WILLIAM F. JUNG, District Judge.
William M. Murray, a Florida prisoner, initiated this action for habeas corpus relief pursuant to 28 U.S.C. Section 2254. (Dkt. 1). Upon consideration of the petition and memorandum, the Court ordered Respondent Secretary, Department of Corrections, to show cause why relief sought in the petition should not be granted. (Dkt. 8). Thereafter, Respondent filed a response in opposition to the petition, along with the state court record. (Dkts. 13, 15). Although permitted to do so, Mr. Murray did not file a reply. (Dkt. 8 at 4).
In his petition, Mr. Murray alleges eight (8) claims for relief. The Court will address related claims together.
Following a jury trial in February 2008, Mr. Murray was found guilty of robbery with a firearm and sentenced to life in prison as a prison releasee reoffender ("PRR"). (Dkt. 15 Ex. 1 at 56; Ex. 2 at 303, 306).
Mr. Murray appealed, and his attorney filed an Anders
Mr. Murray then moved for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. (Dkt. 15 Ex. 7). The court held an evidentiary hearing on, and ultimately denied, each of his claims. (Dkt. 15 Exs. 9, 11). Mr. Murray appealed, and the state appellate court affirmed, per curiam, the denial of his Rule 3.850 motion. (Dkt. 15 Exs. 14, 17); Murray v. State, 177 So.3d 617 (Fla. 2d DCA 2015) (table).
Mr. Murray then filed the instant federal habeas petition in this Court. Upon review, the Court can resolve the entire petition on the basis of the record. Therefore, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
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.
Under section 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).
In evaluating a petitioner's claim, a federal habeas court must first identify the highest state court decision, if any, that adjudicated the claim on the merits. Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). Where that state court's adjudication is not accompanied by a reasoned opinion, the United States Supreme Court has explained that:
Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Deficient performance is established if, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.
The petitioner must demonstrate that counsel's alleged errors prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show prejudice, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Sustaining a claim of ineffective assistance of counsel on federal habeas review is very difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.") (citation omitted). If a claim of ineffective assistance of counsel can be resolved through one of Strickland's two prongs, the other prong need not be considered. Strickland, 466 U.S. at 697; Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998).
In grounds one and two, Mr. Murray contends that his trial counsel erred by failing to object to the testimony of three witnesses who stated that Mr. Murray was in a surveillance video of the robbery in question. (Dkt. 1 at 5, 7).
Mr. Murray raised these claims as issues one and two in his Rule 3.850 motion for post-conviction relief. (Dkt. 15 Ex. 7 at 19-24). Following an evidentiary hearing, the state post-conviction court, affirmed by the state appellate court, denied relief. With regard to counsel's failure to object to the witness testimony, the court explained:
(Dkt. 15 Ex. 11 at 64-65). The court also explained:
(Dkt. 15 Ex. 11 at 68-69).
Regarding Mr. Murray's claim that counsel should have requested a curative instruction when the witnesses identified Mr. Murray' as being in the surveillance video, the state post-conviction court reiterated counsel's testimony that identity was not an issue in the case, determined that counsel's strategy in that regard was reasonable, and found counsel was not deficient for failing to request a curative instruction. (Dkt. 15 Ex. 11 at 70-71).
The record supports the state court's decisions. During the evidentiary hearing, trial counsel testified that the case was not one of misidentification. He stated, "[m]y theory was what really happened and I think that's what I closed my case with . . . [t]hat this was not a robbery and we don't know what really happened. It was not an issue of misidentification based upon my interviews with my client." (Dkt. 15 Ex. 9 at 128). Counsel further testified that Mr. Murray admitted to him that he was at the scene and interacted with the victim, but that the interaction was merely a verbal altercation, not a robbery. (Dkt. 15 Ex. 9 at 128-29).
At trial during opening statements, co-counsel for the defense stated: "This is not a case about an armed robbery. This is a case where things are not always what they appear. This is a case where the facts will show it just doesn't add up. This case is going to come down to details." (Dkt. 15 Ex. 2 Vol. II at 120). Near the end of the opening statement, co-counsel repeated the idea that "this is not a case about an armed robbery. This is a case where things are not always what they seem. The facts are just not going to add up." (Dkt. 15 Ex. 2 Vol. II at 122). Then, at the very end, she urged:
(Dkt. 15 Ex. 2 Vol. II at 122).
During closing, trial counsel highlighted numerous inconsistencies and unanswered questions, and argued:
(Dkt. 15 Ex. 2 Vol. II at 284). Then, at the evidentiary hearing held by the post-conviction court, Mr. Murray affirmed that, prior to trial, he told his trial counsel that he was at the scene and had an encounter with the victim. (Dkt. 15 Ex. 9 at 24).
Mr. Murray's testimony and counsels' arguments are consistent with trial counsel's recollection at the evidentiary hearing that identity was not an issue and the defense strategy was to show the encounter was not a robbery. The Court agrees with the state court that trial counsel's defense strategy was reasonable. See Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983) (explaining that strategic decisions within the range of reasonable professional competence are not subject to collateral attack, unless a decision was so "patently unreasonable that no competent attorney would have chosen it."). Because identification was not an issue, Mr. Murray cannot demonstrate prejudice from the witnesses' identification testimony; nor can he demonstrate that a curative instruction was necessary.
Accordingly, Mr. Murray has not shown that the state court's decisions regarding grounds one and two — that trial counsel did not act deficiently and that Mr. Murray was not prejudiced by the failure to object to the witnesses' testimonies or to request a curative instruction — were contrary to, or an unreasonable application of, federal law or based on an unreasonable determination of the facts. Grounds one and two are denied.
In ground three, Mr. Murray contends that his counsel erred by calling Anthony Ventura as a defense witness. He claims counsel should have known that, by calling Mr. Ventura, the State would ask Mr. Ventura to identify Mr. Murray as being on the challenged surveillance video and that such testimony was prejudicial to the defense. (Dkt. 1 at 9). Had counsel fully investigated and interviewed Mr. Ventura, Mr. Murray argues, counsel would have known Mr. Ventura would identify Mr. Murray as being on the surveillance video and, therefore, would not have called him as a witness. (Dkt. 1 at 10).
Mr. Murray raised this as issue three in his Rule 3.850 motion. (Dkt. 15 Ex. 7 at 25-26). The state post-conviction court, affirmed per curiam by the state appellate court, denied relief:
(See Evid. Hrg. Transcr., p. 10).
(Dkt. 15 Ex. 11 at 72-73). The record supports the state court's decision. (See Dkt. 15 Ex. 9 at 102, 131-32).
"Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one [a reviewing court] will seldom, if ever, second guess." Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). As explained, the state court reasonably determined that identity was not an issue in the case. Moreover, Mr. Murray testified that he did not voice any objection to his counsel when counsel discussed calling Mr. Ventura as a witness. (Dkt. 15 Ex. 9 at 102). Given these circumstances, trial counsel's decision to call Mr. Ventura as a defense witness to impeach part of Detective Navarro's testimony was within the wide range of reasonable professional competence. See White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992) ("The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.").
Accordingly, the state court's decision was not contrary to, or an unreasonable application of, federal law or based on an unreasonable determination of the facts. Ground three is denied.
In ground four, Mr. Murray argues that his counsel erred by failing to impeach the ability of Detective Navarro and Mr. Ventura to identify him on the video surveillance tape. (Dkt. 1 at 11). He claims impeaching the witnesses' ability to identify him in the video would have weakened the case against him and created a reasonable possibility of acquittal. (Dkt. 1 at 11-12).
Mr. Murray raised this claim as issue four in his Rule 3.850 motion for post-conviction relief. (Dkt. 15 Ex. 7 at 27-29). The state post-conviction court, affirmed per curiam by the state appellate court, denied relief following the evidentiary hearing. The Court explained that counsel did not act deficiently because: (1) counsel's strategy that identity was not an issue was reasonable, and (2) "the trial court's ruling limiting testimony about the tape to identification prohibited counsel from asking questions into the contents of the tape." (Dkt. 15 Ex. 11 at 73-74).
Whether or not the type of impeachment now sought by Mr. Murray was prohibited by the trial court's evidentiary ruling is a matter of state law, and the Court is bound by the state court's conclusion on that issue. See Estelle v. McGuire, 502 U.S. 62, 67 (1991); Sims v. Singletary, 155 F.3d 1297, 1312 (11th Cir. 1998) ("In habeas corpus proceedings, federal courts generally do not review a state court's admission of evidence."). See also Pinkney v. Secretary, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984) (superseded by statute on other grounds)) ("[A]lthough `the issue of ineffective assistance — even when based on the failure of counsel to raise a state law claim — is one of constitutional dimension,' [the Court] `must defer to the state's construction of its own law' when the validity of the claim that . . . counsel failed to raise turns on state law.")). Therefore, because the state court determined the impeachment now sought by Mr. Murray was prohibited, it reasonably concluded trial counsel did not err by failing to pursue such impeachment.
Moreover, even if counsel erred under state law by not attempting to impeach the witnesses' identifications, the Court does not find prejudice as a result of counsel's failure to do so. As explained, identity was not an issue in the case and counsel's defense strategy was reasonable in that regard. See Strickland, 466 U.S. at 694.
Accordingly, the state court's decision was not contrary to, or an unreasonable application of, federal law or based on an unreasonable determination of the facts. Ground four does not entitle Mr. Murray to relief.
In ground five, Mr. Murray claims counsel erred by "fail[ing] to impeach [S]tate witness Calvin Bryant[, the victim,] by attacking his credibility with his prior inconsistent statements." (Dkt. 1 at 16). He claims that, had counsel impeached Mr. Byrant, there is a reasonable probability that the outcome of the trial would have been different. Id.
Mr. Murray does not list in his petition the prior inconsistent statements that he now challenges. This, alone, is sufficient to deny him relief on this claim. See e.g., Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (quoting Advisory Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts) (with regard to a habeas petition, "`(N)otice' pleading is not sufficient, for the petition is expected to state facts that point to a `real possibility of constitutional error'"). See also Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (holding that vague, conclusory, or speculative allegations cannot support a claim of ineffective assistance of counsel). However, even considering the challenged statements detailed in issue five in his Rule 3.850 motion for post-conviction relief, his claim is without merit.
In his Rule 3.850 motion for post-conviction relief, Mr. Murray challenged his counsel's failure to impeach on the following statements:
(Dkt. 15 Ex. 7 at 14-15).
The state post-conviction court, affirmed per curiam by the state appellate court, denied relief following the evidentiary hearing, explaining:
(See Evid. Hrg. Transcr., p. 41).
(Dkt. 15 Ex. 11 at 74-75).
Upon review, the state court's decision is supported by the record and was not contrary to, or an unreasonable application of, federal law or based on an unreasonable determination of the facts. "The decision as to whether to cross-examine a witness is `a tactical one well within the discretion of a defense attorney.'" Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001) (quoting Messer v. Kemp, 760 F.2d 1080, 1090 (11th Cir. 1985)). "Absent a showing of `a single specific instance where cross-examination arguably could have affected the outcome of either the guilt or sentencing phase of the trial,' the petitioner is unable to show prejudice necessary to satisfy the second prong of Strickland." Id. (quoting Messer, 760 F.2d at 1090).
The Eleventh Circuit has found counsel was ineffective "where counsel failed to impeach the key prosecution witness with prior inconsistent testimony where the earlier testimony was much more favorable to the defendant." Id. at 1219-20 (citing Nixon v. Newsome, 888 F.2d 112, 115-16 (11th Cir.1989); Smith v. Wainwright, 799 F.2d 1442, 1443-44 (11th Cir.1986) (per curiam)). However, a petitioner cannot show ineffective assistance "merely because `other testimony might have been elicited from those who testified.'" Id. at 1220 (quoting Waters v. Thomas, 46 F.3d 1506, 1514 (11th Cir. 1995)).
Here, Mr. Murray merely complains that there was other inconsistent testimony that might have been elicited from the victim at trial. However, none of the earlier deposition testimony, as described by Mr. Murray, was any more favorable to his defense. As the state court found, the prior inconsistent statements were not material, and the Court discerns no reasonable probability that impeachment with the prior inconsistent statements would have resulted in Mr. Murray's acquittal. He, therefore, has not demonstrated the prejudice required by Strickland. See 466 U.S. at 694. Ground five is denied.
In ground six, Mr. Murray claims counsel "interfere[ed] with [his] right to testify by misadvising him as to the state's ability to question [him regarding] the nature of his prior offense." (Dkt. 1 at 18). He argues that, had he been advised correctly, he would have chosen to testify and his testimony would have led to his acquittal. (Id.).
Although he raised this claim in his motion for post-conviction relief (Dkt. 15 Ex. 7 at 33-35), the issue is not exhausted because he failed to raise it on appeal of the denial of his Rule 3.850 motion. (Dkt. 15 Ex. 14). See 28 U.S.C. § 2254(b)(1)(A) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State[.]"). As he does not assert cause and prejudice or a fundamental miscarriage of justice to overcome the default, see Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001), the claim is procedurally barred from habeas review and is denied.
In ground seven, Mr. Murray states that his "conviction and sentence was imposed in violation of his right to due process under the 6th and 14th amendments of the U.S. Constitution and the Florida Constitution." (Dkt. 1 at 20). However, under supporting facts, he merely states "To be amended." (Id.). Accordingly, he has failed to assert a claim for relief, and any claim he was attempting to assert is denied. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (holding that vague, conclusory, or speculative allegations cannot support a claim of ineffective assistance of counsel).
Finally, in ground eight, Mr. Murray claims his trial counsel erred by failing to bring to the trial court's attention an exception to the mandatory PRR sentencing scheme. Citing Section 775.082(9)(d)(1), Fla. Stat. (2007), Mr. Murray claims that, because the victim did not want him to receive a mandatory life sentence, there is a reasonable probability that the trial court would have sentenced him to a term less than life in prison. (Dkt. 1 at 21-22).
Mr. Murray raised this claim as issue eight in his Rule. 3.850 motion for post-conviction relief. (Dkt. 15 Ex. 7 at 38-39). Following an evidentiary hearing, the post-conviction court, affirmed per curiam by the state appellate court, denied relief:
(Dkt. 15 Ex. 11 at 80-81).
Although the question of ineffective assistance is one of federal law, the issue of whether Section 775.082(9)(d), Florida Statutes, operates as Mr. Murray claims it does is an issue of state law. The Court is bound by the state court's determination on that issue. See Pinkney, 876 F.3d at 1295. Because the state court decided that the State, not defense counsel, must determine whether an extenuating circumstance exists pursuant to Section 775.082(9)(d), Florida Statutes, it reasonably determined that defense counsel did not err by failing to bring the alleged exception to the court's attention.
The state court's decision is, therefore, not contrary to, or an unreasonable application of, federal law or based on an unreasonable determination of the facts. Ground eight is denied.
Any of Mr. Murray's allegations not specifically addressed herein are without merit.
It is therefore
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is
2. A certificate of appealability (COA) is
[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
