CHARLENE EDWARDS HONEYWELL, District Judge.
Before the Court are Petitioner's amended petition for a writ of habeas corpus (Dkt. 5), Respondent's opposition (Dkt. 6), and Petitioner's reply (Dkt. 11). Upon consideration, the amended petition will be DENIED.
Petitioner, a Florida prisoner, was convicted of trafficking in 28 grams or more but less than 200 grams of cocaine, trafficking in 14 grams or more but less than 28 grams of a controlled substance, possession of drug paraphernalia, and reckless driving (Respondent's Ex. 6). His appeal was affirmed (Respondent's Ex. 12). He thereafter filed a motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, asserting that trial counsel was ineffective 1) in failing to file a motion to suppress his videotaped statement on the ground that his Miranda rights were violated,
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), 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); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).
Pursuant to the AEDPA, 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). 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. 362, 412 (2000).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the `contrary to' and `unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
In his sole claim for relief, Petitioner contends that trial counsel was ineffective in failing to file a motion to suppress his videotaped interrogation and confession on the ground that he did not knowingly waive his Miranda rights.
Petitioner states that his trial counsel viewed the videotaped statement, failed to file a motion to suppress, and admitted during the state post-conviction evidentiary hearing that her failure to move to suppress was an "oversight" since, in her opinion, Petitioner did not waive his Miranda rights.
After the evidentiary hearing, the state post-conviction court rejected Petitioner's claim that counsel was ineffective in failing to move to suppress his videotaped statement, determining that Petitioner had failed to establish prejudice because there had been a valid waiver of rights and a motion to suppress would have been denied, and there was no reasonable probability that the outcome of his trial would have been different had the videotaped interrogation been suppressed:
(Respondent's Ex. 20, pp. 6-8).
"[A] defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession." Jackson v. Denno, 378 U.S. 368, 376 (1964). "The applicable standard for determining whether a confession is voluntary is whether, taking into consideration the totality of the circumstances, the statement is the product of the accused's free and rational choice." Leon v. Wainwright, 734 F.2d 770, 772 (11th Cir. 1984) (internal quotation marks omitted).
In determining whether the waiver of the privilege against self-incrimination is voluntary:
Moran v. Burbine, 475 U.S. 412, 421 (1986) (quotation marks and citation omitted).
Petitioner raises no challenge to the validity of the Miranda warnings given to him. Rather, he appears to claim that his videotaped statement was involuntary because his waiver of his right to remain silent was not knowing, since it was not made with full awareness of the consequences of his decision to waive that right.
The trial transcript reveals that Detective Warren read each Miranda warning to Petitioner (Respondent's Ex. 5, Vol. I, p. 144-45). Thereafter, the following exchange between Detective Warren and Petitioner took place:
(Id., pp. 145-46).
Petitioner contends that "he never received an answer to his question whether, if he cooperated, his responses could be used against him in court." (Dkt. 11, p. 6). The court disagrees. When Petitioner first asked "So that means by me necessarily cooperating with you, you guys can turn around and use that on me in court?" Detective Warren answered "Anything you say can be used, okay. That's what it's saying, all right?" Therefore, Detective Warren did answer Petitioner's question whether his cooperation could be used against him. And when Detective Warren offered to again read the Miranda warning, Petitioner responded "Yeah, no, I understand it."
Petitioner's subsequent comment that "If when I go to court, it turns around and like oh, here's the videotape that says that he did this and he did that, you know what I'm saying?. . .(Inaudible) cooperating, not even worth it. If you guys use it — you know what I'm saying?" was in the nature of a rhetorical question rather than a question seeking an answer. His comment can reasonably be interpreted as an attempt to make a point that it was not worth cooperating (since his cooperation could be used against him) rather than an attempt to get an answer to his previously answered question regarding whether his cooperation could be used against him. Despite Petitioner's comment, he elected to waive his right to remain silent by answering Detective Warren's questions (Id., pp. 147-55).
Petitioner likewise did not invoke his right to remain silent simply by failing to audibly respond when Detective Warren read him each of his rights and asked if he understood those rights. Despite Petitioner's assertion that he did not respond after Detective Warren asked "do you understand that?" after Detective Warren read each Miranda warning, the record reflects that he nodded his head after several of the warnings (Respondent's Ex. 17, p. 21). "The prosecution . . . does not need to show that a waiver of Miranda rights was express." Berghuis, 560 U.S. at 384. Rather, a waiver of Miranda rights "can be clearly inferred from the actions and words of the person interrogated." North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphasis added). See also United States v. Smith, 218 F.3d 777, 780, 781 (7th Cir. 2000) (inferring implicit Miranda waiver, despite accussed's refusal to sign waiver form, where she nodded her head after being advised of her rights, never asked for an attorney, and immediately began talking). Moreover, Petitioner was required to "unambiguously and unequivocally" invoke his right to remain silent if he wanted Detective Warren's questioning to stop. Owen v. Fla. Dep't of Corr., 686 F.3d 1181, 1192 (11th Cir. 2012) ("`a defendant who wishes to invoke his right to remain silent must do so `unambiguously' and `unequivocal[ly].'") (quoting Davis v. United States, 512 U.S. 452, 458-62 (1994) (alteration in original)).
Finally, the state post-conviction court reasonably found that there was no reasonable probability that the outcome of the trial would have been different had the videotaped interrogation been suppressed. The proof that the State elicited against Petitioner at trial was strong. Four police officers testified that numerous drugs and drug paraphernalia were discovered in several areas of Petitioner's vehicle (including on the floorboard of the driver's side where Petitioner had been) immediately after he exited the vehicle and attempted to flee (Respondent's Ex. 5, Vol. I, pp. 139-238). And immediately after being arrested and read his Miranda rights, Petitioner admitted to Detective Warren that he had purchased the drugs, and stated how much they cost (Id., p. 142). Petitioner's contention that "the alleged unrecorded earlier admission was a post-hoc fabrication of the officer making that claim" (Dkt. 11, p. 13) is purely self-serving and unsupported by any evidence. Merely because the statements were not recorded (since they were made immediately after the arrest on the roadside) and not referenced during the subsequent videotaped interrogation does not imply, let alone establish that Detective Warren's testimony regarding Petitioner's roadside statements was a fabrication.
Considering the totality of the circumstances, this Court finds that Petitioner understood his Miranda rights and knowingly and voluntarily waived those rights, and that the statements he made after the waiver were voluntary. Moreover, even if counsel had successfully moved to suppress Petitioner's videotaped statements, Petitioner has not demonstrated a reasonable probability that the outcome of the trial would have been different. Accordingly, the state post-conviction court's determination that Petitioner suffered no prejudice from counsel's failure to move to suppress the statements is neither contrary to Strickland, nor based on an unreasonable determination of the facts. Petitioner's claim therefore does not warrant relief.
Any claims not specifically addressed in this Order have been determined to be without merit.
It is therefore
1. The Amended Petition for Writ of Habeas Corpus (Dkt. 5) is
2. The Clerk of the Court is directed to enter judgment accordingly and to close this case.
3. This Court should grant an application for certificate of appealability only if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutional right.