SHERI POLSTER CHAPPELL, Magistrate Judge.
Before the Court is Petitioner Douglas K. Winland's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. 1) filed on April 1, 2016, and the Secretary of the Department of Corrections' Response in Opposition (Doc. 17) filed on September 12, 2018. Petitioner did not file a reply brief and the time to do so has past. The Petition is fully briefed and ripe for the Court's review. For the following reasons, the Court denies the Petition.
Winland, who is incarcerated within the Florida Department of Corrections, challenges his 2012 conviction and sentence. On November 6, 2010, Winland drove his van to the residence of Luis Colon. Colon and Winland's live in girlfriend for the past eighteen years, Sherry Hetz, were having an affair. Winland had known about the affair for about a month. Winland drove the van to Colon's residence and waited outside by the street for Colon to exit. When Colon exited the house via the garage door, Winland drove his van into the driveway, jumped out of the van, and pointed a shotgun at Colon. Colon ran back into the house through a door in the garage. As Colon was running into the house, Winland fired a single shot from the 12-gauge shotgun. The pellets from the shotgun struck the door but missed Colon.
Winland was tried by a jury of his peers in the Twentieth Judicial Circuit Court in and for Lee County, Florida and found guilty of: attempted second-degree murder with a firearm (Count I), aggravated assault with a firearm (Count II), and shooting at, within, or into a dwelling or building (Count III). Adjudicated in accordance with the verdict, Winland was sentenced to a minimum mandatory term of twenty years in prison. The Second DCA affirmed per curiam on August 16, 2013. Winland v. State, 119 So.3d 450 (Fla. 2d DCA 2013) [table]. Winland did not petition the United States Supreme Court for certiorari review.
Winland filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 dated May 12, 2014. On July 1, 2014, the Post-Conviction circuit court entered an order finding: (1) the Rule 3.850 motion was timely and contained the proper oath but failed to comply with Rule 3.850's "formatting requirements;" and (2) the majority of the grounds for relief (18 of 19) were "facially insufficient." Winland filed an amended Rule 3.850 motion on August 18, 2014. (Ex. 11). After response from the State (Ex. 13), the Post-Conviction Court denied Winland's amended Rule 3.850 motion without a hearing on November 14, 2014. (Ex.14). On appeal Florida's Second District Court of Appeal (Second DCA or Appellate Court) affirmed per curiam. Winland v. State, 177 So.2d 619 (Fla. 2d DCA 2015) (Ex. 14). Mandate issued on August 13, 2015. (Ex. 17); Winland v. State, 177 So.3d 619 (Fla. 2d DCA 2015) [table]. (2D14-5973).
On October 22, 2015, Winland filed a state petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. (Ex. 18). The petition was dismissed as untimely. (Ex. 19). Winland v. State, 2015 WL 9948099 (Fla. 2d DCA 2015). On October 13, 2015, Winland filed an untimely and successive rule 3.850 motion. (Ex. 20). The motion was denied as both untimely and successive (Ex. 21) and Winland appealed. The Second DCA affirmed per curiam. Winland v. State, 202 So. 3d. 421 (Fla. 2d DCA 2016).
Petitioner now files this Federal Petition for Writ of Habeas Corpus. Respondent, filed a limited response to the petition, incorporating a motion to dismiss the Florida Attorney General and dismiss the Petition as untimely filed. (Doc. 9). Winland filed a reply to the limited response. (Doc. 12). The Court found the Petition to be timely filed and dismissed the Florida Attorney General. (Doc. 13).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), governs this action. Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007). Under AEDPA, the standard of review is greatly circumscribed and highly deferential to the state courts. Alston v. Fla. Dep't of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010) (citations omitted). AEDPA altered the federal court's role in reviewing state prisoner applications 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).
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). The Supreme Court has also explained that "the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since `a general standard' from [the Supreme Court's] cases can supply such law." Marshall v. Rodgers, 133 S.Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts "must reasonably apply the rules `squarely established' by [the Supreme] Court's holdings to the facts of each case. White, 134 S. Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 29 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Knowles, 556 U.S. at 122.
Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.") (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
The Supreme Court has held that review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S. Ct. at 1398. Thus, the Court is limited to reviewing only the record that was before the state court at the time it rendered its order. Id.
In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a "doubly deferential" standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
The focus of inquiry under Strickland's performance prong is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Indeed, the petitioner bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," applying a "highly deferential" level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. That is, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Even an unreasonable error by counsel does not necessitate the setting aside of a judgment if the error did not affect the judgment. Id. at 692. Strategic decisions rendered by counsel after a complete review of relevant laws and facts are "virtually unchallengeable." Id. at 690-91. Petitioner cannot meet his burden by showing that counsel could have chosen a different course at trial. White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir.1992). Rather, Petitioner must show that counsel did not do what was constitutionally compelled to provide adequate counsel. Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794, (1987)); Hill v. Attorney Gen., Fla., No. 805-CV-911-T-30EAJ, 2008 WL 786652, at *3 (M.D. Fla. Mar. 20, 2008).
The AEDPA precludes federal courts, absent exceptional circumstances, from granting habeas relief unless a petitioner has exhausted all means of available relief under state law. Exhaustion of state remedies requires that the state prisoner "fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]" Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)). The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). In addition, a federal habeas court is precluded from considering claims that are not exhausted but would clearly be barred if returned to state court. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed to exhaust state remedies and the state court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, there is a procedural default for federal habeas purposes regardless of the decision of the last state court to which the petitioner actually presented his claims). Finally, a federal court must dismiss those claims or portions of claims that have been denied on adequate and independent procedural grounds under state law. Coleman, 501 U.S. at 750. If a petitioner attempts to raise a claim in a manner not permitted by state procedural rules, he is barred from pursuing the same claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural default will be excused only in two narrow circumstances. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both "cause" for the default and actual "prejudice" resulting from the default. "To establish cause for a procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) (internal quotation marks omitted). To establish prejudice, a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
The second exception, known as the fundamental miscarriage of justice, only occurs in an extraordinary case, where a "constitutional violation has probably resulted in the conviction of one who is actually innocent[.]" Murray v. Carrier, 477 U.S. 478, 479-80 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must "show that it is more likely than not that no reasonable juror would have convicted him" of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, "[t]o be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324.
Petitioner raises sixteen grounds in his Petition.
Respondent agrees that Grounds Two, Three, Four, Five, Six, Fourteen, and Fifteen are exhausted, but argues that Grounds One, Seven through Thirteen, and Ground Sixteen are unexhausted and procedurally barred. Respondent also states that while Grounds Fourteen and Fifteen are exhausted, they are procedurally barred.
In Ground One, Winland avers that the evidence could not prove murderous intent or an overt act. Winland argues the Prosecutor failed to produce prima facia evidence he intended to shoot Colon. Winland claims his lack of intent to shoot anyone when he fired the shotgun precludes his conviction because it shows he lacked murderous intent. Winland moved the trial court for Judgment of Acquittal arguing he lacked murderous intent. The trial court denied his motion and the Second DCA affirmed. According to Winland, the Second DCA's reasoning in upholding the trial court's denial was erroneous. Winland argues the evidence shows he did not target Colon but waited for Colon to close the door leading to the garage before firing. Winland argues that he merely intended to scare Colon but did not intend to harm him. Respondent argues that this ground is unexhausted because Winland did not claim a violation of the federal constitution or federal law in the Post-Conviction Court or on appeal.
A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); Paul v. Sec'y, Dep't of Corr., No. 8:15-CV-1397-T-33AEP, 2017 WL 2600824, at *2 (M.D. Fla. June 15, (2017) (citing 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 requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). See also Pearson v. Sec'y, Dep't of Corr., 273 F. Appx. 847, 849-50 (11th Cir. 2008) ("The exhaustion doctrine requires the petitioner to `fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right.") (citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)).
In his argument before the Second DCA alleging trial court error, Winland only argued from state law and state cases. (Ex. 6 at 9). Winland never mentioned or made a claim based upon federal law, federal cases, or the United States Constitution. Winland's failure to present the federal nature of Ground One in the State Court leaves the exhaustion requirement unsatisfied.
And at this point, Winland cannot return to the Second DCA to file a successive appeal. See Claughton v. Claughton, 393 So.2d 1061, 1062 (Fla. 1980) ("The general law and our procedural rules at both the trial and appellate levels are designed for one final judgment and one appeal."); Fla. R. App. P. 9.140(b)(3) (a defendant must appeal a final judgment within 30 days following rendition of a written order imposing sentence). Therefore, Winland's federal claims in Ground One are procedurally defaulted. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) (the doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established.").
Winland can show neither cause and prejudice or a fundamental miscarriage of justice to overcome the procedural bar. Winland was represented by counsel on appeal. He does not argue or present any evidence that an outside influence caused him to omit any federal law or constitutional claim in his appeal and he cannot show a fundamental miscarriage of justice because the evidence shows he shot at Colon. While Winland states he was not trying to shoot Colon, he freely admits he waited for Colon to exit the house, pulled into Colon's driveway when he saw him, exited the van, and fired at the door Colon was trying to enter. (Ex. 2 at 224,225, 239). This is confirmed by Colon and Winland's testimony.
Finally, Winland uses the wrong standard in his argument. Winland claims that the evidence does not show he had murderous intent, however, to prove attempted second-degree murder in Florida, the state must prove that Winland acted with depraved mind. Fla. Stat. §§ 777.04(1) & 782.04(2) (2004). Under Florida precedent, pointing a gun at an individual and firing the weapon is imminently dangerous to human life and evinces a depraved mind. See Hooker v. State, 497 So.2d 982 (Fla. 2d DCA 1986) (upholding second-degree murder conviction where the defendant, acting out of racial animus, shot into a mobile home he had reason to know would be occupied, killing a Guatemalan farm worker inside); Edwards v. State, 302 So.2d 479, 480-81 (Fla. 3d DCA 1974). Accordingly, there are no exceptions to the procedural bar and Ground One is denied.
In Ground Two, Winland claims that trial counsel was ineffective for failing to call a ballistics expert to testify about the trajectory of the pellets fired from his shotgun. Winland argues trial counsel's performance was objectively unreasonable and the omission of expert testimony prejudiced his case. Trial counsel inserted shish-kabob skewers into the holes made by the pellets from the shotgun blast to display the shot's trajectory. Winland says this did not accurately identify the trajectory. Winland argues that an expert could have been credited with the knowledge, training, and expertise that would have refuted the prosecutor's assumptions and cast a reasonable doubt in the jurors' minds when weighing the evidence and returning a verdict.
The Respondent argues that Winland's position is based upon unsupported conclusions. Winland never identified an expert that was available to testify and does not explain how the testimony related to trajectory would have benefitted his defense.
Upon review the Post-Conviction Court denied Winland's claim as follows:
(Ex. 14 at 2-4).
Trial counsel must decide which strategic and tactical option to pursue, such as deciding which witness to call or defense to present. See Preston v. Sec'y, Dep't of Corr., No. 6:08-CV-2085-ORL-31, 2012 WL 1549529, at *40 (M.D. Fla. May 1, 2012), aff'd sub nom. Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449 (11th Cir. 2015) (citing Dingle v. Sec'y, Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir.2007)). "Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and [trial] counsel's decision was reasonable under the norms of professional conduct." Hannon v. Sec'y, Dep't of Corr., 622 F.Supp.2d 1169, 1202 (M.D. Fla. 2007), aff'd, 562 F.3d 1146 (11th Cir. 2009); Strickland, 466 U.S. at 689 (In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance.").
"Th[e] prejudice burden is heavy where the petitioner alleges ineffective assistance in failing to call a witness because `often allegations of what a witness would have testified to are largely speculative.'" Sullivan v. Deloach, 459 F.3d 1097, 1109 (11th Cir. 2006) (quoting United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980)). Winland provides no evidence demonstrating that a ballistics expert was available to testify at the time of trial. Winland does not present either an affidavit from an expert or a copy of the expert's deposition testimony to support his ground of ineffective assistance of counsel. Winland's unsupported contention that counsel should have called an expert to testify, without more, is insufficient to warrant relief. See, e.g., Bray v. Quarterman, 265 F. Appx. 296, 298 (5th Cir. 2008) ("To prevail on [a claim of ineffective assistance of counsel for failing to call a witness], the petitioner must name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense."); United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) ("[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or an affidavit. A defendant cannot simply state that the testimony would have been favorable; self-serving speculation will not sustain an ineffective assistance claim.") (footnotes omitted). "[M]ere speculation that missing witnesses would have been helpful is insufficient to meet the petitioner's burden of proof." Streeter v. United States, 335 F. Appx. 859, 864 (11th Cir. 2009).
Trial counsel's strategic decision not to call an expert witness was reasonable. Winland admitted that he fired the gun at Colon as Colon entered the house through the garage door. As the Post-Conviction Court noted, the physical evidence shows the door was at least partially opened when Winland fired the shotgun, because some of the pellets penetrated the open edge of the door. Thus, Winland fails to show how he would be prejudiced by trial counsel's failure to call an expert witness to discuss the trajectory of the shot, since the jury knew he fired the shotgun at Colon, and photographic evidence was presented that the door was at least partially open when he fired. (Ex. 18). The trajectory of the pellets would not have changed the outcome of the trial, so Winland cannot establish the prejudice prong of Strickland. Ground Two lacks merit and is due to be denied.
In ground three, Winland claims that his trial counsel was ineffective for failing to pursue a "heat of passion" defense. Winland argues that it is well settled that the heat of passion defense is available in Florida. The heat of passion defense negates the depraved mind element necessary for a conviction of attempted second-degree murder. Winland says he shot at Colon because he was emotionally unstable due to the heat of passion caused by Colon's affair with his common law wife of eighteen years. This claim was raised in Winland's amended state post-conviction motion. Respondent argues that Winland's claim lacks merit because the facts do not support a heat of passion defense.
The Post-Conviction Court found as follows:
(Ex. 14 at 5-6).
Trial counsel made a strategic decision not to pursue a heat of passion defense. Winland's trial counsel was not ineffective for failing to argue the defense at trial. Winland stated that he knew about the affair between Hetz and Colon for about a month prior to the incident. (Ex. 2 at 218-19). Two weeks before the shooting Winland drove by Colon's house. Id. at 221. Winland took all of the guns out of his house a .22 caliber, a .38 special, and a shotgun and put them in his van. Id. at 223. Winland then drove to Colon's house and parked on the side of the road waiting for Colon to emerge from the house. Id. at 224. Winland put a shell in the shotgun. Id. When Colon opened the garage door, Winland drove his van halfway up Colon's drive way. Id. He exited the van, aimed the shotgun at the door where Colon was running back inside the house, and fired. Id. at 225.
The defense of "heat of passion" is well established in Florida. It can be a complete defense if the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation. See § 782.03, Fla. Stat. (2002); see also Fla. Std. Jury Instr. (Crim.) On Excusable Homicide. Or . . . it can be used as a partial defense, to negate the element of premeditation in first degree murder or the element of depravity in second degree murder. See, e.g., Douglas v. State, 652 So.2d 887 (Fla. 4th DCA 1995); Villella v. State, 833 So.2d 192, 195 (Fla. 5th DCA 2002). "Heat of passion" was best defined in Disney v. State, 72 Fla. 492, 73 So. 598, 601 (1916):
Salter v. Sec'y, Dep't of Corr., No. 8:15-CV-2001-T-36CPT, 2018 WL 3621040, at *7-8 (M.D. Fla. July 30, 2018) (citing Daley v. State, 957 So.2d 17, 18 (Fla. 4th DCA 2007).
The facts do not support a heat of passion defense. Winland knew about the affair for at least a month. He removed his guns from his house and placed them in his van. He drove to Colon's house and parked on the side of the road waiting for Colon to exit. He loaded the shotgun, and once he saw Colon exit the house, he drove the van into the driveway, jumped out of the van, pointed the weapon at Colon, and fired striking the door as Colon was reentering the house.
The facts support a different conclusion from heat of passion "one that showed planning and deliberate action by Winland" rather than being "oblivious to his real or apparent situation" or "impelled by a blind and unreasoning fury." Based upon the facts in the record, Trial counsel's failure to argue a heat of passion defense was not unreasonable. Trial counsel cannot be ineffective for failing to bring a defense contrary to the facts. See Palmer v. McDonough, 2006 WL 1382094 (M.D. Fla. May 19, 2006) (noting that failure to bring a meritless claim is not ineffective assistance of counsel). Ground Three is denied.
Winland claims that his trial counsel was ineffective for misinforming him about his right to testify. Winland argues that trial counsel gave him bad advice by advising him that he should not testify because the Prosecutor could twist his words. Winland acknowledges that the trial court went through the colloquy of his Constitutional rights. However, Winland says he told the trial court he did not want to testify at the colloquy based upon trial counsel's bad advice. Winland argues that had he testified, his testimony would have reflected the line of defense for the jury to weigh the evidence finding him guilty of shooting into a dwelling and allowing the jury to use its pardon power on the remaining counts because he reacted in the way he did in the heat of passion.
Respondent states this claim was raised in Winland's amended state postconviction motion and is exhausted for federal habeas purposes. However, the claim is conclusory and insufficient to entitle Winland to relief. Winland does not specify exactly what his testimony would have been and alleges no facts which would demonstrate prejudice under Strickland. His conclusory assertion that his testimony would have "reflected a line of defense" and allowed the jury to exercise its pardon power is merely speculation, which is insufficient to demonstrate prejudice and the claim should be dismissed.
The Post-Conviction Court denied this claim as follows:
(Ex. 14 at 6-7).
A defendant's right to testify at a criminal trial is a fundamental and personal right which cannot be waived by defense counsel. Payne v. United States, 546 F.Supp.2d 1312, 1316 (M.D. Fla. 2008), aff'd, 566 F.3d 1276 (11th Cir. 2009) (citing United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.1992) (en banc), cert. denied, 506 U.S. 842, (1992)). In Teague, the Eleventh Circuit held that it is defense counsel's responsibility to advise the defendant of this right and the strategic implications and "that the appropriate vehicle for claims that the defendant's right to testify was violated by defense counsel is a claim of ineffective assistance [under Strickland]." Id. at 1534. The Teague Court reasoned that an attorney's performance would be deficient under the first prong of the Strickland test if counsel refused to accept the defendant's decision to testify and would not call him to the stand or, alternatively, if defense counsel never informed the defendant of the right to testify. Id. In Teague, the defendant's ineffective assistance of counsel claim was rejected because the trial court found that counsel had advised the defendant of his right to testify, had advised him that he should not exercise that right, and the defendant did not protest. Teague, 953 F.2d at 1535.
Likewise, Winland was advised of his right to testify, counseled not to take the stand, participated in the Court's colloquy, and refused to testify. Thus, Winland's decision not to testify was not based solely on counsel's advice but also on the Court's colloquy. To the extent that Winland blames his refusal to testify on trial counsel, his argument fails. Trial counsel informed him of the right to testify and advised him against taking the stand which was a sound tactical decision. Moreover, the final decision to take the stand belonged solely to Winland, and Winland told the Court at the colloquy that he would not testify. Therefore, there was no ineffective assistance of trial counsel.
Winland claims that his trial counsel was ineffective for failing to move for a judgment of acquittal on the second-degree murder charge based on a failure to prove murderous intent. Winland argues that although trial counsel moved for J.O.A. on count one, attempted second-degree murder, trial counsel's performance was deficient. Winland argues he was prejudiced because trial counsel simply made boilerplate arguments that the State did not prove a prima facie case of second-degree murder. Winland argues that had trial counsel taken additional steps that the trial judge would have granted J.O.V. and either reduced or dismissed the charge. Respondent argues that Ground Five lacks merit.
The Post-Conviction Court denied Winland's claim as follows:
(Ex. 14 at 8-9).
Winland's argument lacks merit as murderous intent is not an element of attempted second-degree murder. In Florida, attempted second degree murder consists of the following elements: "(1) the defendant intentionally committed an act that could have resulted, but did not result, in the death of someone, and (2) the act was imminently dangerous to another and demonstrated a depraved mind without regard for human life." Kendrick v. Sec'y, Dep't of Corr., No. 6:10-CV-333-ORL-31, 2011 WL 4529638, at *4 (M.D. Fla. Sept. 30, 2011) (quoting State v. Florida, 894 So.2d 941, 946 (Fla.2005), receded from on other grounds (citing Brown v. State, 790 So.2d 389, 390 (Fla.2000)); see also Fla. Stat. §§ 777.04(1) & 782.04(2) (2004)). Arguing that the Prosecutor did not prove murderous intent would be meritless, and failure to bring a meritless claim is not ineffective assistance of counsel. Palmer v. McDonough, 2006 WL 1382094 (M.D. Fla. May 19, 2006). Further, Winland's argument that had trial counsel made better arguments the Court would have granted his J.O.V. is nothing more than speculation, and self-serving speculation will not sustain an ineffective assistance claim. Ashimi, 932 F.2d at 650; Streeter, 335 F. Appx. at 864.
Winland claims that his trial counsel was ineffective for failing to object or move for mistrial when the prosecutor incorrectly stated, during closing argument, that Sherry Hetz called the victim and said, "watch out, he's got guns." During closing arguments, the Prosecutor stated that "you heard how Sherry had called the alleged victim "Ms. Hetz" that is and said watch out, he's got a gun." Colon nor any other witness ever made this statement. Winland argues the statement was made in violation of Gigilio where (1) the statement was false, (2) the prosecutor knew the statement was false; and (3) the statement was material. The Post-Conviction Court dismissed the claim as successive and untimely filed. Winland argues that the motion as not untimely because the Court misunderstood the time calculations. Respondent argues that the claim is without merit.
The Post-Conviction Court held as follows:
(Ex. 14 at 8-9).
The Post-Conviction Court acknowledged that no one testified that Colon received a warning call from Hetz. However, the phone call evidence from Hetz was admitted `through Winland's interrogation with law enforcement, which was published to the jury. Winland's interrogation went as follows:
(Ex. 2 at 234).
The question of when to object is a strategic decision that is within the discretion of the attorney and should not normally be questioned by a court if the attorney's actions could be considered reasonably competent counsel. Dailey v. Sec'y, Fla. Dep't of Corr., No. 8:07-CV-1897-T-27MAP, 2012 WL 1069224, at *3 (M.D. Fla. Mar. 29, 2012) (citing Peterka v. State, 890 So.2d 219, 233 (Fla.1999)). While the Prosecutor's statement was not explicitly testified to in Court, there was evidence presented to the jury that Hetz called Colon and warned him that Winland had a gun. Therefore, trial counsel's failure to object to the Prosecutor's statement did not prejudice Winland under Strickland.
Respondent argues that Grounds Seven through Thirteen are procedurally barred because the State Post-Conviction Court denied Winland's second post-conviction motion as both successive and untimely. (Ex. 21). Winland says the State Court wrongly calculated the time period, so that his claims should not be untimely. Thus, he argues the Court should consider Grounds Seven through Thirteen even though they are procedurally barred.
The Post-Conviction Court held as follows:
(Ex. 22 at 1-2). While Winland argues that the Post-Conviction Court did not properly consider the time frames under the Rule, Winland provides no explanation why the post-conviction court was wrong other than a conclusory statement that they were wrong. Winland's argument lacks merit. Further, Grounds Seven through Thirteen are also procedurally barred because his Rule 3.850 motion was successive.
Winland cannot return to state court to present Grounds Seven through Thirteen because Florida procedural rules preclude a second, untimely Rule 3.850 motion absent certain extenuating circumstances that are not present. See Fla. R. Crim. P. 3.850 (requiring such a motion to be filed within two years after the judgment and sentence become final). If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established. See Coleman, at 750-51. The Court finds these claims are unexhausted and procedurally defaulted.
A procedural default for failing to exhaust state court remedies will only be excused in one of two narrow circumstances. First, Petitioner may obtain review of a procedurally defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting therefrom. Allen v. Sec'y, No. 2:12-CV-644-FTM-29CM, 2016 WL 762648, at *5 (M.D. Fla. Feb. 24, 2016). Second, Petitioner would have to show a fundamental miscarriage of justice. Winland shows neither cause nor prejudice "failing to timely file Grounds Seven through Fourteen in his initial Rule 3.850 motion was his own fault" nor did he show a fundamental miscarriage of justice because he cannot show actual innocence of the crime of conviction as required by Smith v. Murray, 477 U.S. 527, 537 (1986). Winland did not file a reply and the Court otherwise finds no basis to excuse the procedural default. See generally Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). Consequently, the Court finds Grounds Seven through Thirteen are unexhausted and procedurally barred.
In Grounds Fourteen and Fifteen, Winland raises claims of ineffective assistance of appellate counsel. Winland raised these claims in his state claims alleging ineffective assistance of appellate counsel. (Ex. 18). However, the Second DCA dismissed Winland's state petition as untimely. (Ex. 19). If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established. See Coleman, at 750-51.
Here, Winland cannot return to state court to present Grounds Fourteen and Fifteen because the claims were untimely nor can he argue cause and prejudice or show a fundamental miscarriage of justice under Martinez, because Martinez does not apply to ineffective assistance of appellate counsel. Davila v. Davis, 137 S.Ct. 2058 (2017) (noting that the United States Supreme Court held that Martinez applies exclusively to ineffective assistance of trial counsel claims). Therefore, Grounds Fourteen and Fifteen are procedurally barred.
In Ground Sixteen, Winland argues the accumulation of errors violated his rights to due process and a full and fair trial. Winland makes no argument to support this claim. Respondent argues that this claim was not raised in state court and is procedurally barred.
Winland's claim of cumulative error is without merit. A review of the record shows that this claim was not raised in the state court and is procedurally barred. As all Winland's individual claims are either procedurally barred or without merit, his cumulative error claim fails. Hannon v. Sec'y, Dep't of Corr., 622 F.Supp.2d 1169, 1229-30 (M.D. Fla. 2007), aff'd, 562 F.3d 1146 (11th Cir. 2009) (citing Griffin v. State, 866 So.2d 1, 22 (Fla.2003) ("[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail."). Therefore, this claim is without merit and rejected as procedurally barred.
Winland is not entitled to a certificate of appealability. A prisoner seeking to appeal a district court's final order denying his petition for writ of habeas corpus has no absolute entitlement to appeal but must obtain a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180, 184 (2009). "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that "the issues presented were adequate to deserve encouragement to proceed further", Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003)(citations omitted). Petitioner has not made the requisite showing in these circumstances.
Accordingly, it is now
