Smith with first degree murder, attempted first degree murder, and attempted burglary of a vehicle. (Doc. 14-1 at 65-66). In May 2000 a jury found Smith guilty as charged (Doc. 14-2 at 80-84), and the trial judge sentenced him to life for first degree murder, fifteen years for attempted first degree murder, and three years for attempted burglary. (Doc. 14-2 at 96-98). Smith appealed. (Doc. 14-6 at 2). The Florida Fifth District Court of Appeal (the "Fifth DCA") affirmed per curiam in May 2001. (Doc. 14-6 at 85).
Smith filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure in April 2003. (Doc. 14-6 at 90). The trial court denied the motion in September 2004. (Doc. 14-7 at 96). Smith appealed (Doc. 14-8 at 2), and the Fifth DCA affirmed per curiam in February 2005. (Doc. 14-8 at 62).
Smith filed a second motion for post-conviction relief in March 2006. (Doc. 14-8 at 67, 77). This motion challenged his conviction on the ground of newly-discovered evidence. Smith argued that one of the State's witnesses (Mazie Pauldo) recanted her earlier identification of him as the shooter and that, without this identification, the State could not prove its case against him. The trial court denied this motion in March 2008. (Doc. 14-9 at 53). Smith appealed (Doc. 14-9 at 58), and the Fifth DCA reversed and remanded for an evidentiary hearing. (Doc. 14-9 at 99).
The trial court conducted an evidentiary hearing and, at the conclusion, granted Smith's motion and ordered a new trial. (Doc. 14-10 at 335, 338). The State appealed (Doc. 14-10 at 341), and the Fifth DCA reversed and remanded in January 2011, instructing the trial court to determine whether there was sufficient evidence to find police or prosecutorial misconduct. (Doc. 14-11 at 2).
After an evidentiary hearing in March 2011, the trial court determined that there was insufficient evidence to support findings of misconduct. (Doc. 14-11 at 32). Smith appealed (Doc. 14-11 at 35), and the Fifth DCA affirmed per curiam in March 2013. (Doc. 14-11 at 89). Smith filed a motion for rehearing (Doc. 14-11 at 91), which the Fifth DCA denied in April 2013. (Doc. 14-11 at 97).
Smith then sought a writ of mandamus from the Florida Supreme Court. (Doc. 14-11 at 149). That Court denied the writ in December 2013. (Doc. 14-11 at 173). Smith next sought a similar writ from the Fifth DCA. (Doc. 14-11 at 175). The Fifth DCA denied the writ in September 2014. (Doc. 14-11 at 188).
Smith now seeks habeas relief in this Court, claiming actual innocence and a violation of his constitutional rights based on police and prosecutorial misconduct in connection with the investigation that led to his arrest and the prosecution that followed. (Doc. 1).
In 1996, a group of family members and friends attended an event at the Citrus Bowl in Orlando. (Doc. 14-3 at 215). As the group returned to the parking lot Terry Manley saw a Black male acting suspiciously in the area where the group had parked. (Doc. 14-3 at 217). Manley approached and saw someone inside one of the vehicles. (Doc. 14-3 at 220). Manley startled the individual, causing him to flee, but not before the individual brandished a gun. (Doc. 14-3 at 221-22). Manley, along with three other members of the group (Ellis Tapley, Kenneth Dozier and Lee Keith) began to chase the suspect (Doc. 14-3 at 222-23). During the chase, the suspect shot Tapley and Dozier (Doc. 14-3 at 230); Tapley died at the scene. (Doc. 14-3 at 231). Mazie Pauldo witnessed Tapley's shooting from her car, which was parked on an adjacent street. (Doc. 14-4 at 56-59). The shooter ultimately eluded capture by his pursuers.
Law enforcement officers investigating the shooting showed Manley, Pauldo and Keith photo arrays of people in an effort to identify the suspect. Manley and Pauldo identified Smith. (Doc. 14-3 at 232-33 & Doc. 14-4 at 161). Keith could not make a positive identification of the shooter, identifying more than one as possibly being the shooter (including Smith). (Doc. 14-3 at 337, 369-70; Doc. 14-4 at 45-46). Manley, Pauldo, Keith and Tommy Whitmer (the deceased victim's younger brother) later participated in a live lineup that included Smith. Manley also could not make an identification. (Doc. 14-3 at 233-34). But Pauldo and Whitmer identified Smith as the shooter. (Doc. 14-4 at 64-65 & Doc. 14-3 at 381-82). Keith identified Smith too but conceded he was only 98% sure. (Doc. 14-3 at 338-39).
The case proceeded to trial and the prosecution emphasized the witnesses' earlier identifications of Smith. The bulk of the evidence in the State's case-in-chief was testimony about the witnesses' respective identifications of Smith in photographs and at the live lineup. This testimony included the following:
a.
b.
c.
d.
e.
On cross-examination, Pauldo conceded that the suspect's knuckles as described in her statement to police did not resemble Smith's knuckles as they appeared at trial. (Doc. 14-4 at 116, 126). She also conceded that the suspect's height as she described it to police was not consistent with Smith's actual height (Doc. 14-4 at 118, 126), and the suspect's hair as she described it to police was not consistent with Smith's hair as it appeared at trial. (Doc. 14-4 at 116, 128). She also admitted that she told the police the shooter was between the ages of sixteen and nineteen, several years younger than Smith's age at the time of the shooting. (Doc. 14-4 at 97, 99 & Doc. 14-2 at 90). Pauldo's cross-examination ended with a question about whether Smith was the man she saw. She answered in relevant part: "I don't know." (Doc. 14-4 at 128).
f.
Smith's basic defense was that law enforcement arrested the wrong man and the shooter was actually his cousin, Vincent Hubbard, a Georgia resident who was staying with Smith's family at the time of the shooting. The testimony included the following:
a.
b.
c.
d.
e.
f.
(Doc. 14-5 at 51). Gauze continued:
(Doc. 14-5 at 52). Gauze spoke with Smith before the live lineup and Smith never suggested that Hubbard was involved in the shooting. To the contrary, Smith said that Hubbard was in the house at the time of the shooting. (Doc. 14-5 at 77). Gause told Smith that Smith was a suspect. (Doc. 14-5 at 77).
g.
h.
i.
j.
Randy Joslyn, a fingerprint examiner for the Orlando Police Department (Doc. 15-5 at 270), testified he compared Hubbard's fingerprints to those obtained at the crime scene and they did not match. (Doc. 14-5 at 271).
Smith filed a second motion for post-conviction relief in which he argued that newly-discovered evidence justified a new trial. (Doc. 14-8 at 67, 77).
In support of the motion, Smith submitted the transcript of his attorney's interview with Pauldo in which Pauldo alleged police and prosecutorial misconduct.
(Doc. 14-8 at 154-55).
The trial court denied the motion (Doc. 14-9 at 53), reasoning that the evidence was not "newly discovered" because the documents Smith used to support the motion were available five months before the trial court denied his earlier, initial motion for post-conviction relief. (Doc. 14-9 at 54). The trial court separately noted that Pauldo's identification of Smith at trial was so equivocal there was not any "reasonable probability that [her] recantation would result in a different outcome at trial." (Doc. 14-9 at 55).
The Fifth DCA reversed and remanded for an evidentiary hearing, concluding that Smith's second motion was not procedurally barred (Doc. 14-9 at 109), and that the trial court unreasonably down-played the significance of Pauldo's new testimony. (Doc. 14-9 at 110).
The trial court thereafter conducted an evidentiary hearing, during which it heard the following testimony:
a.
(Doc. 14-9 at 223-24).
Pauldo repeated her allegations about prosecutorial and police misconduct. She testified that law enforcement showed her a photograph immediately before the live lineup to "refresh her memory" and admonished her not to tell anyone she had been shown the photograph. (Doc. 14-9 at 169). She claimed that law enforcement coerced her into identifying a particular suspect as the shooter (Doc. 14-9 at 159, 161; 163; 179), threatening removal of her children to a state agency if she did not comply. (Doc. 14-9 at 166). She explained that she received approximately $3,000 from CrimeLine for her involvement in the case (Doc. 14-9 at 165), but was instructed by the State to deny she received a reward if asked about one at trial. (Doc. 14-9 at 182).
b.
c.
d.
e.
f.
Following the hearing, the trial court granted Smith's motion for relief and ordered a new trial. (Doc. 14-10 at 335). The court's order found that Pauldo's testimony was the sole basis for Smith's conviction; that her credibility would be a significant factor in resolving the case; and that information relating to the $3,000 reward should have been shared with the jury because it impacted her credibility. (Doc. 14-10 at 338).
The Fifth DCA reversed but remanded the case for the limited purpose of determining whether there was sufficient evidence to find police or prosecutorial misconduct. (Doc. 14-11 at 2). The Fifth DCA explained:
(Doc. 14-11 at 8-9).
The trial court thereafter determined it could not find police or prosecutorial misconduct. (Doc. 14-11 at 32). At a hearing on the matter, the trial court remarked: "I don't find any evidence of police or prosecutorial misconduct." (Doc. 14-11 at 27). The trial court entered a written order stating: "[b]ased on all evidence presented and argument presented at the hearing for new trial, this Court does not find sufficient evidence of prosecutorial misconduct or police misconduct and therefore the motion for new trial is denied on those grounds." (Doc. 14-11 at 32).
AEDPA provides that habeas relief cannot be granted with respect to a claim adjudicated on the merits in a state court unless the adjudication:
28 U.S.C. § 2254(d). AEDPA thus provides three avenues for relief: one based on a determination that the outcome was itself contrary to clearly established federal law; another based on a determination that the outcome was infected by an unreasonable application of the law to the facts; and a third based on an unreasonable determination of the facts themselves. With respect to the first two, the Supreme Court has explained:
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). With respect to the third, the Supreme Court has explained:
Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (citations omitted).
AEDPA contains its own statute of limitations. A petition for relief must be filed not later than one year after:
28 U.S.C. § 2244(d)(1).
This one-year limitations period is not absolute, however. A petition will be reviewed, despite the passage of time, if the petitioner can establish he is "actually innocent" in light of new evidence. McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). A petitioner establishes innocence in this regard by persuading the district court that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995).
Id. at 327-28 (citation omitted).
AEDPA also contains its own standard for reviewing state court findings of fact: "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). The clear and convincing standard is highly deferential, even more so than the typical clearly erroneous standard. Wood v. Allen, 542 F.3d 1281, 1285 (11th Cir. 2008) (quoting Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005), aff'd, 558 U.S. 290 (2010)). As a result, "where factual findings underlie the state court's legal ruling, our already deferential review [under AEDPA] becomes doubly so." Childers v. Floyd, 642 F.3d 953, 972 (11th Cir. 2011) (en banc). This deference extends to credibility determinations. Gore v. Sec'y Dept. Corr., 492 F.3d 1273, 1300 (11th Cir. 2007) ("A certain amount of deference is always given to a trial court's credibility determinations. That the case is before us on habeas review heightens that deference.").
AEDPA requires a petitioner to file his petition not later than one year (a) after the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review or (b) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. Smith concedes he cannot meet either of these standards for timeliness. (Doc. 1 at 10).
A petition will be considered, notwithstanding the running of the statute of limitations, if the petitioner can demonstrate his "actual innocence" in light of new evidence — which in this context means that no juror, acting reasonably, would vote to find him guilty beyond a reasonable doubt. Smith contends that "Pauldo has recanted her testimony in such a way that had the information we know now been adduced at trial, [Smith] would have been acquitted." (Doc. 1 at 7). Smith's claim — and supporting evidence — fall short of the mark.
Pauldo's new testimony does not establish Smith's actual innocence. Her new testimony, as reflected in her sworn statement and her testimony at the state court evidentiary hearing, amounts to the following — I really don't know whether Petitioner was the shooter. Her sworn statement concludes with the following: "they needed me to say it was him because they feel I was the main eyewitness that seen everything that night; but I don't, I really don't know;" "the guy that I seen that night doesn't look like the guy I seen in court." (Doc. 14-8 at 154-155). Her testimony at the evidentiary hearing ended on an equally equivocal note: "I don't know if he shot them people or not;" "It could have been [him]. It could not have been [him]." (Doc. 14-9 at 223-24).
Pauldo's testimony at the evidentiary hearing can be mined for more definite statements about the identity of the shooter but, when push came to shove, she acknowledged that "[i]t could have been him. It could not have been him." A reasonable juror would not likely give any weight to the more definite statements given Pauldo's ultimate acknowledgement — in each context in which she has been asked — that she does not really know whether Smith is the shooter.
Moreover, Pauldo gave her sworn statement four years after the trial. (Doc. 14-8 at 104). Before giving the statement, Pauldo spoke with Smith's aunt who told her: "Mazie, you know, my nephew is really innocent, it's really not him, you know;" "[h]e's going to prison for something that he really didn't do;" and that the actual shooter was someone else. (Doc. 14-8 at 150-51). Pauldo also spoke with the brother of Smith's girlfriend. (Doc. 14-8 at 101). Given the passage of time, coupled with the meetings with a family member and a friend that preceded the sworn statement, a reasonable juror would view with suspicion Pauldo's motivation for coming forward.
Pauldo's new testimony does not mean that Petitioner is actually innocent. It means that whatever she said at the original trial about the identity of the shooter must be disregarded and the record re-evaluated to determine whether any reasonable juror would still vote to convict.
Pauldo's trial testimony was not necessary to convict. This Court therefore cannot say that no juror, acting reasonably, would vote to convict beyond a reasonable doubt in the absence of that testimony.
a.
A reasonable juror would not necessarily discount Manley's photographic identification due to his inability to later identify Petitioner at the live lineup. Manley made the photographic identification two months after the shooting while the live lineup occurred two years after the shooting. A reasonable juror could conclude that Manley's memory faded over time or that Petitioner's appearance changed over time or both.
Whitmer testified that he identified Smith at the live lineup (Doc. 14-3 at 381-82), but Smith's lawyer challenged this testimony on cross-examination asking about the length of time he saw the suspect, Whitmer admitting it was for a "matter of seconds". (Doc. 14-3 at 406). Defense counsel also impeached Whitmer regarding the distance from which he saw the suspect. Whitmer testified on direct examination that the suspect was fifteen to twenty feet away when he ran past (Doc. 14-3 at 406), but earlier had made a statement that the suspect was a block away (Doc. 14-3 at 408), and another statement that the suspect was a couple blocks away. (Doc. 14-3 at 414). A reasonable juror could credit Whitmer's identification of Smith, despite the inconsistencies between his trial testimony and earlier statements about the distance between himself and the suspect. A reasonable juror could discount the earlier, inconsistent statements because Whitmer was only ten years old at the time of the shooting and therefore unlikely to be able to provide a more precise estimate.
Miles' hearsay account of Whitmer being coached by Gause at the live lineup would be admissible for impeachment purposes but a reasonable juror could discount her testimony given her bias as a family friend and her prior criminal record, which apparently involves at least one crime involving dishonesty. Assuming such a juror concluded that Whitmer's identification was not legitimate, it would not undermine the probative value of Manley's separate identification.
Keith testified he identified Smith at the live lineup. (Doc. 14-3 at 338). Keith acknowledged he was not "one hundred percent" certain about the identification but rather "about ninety-eight percent" sure. (Doc. 14-3 at 338-339). Defense counsel impeached Keith on cross-examination with prior, equivocal statements about whether he saw the shooter's face. (Doc. 14-3 at 354). A reasonable juror could credit Keith's identification given his confidence level in its accuracy but would likely give this evidence less weight in light of Keith's earlier statement that he did see the shooter's face and another earlier conflicting statement that he did not see the shooter's face.
b.
For example, Smith admitted he did not tell police about Hubbard's purported confession because "it ain't my problem" (Doc. 14-5 at 227), even after being informed he (Smith) was a suspect (Doc. 14-5 at 230), and even after he (Smith) was arrested. (Doc. 14-5 at 244). A reasonable juror would infer from Smith's silence — at a time when he had every incentive to speak — that Smith's claim about Hubbard's culpability was an after-the-fact fabrication. A reasonable juror would assume that one who has been wrongfully accused — as Smith contends he was — would disclose highly relevant, exculpatory evidence as soon as possible and as loudly as possible. Yet Smith failed to do so.
Moreover, Smith told Gauze that Hubbard was in the house at the time of the shooting — and did so at a time when he knew that he (Smith) had been identified as a suspect. (Doc. 14-5 at 77). A reasonable juror would not expect a suspect to provide the confessed criminal with an alibi because doing so would increase the potential for the suspect's wrongful conviction. To the contrary, a reasonable juror would expect the suspect to exculpate himself by immediately sharing with law enforcement what he knew about the confessed criminal's involvement.
Similarly, Lorisa Gibson (Smith's sister) purportedly heard Hubbard confess yet she did not reveal this information to Smith's lawyer upon learning from the lawyer that Smith had been arrested for murder. (Doc. 14-5 at 158-60). A reasonable juror would likely be astonished by Gibson's failure to reveal this information to the person best situated to use it for her brother's benefit. A reasonable juror would likely infer from Gibson's silence that her testimony about Hubbard's confession was a sham.
Finally, all the testimony about Hubbard's claimed involvement was contradicted by Hubbard, who testified that he was not the shooter (Doc. 14-5 at 121); by Gause, who testified that Hubbard did not match the description of the shooter (Doc. 14-5 at 51-52); by Joslyn, who testified that Hubbard's fingerprints were not found at the scene (Doc. 14-5 at 271); and by Manley, Keith and Whitmer, who identified Petitioner as the shooter and/or the person being chased at the time of the shooting. (Doc. 14-3 at 232-33, 338-38, 381-82).
Against this backdrop, a reasonable juror when deliberating the verdict, would likely find the defense implausible. Instead, a reasonable juror would recognize that each witness who testified in support of the defense was biased due to family membership or friendship and conclude that their love and affection for Smith caused them to fabricate a story to prevent him from going to prison.
Given the evidence, this Court cannot say that no reasonable juror would vote to convict Smith beyond a reasonable doubt in the absence of Pauldo's testimony. As such, Smith cannot establish actual innocence and therefore cannot avoid the statute of limitations bar.
Assuming Smith were to establish actual innocence and avoid the statute of limitations bar — which he cannot — the petition would still fail because he cannot establish a constitutional violation. Smith raises one ground for relief: prosecutorial and police misconduct in violation of his right to a fair trial and due process. (Doc. 1 at 5). Smith states: "this court should order an evidentiary hearing to permit [Smith] a reasonable opportunity to establish police coercion and/or prosecutorial misconduct has effectively deprived a man who is actually innocent of his rights to due process and a fair trial." (Doc. 1 at 8). The state court addressed this very issue at an evidentiary hearing and ruled: "I don't find any evidence of police or prosecutorial misconduct." (Doc. 14-11 at 27) (emphasis added.). In addition, the state court found the source of these allegations (Pauldo) not credible. (Doc. 14-11 at 23). As the trial court explained in a subsequent written order: "this Court does not find sufficient evidence of prosecutorial or police misconduct and therefore the motion for new trial is denied on those grounds." (Doc. 14-11 at 32) (emphasis added).
Smith cannot produce clear and convincing evidence that the trial court's finding is incorrect. The evidentiary hearing produced substantial evidence rebutting Pauldo's allegations of impropriety. Gause denied influencing her selection of a particular photograph (Doc. 14-10 at 47); he denied any irregularities or improprieties in connection with the live lineup (Doc. 14-10 at 52); he denied showing her a photograph of Smith prior to the live lineup for purposes of assisting her identification (Doc. 14-10 at 54-55); he denied threatening jail if she failed to cooperate (Doc. 14-10 at 55-56); he denied making any promises about rewards that might be available to her depending upon her testimony (Doc. 14-10 at 57-58); and he denied telling her to disclaim her potential entitlement to a reward if asked on cross-examination (Doc. 14-10 at 64-65). Ashton denied instructing Pauldo to disclaim eligibility for a reward if asked about it on cross-examination (Doc. 14-10 at 123); he denied Gause coached Whitmer into identifying Smith at the live lineup (Doc. 14-10 at 143); and he denied making any threats to Pauldo about what might happen if she did not cooperate. (Doc. 14-10 at 152). Keith explained that the witnesses viewed the lineup separately (Doc. 14-10 at 11) and that each witness was removed to a separate location after viewing the lineup for purposes of preparing statements about their respective identifications. (Doc. 14-10 at 12). Given this evidence — coupled with the trial court's separate finding that the source of the allegations was not credible — the trial court's refusal to find misconduct is fully justified.
The trial court and the Fifth DCA characterized the issue of police and prosecutorial misconduct as issues of fact, focusing on whether findings should be entered regarding either or both. The trial court's statement that there was no evidence of misconduct implies that it resolved a factual issue — specifically, whether the events alleged by Pauldo did or did not occur. The outcome would not be any different if the issue of misconduct were viewed as one of law or as a mixed question of law and fact. The trial court's factual finding that Pauldo lacked credibility, coupled with all the testimonial evidence contradicting the allegation of misconduct, is sufficient to satisfy even a de novo standard of review.
Nor can Smith establish that the state court's finding was unreasonable. The evidence fully justified the trial court's finding that there was no police or prosecutorial misconduct. Smith therefore cannot satisfy the standards for relief under 28 U.S.C. § 2254(d) and his petition must be denied.
Because the allegations of police and prosecutorial misconduct were vetted at a state court evidentiary hearing, there is no need for such a hearing in this Court as requested by Smith. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) ("It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.").
This Court should grant an application for certificate of appealability only when a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec'y Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition on procedural grounds without reaching the underlying constitutional claim, a certificate of appealability should issue only when a petitioner shows "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.; Lamarca, 568 F.3d at 934. However, a prisoner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). Smith has not demonstrated that reasonable jurists would find this Court's assessment of the constitutional claims debatable or wrong. Moreover, Smith cannot show that jurists of reason would find this Court's procedural rulings debatable. Smith has failed to make a substantial showing of the denial of a constitutional right. Thus, this Court will deny Smith a certificate of appealability.
Accordingly, it is
1. The Petition for Writ of Habeas Corpus (Doc. 1) is
2. Smith is
3. The Clerk of the Court is directed to close this case.
DONE AND ORDERED.
Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 (1984). See also United States v. Santiago, 837 F.2d 1545, 1549 (11th Cir. 1988) ("[R]ecantations are viewed with extreme suspicion by the courts.").
