CHARLES J. KAHN, JR., Magistrate Judge.
Before the court is a petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (doc. 1). Respondent filed an answer, providing relevant portions of the state court record (doc. 34). Petitioner replied (doc. 43). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, the undersigned concludes that no evidentiary hearing is required for the disposition of this matter. Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. The undersigned further concludes that the pleadings and attachments before the court show that petitioner is not entitled to habeas relief, and that the petition should be denied.
On April 9, 2010, petitioner approached Ulysses Robinson from behind as Robinson was about to enter his vehicle, pointed a gun at him and demanded he empty his pockets. Robinson turned and faced petitioner, saw petitioner's gun pointed at his (Robinson's) chest, and told petitioner and his associate that he did not have any money. Petitioner repeated his demand. Petitioner's cohort instructed Robinson not to run. Robinson, fearing for his life, took his wallet from his pants pocket, threw it on the ground toward petitioner and his cohort, and told them they could take his wallet. Petitioner and his associate looked at the wallet and walked away. (Doc. 34, Ex. A, p. 8 (probable cause affidavit); see also Ex. C, pp. 31-64 (Robinson's trial testimony)).
Petitioner was charged in Leon County Circuit Court Case No. 2010-CF-1349, with attempted armed robbery with a firearm, in violation of Sections 777.04, 775.087 and 812.13(2)(a), Florida Statutes. (Ex. A, p. 6). The State filed a notice of intent to seek petitioner's enhanced sentencing under Florida's Prison Releasee Reoffender (PRR) Act, asserting that the charged offense occurred within three years of petitioner's release from the Florida Department of Corrections' custody on February 21, 2009, and that the pending charge was a qualifying offense or a felony involving the use or threat of physical force or violence against an individual under Section 775.082(9), Florida Statutes. (Ex. A, p. 17).
A jury trial was held on October 28, 2010, which ended in a mistrial after a jury deadlock. (See Ex. A, p. 62 (order noting same)). Petitioner was re-tried on January 24, 2011. (Exs. C, D (trial transcript)). The jury found petitioner guilty as charged and also found that he actually possessed a firearm during commission of the offense. (Ex. A, p. 103-04; Ex. D, pp. 299-300). Petitioner was sentenced to 15 years in prison and adjudicated a PRR, which means he must serve 100 percent of his sentence. (Ex. A, pp. 141-42 (sentencing transcript); Ex. A, pp. 105-113 (judgment)).
On direct appeal, petitioner's appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and In re Anders Briefs, 581 So.2d 149 (Fla. 1991). Counsel asserted she was unable to make a good faith argument that reversible error occurred in the trial court, with the exception of the trial court's improper imposition of a fine, a surcharge, an administrative fee and cost of prosecution. (Ex. H (Anders brief); see also Ex. F (motion to correct sentencing errors)). Petitioner filed a pro se brief raising three issues: the trial court erred in denying his motion for judgment of acquittal; the trial court erred in denying his motion for mistrial, and the trial court erred in imposing certain costs. (Ex. I). On July 3, 2012, the Florida First District Court of Appeal (First DCA) affirmed petitioner's judgment and sentence, but struck one cost. McCarthan v. State, 91 So.3d 268 (Fla. 1st DCA 2012) (copy at Ex. M). The mandate issued July 31, 2012. (Ex. M). An amended judgment striking the improper cost was entered August 3, 2012. (Ex. N).
On August 14, 2012, petitioner filed a pro se motion to mitigate sentence under Florida Rule of Criminal Procedure 3.800(c). (Ex. O). The state circuit court denied the motion on August 20, 2012. (Id.). The order was not appealable. See Mitchell v. State, 719 So.2d 1258 (Fla. 1st DCA 1998) (holding that a Rule 3.800(c) motion "is addressed to the discretion of the trial court; thus, an appellate court "has no jurisdiction to review the correctness of the trial court's disposition of the motion."); Edwards v. State, 53 So.3d 1131 (Fla. 1st DCA 2011) (observing that a trial court's order denying a motion to mitigate sentence under Rule 3.800(c) is "not an appealable order").
Also in August 2012, petitioner filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which he later amended. (Ex. P, pp. 1-54 (amended Rule 3.850 motion)). Petitioner's amended Rule 3.850 motion raised eight grounds for relief: (1) ineffective assistance of trial counsel (Grounds A, D, E, F, G, H); (2) insufficient evidence (Ground B); and prosecutorial misconduct (Ground C). The state circuit court granted an evidentiary hearing and appointed postconviction counsel. (Ex. P, pp. 136, 153; Ex. Q (transcript of hearing and exhibits)). At the conclusion of the hearing, the court denied relief, stating its reasons on the record. (Ex. Q, pp. 265-75). A written order followed. (Ex. P, p. 154). Petitioner was appointed counsel on appeal. (Ex, P. pp. 164-65). The First DCA affirmed per curiam without opinion. McCarthan v. State, 163 So.3d 1185 (Fla. 1st DCA 2015) (Table) (copy at Ex. T). The mandate issued June 8, 2015. (Ex. T).
While his Rule 3.580 proceeding was pending, petitioner filed a pro se petition for writ of habeas corpus in the First DCA on December 4, 2013, alleging ineffective assistance of direct appeal counsel. (Ex. U). The First DCA denied the petition on the merits. McCarthan v. State, 133 So.3d 536 (Fla. 1st DCA 2014) (copy at Ex. V). Rehearing was denied on January 30, 2014. (Ex. W).
On July 12, 2015, petitioner filed another pro se petition for writ of habeas corpus in the First DCA alleging ineffective assistance of direct appeal counsel. (Ex. X). The First DCA denied the petition on the merits on August 6, 2015. McCarthan v. State, 171 So.3d 215 (Fla. 1st DCA 2015) (copy at Ex. Y).
Petitioner filed his federal habeas petition on August 12, 2015. (Doc. 1, p. 1). The petition raises five grounds for relief including one claim of ineffective assistance of trial counsel, one claim of prosecutorial misconduct, and three claims of trial court error. Respondent argues that each claim fails for one or more of the following reasons: (1) the claim is procedurally defaulted, (2) the claim is without merit. (Doc. 34).
Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1), thereby giving the State the "`opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L. Ed. 2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L. Ed. 2d 438 (1971) (citation omitted)). The petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L. Ed. 2d 1 (1999); Picard, 404 U.S. at 277-78. A claim that was not presented to the state court and can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. See Boerckel, 526 U.S. at 839-40, 848; Hittson v. GDCP Warden, 759 F.3d 1210, 1260 n.56 (11th Cir. 2014) ("Where a return to state court would be futile — because the petitioner's claims would clearly be barred by state procedural rules — a federal court can `forego the needless judicial ping-pong' and treat unexhausted claims as procedurally defaulted." (quoting Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998))).
A claim is also considered procedurally defaulted if it was presented to the state court but rejected on the independent and adequate state ground of procedural bar or default. See Maples v. Thomas, 565 U.S. 266, 280, 132 S.Ct. 912, 181 L. Ed. 2d 807 (2012) ("As a rule, a state prisoner's habeas claims may not be entertained by a federal court when (1) a state court [has] declined to address [those] claims because the prisoner had failed to meet a state procedural requirement, and (2) the state judgment rests on independent and adequate state procedural grounds." (alterations in original) (internal quotation marks and citations omitted)); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) ("[C]laims that have been held to be procedurally defaulted under state law cannot be addressed by federal courts."). The adequacy of a state procedural bar to the assertion of a federal question is itself a federal question. See Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L. Ed. 2d 820 (2002). The adequacy requirement has been interpreted to mean that the state rule must be "firmly established and regularly followed," Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006), that is, not applied in an "arbitrary or unprecedented fashion," Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001), or in a manifestly unfair manner. Ford v. Georgia, 498 U.S. 411, 424-25, 111 S.Ct. 850, 112 L. Ed. 2d 935 (1991); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995).
A petitioner seeking to overcome a procedural default must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L. Ed. 2d 640 (1991). "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L. Ed. 2d 517 (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L. Ed. 2d 397 (1986)). The miscarriage of justice exception requires the petitioner to show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 85, 130 L. Ed. 2d 808 (1995). This standard is very difficult to meet:
513 U.S. at 327. "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him." Id.
Federal courts are precluded from granting a habeas petition on a claim that was adjudicated on the merits in state court unless the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court's factual determinations are presumed correct, unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000).
Id., 529 U.S. at 412-13 (O'Connor, J., concurring).
Under the Williams framework, the federal court must first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. See Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L. Ed. 2d 1003 (2010); Woods v. Donald, 575 U.S. ___, ___, 135 S.Ct. 1372, 1376, 191 L. Ed. 2d 464 (2015) ("We have explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions." (internal quotation marks and citation omitted)).
After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is "contrary" only if either the reasoning or the result contradicts the relevant Supreme Court cases. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L. Ed. 2d 263 (2002) ("Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S. Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants: "Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court." (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168 L. Ed. 2d 662 (2007).
If the "contrary to" clause is not satisfied, the federal habeas court next determines whether the state court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was "objectively unreasonable" in light of the record before the state court. See Williams, 529 U.S. at 409; Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L. Ed. 2d 683 (2004). The Supreme Court described the "unreasonable application" standard this way:
Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L. Ed. 2d 624 (2011)). The § 2254(d) standard "is difficult to meet . . . because it was meant to be." Richter, 562 U.S. at 102.
Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The "unreasonable determination of the facts" standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the "unreasonable application" clause, the federal court applies an objective test. See Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L. Ed. 2d 931 (2003) (holding that a state court decision based on a factual determination "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding."). Federal courts "may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance." Brumfield v. Cain, 576 U.S. ___, ___, 135 S.Ct. 2269, 2277, 192 L. Ed. 2d 356 (2015) (quotation marks omitted).
Only if the federal habeas court finds that the petitioner satisfied AEDPA and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a).
Petitioner's first claim challenges trial counsel's strategic decision to pursue an abandonment defense over petitioner's preferred defense that the incident never happened and was fabricated by Mr. Robinson over a narcotics and gambling dispute. (Doc. 1, pp. 16-20 in ECF). Petitioner alleges that his conflict with counsel over the appropriate defense resulted in the presentation of contradicting defenses, because counsel's abandonment argument placed petitioner at the scene with possession of a firearm attempting to commit a robbery but abandoning the attempt, while petitioner's trial testimony wholly denied the incident occurred and contended Robinson made up the story.
In addition to faulting counsel's choice of defense, petitioner also faults counsel for (1) failing to adequately cross-examine Mr. Robinson with prior inconsistent statements; (2) failing to have an investigator take pictures of the escape route petitioner was alleged to have used; (3) failing to provide petitioner a copy of Mr. Robinson's deposition; (4) refusing to present the trial court with evidence that petitioner was taking psychotropic medication, receiving psychiatric counseling, and had a history of psychiatric treatment and hospitalizations; (5) failing to object to the prosecutor's questioning petitioner, during cross-examination, about petitioner's possession of a firearm during a prior offense; (6) failing to contact witness Gabriel Hayes; (7) failing to provide petitioner with a transcript of his statements to police; (8) failing to obtain a transcript of a 911 call; (9) failing to get phone records to prove the substance of a phone call between petitioner and Mr. Robinson; (10) failing to request a jury instruction on the lesser included offense of aggravated assault with a firearm; and (11) failing to object to the prosecutor's theory that Robinson's driver license was an item of value. (Doc. 1, pp. 17-20 in ECF). Petitioner asserts he raised all of these instances of ineffective assistance in his amended Rule 3.850 motion. (Doc. 1, p. 5).
Respondent construes petitioner's claim as asserting only that counsel "fail[ed] to argue that the victim fabricated the incident, focusing on a defense of abandonment instead." (Doc. 34, p. 15). Respondent concedes petitioner exhausted this ground of ineffective assistance in state court, but argues petitioner is not entitled to federal habeas relief because he has not met § 2254(d)'s difficult standard. (Id., pp. 15-18). Respondent does not address petitioner's remaining complaints about counsel's performance.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set out a two-part inquiry for ineffective assistance of counsel claims. The petitioner must show that (1) his counsel's performance was constitutionally deficient, and (2) the deficient performance prejudiced him. See Strickland, 466 U.S. at 687. "First, petitioner must show that `counsel's representation fell below an objective standard of reasonableness. Second, petitioner must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 91 L. Ed. 2d 144 (1986) (quoting Strickland, 466 U.S. at 694).
Trial counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "Judicial scrutiny of counsel's performance must be highly deferential," and courts should make every effort to "eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. The burden to overcome that presumption and to show that counsel's performance was deficient "rests squarely on the defendant." Burt v. Titlow, 571 U.S. ___, 134 S.Ct. 10, 17, 187 L. Ed. 2d 348 (2013); Cullen v. Pinholster, 563 U.S. 170, 189, 131 S.Ct. 1388, 179 L. Ed. 2d 557 (2011) ("To overcome that presumption, a defendant must show that counsel failed to act reasonably considering all the circumstances." (quotation marks and alterations omitted)). "[T]he absence of evidence cannot overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Titlow, 134 S. Ct. at 17 (quotation marks and alterations omitted).
To establish prejudice, a defendant must show a "reasonable probability" of a different result. See Strickland, 466 U.S. at 694. A reasonable probability is one that sufficiently undermines confidence in the outcome. Id. "The likelihood of a different result must be substantial, not just conceivable." Richter, 562 U.S. at 112.
When a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. See Strickland, 466 U.S. at 698. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L. Ed. 2d 284 (2010). "Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Richter, 562 U.S. at 105. As the Court in Richter explained:
Id. (citations omitted).
Petitioner presented his ineffective assistance claim to the state circuit court in his amended Rule 3.850 motion. The circuit court held an evidentiary hearing where petitioner and his former trial counsel Samuel Olmstead testified. (Ex. Q). After considering the evidence and argument, the circuit court denied relief on all aspects of petitioner's ineffective assistance claim:
(Ex. Q, pp. 265-75). The state circuit court's oral ruling was followed by a written order stating, in relevant part: "Based on the reasons as announced on the record, the Court finds that defendant has failed to show that he received ineffective assistance of counsel or that he was prejudiced by any alleged deficiency." (Ex. P, p. 154). The First DCA summarily affirmed. (Ex. T).
The relevant decision for purposes of 28 U.S.C. § 2254, is the First DCA's summary affirmance, which is considered the final state court adjudication on the merits of petitioner's claim (assuming, to petitioner's benefit, that the First DCA did not impose a procedural bar). See Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."); Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (defining the relevant decision for purposes of § 2254 review as the state appellate court's summary affirmance of the lower tribunal's decision), cert. granted sub nom. Wilson v. Sellers, 137 S.Ct. 1203, 197 L. Ed. 2d 245 (U.S. Feb. 27, 2017) (No. 16-6855). Where, as here, "the last adjudication on the merits provides no reasoned opinion, federal courts review that decision using the test announced in Richter." Wilson, 834 F.3d at 1235. The Richter test provides that "[w]here a state court's decision is unaccompanied by an explanation," a petitioner's burden under section 2254(d) is to "show[ ] there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United States Supreme] Court." Id. at 102.
Petitioner must establish there was no reasonable basis for the First DCA to deny relief on his ineffective assistance claim. In reviewing the reasonableness of the First DCA's decision, this court may, but is not required to, look to the reasoning of the state court below (the state circuit court). The Eleventh Circuit explained in Wilson:
834 F.3d at 1239.
The First DCA reasonably could have adopted the state circuit court's factual findings, including its credibility determinations, because the record amply supports them. See Exs. C, D (trial transcript); Ex. Q (evidentiary hearing transcript); see also 28 U.S.C. § 2254(e); Consalvo v. Sec'y for Dep't of Corr., 664 F.3d 842, 845 (11th Cir. 2011) ("Determining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review."). Based on the state circuit court's findings and the record of the trial and postconviction proceedings, the First DCA reasonably could have concluded that trial counsel's tactical decision to present an abandonment defense was not objectively unreasonable. See Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010) ("We have long held that the fact that a particular defense was unsuccessful does not prove ineffective assistance of counsel."); Felker v. Thomas, 52 F.3d 907, 912 (11th Cir. 1995) (holding that whether to pursue residual doubt or another defense is a strategy left to counsel, which courts must not second-guess). The First DCA also reasonably could have concluded that petitioner's remaining complaints failed to satisfy Strickland's deficient performance and prejudice prongs for the reasons outlined by the lower court. Because it is not clear that the First DCA erred at all, much less erred so transparently that no "fairminded jurist could agree with that court's decision," Bobby v. Dixon, 565 U.S. 23, 24, 132 S.Ct. 26, 181 L. Ed. 2d 328 (2011), petitioner is not entitled to federal habeas relief on Ground One.
Petitioner claims the prosecutor engaged in misconduct when he portrayed Mr. Robinson (the victim), to the jury as a law-abiding citizen in poor health, allowed Mr. Robinson to testify with an oxygen tank and breathing apparatus (medical aids Robinson did not use during petitioner's first trial), and used Robinson's poor health to obtain petitioner's conviction based on jury sympathy for Robinson. Petitioner also complains the prosecutor misled the jury during closing argument concerning petitioner's prior record. (Doc. 1, pp. 21-24 in ECF). Petitioner states he presented this claim to the state courts in his Rule 3.850 proceeding. (Doc. 1, p. 7). Respondent asserts the claim is procedurally defaulted because the state court rejected it on the independent and adequate state procedural ground that it should have been raised on direct appeal and was not cognizable in a postconviction proceeding. (Doc. 34, pp. 19-23). Respondent alternatively argues that even if not procedurally defaulted, the claim fails on the merits. (Id., pp. 23-27).
"When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L. Ed. 2d 706 (1991)). The Richter Court's reference to Ylst, was to this portion of the opinion:
Ylst, 501 U.S. at 803 (emphasis added).
Petitioner did not raise this prosecutorial misconduct claim in his direct appeal. (See Ex. H (Anders direct appeal brief); Ex. I (pro se direct appeal brief)). Petitioner first presented this claim to the state courts in his amended Rule 3.850 motion as Ground C.
Assuming to petitioner's benefit (without deciding) that he did not abandon his prosecutorial misconduct claim by failing to pursue it at the postconviction evidentiary hearing, and even further assuming to his benefit that he did not waive the claim by failing to brief it in his postconviction appeal, see sources cited supra note 3, respondent has rebutted the Richter presumption by demonstrating that Florida law and the circumstances of this case make it more likely that the First DCA rejected petitioner's prosecutorial misconduct claim on the independent and adequate state procedural ground imposed by the lower court — the claim was not cognizable in a Rule 3.850 proceeding because it was a direct appeal issue. See Fla. R. Crim. P. 3.850(c) ("This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence."); Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) ("Florida law bars claims in a state post-conviction proceeding that could have been raised on direct appeal."); Smith v. State, 453 So.2d 388, 389 (Fla. 1984) ("Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack."). Claims of prosecutorial misconduct — such as improperly appealing to the jury's emotions or misrepresenting evidence during closing argument — are direct appeal claims in Florida that are procedurally barred in collateral proceedings. See Gaskin v. State, 737 So.2d 509, 513 n.6 (Fla. 1999) (holding that prosecutorial misconduct claim raised in Rule 3.850 motion was procedurally barred because it could have been raised on direct appeal), receded from on other grounds, Nelson v. State, 875 So.2d 579 (Fla. 2004); Morris v. State, 50 So.3d 696, 697 (Fla. 5th DCA) (holding that defendant's prosecutorial misconduct claim "is not cognizable in a postconviction motion and was properly denied").
The state court's imposition of Florida's procedural bar is adequate to support its judgment. See LeCroy v. Sec'y, Fla. Dep't of Corr., 421 F.3d 1237, 1260 (11th Cir. 2005) (holding that because the Florida prisoner did not raise his claim on direct appeal, "the State 3.850 Court's refusal to consider" the claim because it was procedurally barred "rested on an independent and adequate state ground that precludes federal habeas consideration of this issue."); see also id. n.25 ("This Court has already concluded that the procedural requirements of Florida's Rule 3.850 constitute independent and adequate state grounds under the applicable law." (citing Whiddon v. Dugger, 894 F.2d 1266, 1267-68 (11th Cir. 1990))). Petitioner's claim is procedurally defaulted from habeas review. Petitioner makes none of the requisite showings to excuse his procedural default. Petitioner's procedural default bars federal habeas review of Ground Two.
Petitioner claims the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence that he attempted to deprive Mr. Robinson of anything of value or that a firearm was present during the incident. (Doc. 1, pp. 25-26 in ECF). Petitioner states he presented this claim to the state courts in his Rule 3.850 proceeding. (Id., pp. 8-9). Respondent allows petitioner satisfied the exhaustion requirement by presenting the issue in his pro se initial brief on direct appeal. Respondent argues petitioner is not entitled to habeas relief because he fails to meet § 2254(d)'s difficult standard. (Doc. 34, pp. 28-31).
The Due Process Clause of the Fourteenth Amendment requires the State to prove each element of the offense charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L. Ed. 2d 560 (1979). "Under Jackson, federal courts must look to state law for `the substantive elements of the criminal offense,' 443 U.S., at 324, n. 16, 99 S.Ct. 2781, but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman v. Johnson, 566 U.S. 650, ____, 132 S.Ct. 2060, 2064, 182 L. Ed. 2d 978 (2012). The federal standard finds evidence sufficient to support a conviction "if, `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Johnson, 132 S. Ct. at 2064 (quoting Jackson, 443 U.S. at 319).
Petitioner presented this claim as Ground One of his pro se direct appeal brief. (Ex. I). The First DCA summarily affirmed petitioner's conviction without discussion. (Ex. M). The First DCA's decision qualifies as an adjudication on the merits. Richter, 562 U.S. at 99. Petitioner must show "there was no reasonable basis for the state court to deny relief." Id. at 98.
Florida law defines the offense of robbery as "taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear." Fla. Stat. § 812.13(1); see also Ex. A, pp. 95-96 (jury instructions). Florida law defines the offense of criminal attempt as: "A person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof[.]" Fla. Stat. § 777.04(1); see also Ex. A, pp. 94-95 (jury instructions). "If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree[.]" Fla. Stat. § 812.13(2)(a); see also Ex. A, pp. 96-97 (jury instructions). "An act shall be deemed `in the course of committing the robbery' if it occurs in an attempt to commit robbery or in flight after the attempt or commission." Fla. Stat. § 812.13(3)(a).
The trial evidence, taken in the light most favorable to the prosecution, shows that on April 9, 2010, the victim Mr. Robinson drove to the home of a friend, Gabriel Hayes, to pick up a gas can. When Robinson got to the house, he noticed petitioner and another man walking toward him on the opposite side of the road. Petitioner was wearing a red polo shirt, dark-colored denim shorts and glasses. Mr. Robinson got the gas can from the porch and was about to open his truck door when, "they done came around behind me and aimed a pistol at my chest and say, well, empty your mother-fucking pockets." (Ex. C, p. 40). Mr. Robinson turned around and told them he did not have any money. Petitioner had a .22 or .32 revolver, silver or chrome, and pointed it at Robinson's chest. Mr. Robinson threw his wallet on the ground near them to show them he had no money. Petitioner and the other man looked at the wallet and walked off, "like they had done nothing wrong." Robinson testified that he feared for his life during the incident because petitioner was pointing a gun at him. Robinson recognized petitioner, but knew him only by his first name, Marlon. (Ex. C, pp. 31-65).
The First DCA's rejection of petitioner's claim indicates that it did not think the jury's finding of guilt "was so insupportable as to fall below the threshold of bare rationality." Johnson, 132 S. Ct. at 2065. That determination is entitled to deference under § 2254(d). Given the trial evidence, the First DCA reasonably could have concluded that a rational jury could find petitioner, while possessing a firearm, attempted to take Mr. Robinson's money or property with the intent to permanently deprive him of the money or property, and in the course of the taking put Mr. Robinson in fear. That Mr. Robinson may have made inconsistent statements goes to his credibility, but credibility determinations are within the exclusive province of the jury, not the court conducting federal sufficiency review:
Musacchio v. United States, ___ U.S. ___, 136 S.Ct. 709, 715, 193 L. Ed. 2d 639 (2016).
The First DCA's rejection of petitioner's claim was not contrary to or an unreasonable application of the Jackson standard. Petitioner is not entitled to federal habeas relief on Ground Three.
Petitioner claims the trial court erred in denying his motion for mistrial based on the State's introduction of "improper character evidence". Petitioner's claim is based on a comment made by a law enforcement witness (Investigator Todd) that after an arrest warrant was obtained, he notified investigators with the Career Criminal Unit because they are in charge of finding people who have violent felony warrants. (Doc. 1, p. 28 in ECF). Petitioner also claims the prosecutor improperly questioned him about prior convictions, some of which were not on his record and others which were from his juvenile record. (Id.). Petitioner states he raised this issue on direct appeal. (Id., p. 10). Respondent concedes petitioner exhausted the issue pertaining to Officer Todd's statement, but argues petitioner is not entitled to federal habeas relief because the First DCA's rejection of the claim was not contrary to and did not involve an unreasonable application of clearly established Federal law. (Doc. 34, pp. 32-38).
The first instance petitioner believes would have supported a mistrial occurred during the prosecutor's direct examination of Investigator Todd:
(Ex. C, p. 112). Defense counsel requested a conference outside the presence of the jury. (Id.). After the jury exited, this discussion took place:
(Ex. C, pp. 112-16). The remaining instances concerning the prosecutor's questioning petitioner about prior convictions, including those on his juvenile record, occurred during cross-examination of petitioner. (Ex. D, pp. 179-85).
Petitioner's claim here and on direct appeal to the First DCA is that the trial judge should have declared a mistrial because Investigator Todd's comment and the prosecutor's inquiry into petitioner's prior convictions violated Sections 90.403 and 90.404(2)(a) (2003), Florida Statutes, and Florida decisional law. (Ex. I, pp. 28-30 (pro se direct appeal brief); Doc. 1, p. 27 in ECF (habeas petition)). Neither petitioner's § 2254 petition, nor his state direct appeal brief, labels this claim as a federal claim. Similarly, neither petitioner's § 2254 petition, nor his state direct appeal brief, cites the United States Constitution or federal case law in support of this claim.
Federal habeas relief is available to correct only constitutional injury. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L. Ed. 2d 732 (2011) ("The habeas statute unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.") (internal quotations and citations omitted); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479-80, 116 L. Ed. 2d 385 (1991) (holding that errors that do not infringe upon a defendant's constitutional rights provide no basis for federal habeas corpus relief; "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). "The writ of habeas corpus was not enacted to enforce State-created rights." Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000) (citation and quotation marks omitted); Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir. 1991) ("Questions of state law rarely raise issues of federal constitutional significance, because `[a] state's interpretation of its own laws provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved.'") (quoting Carrizales v. Wainwright, 699 F.2d 1053 (11th Cir. 1983)). Petitioner's Ground Four does not present an issue of constitutional dimension and provides no basis for federal habeas relief.
Petitioner's reply argues, for the first time, that the First DCA's rejection of his claim is contrary to Brown v. Payton, 125 S.Ct. 1432 (2005). (See Doc. 43, p. 24). Even giving petitioner the benefit of the doubt that his purely state law issue could be transformed into one of constitutional dimension, he still is not entitled to habeas relief. The First DCA's decision qualifies as an adjudication on the merits. Richter, 562 U.S. at 99. As such, the issue is not whether Florida's evidence code or case law defining the boundaries of admissible evidence in Florida criminal trials prohibited Todd's testimony or the prosecutor's questioning. Nor is the issue whether the United States Constitution prohibited the conduct. The issue is only whether the First DCA's rejection of petitioner's claim was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1).
Petitioner asserts, without favoring the court with an explanation, that the First DCA's decision "was contrary to clearly established Federal law found in
No decision of the United States Supreme Court establishes that admitting, with a curative instruction, testimony of the kind here, or allowing cross-examination of a defendant in the circumstances at issue here, was so unfair as to violate a defendant's constitutional right to due process of law. Petitioner fails to show that the First DCA's rejection of his claim was contrary to, or an unreasonable application of, clearly established Federal law. See, e.g., Wright v. Van Patten, 552 U.S. 120, 126, 128 S.Ct. 743, 169 L. Ed. 2d 583 (2008) ("Because our cases give no clear answer to the question presented, let alone one in [the petitioner's] favor, it cannot be said that the state court unreasonably applied clearly established federal law.") (internal quotation marks omitted); see also, e.g., Reese v. Sec'y, Fla. Dep't of Corr., 675 F.3d 1277, 1287-88 (11th Cir. 2012) (denying federal habeas relief on claim that prosecutor's comments during closing argument deprived the petitioner of a fair trial, holding; "[T]he Supreme Court has never held that a prosecutor's closing arguments were so unfair as to violate the right of a defendant to due process.. . . The Supreme Court has reiterated, time and again, that, in the absence of a clear answer — that is, a holding by the Supreme Court — about an issue of federal law, we cannot say that a decision of a state court about that unsettled issue was an unreasonable application of clearly established federal law."). Petitioner is not entitled to federal habeas relief on Ground Four.
Petitioner concludes his petition by averring the trial court erred in denying a motion for judgment of acquittal because "[t]he State failed to prove that Petitioner made any attempt to deprive Robinson of anything of value." (Doc. 1, p. 28 in ECF). Petitioner asserts he presented this claim to the state court in his direct appeal. (Id.). Respondent argues that this claim is the same as Ground Three above, and should be denied for the same reasons. (Doc. 34, p. 38). Petitioner concedes the point. (Doc. 43, p. 24). This claim presents the same issue as Ground Three above, and is denied for the reasons stated in Ground Three. See discussion supra Ground Three.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides: "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." If a certificate is issued, "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. See 28 U.S.C. § 2254 Rule 11(b).
"[Section] 2253(c) permits the issuance of a COA only where a petitioner has made a `substantial showing of the denial of a constitutional right.'" Miller-El, 537 U.S. at 336 (quoting 28 U.S.C. § 2253(c)). "At the COA stage, the only question is whether the applicant has shown that `jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759, 774, 197 L. Ed. 2d 1 (2017) (quoting Miller-El, 537 U.S. at 327). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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." Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000) (emphasis added). The petitioner here cannot make the requisite showing. Accordingly, the court should deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Rule 11(a), Rules Governing Section 2254 Cases. If there is an objection to this recommendation by either party, that party may bring such argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED:
1. That the petition for writ of habeas corpus (doc. 1), challenging the judgment of conviction and sentences in State of Florida v. Marlon McCarthan, Leon County Circuit Court Case No. 10-CF-1349, be DENIED.
2. That the clerk be directed to close the file.
3. That a certificate of appealability be DENIED.
