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Donald L. Banks v. Secretary

December 1, 2011

DONALD L. BANKS, PETITIONER,
v.
SECRETARY, DOC, ET AL., RESPONDENTS.



ORDER

I. Status

Petitioner is an inmate of the Florida penal system who initiated this action by filing a pro se Petition (Doc. #1) (hereinafter Petition) for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed a Memorandum of Law for § 2254 Habeas Corpus Petition (Doc. #9). The Petition challenges a 2005 state court (Duval County) conviction for armed robbery, aggravated battery on a person over sixty-five years of age, and attempted second degree murder.*fn1

Five grounds are raised in the Petition: (1) ineffective assistance of trial counsel for conceding that a robbery occurred;

(2) ineffective assistance of trial counsel for failing to investigate, depose and call witness Larriesha Davis;

(3) ineffective assistance of appellate counsel for failing to raise a claim on direct appeal that the trial judge erred in admitting the victim's statements under the excited utterance hearsay exception, in violation of Petitioner's right of confrontation;

(4) an unlawful arrest based on a search obtained through coerced consent; and

(5) the trial court reversibly erred in admitting out-of-court statements as excited utterances in violation of Petitioner's right of confrontation. Respondents filed a Response to Order to Show Cause Why a Writ of Habeas Corpus Should Not be Granted (Doc. #17) (hereinafter Response) on October 5, 2010, and an Appendix (Doc. #18) on October 6, 2010.*fn2 Petitioner's 2254 Habeas Corpus Reply to State's Response (Doc. #20) was filed on January 10, 2011. See Order (Doc. #11). Petitioner was granted leave to expand the record, and he submitted the notes of his trial counsel as Exhibit A (Doc. #25). See Order (Doc. #27).

II. Evidentiary Hearing

The pertinent facts of the case are fully developed in the record before the Court. Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999). No evidentiary proceedings are required in this Court. See High v. Head, 209 F.3d 1257, 1263 (11th Cir. 2000) (citing McCleskey v. Zant, 499 U.S. 467, 494 (1991)), cert. denied, 532 U.S. 909 (2001). The Court can "adequately assess [Petitioner's] claim without further factual development." Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).

III. Standard of Review

The Court will analyze Petitioner's claims under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act (hereinafter AEDPA). This standard is described as follows:

As explained by the Supreme Court, the phrase "'clearly established Federal law' . . . refers to the holdings . . . of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We have held that to be "contrary to" clearly established federal law, the state court must either (1) apply a rule "that contradicts the governing law set forth by Supreme Court case law," or (2) reach a different result from the Supreme Court "when faced with materially indistinguishable facts." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2003).

As regards the "unreasonable application" prong of § 2254(d)(1), we have held as follows:

A state court decision is an unreasonable application of clearly established law if the state court unreasonably extends or fails to extend a clearly established legal principle to a new context. An application of federal law cannot be considered unreasonable merely because it is, in our judgment, incorrect or erroneous; a state court decision must also be unreasonable. Questions of law and mixed questions of law and fact are reviewed de novo, as is the district court's conclusion regarding the reasonableness of the state court's application of federal law.

Jennings v. McDonough, 490 F.3d 1230, 1236 (11th Cir. 2007) (quotation marks and citations omitted). In sum, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. at 1521. Finally, 28 U.S.C. § 2254(e)(1) commands that for a writ to issue because the state court made an "unreasonable determination of the facts," the petitioner must rebut "the presumption of correctness [of a state court's factual findings] by clear and convincing evidence."[*fn3 ] 28 U.S.C. § 2254(e)(1).

Ward v. Hall, 592 F.3d 1144, 1155-56 (11th Cir. 2010), cert. denied, 131 S.Ct. 647 (2010).

Finally, for a state court's resolution of a claim to be an adjudication on the merits, so that the state court's determination will be entitled to deference for purposes of federal habeas corpus review under AEDPA, all that is required is a rejection of the claim on the merits, not an opinion that explains the state court's rationale for such a ruling. Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002), cert. denied, 538 U.S. 906 (2003). See Peoples v. Campbell, 377 F.3d 1208, 1227 (11th Cir. 2004), cert. denied, 545 U.S. 1142 (2005). Thus, to the extent that Petitioner's claim was adjudicated on the merits in the state courts,*fn4 it must be evaluated under § 2254(d).

IV. Timeliness

Respondents calculate that the Petition is timely filed, Response at 3-5, and the Court will accept this calculation.

V. Exhaustion and Procedural Default

There are prerequisites to a federal habeas review:

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, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (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 ...


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