GARY R. JONES, Magistrate Judge.
Petitioner initiated this case by filing a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In his Petition, Petitioner contends that his trial counsel was ineffective based on four grounds. (Id.) Respondent filed a response, ECF No. 7, along with relevant portions of the state-court record. (ECF Nos. 7-1-7-6 ("Ex.")
In July 2009 Petitioner was charged with carjacking with a firearm or deadly weapon (Count I), robbery with a deadly weapon (Count 2), and false imprisonment (Count 3). (Ex. C at 1-2.) Petitioner proceeded to a jury trial on his charges, and he was found guilty as charged. (Id. at 72.) On May 19, 2010, Petitioner was adjudicated guilty and sentenced to two concurrent terms of 40 years' imprisonment, with a 40 year minimum mandatory sentence, on Counts I and II, and 10 years' imprisonment on Count III to run concurrently with Counts I and II.
Petitioner filed a direct appeal to the First District Court of Appeal ("First DCA"). (Ex. H.) The First DCA per curiam affirmed without opinion on October 22, 2010, and the mandate followed on November 9, 2010. (Exs. H, I.)
On March 28, 2011, Petitioner filed a Rule 3.850 motion for post-conviction relief. (Ex. K at 31-53.) Petitioner filed an amended motion on April 4, 2011, and then filed a notice of voluntary dismissal of this motion on May 26, 2011. (Id. at 54-108.) The trial court granted the voluntary dismissal of the motion on June 7, 2011. (Id. at 110.) Then on June 29, 2011, Petitioner filed another Rule 3.850 motion, which the trial court struck on January 4, 2012. (Id. at 111-50, 155-57.) Petitioner was, however, provided leave to amend. ( Id.at 156-57.)
On July 9, 2011, Petitioner filed his first motion to correct an illegal sentence pursuant to Rule 3.800(a). (Ex. Q.) The trial court summarily denied that motion on January 4, 2012. (Ex. R.) Petitioner did not appeal that decision.
Petitioner filed his amended Rule 3.850 motion on February 3, 2012, and he later amended Grounds One and Six. (Ex. K at 158-90, 264-80, 286.) The trial court held an evidentiary hearing on one ground, which alleged that an exhibit not admitted into evidence was sent to the jury during deliberations. (Id. at 291-344.) The trial court then denied Petitioner's motion. (Id. at 345-63.)
Petitioner appealed to the First DCA, which per curiam affirmed without opinion on September 17, 2013. (Ex. N.) The First DCA then denied Petitioner's motion for rehearing, and its mandate followed on December 3, 2013. (Exs. O, P.)
On February 7, 2012, Petitioner filed a petition alleging ineffective assistance of appellate counsel with the First DCA. (Ex. T.) The First DCA denied this petition on February 29, 2012. (Ex. V.) Petitioner filed a motion for a rehearing, but the First DCA denied this motion on May 3, 2012. (Exs. W, X.)
Petitioner filed a second motion to correct an illegal sentence pursuant to Rule 3.800(a) on December 2, 2013. (Ex. Y.) The trial court granted this motion on April 21, 2014, eliminating the minimum mandatory term of 40 years' imprisonment. (Ex. BB.) Petitioner's sentence was amended and re-recorded on April 24, 2014. (Ex. CC.)
Petitioner then submitted the instant petition to prison officials for mailing on October 21, 2014. (ECF No. 1.)
The role of a federal habeas court when reviewing a state prisoner's application pursuant to 28 U.S.C. § 2254 is limited. Williams v. Taylor, 529 U.S. 362, 403-04 (2000). Under section 2254(a), federal courts "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
Additionally, federal courts must give deference to state court adjudications unless the state court's adjudication of the claim is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
With regard to factual findings, under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state prisoner's application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless 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." Under § 2254(e)(1), the petitioner must advance clear and convincing evidence that the state court's factual determination was "objectively unreasonable" to rebut the presumption that the determination was correct. Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011); 28 U.S.C. § 2254(e)(1). "`[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'" Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
As to legal findings, as mentioned above, a petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of the federal claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). "[C]learly established Federal law, as determined by the Supreme Court of the United States," refers only to holdings (rather than dicta) of the Supreme Court, but decisions of lower federal courts may be considered to the extent that they demonstrate how those courts applied Supreme Court holdings. Hawkins v. Alabama, 318 F.3d 1302, 1309 (11th Cir. 2003); see also Carey v. Musladin, 549 U.S. 70, 74-77 (2006).
"Under § 2254(d)(1)'s `contrary to' clause, we grant relief only `if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'" Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). For § 2254(d)(1), clearly established federal law includes only the holdings, not the dicta of Supreme Court decisions. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). "Under § 2254(d)(1)'s `unreasonable application' clause, we grant relief only `if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Jones, 753 F.3d at 1182 (alteration in original) (quoting Williams, 529 U.S. at 413).
The Supreme Court has interpreted § 2254(d) as requiring that "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). "[A]n `unreasonable application' of [Supreme Court] holdings must be `objectively unreasonable,' not merely wrong; even `clear error' will not suffice." Woodall, 134 S.Ct. at 1702. In other words, Petitioner must establish that no fairminded jurist would have reached the Florida court's conclusion. See Richter, 562 U.S. at 102-03; Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257-58 (11th Cir.2012). "If this standard is difficult to meet, that is because it was meant to be." Richter, 562 U.S. at 102.
In light of Gill, the "unreasonable determination of facts" standard plays a limited role in habeas review because the district court considers the reasonableness of the trial court's fact-finding only to the extent that the state court's ultimate conclusion relied on it. 633 F.3d at 1292. A federal habeas court can consider the full record before it to answer "the only question" that matters: "whether the state court's determination [was] objectively unreasonable." Id. at 1290.
Because Petitioner's claims allege ineffective assistance, a review of the applicable law is necessary. Under Strickland v. Washington, to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate that (1) his counsel's performance was below an objective and reasonable professional norm, and (2) he was prejudiced by this inadequacy. Strickland, 466 U.S. 668, 686-96 (1984). The court may dispose of the claim if a defendant fails to carry his burden of proof on either the performance or the prejudice prong. Id. at 697.
To show counsel's performance was unreasonable, a defendant must establish that "no competent counsel would have taken the action that his counsel did take." Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). "The relevant question is not whether counsel's choices were strategic, but whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no "absolute rules" for determining whether counsel's actions were indeed reasonable, as "[a]bsolute rules would interfere with counsel's independence-which is also constitutionally protected-and would restrict the wide latitude counsel have in making tactical decisions." Putnam v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001). "To uphold a lawyer's strategy, [the Court] need not attempt to divine the lawyer's mental processes underlying the strategy." Chandler v. United States, 218 F.3d 1305, 1314 n.16 (11th Cir. 2000) (en banc). "No lawyer can be expected to have considered all of the ways [to provide effective assistance]." Id.
Id.
To show prejudice, a defendant must show more than simply that counsel's unreasonable conduct might have had "some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Instead, a defendant must show 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 defined as a probability sufficient to undermine confidence in the outcome." Id.
When the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief is a difficult one. Harrington, 562 U.S. at 102. The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough because "[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law." Harrington, 562 U.S. at 100 (internal quotation marks omitted). And "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102.
A federal habeas court "must determine what arguments or theories supported or, [if none were stated], 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 Supreme] Court." Id. So long as fairminded jurists could disagree about whether the state court's denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id. Stated another way, only if "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents" may the federal court grant relief. Id.
Even without the deference due under § 2254, the Strickland standard for judging the performance of counsel "is a most deferential one." Id. at 105. When combined with the extra layer of deference that § 2254 provides, the result is double deference, and the question becomes whether "there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that a state court denied on the merits is found to merit relief in a federal habeas proceeding.
Before bringing a habeas action in federal court, a petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion requires that prisoners give the state courts a "full and fair opportunity" to resolve all federal constitutional claims by "invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To properly exhaust a federal claim, a petitioner must fairly present the claim in each appropriate state court, thereby affording the state courts a meaningful "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).
Petitioner contends that his trial counsel was ineffective for failing to conduct a reasonable pretrial investigation relating to the origination of the phone calls on Petitioner's cell phone during the time of the crime and for failing to present evidence from that investigation and expert testimony to the jury. Petitioner alleges that he informed his trial counsel that his cell phone records reflect that he called the cab company and ordered the cab for a third party from out of state. As a result, Petitioner requested counsel to investigate and retrieve cell tower records to show that he was in Louisiana and not in Pensacola, Florida, at the time of the crime. (ECF No. 1 at 4.)
Petitioner also alleges that he would have given testimony on his own behalf that he ordered the cab while he was near his residence in Louisiana. He says he would have testified that he had not been in Florida at the time and did not commit the robbery; instead, he would have testified that he called the cab on request of a third party who was in Pensacola at that time. However, because his counsel failed to investigate and present evidence of the cell tower records, Petitioner was prevented from testifying on his own behalf—all of which he alleges constitutes ineffectiveness of counsel. (Id. at 5.)
In rejecting this claim on post-conviction review, the state court relied on the testimony of the cab driver victim, Christopher Burns, as well as the cell phone records admitted into evidence. At trial Burns testified that he received a pickup request for an individual at the Civic Inn, and when he arrived at the Civic Inn, Burns contacted the individual who made the request by calling the number used to order the cab. When an individual answered the phone, the individual stated to Burns, "Well, I see you dog" and then came out and got into the cab. (Ex. K at 348.)
The cell phone records admitted into evidence reflect the number assigned to Petitioner, (850) 377-7914. The records evidence that on February 9, 2009, at 8:25 p.m., someone placed a phone call on Petitioner's phone number and called the number of the cab company. The records reflect that at 8:33 p.m., Petitioner's phone number received a call from the Burns' phone number. (Id.)
Although Petitioner alleges that he was in Louisiana at the time of the incident and although the phone records list "Baton Rouge" as the location of origination for all calls from Petitioner's phone, the state court concluded that
(Id. at 348-49) (footnotes omitted).
The trial court then went on to discuss the other evidence presented at trial that the jury was able to use in reaching a verdict to show Petitioner failed to show prejudice from his trial counsel's failure to investigate further:
(Id. at 349-50) (footnotes omitted). The First DCA per curiam affirmed without opinion. (Exs. N, P.)
Considering the state court already denied this claim on the merits, the Court must give the state court's finding double deference so that the question for this Court becomes whether "there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105. Here, a reasonable argument exists that counsel satisfied Strickland's deferential standard and, therefore, that the state court's rejection of Petitioner's argument and application of Strickland was not objectively unreasonable.
As discussed above, to prevail on this claim based on ineffectiveness of counsel, Petitioner must show (1) that his counsel's performance was below an objective and reasonable professional norm, and (2) that Petitioner was prejudiced by this inadequacy. Strickland, 466 U.S. at 686. The Court may dispose of the claim if Petitioner fails to carry his burden of proof on either the performance or the prejudice prong. Id. at 697. Here, Petitioner has failed to show either prong of the Strickland test.
With regard to the performance prong, Petitioner has failed to show that counsel's conduct was below an objective and reasonable professional norm in not conducting further investigation into the cell tower records or presenting expert testimony regarding this investigation. To meet this standard, Petitioner must show that "no competent counsel would have taken the action that his counsel did take." Grayson, 257 F.3d at 1216.
Petitioner, has failed to show that his counsel acted unreasonably in failing to investigate further or present resulting testimony or that no other competent counsel would have decided not to conduct any additional investigation into the phone records and present testimony explaining that investigation. See Strickland, 466 U.S. at 691 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In an ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.").
Based on the evidence counsel did have, there was no reason for counsel to conduct any further investigation or to present evidence regarding such investigation. While the phone records list the location of origination as Baton Rouge, Louisiana, that listed origination location does not mean that is where the telephone call actually originated from. Instead, it reveals where Petitioner purchased his prepaid phone.
Further, the victim testified that he called Petitioner's phone number and someone answered. The person answering the phone stated that they saw the victim, and then shortly after that an individual approached and entered the cab. Lastly, it is illogical for someone located in a different state to order a cab on behalf of another individual. Petitioner's allegations therefore do not support conducting further investigation. Consequently, counsel's decision not to investigate further or present expert testimony of the investigation was more than reasonable under the circumstances.
With regard to the prejudice prong, Petitioner has failed to show that he was prejudiced by his counsel's conduct. To show prejudice, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability is defined as a probability sufficient to undermine confidence in the outcome." Id. at 693. Although Petitioner argues that the evidence at trial would have been drastically different had his trial counsel conducted this additional investigation, the only support Petitioner offers to show that this investigation would have resulted in the conclusion that Petitioner was in Louisiana at the time of the calls is his own conclusory allegations.
Further, the trial court in rejecting Petitioner's claim in his post-conviction relief motion correctly noted the evidence that the jury could consider in reaching its verdict: the cell phone records listing Baton Rouge as the location of origination, the testimony of the investigating officer that he did not look into the exact location from which the call to the cab originated, the DNA evidence showing that Petitioner was possibly a minor contributor to the DNA lifted from the steering wheel of the cab as well as a potential match to the DNA lifted from the baseball cap found near the scene, and the victim's identification of Petitioner during a photographic lineup two months after the crime.
Based on the evidence supporting Petitioner's conviction and the lack of any evidence supporting Petitioner's claim that he was actually in Louisiana at the time of the crime, the Court finds that Petitioner has failed to show he was prejudiced by his counsel's failure to investigate the exact location of origination of the phone call to the cab.
To grant habeas relief, the Court must find that the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). Because Petitioner has failed to prove either prong of the Strickland test, nothing Petitioner has presented demonstrates that the state court's rejection of this ineffective assistance claim was "so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Burt, 134 S. Ct. at 12 (quoting Harrington, 131 S. Ct. at 787). The Court therefore concludes that there is a reasonable argument that his counsel satisfied Strickland's deferential standard, so Petitioner is not entitled to federal habeas relief on ground one.
Petitioner contends that his trial counsel was also ineffective for failing to make an objection to or move to suppress DNA evidence from a "black ball cap" because, according to Petitioner, the State could not show how the ball cap was connected to the crime. More specifically, Petitioner states that the black ball cap was not present in the courtroom; the victim did not identify it was worn by the perpetrator; and there was no evidence that it was found at the crime scene. As a result, Petitioner argues that this DNA evidence should have been excluded because it "was not legally or logically relevant." Therefore, his counsel's failure to move for its exclusion allowed prejudicial evidence against Petitioner at trial. (ECF No. 1 at 6.)
In rejecting this claim on post-conviction review, the state court reasoned that Petitioner
(Ex. K at 356.) The First DCA per curiam affirmed without opinion. (Exs. N, P.)
As the trial court correctly concluded, Petitioner has failed to show that he was prejudiced by counsel's conduct. Despite Petitioner's allegation that there was no connection between the ball cap and the crime, the victim testified that the perpetrator was wearing a ball cap, Ex. D at 20, and this black baseball cap was actually recovered near where the taxi cab was found.
Additionally, the fact that the DNA analysis performed on the cap revealed that one in 57 Caucasians had DNA that matched, including Petitioner, makes the DNA evidence relevant and probative. As a result, any objection to or motion to suppress the DNA evidence would have been overruled or denied, so Petitioner's counsel did not act unreasonably in failing to make a losing objection or in failing to file a losing motion to suppress.
Therefore, Petitioner has failed to show that there is a reasonable probability that the result of the hearing would have been different had counsel objected to or moved to suppress the DNA evidence. "An attorney's failure to raise a meritless argument . . . cannot form the basis of a successful ineffective assistance of counsel claim because the result of the proceeding would not have been different had the attorney raised the issue." United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999); see also Diaz v. Sec'y, Dep't of Corr., 402 F.3d 1136, 1142 (11th Cir. 2008) (finding that appellate counsel was "not ineffective for failure to raise a meritless argument"). Thus, Petitioner has failed to show prejudice.
Because Petitioner has not shown prejudice, the Court need not address the performance prong. The Court finds that the state court's decision denying this claim on post-conviction review is not contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. See 28 U.S.C. § 2254(d)(1). The Court therefore concludes that Petitioner is not entitled to federal habeas relief on ground two.
Petitioner next contends that his trial counsel was ineffective for failing to object to the prosecutor's closing argument, which misrepresented the substance and meaning of the DNA expert's testimony and thus the strength of the State's case. Specifically, Petitioner says that the prosecutor stated that his DNA was found on thirteen out of thirteen markers for both the steering wheel and the ball cap, when in fact the DNA expert had not been able to determine DNA results on all fourteen markers for the steering wheel and instead only provided statistics for seven of the steering wheel markers and six of the cap markers. According to Petitioner, this misstatement of the DNA evidence was misleading and confused the jury, and there is a reasonable probability that the result would have been different had his counsel objected. (ECF No. 1 at 7-8.)
In rejecting this claim on post-conviction review, the state court reasoned that
(Ex. K at 359-60) (footnotes omitted). The First DCA per curiam affirmed without opinion. (Exs. N, P.)
Because the state court already denied this claim on the merits, the Court must give the state court's finding double deference so that the question for this Court becomes whether "there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105. Here, a reasonable argument exists that counsel satisfied Strickland's deferential standard despite failing to object to the misstatements in the prosecutor's closing argument.
The trial court appropriately pointed out several misstatements that the prosecutor made during closing arguments: the prosecutor misstated that Petitioner's DNA was present at all thirteen markers on the steering wheel when his DNA was actually present at only eleven of those markers; he misstated that the expert performed statistics on six of the markers from the steering wheel, rather than the actual seven markers on which the statistics were performed; and he misstated that statistics were done on seven markers from the ball cap, when in fact the expert performed statistics using only six of the markers. (See Ex. D at 52-65, 125-140.) Notably and correctly, however, the trial court found that failing to object to these misstatements was not dispositive of whether Petitioner's trial counsel was ineffective.
Without addressing whether counsel's performance was deficient for failing to object to these misstatements,
Although Petitioner argues that these misstatements during closing arguments were misleading and confused the jury, there is no evidence that the jury relied on these misstatements in reaching their verdict. The jurors heard all the evidence presented regarding the DNA analysis performed on the evidence, including the testimony from the DNA expert herself, and had access to the DNA expert's reports entered into evidence. The jury also heard all the evidence presented against Petitioner in addition to the DNA evidence, including the victim's identification of Petitioner in a photographic lineup and phone records connecting Petitioner's phone number to the victim's phone number.
Thus, while Petitioner makes the conclusory allegations that there was an "absence of overwhelming guilt" and that but for this error there is a reasonable probability that the jury would have reached a different verdict, the actual evidence at trial—regardless of the misstatements in closing argument, which do not constitute evidence—was more than sufficient for the jury to find Petitioner guilty as charged.
The Eleventh Circuit repeatedly has denied claims of ineffective assistance of counsel in habeas proceedings when the petitioner failed to show that the results of the proceeding would have been different, despite the fact that defense counsel failed to object to improper comments made by the prosecutor. See, e.g., Thomas v. Sec'y, Fla. Dep't of Corr., 643 F. App'x 827 (11th Cir. 2016); Muhammad v. McNeil, 352 F. App'x 371 (11th Cir. 2009).
Accordingly, the Court has no trouble concluding that the state court's determination that Petitioner failed to show he was prejudiced by his counsel's failure to object is not contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. See 28 U.S.C. § 2254(d)(1). Thus, Petitioner is not entitled to federal habeas relief on ground three.
Lastly, Petitioner contends that his trial counsel was ineffective for failing to move to suppress the photographic lineup that he alleges was unnecessarily suggestive. Petitioner argues that this lineup was suggestive because he was one of only two individuals in the lineup with facial hair, and the other individual with facial hair had an obvious facial disfigurement. Further, Petitioner's photo was one of two photos in the vertical layout, and the other photo in the vertical layout was of an individual without facial hair. Petitioner asserts that this photographic lineup was made on April 1, 2009, nearly two months after the crime, and he asserts that the victim was unable to make a positive identification of Petitioner in court during the preliminary hearing on July 29, 2009, or at the trial on April 13, 2010. Ultimately, Petitioner argues that this lineup was unnecessarily suggestive and that its use during trial violated due process. (ECF No. 1 at 9-10.)
In rejecting this claim on post-conviction review, the state court first cited the standard of review for state courts to use in determining whether to suppress an out-of-court identification: "(1) [D]id the police employ an unnecessarily suggestive procedure in obtaining an out-of-court identification[?] (2) [I]f so, considering all the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable misidentification[?]" (Ex. K at 352) (citing Carter v. State, 23 So.3d 1238, 1245 (Fla. 4th DCA 2009)). The trial court then applied this standard to Petitioner's case:
(Ex. K at 352.) The First DCA per curiam affirmed without opinion. (Exs. N, P.)
As the trial court correctly concluded, Petitioner has failed to show that his trial counsel's decision not to move to suppress the photo lineup constitutes deficient performance—the decision did not fall below an objective and reasonable professional norm. Again, to meet this standard, Petitioner must show that "no competent counsel would have taken the action that his counsel did take." Grayson, 257 F.3d at 1216. Petitioner has failed to make that showing.
In assessing counsel's decision not to move to suppress the photo lineup, the Court's "inquiry is limited to whether [the] strategy . . . might have been a reasonable one." Chandler v. United States, 218 F.3d 1305, 1314 n.16 (11th Cir. 2000) (en banc). Here, the Court finds that despite Petitioner's conclusory allegation that the photo lineup was suggestive and would have been suppressed had his counsel made a motion to do so,
Rather than moving to suppress the photo lineup, Petitioner's counsel used the photo lineup during the trial in cross-examining the investigator who presented the lineup to the victim. In questioning the investigator Petitioner's counsel highlighted that no individuals in the first photo lineup had facial hair and that only two people in the second photo lineup had facial hair.
With regard to the second lineup, counsel drew attention to the fact that the only individual with facial hair other than Petitioner had "messed up" eyes. Counsel also pointed out that the only individual with deep-set eyes, other than Petitioner, did not have facial hair. Lastly, counsel noted that the only photos in the up and down position were the one of Petitioner and the one with the individual who had deep-set eyes but no facial hair. (Ex. D at 84-86.)
Based on counsel's strategic decision to use the photo lineup during trial rather than move to suppress it, the jury learned from the trial counsel's questioning of the investigator all of the potentially suggestive elements of the lineup that Petitioner alleges in his petition. The jury was then able to consider the potentially suggestive aspects of the photo lineup during deliberations along with the actual photo lineup that was entered into evidence to decide whether the victim's identification of Petitioner in the photo lineup was reliable. Thus, the Court finds that this use of the photo lineup was entirely reasonable and that Petitioner cannot show that no competent counsel would have taken the action that his counsel did take.
Because Petitioner has not shown deficient performance, the Court need not address the prejudice prong. The Court finds that the state court's decision denying this claim on post-conviction review is not contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. See 28 U.S.C. § 2254(d)(1). The Court therefore concludes that Petitioner is not entitled to federal habeas relief on ground four.
Section 2254 Rule 11(a) provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and 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)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), Rules Governing Section 2254 Cases.
The undersigned finds no substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, the undersigned recommends that the district court deny a certificate of appealability in its final order.
Rule 11(a) also provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." Thus, if there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.
Accordingly, it is respectfully
