JOHN ANTOON, II, District Judge.
This cause is before the Court on Petitioner Jason Allen Tiszai's Petition for Writ of Habeas Corpus (Doc. 1) filed pursuant to Title 28 United States Code Section 2254. Respondents filed a response to the Petition and Appendix of exhibits (Docs. 16, 20) in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner filed a reply to the response. (Doc. 23). For the reasons set forth below, the petition is denied.
On May 13, 2008, Petitioner was charged by Indictment with first degree murder (Count One), burglary of a dwelling with assault or battery (Count Two), and grand theft of a motor vehicle (Count Three). (Doc. 20 Ex. 1 at 6-9). Petitioner was arraigned on March 6, 2009, and waived any time periods. (Id. at 11). In April of 2009, the trial court determined that the effective date for application of the Interstate Agreement on Detainers was October 30, 2008, and calculated the expiration of the 180-day period under the IAD as that day, April 28, 2009. (Id. at 17). Petitioner filed a notice of expiration of speedy trial on April 29, 2009, which the Court found well-taken, and the trial began on May 5, 2009. (Doc. 20 Ex. 1 at 38-39, 42, 46). The jury found Petitioner guilty of first degree murder, burglary of a dwelling with assault or battery, and grand theft of a motor vehicle, and Petitioner was sentenced to the following terms: natural life on Count One, twenty-five years on Count Two (consecutive to Count One), and five years on Count Three (concurrent with Count Two). (Doc. 20 Ex. 3 at 2-4, 6-9).
Petitioner appealed his judgment and sentence, and the Florida Fifth District Court of Appeal per curiam affirmed. (Doc. 20 Ex. 4 at 2-36, 92). He then filed a motion for rehearing, which was denied. (Id. at 94-95, 97, 99). While the motion for rehearing was pending, he petitioned the Florida Supreme Court for review. (Id. at 101-02). The Florida Supreme Court dismissed the petition for lack of jurisdiction. (Id. at 108). He then filed a motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which, as amended, raised fifteen claims. (Doc. 20 Ex. 5 at 2-53). Grounds one through six and eight through fifteen were denied, and ground seven was denied after an evidentiary hearing. (Id. at 76-89; Ex. 6 at 2-28, 30-36). Petitioner subsequently filed a petition for writ of prohibition, which was denied (Doc. 20 Ex. 6 at 81-83; Ex. 7 at 2), and, on request, was permitted a belated appeal of his Rule 3.850 motion. (Doc. 20 Ex. 7 at 4-11, 13). The Florida Fifth District Court of Appeal per curiam affirmed the trial court's denial of Petitioner's Rule 3.850 motion. (Doc. 20 Ex. 8 at 61, 63).
Petitioner then filed the instant Section 2254 petition for writ of habeas corpus,
The Court will address related grounds together.
AEDPA's standard for habeas relief is clear and unambiguous: relief cannot be granted with respect to a claim adjudicated on the merits in a state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). AEDPA thus provides two avenues for relief: one based on a determination that the outcome was itself contrary to clearly established federal law; the other based on a determination that the outcome was infected by an unreasonable application of such law to the facts. As the Supreme Court explained:
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Regardless of the avenue taken, however, a prisoner "must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
The standard for relief based on ineffective assistance of counsel is also clear and unambiguous: a person is entitled to relief only when counsel's conduct fell below an objective standard of reasonableness and, in addition, there is a reasonable probability that the outcome would have been different if counsel had acted reasonably (i.e., that the departure from objective reasonableness prejudiced the case and, by extension, the client). Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In evaluating counsel's performance, courts apply a "strong presumption" that the representation "fell within the `wide range' of reasonable professional assistance." Harrington, 562 U.S. at 104. As the Eleventh Circuit explained:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). It is therefore not an understatement to say that "[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
A state court's application of Strickland to a post-conviction claim of ineffective assistance of counsel is subject to review in a habeas proceeding. But establishing that a state court's application of Strickland was unreasonable for purposes of AEDPA is especially difficult. As the Supreme Court explained:
Harrington, 562 U.S. at 105 (emphasis added). More to the point:
Id. at 101 (citation omitted).
Petitioner contends that, in violation of his constitutional right to due process, the state trial court erred in denying his motion for judgment of acquittal on the charge of burglary with assault or battery. (Doc. 1 at 5). Petitioner states that evidence at trial demonstrated that he rented a room in the dwelling at issue and was employed by the homeowner, he had his own key to the dwelling, he had travelled out of state but was expected to return, the bedroom he rented still contained his personal property, and there was no forced entry. (Id.). He also asserts that there was no evidence of a physical altercation within the dwelling and that the State failed to prove the essential elements
Petitioner raised this argument as issue one in his direct appeal (Doc. 20 Ex. 4 at 16-20) and issue eight in his Rule 3.850 motion. (Doc. 20 Ex. 5 at 31, 36). However, as Respondents contend, Petitioner did not allege a violation of his constitutional rights.
The AEDPA provides, in pertinent part:
28 U.S.C. § 2254(b)(1).
In order to satisfy the exhaustion requirement, a state petitioner must "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) (quoting Picard v. Conner, 404 U.S. 270, 275-76 (1971)). See also O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). 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. See Henderson v. Campbell, 353 F.3d 880, 898 n.25 (11th Cir. 2003) ("Both the legal theory and the facts on which the federal claim rests must be substantially the same for it to be the substantial equivalent of the properly exhausted claim.").
In both his direct appeal and his Rule 3.850 motion for post-conviction relief, Petitioner challenged the sufficiency of the evidence but did not argue that his constitutional rights were violated in any way; further, he cited only state, rather than federal, case law.
Petitioner contends that his rights under the Interstate Agreement on Detainers ["IAD"] were violated, entitling him to discharge.
Among other things, he explains that, while incarcerated to serve a state prison sentence in Michigan, "Orange County, Florida[,] placed a detainer against him for murder." (Doc. 1 at 7). He "became aware by a prison law clerk that he could invoke Article 3 of the IAD[]" and "followed [Michigan Department of Corrections'] policy and procedure by contacting prison authorities of his wish to invoke Article 3 . . . his efforts were disregarded with responses instructing him that `he' could invoke it himself by contacting the `Clerk of Court' and/or the `Law Enforcement Agency' who lodged the detainer." (Id.). He then "exercised due diligence and contacted both the Orange County Sheriff's Dep[artment] and Orange County Circuit Court Clerk — the latter responding there was no case pending.
Ultimately, Petitioner sent a letter to the Orange County Sheriff on October 13, 2008, "asking why a detainer was placed on him if there were not pending charges against him, per the response of the court clerk." (Doc. 23 at 5). The Orange County Sheriff forwarded the letter "to the court clerk, who then forwarded it to Judge Marc Lubet, who subsequently forwarded it to the state attorney." (Doc. 23 at 5-6). Petitioner states that, "[d]uring pretrial hearings[,] [he] presented return mail receipts showing that his 180 days under the IAD[] Article 3 had expired." (Doc. 1 at 7). But, his pro se notice of expiration was stricken,
Petitioner contends that "the burden of compliance [does not] fall on [the] prisoner[], but is governed by law that prison officials [from the sending state] are responsible," and that the Michigan Department of Corrections' "failure to comply deprived Petitioner of the securities of the IAD[] — Article 3." (Doc. 1 at 7).
The IAD, codified at Section 941.45, Florida Statutes, "is a compact among 48 states, the District of Columbia, and the United States. . . . [It] establishes procedures by which one jurisdiction may obtain temporary custody of a prisoner incarcerated in another jurisdiction for the purpose of bringing that prisoner to trial." Cuyler v. Adams, 449 U.S. 433, 435 n.1 (1981). "[T]he Detainer Agreement establishes procedures under which a prisoner may initiate his transfer to the receiving State and procedures that ensure protection of the prisoner's speedy trial rights." Id.
Article III of the IAD provides, in pertinent part:
IAD, art. III(a) (emphasis added).
As an initial matter, violations of the IAD are not generally cognizable on federal habeas proceedings, absent a showing of prejudice. Seymore v. State of Ala., 846 F.2d 1355, 1359 (11th Cir. 1988). Although the IAD is considered a law of the United States,
Id. at 1358-59 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)(emphasis added)). The Eleventh Circuit has determined that "violations of the IAD are nonfundamental defects and — absent a showing of some sort of prejudice — are uncognizable in a federal habeas proceeding." Id. at 1359. Here, as in Seymore, Petitioner has demonstrated no prejudice resulting from the alleged violations of the IAD, as "nothing in the record indicates that the `violation of the IAD has in any way affected or impugned the integrity of the fact finding process at his trial.'" Id. (quoting Mars v. United States, 615 F.2d 704, 707 (6th Cir. 1980)).
Moreover, even if cognizable, Petitioner's claim fails. The IAD sets forth the 180-day deadline using mandatory language (i.e., "shall"). Id. But the Florida Supreme Court has explained that it "will not grant greater dignity to the IAD's speedy trial time limit than to Florida's speedy trial rule which protects the constitutional right to a speedy trial enunciated in article I, section 16 of the Florida Constitution." Vining v. State, 637 So.2d 921, 925 (Fla. 1994).
Florida Rule of Criminal Procedure 3.191 protects a defendant's right to a speedy trial, as guaranteed by the Florida Constitution.
Fla. R. Crim. P. 3.191(p)(2)-(3).
Therefore, notwithstanding any alleged error by the Michigan Department of Corrections or the fact that Petitioner contends the IAD limitations period of 180 days ran sometime before the date determined by the trial court, the issue turns on when Petitioner filed a notice of expiration of speedy trial — which he did on April 29, 2009. (Doc. 20 Ex. 1 at 38-39). From that point, per Rule 3.191(p)(3), Florida Rules of Criminal Procedure, the trial court had five days to hold a hearing on the notice. In keeping with the rule, the trial court held the required hearing the following day, April 30, 2009. (Doc. 20 Ex. 1 at 42-43). The trial court then had a ten-day window to begin trial. Fla. R. Crim. P. 3.191(p)(3). As the trial was set for, and began, May 5, 2009 — a date within the prescribed ten-day period — the trial court did not violate Petitioner's speedy trial rights. See id. (Doc. 20 Ex. 1 at 45-403; Doc. 20 Ex. 2; Doc. 20 Ex. 3 at 1-4).
Petitioner has failed to demonstrate error by the trial court or that the state court's adjudication of this claim was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts. Accordingly, Petitioner is not entitled to relief on Ground Two.
Grounds Three, Eleven, and Twelve relate to the trial court's instruction to the jury on felony murder.
In Ground Twelve, Petitioner argues that, because he was not indicted for felony murder, the trial court violated his Fifth and Fourteenth Amendment due process rights by instructing the jury on felony murder; he also contends that he was "never properly/sufficiently put on notice of. . . [the] need[] to prepare a defense for Felony Murder." (Doc. 1 at 21).
As Respondents note, Petitioner raised Ground Twelve as issue fourteen in his Rule 3.850 motion. (Doc. 20 Ex. 5 at 39-40). The state court denied that issue as procedurally barred, explaining that "[a] claim of trial court error is one that should be brought on direct appeal, not raised in a motion for post-conviction relief[,]" and that, if the claim was "truly a matter of fundamental error, [it] could have been, and should have been, raised on direct appeal." (Id. at 78, citing Mourra v. State, 884 So.2d 316 (Fla. 2d DCA 2004); Bruno v. State, 817 So.2d 55, 63 (Fla. 2001); Koon v. Dugger, 619 So.2d 246, 247 (Fla. 1993); Johnson v. State, 593 So.2d 206, 208 (Fla. 1992); Armstrong v. State, 429 So.2d 287 (Fla. 1983)).
"Federal courts are precluded from addressing claims that have been held to be procedurally defaulted under state law." Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993) (citing Coleman v. Thompson, 501 U.S. 722 (1991)). Therefore, a federal court must dismiss claims that either (1) have been explicitly ruled to be procedurally barred by the highest state court considering the claims, Harris v. Reed, 489 U.S. 255, 261 (1989), or (2) are not exhausted but would clearly be barred if returned to state court. Coleman, 501 U.S. at 735 n.1.
As the trial court determined that the issues raised by Ground Twelve were procedurally barred because they should have been raised on direct appeal, and that decision was affirmed, per curiam, by the state appellate court,
In Ground Three, Petitioner contends that the trial court "committ[ed] fundamental error by instructing the jury to convict [him] of [felony murder, which was] neither included in the indictment nor designated as a lesser included offense to that of [the] indictment." (Doc. 1 at 8). Specifically, he notes that Count One of the indictment charged him with premeditated first degree capital murder; Count Two charged him with burglary with assault or battery but did not mention homicide; and the State did not mention felony murder in its opening statement and did not present its theory of felony murder until after both sides presented their case. (Id.; Doc 20 Ex. 1 at 6-7, 61-73; Doc. 20 Ex. 2 at 30-31). Overall, Petitioner contends that, because he was not indicted with a charge of felony murder, he was not properly notified of that charge and was unable to prepare an adequate defense. Additionally, he explains that the jurors were confused by the difference between premeditated first degree murder and felony first degree murder, as evidenced by a question posed to the trial court during deliberations, and that the verdict form did not distinguish between felony murder and premeditated murder. (Doc. 1 at 8; Doc. 20 Ex. 2 at 108-109; Doc. 20 Ex. 3 at 2-4). Thus, he argues, there is "a strong likelihood that [he] was convicted of a charge not included in [the] indictment." (Doc. 1 at 8).
Similarly, in Ground Eleven, Petitioner asserts that his counsel was ineffective for failing to object to the felony murder instruction given to the jury by the trial court, arguing that such failure allowed the jury to convict him of a crime that was not properly charged by indictment.
Petitioner properly exhausted Grounds Three and Eleven before raising them in the instant petition.
The state appellate court denied the claim raised by Ground Three by affirming Petitioner's convictions and sentences per curiam. (Doc. 20 Ex. 4 at 92). The state post-conviction court, denying the issues raised by Ground Eleven, explained:
(Doc. 20 Ex. 5 at 85-86).
As noted by the state post-conviction court, Florida law has long adhered to the principle that "the state does not have to charge felony murder in the indictment but may prosecute the charge of first-degree murder under a theory of felony murder when the indictment charges premeditated murder." Weatherspoon v. State, 214 So. 23d 578, 584-86 (Fla. 2017) (quotation marks and citations omitted) (explaining the history of the principle, first outlined in Sloan v. State, 69 So. 871 (1915)). Here, Petitioner was charged with premeditated first degree murder (Doc. 20 Ex. 1 at 6) and the trial court was therefore permitted, under Florida law, to instruct the jury on felony murder, notwithstanding that felony murder was not charged in the indictment.
That practice does not violate Petitioner's Constitutional rights. The Supreme Court has instructed that a federal court is bound by the interpretation of state law by the state supreme court on this issue: "If a State's courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law." Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality) (citing Mullaney v. Wilbur, 421 U.S. 684, 690-691 (1975) (declining to reexamine the Maine Supreme Judicial Court's decision that, under Maine law, all intentional or criminally reckless killings are aspects of the single crime of felonious homicide); Murdock v. City of Memphis, 20 Wall. 590, 22 S.Ct. 429 (1875)). Therefore, Petitioner cannot show that the state court and state post-conviction court unreasonably applied federal law on this issue.
Moreover, Petitioner's argument that the jury verdict form did not distinguish between felony murder and premeditated murder is irrelevant, because the evidence supports convictions under either theory. See Yates v. United States, 354 U.S. 298, 312 (1957) ("[A] verdict [is required] to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected." (emphasis added)). See also Knight v. Dugger, 863 F.2d 705, 725 (11th Cir. 1988) ("At the time of Petitioner's trial, Florida law permitted (and still does) the state to prosecute under premeditated or felony murder theories when the indictment charged premeditated murder. . . . The state prosecuted primarily under a premeditated design theory even though evidence showing felony-murder was introduced at trial. The trial court simply refused to limit the state to one theory of prosecution where state law permitted the prosecution to proceed under a dual theory. . . . The benefit to the state from the error (if any was committed) did not contribute to Petitioner's conviction since there was ample evidence upon which to base a conviction under either theory.").
Here, evidence was presented that Petitioner, who used to work for the victim and reside at the victim's home, was not living there on the date of the murder — he had left for Michigan. (Doc. 20 Ex. 1 at 78-79, 86-87-119-136). The victim discovered that $600 had been withdrawn from his business account without authorization. (Id. at 95). When contacted by a co-owner of the business, Petitioner denied taking the money, but the co-owner told Petitioner he knew Petitioner had taken it. (Doc. 20 Ex. 1 at 96. The victim cancelled service on Petitioner's cellphone, which was in the name of the victim's business. (Id. at 96-97). Petitioner then flew from Detroit to Orlando using a one-way ticket on April 1, 2008, arriving at 4:05 p.m. (Id. at 151). Early the next morning, April 2, 2008, Petitioner called his girlfriend and told her he had "messed up." (Id. 185-86). On the afternoon of April 2, 2008, the victim was found dead near a canal behind his home. (Id. at 124). The victim had been beaten and strangled and had multiple post-mortem burns. (Id. at 241, 245-55). The victim's car was also missing and presumed stolen. (Id. at 140).
On April 3, 2008, around 12:30 a.m., after learning there had been trouble between Petitioner and the victim, Florida law enforcement contacted New Haven, Michigan, police with Petitioner's name and a description of the victim's vehicle. (Doc. 20 Ex. 1 at 145-47). Less than ten minutes later, Petitioner was located in Michigan with the victim's car and was taken into custody. (Id. 147, 177-181). Petitioner had one of the victim's credit cards in hand and another in his pocket, and the victim's other credit cards, wallet, and driver's license were found in the vehicle. (Id. at 149, 177-181). Petitioner's facial hair, at the time he was located, appeared to have been singed. (Id. at 173-75).
In the victim's house, investigators found shoe tracks, linear marks, and traces of blood, and the bed linens had been removed from the master bedroom. (Doc. 20 Ex. 1 at 209, 214). Additionally, Petitioner admitted to setting fire to the victim's body. (Id. at 391).
Premeditation is "more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act." Oliver v. State, 214 So.3d 606, 618 (Fla. 2017) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla. 2001)). "Premeditation may be inferred from such facts as `the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.'" Id. (quoting Bradley, 77 So. 2d at 738). First degree felony murder is "[t]he unlawful killing of a human being . . . [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any . . . [b]urglary [among other listed crimes]." Fla. Stat. § 782.04(1)(a)(2).
The evidence presented supports either theory of first degree murder in this case and constituted a reasonable basis on which the state courts could find: (1) that the state trial court did not err in giving the felony-murder instruction or using a general verdict form and (2) that Petitioner's counsel was not ineffective for failing to object to the felony murder instruction. Petitioner has not demonstrated that the state court rulings were contrary to or involved an unreasonable application of clearly established federal law or were based on an unreasonable determination of the facts presented to the state court. Accordingly, Grounds Three and Eleven are denied.
Grounds Four, Five, Six, and Seven relate to the prosecutor's closing argument at trial.
In Ground Four, Petitioner contends that the State prosecutor committed misconduct by including impermissible arguments in his closing statement to the jury. (Doc. 1 at 10). Specifically, he challenges that the prosecutor erred by "repeatedly [telling] the jurors that Petitioner's testimony was `carefully-crafted' to fit the evidence presented during trial and that Petitioner was `not credible.'" (Id.). Similarly, in Ground Six, Petitioner contends that the prosecutor "misrepresent[ed] material evidence and ma[de] arguments not based on facts in evidence or reasonable inferences that [could] be drawn therefrom." (Id. at 13). He challenges statements made by the prosecutor about a crime scene investigator's testimony regarding swipe and drag marks in the victim's home, contending that the trial court ruled there was no evidence to support kidnapping. (Id.). Grounds Four and Six were raised as issues one and three in Petitioner's Rule 3.850 motion, but were not raised on direct appeal.
As with Ground Twelve, the state post-conviction court determined that the issues raised by Grounds Four and Six were procedurally barred because they should have been raised on direct appeal. (Doc. 20 Ex. 5 at 78). That decision was affirmed, per curiam, by the state appellate court. (Doc. 20 Ex. 8 at 61). Accordingly, because the state court found the issue procedurally barred, the issue is not cognizable on federal habeas review, see supra section III(C)(1), and Grounds Four and Six are denied.
In Grounds Five and Seven, Petitioner contends that his counsel erred by failing to object to the prosecutor's allegedly improper arguments and misrepresentations of the evidence. (Doc. 1 at 12, 15). Specifically, Petitioner asserts that his trial counsel "failed to object [during the prosecutor's closing argument] when the prosecutor told the jury that Petitioner's testimony was `carefully crafted' to fit the evidence presented during trial and when [the] prosecutor gave his purported personal belief multiple times that Petitioner was `not credible.'" (Id. at 12). Petitioner contends that his counsel's failure to object led jurors to "deliberat[e] with the prosecutor's personal beliefs influencing their decision[-]making process and ability to weigh the evidence." (Id.).
He also asserts that his counsel erred by "fail[ing] to object when the prosecutor argued to the jury his personal belief of how the incident occurred after [the] trial court specifically ruled that there was no evidence to any kidnapping [] crime in the home, [] nor any evidence to a physical altercation in the house." (Doc. 1 at 15). According to Petitioner, his trial counsel improperly failed to object when the prosecutor
(Id.).
In his Rule 3.850 motion, Petitioner raised Ground Five as issue two and Ground Seven as issue four. (Doc. 20 Ex. 5 at 30, 31, 34-36). The state post-conviction court denied Petitioner's Rule 3.850 motion and the state appellate court affirmed the denial per curiam. (Id. at 79-80, 84; Doc. 20 Ex. 6 at 31-35; Doc. 20 Ex. 8 at 61).
Under federal law, to determine whether Petitioner is entitled to relief based on the prosecutor's comments, this Court must engage in a two pronged analysis: first, "whether the prosecutor's comments were improper;" and, second, "whether any comments found [to be] improper were so prejudicial as to render the trial fundamentally unfair." Davis v. Kemp, 829 F.2d 1522, 1526 (11th Cir. 1987), cert. denied, 485 U.S. 929 (1988). The trial is rendered fundamentally unfair if "there is a reasonable probability that, but for the prosecutor's offending remarks, the outcome . . . would have been different. . . . [A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Williams v. Kemp, 846 F.2d 1276, 1283 (11th Cir. 1988), cert. denied, 494 U.S. 1090 (1990) (citations and quotations omitted.) See also Drake v. Kemp, 762 F.2d 1449, 1458 (11th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).
Here, the state post-conviction court noted that the prosecutor's comments about the crime scene were evidence based and did not misquote the crime scene investigator's testimony; nor did the prosecutor's comments improperly imply that kidnapping was the underlying felony for the prosecution's felony murder theory.
As for the prosecutor's comments on Petitioner's credibility, the prosecutor stated during closing argument:
(Doc. 20 Ex. 2 at 59-61).
Under federal and Florida law, argument on the credibility of witnesses is permitted during closing argument. See, e.g., United States v. Sosa, 777 F.3d 1279, 1298 (11th Cir. 2015) (finding no error where the prosecutor was "urging the jury to conclude that [the defendant's] testimony was not credible based on a consideration of the relevant evidence. (emphasis in original)); Ford v. State, 802 So.2d 1121, 1129 (Fla. 2001) ("Both the prosecutor and defense counsel are granted wide latitude in closing argument."); Watkins v. Sims, 81 Fla. 730, 741 (Fla. 1921) (attacking the credibility of a witness is proper if based on evidence or the witness's appearance and conduct while giving testimony).
The state post-conviction court explained that the prosecution's closing argument was not improper because it was confined to facts established by, or reasonably inferred from, the evidence of record:
(Doc. 20 Ex. 5 at 79-80).
Petitioner has not demonstrated, and this Court cannot conclude, that the state courts' adjudications of these claims were contrary to clearly established federal law, involved an unreasonable application of clearly established federal law, or were based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner is not entitled to relief on Grounds Five and Seven.
In Ground Eight, Petitioner claims that his trial counsel was ineffective for failing "to request a viable self-defense jury instruction and erroneously advising [Petitioner] to waive such instruction." (Doc. 1 at 16). He contends that his counsel advised him that he did not meet the criteria for self-defense and that he should, instead, rely on the defense of excusable homicide. (Id.). Ultimately, he contends that, "[h]ad trial counsel advised [him] to accept [a] self-defense instruction and properly presented the fact that his criminal liability was diminished due to the fact [that] he was preventing the commission of a forcible felony, then it[']s very likely that he would have been acquitted of first-degree murder." (Doc. 23 at 32; see also Doc. 1 at 16).
Petitioner raised this claim as issue five of his Rule 3.850 motion and the state post-conviction court denied his claim. (Doc. 20 Ex. 5 at 82). The state court explained,
(Doc. 20 Ex. 5 at 82). The state appellate court per curiam affirmed the state court's denial of Petitioner's Rule 3.850 motion. (Doc. 20 Ex. 8 at 61).
The claims made by Petitioner with regard to Ground Eight are due to be denied. Although he argues that his trial counsel's decision to pursue a defense of excusable homicide rather than self-defense was patently unreasonable, a defendant is bound by statements made under oath. Henry v. State, 920 So.2d 1245, 1246 (Fla. 5th DCA 2006). Under oath, Petitioner stated that he agreed with the tactical decision made by his counsel and provided no indication that he had been coerced or threatened in any manner when answering the trial court's questions. Nor does he argue any such coercion or threat in the instant petition.
Petitioner's agreement with the strategy of his counsel constitutes a reasonable basis on which to find his counsel's performance was not ineffective. See Harrington, 562 U.S. at 105 ("[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."). See also Strickland, 466 U.S. at 689 ("[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." (citation omitted)).
Petitioner has not demonstrated that the state post-conviction court's decision was contrary to or involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Therefore, Ground Eight is denied.
In Ground Nine, Petitioner argues that his trial counsel erred by failing "to request an evidentiary hearing to determine the probative value of fewer gruesome autopsy photos, where a limited number would have been sufficient for the State's case." (Doc. 1 at 18). He states that the State presented two diagrams and nineteen colored photos, twelve of which "were used to display/acknowledge injuries that were not relevant to the cause of death." (Id.). He contends that, "had counsel obtained [an] evidentiary hearing, fewer photographs would have been presented — those limited to the cause of death — and minimized the prejudicial effect of the inflammatory nature [of the photographs] on the jury." (Id.). Petitioner raised this claim as issue six in his Rule 3.850 motion. The state post-conviction court denied relief, and the state appellate court affirmed per curiam. (Doc. 20 Ex. 5 at 83-84; Doc. 20 Ex. 8 at 61).
"In habeas corpus proceedings, federal courts generally do not review a state court's admission of evidence. . . . [F]ederal habeas corpus relief [will not be granted] based on an evidentiary ruling unless the ruling affects the fundamental fairness of the trial." Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir. 1998). Even if erroneous, a Petitioner must show that the evidentiary ruling "had [a] substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
The state post-conviction court, in denying relief, determined that the photographs were relevant, not cumulative, and were properly admissible, thus, there was no basis for counsel to object or request an evidentiary hearing on the issue:
(Doc. 20 Ex. 5 at 83-84).
Petitioner challenges that the photos were not relevant because "the injuries were never in dispute, the perpetrator [was] never in question[,] and this was not a death penalty case where excessive gruesome photographs could be used to secure a sentence of death." (Doc. 23 at 34-35). However, Petitioner has challenged other determinations in the case, such as the sufficiency of the evidence against him regarding the charge premeditated first degree murder, to which the photographs were relevant. See infra section III(H) (Ground Thirteen). Thus, contrary to his allegations, the photos were not "gratuitous." (Doc. 23 at 34).
Moreover, Petitioner's assertions that "[a] lunch date is not the proper method for resolving such a possible grievous issue such as this for a [d]efendant" and that a pre-trial motion to exclude and an evidentiary hearing were the proper means of resolving the admissibility of the photographs warrant no consideration. As the state court determined, counsel worked to, and were able to, narrow the photographs to those relevant to the case.
Petitioner has failed to demonstrate that the evidentiary ruling affected the fundamental fairness of the trial, or that the state post-conviction court's decision was contrary to or involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Therefore, Ground Nine is denied.
In Ground Ten, Petitioner contends that his trial counsel improperly failed "to petition and/or obtain [a] psychological examination to determine [his] criminal liability at [the] time of [the] crime — when sanity was an issue presented by the defense." (Doc. 1 at 19). Petitioner states that he "explained to counsel that his actions were a result of self-defense while fending off a sexual assault. [He] explained that as a result of sustaining sexual abuse as a child he went into a `blackout' or alter[ed] state of consciousness — a diminished capacity — and inflicted the death of the victim." (Id.). Petitioner describes that "[t]rial counsel presented this defense at trial by having [him] testify, but failed to investigate further and obtain expert opinions or present testimony which would have supported [the] defense." (Id.).
Petitioner presented this issue as issue seven in his Rule 3.850 motion for post-conviction relief. After an evidentiary hearing, the state post-conviction court denied his claim, explaining:
(Doc. 20 Ex. 6 at 32-35). The state appellate court affirmed per curiam the denial of Petitioner's Rule 3.850 motion. (Doc. 20 Ex. 8 at 61).
The record, as cited within the state post-conviction court's order, supports the court's decision. The circumstances presented (that Petitioner informed his counsel of a possible altered mental state after a jury was picked (i.e., immediately before trial), that he refused to waive his speedy trial rights, and that — in open court and under oath — he agreed with his counsel's strategic decision to pursue a defense of excusable homicide rather than self-defense and stated he was satisfied with his counsel's performance), constitute a reasonable basis on which the state post-conviction court could find Petitioner's trial counsel was not ineffective for failing to investigate his allegations of mental infirmity during the commission of the crime. See Harrington, 562 U.S. at 105.
As Petitioner has not demonstrated that the state post-conviction court's decision was contrary to or involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts in light of the evidence presented, Ground Ten is denied.
Finally, in Ground Thirteen, Petitioner asserts a Fourteenth Amendment due process violation, challenging the sufficiency of the evidence produced by the State regarding the charge of first degree premeditated murder. (Doc. 1 at 22). He argues that the State did not present any evidence of premeditation and states that he testified to using self-defense against the victim. (Id.).
As with Grounds Four, Six, and Twelve, Petitioner raised Ground Thirteen in his amended Rule 3.850 motion (as what the court construed as issue fifteen) but did not raise the issue on direct appeal. (Doc. 20 Ex. 5 at 78). The state post-conviction court denied the motion, finding the claim raised by Ground Thirteen procedurally barred because Petitioner did not raise it on direct appeal. (Id.). The decision was affirmed per curiam by the state appellate court. (Doc. 20 Ex. 8 at 61). Because the state court found the issue procedurally barred, the issue is not cognizable on federal habeas review and Ground Thirteen is denied. See supra section III(C)(1).
Any of Petitioner's allegations not specifically addressed herein have been found to be without merit.
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). 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).
Petitioner has not demonstrated that reasonable jurists would find this Court's assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of reason would find this Court's procedural rulings debatable. Petitioner has failed to make a substantial showing of the denial of a constitutional right. Thus, this Court will deny Petitioner a certificate of appealability.
Accordingly, it is
Fla. Stat. § 810.02(b) (2008).
Fla. Const. art. I, § 16(a).
(Doc. 20 Ex. 5 at 81-82).
