This cause is before the Court on Petitioner Douglas Dawson's timely-filed pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he challenges his convictions for attempted second degree murder (two counts), felonious possession of a firearm, and shooting into a building, which arise out of the Sixth Judicial Circuit, Pinellas County, Florida, in case no. CRC05-06565CFANO. (Doc. 1).
A review of the record demonstrates that, for the following reasons, the petition must be denied.
Dawson was found guilty after a jury trial of attempted second degree murder (two counts), felonious possession of a firearm, and shooting into a building as charged in case no. CRC05-06565CFANO. Adjudicated guilty in accordance with the verdicts, Dawson was sentenced to 20 years in prison on each of the attempted second degree murder counts. He was sentenced to 15-year prison terms on the remaining counts, and a three-year mandatory prison term was imposed on the felonious firearm possession count. The sentences run concurrently. Dawson appealed, and on June 1, 2007, the state district court of appeal affirmed without written decision in case no. 2D06-1818. Dawson v. State, 958 So. 2d 930 (Fla. 2d DCA 2007)[table]. He did not seek rehearing; nor did he petition for certiorari.
Dawson filed a pro se petition for writ of habeas corpus dated August 1, 2007, in which he alleged his appellate counsel on direct appeal rendered ineffective assistance. An amended petition dated August 17, 2007, followed. Pursuant to the state court's directive, the state responded, and on June 23, 2008, Dawson's petition in case no. 2D07--3657 was denied without elaboration. Dawson v. State, 985 So. 2d 538 (Fla. 2d DCA 2008)[table].
Dawson filed a pro se motion for post-conviction relief dated December 12, 2008, under Fla.R.Crim.P. 3.850. A supplement followed. After denying the motion and supplement in part and securing a response from the state, the post-conviction court summarily denied the remaining ground in the rule 3.850 motion by order rendered August 13, 2009. Following denial of rehearing, Dawson appealed, and on May 28, 2010, the state appellate court affirmed the summary denial without written decision in case no 2D09--4920. Dawson v. State, 38 So. 3d 776 (Fla. App. Dist. 2010)[table]. Following denial of rehearing, the mandate issued July 26, 2010.
Dawson then timely-filed the present federal 28 U.S.C. § 2254 petition.
Title 28 U.S.C. § 2254 explicitly requires a federal court to entertain an application for writ of habeas corpus only on the ground that the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." § 2254(a). Federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension. Wainwright v. Goode, 464 U.S. 78 (1983)(citing Engle v. Isaac, 457 U.S. 1141(1982)); Smith v. Phillips, 455 U.S. 209 (1982). The writ of habeas corpus, 28 U.S.C. § 2254, was not enacted to enforce state-created rights. Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000). Even when a petition which actually involves state law issues is "couched in terms of equal protection and due process," this limitation on federal habeas corpus review is of equal force. Willeford v. Estelle, 538 F.2d 1194, 1196-98 (5th Cir. 1976).
B. Exhaustion and procedural default
Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all state court remedies that are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(c). To exhaust state remedies, the petitioner must "fairly present[ ]" every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, "state prisoners 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 (1999).
Pursuant to the procedural default doctrine, a state prisoner seeking federal habeas corpus relief who fails to raise his federal constitutional claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default, Wainwright v. Sykes, 433 U.S. 72, 87 (1977), or the kind of fundamental miscarriage of justice occasioned by a constitutional violation that resulted in the conviction of a defendant who was "actually innocent," as contemplated in Murray v. Carrier, 477 U.S. 478, 496 (1986). The "cause" excusing the procedural default must result from some objective factor external to the defense that prevented the prisoner from raising the claim and which cannot be fairly attributable to his own conduct. Id., 477 U.S. at 488.
The fundamental miscarriage of justice exception concerns a petitioner's "actual" innocence rather than his "legal" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (2001) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)); Murray v. Carrier, 477 U.S. at 495-96 (explaining that a "fundamental miscarriage of justice" occurs "in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent"). 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." Schlup, 513 U.S. at 324.
C. AEDPA deferential standards of review
Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), this court's review of the state court's factual findings must be highly deferential. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). The AEDPA modified a federal habeas 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 applicable law. Bell v. Cone, 535 U.S. 685 (2002).
Under §104 of the AEDPA, § 2254(d) now forbids federal courts from granting habeas relief for claims that previously were "adjudicated on the merits" in state court, unless the petitioner can establish that the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court law, or "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)(1) & (2). Where, as here, the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but also objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams v. Taylor, 529 U.S. 362, 409 (2000).
In addition, § 2254(e)(1) "provides for a highly deferential standard of review for factual determinations made by a state court." Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002). The federal court will presume the correctness of state court findings of fact unless the petitioner is able to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This language requires an examination of the state court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time. i.e., the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398--1401 (2011).
GROUND ONE Dawson contends he was denied the right to cross-examine the victim on the number of the latter's prior felony convictions. In his memorandum, he claims the victim acknowledged in a proffer that he had been twice convicted for a felony. Dawson does not deny he was afforded the opportunity to question the victim regarding the number of felony convictions. Rather, Dawson asserts that the victim had previously indicated in a deposition he was convicted of one prior felony, and Dawson complains he was not allowed to bring out to his jury a discrepancy in the victim's testimony as to the number of his prior felonies.
Under section 90.610, Florida Statutes (2004), a party may attack the credibility of any witness by evidence of a prior felony conviction or misdemeanor involving dishonesty or false statement and the number of such prior convictions. Unless the witness answers untruthfully, this inquiry is generally restricted to the existence of such prior convictions and the number of convictions. Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992)(citing Fulton v. State, 335 So. 2d 280 (Fla. 1976); McArthur v. Cook, 99 So.2d 565 (Fla. 1957); Leonard v. State, 386 So.2d 51, 52 (Fla. 2d DCA 1980). If the witness denies having been convicted, or misstates the number of convictions, counsel may impeach by producing a record of past convictions. See White v. Singletary, 717 So. 2d 1054 (Fla. 2d DCA 1998)(appropriate method for impeaching a witness who responds incorrectly to a question regarding prior convictions is to enter a certified copy of the prior convictions into the record, citing Fulton, supra. If the witness admits the conviction, then the inquiry may not be pursued by the party opponent to the point of naming the crime for which he was convicted. See Dessaure v. State, 891 So. 2d 455 (Fla. 2004), citing Fulton, supra.
To the extent Dawson relies on his state law-based arguments advanced in the Florida trial and appellate courts, subject matter jurisdiction does not lie to address such contentions. 28 U.S.C. § 2254(a) provides "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" upon a showing that his custody is in violation of the Constitution or laws of the United States. Federal relief is available to correct only constitutional injury. Wainwright v. Goode, 464 U.S. 78 (1983). A challenge to a conviction must therefore do more than pose a question of state law, for such a challenge alleges no deprivation of federal rights and does not merit habeas relief. Engle v. Isaac, 456 U.S. 107, 119 (1982). Issues which present nothing more than issues of pure state law are wholly immune from federal habeas review. See Jamerson v. Sec. for Dep't of Corrs., 410 F.3d 682, 688 (11th Cir. 2005) ("Federal habeas relief is unavailable for errors of state law.").
Moreover, this ground is procedurally barred because Dawson did not properly exhaust his ground by fairly presenting the constitutional dimension of his ground at trial and then on direct appeal. His claim was raised in terms of state law at trial, without referencing or substantively addressing the federal due process or the Confrontation Clause.
Dawson did not, in the first instance, fairly present the trial court in a timely manner a constitutional due process or confrontation claim regarding the evidentiary ruling before raising his ground on direct appeal. During the course of cross-examination of the victim, Dawson sought to probe him regarding his deposition testimony on the matter of his prior convictions --without regard to whether the victim at trial accurately testified to the number of prior felony convictions. The state opposed the proposed line of impeachment, asserting that to pursue the matter, Dawson was required to produce certified judgments regarding the victim's priors. The state court agreed, and Dawson did not then assert that denial of the proposed line of inquiry evidence would violate federal constitutional due process and confrontation guarantees. Nor did he do so when he made the proffer. Moreover, his post-verdict arguments in support of his motion for new trial rested on state law regarding impeachment by prior conviction. (Resp. Ex. 1, V 1 R 55-561; V 2 R 160-164).
In short, neither at trial nor at the hearing on his motion for new trial did Dawson alert the trial court that he was raising a federal due process concern or Confrontation Clause claim. And, he did not request a ruling on any such claim. As a result, he was barred from raising these claims on direct appeal. In Florida, to be preserved, the issue or legal argument must be raised and ruled on by the trial court. Jones v. State, 998 So.2d 573, 581-582 (Fla. 2008), citing Rhodes v. State, 986 So.2d 501, 513 (Fla. 2008), modified 986 So.2d 560 (Fla.2008) (citing § 924.051(1)(b), Fla. Stat. (2006); and Philip J. Padovano, Florida Appellate Practice, § 8.1, at 148 (2007 ed.)("[T]he aggrieved party must obtain an adverse ruling in the lower tribunal to preserve an issue for review.... Without a ruling or decision, there is nothing to review."). Florida's rules on this issue are regularly and consistently applied. See Rose v. State, 787 So.2d 786, 797 (Fla.2001) ("The failure of a party to get a timely ruling by a trial court constitutes a waiver of the matter for appellate purposes."); Richardson v. State, 437 So.2d 1091, 1094 (Fla.1983) (noting that appellant, having failed to pursue or obtain a ruling on his motion, did not preserve the issue for appeal).
Even aside from Florida's preservation requirement, Dawson did not fairly present a constitutional claim relative to the evidentiary ruling on direct appeal. Dawson argued he was denied his right to cross-examine the victim on the discrepancy in his testimony regarding his prior record. However, he failed to apprise the state appellate court of a claim that the ruling of which he complained was not only a violation of state law, but was also a violation of his federal constitutional rights.
To satisfy the exhaustion requirement of 28 U.S.C. § 2254(b)(1), a state prisoner must "fairly present" his claim in each appropriate state court to alert that court to the claim's federal nature before seeking federal habeas relief. See Baldwin v. Reese, 541 U.S. 27 (2004). Exhaustion is not satisfied "merely" if the petitioner presents the state court with "all the facts necessary to support the claim" or even if a "somewhat similar state-law claim was made." Kelley v. Sec'y for Dept. of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004), citing Anderson v. Harless, 459 U.S. 4, 6 (1982). The petitioner must instead "present his claims to the state courts such that they are permitted the 'opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.'" Id. quoting Picard, 404 U.S. at 277). As the Supreme Court held in Duncan v. Henry, 513 U.S. 364 (1995)(per curiam), "[i]f state ...