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Michael Hitchcock v. Secretary

December 14, 2011

MICHAEL HITCHCOCK, PETITIONER,
v.
SECRETARY, DOC, ET AL., RESPONDENTS.



ORDER

I. Status

Petitioner 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 also filed an Appendix (Doc. #2) (hereinafter Appendix). The Petition challenges a 1999 state court (Duval County) conviction for three counts of capital sexual battery.

Eleven grounds are raised in the Petition: (1) trial court erred in refusing to allow Petitioner to tell the jury what the interrogating detectives informed him was the nature of the penalty; (2) trial court erred in refusing to instruct the jury on the lesser included offense of simple battery when trial counsel refused to agree to have the jury instructed on attempted sexual battery as well; (3) trial court erred in denying Petitioner's motion for judgment of acquittal; (4) ineffective assistance of counsel for failure to conduct a reasonable investigation into the state's medical evidence; (5) ineffective assistance of counsel for failure to consult with and use a defense medical expert witness; (6) ineffective assistance of counsel for failure to object to the tender of Nurse Practitioner Mary Prevatt as an expert of child sexual abuse; (7) ineffective assistance of counsel for failure to object to the expert testimony of Mary Prevatt not meeting admissibility under Frye*fn1 ; (8) ineffective assistance of counsel for failure to prepare for and counter the testimony of Nurse Practitioner Mary Prevatt; (9) ineffective assistance of counsel for failure to suppress, exclude and object to Petitioner's confession; (10) ineffective assistance of counsel for failure to object to a discovery violation by the state; and (11) ineffective assistance of counsel for admitting the team assessment summary, a hearsay document, into evidence.

Petitioner appealed the dismissal of his federal Petition, asserting that this Court erred in holding certain claims to be procedurally defaulted from federal habeas review.*fn2 The Eleventh Circuit, in its Opinion of January 7, 2010, found that Petitioner's federal claims were not barred from review and reversed and remanded for further proceedings not inconsistent with the opinion. (Doc. #37).

Respondents were directed to respond to grounds four, six, seven, eight, ten and eleven of the Petition, and they were advised not to refer back to their previous response. (Order, Doc. #38).

Petitioner moved to expand the record, and the motion was granted. (Order, Doc. #41). Respondents filed a Supplemental Answer to Petition for Writ of Habeas Corpus (Doc. #45) (hereinafter Supplemental Response).*fn3 Petitioner filed a Supplemental Reply to the Respondents' Answer to Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. #48). See Docs. #7, #38, #41, #47).

With respect to grounds one, two, three, five, and nine, the Court will also consider Respondents' November 10, 2005, Answer in Response to Order to Show Cause (Doc. #14) (hereinafter Response), the Exhibits (Doc. #17), and Petitioner's January 30, 2006, Traverse to State's Answer (Doc. #24). See Doc. #7.

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[s] 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."[*fn4 ]

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 Petitioner's claims were adjudicated on the merits in the state courts,*fn5 they must be evaluated under § 2254(d).

IV. Timeliness

Respondents calculate that the Petition is timely filed, Response at 6-7, and the Court will accept this calculation.

V. Ineffective Assistance of Counsel

Petitioner contends that he received ineffective assistance of trial counsel. "The Sixth Amendment guarantees criminal defendants effective assistance of counsel. That right is denied when a defense counsel's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citations omitted). The Eleventh Circuit has captured the essence of an ineffectiveness claim:

The clearly established federal law for ineffective assistance of counsel claims was set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish a claim of ineffective assistance of counsel, first, "the defendant must show that counsel's performance was deficient . . . [which] requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. Second, the defendant must show that counsel's deficient performance prejudiced him. Id. That is, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

Gaskin v. Sec'y, Dep't of Corr., 494 F.3d 997, 1002 (11th Cir. 2007). "Establishing these two elements is not easy: 'the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'" Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002) (per curiam) (citations and footnote omitted), cert. denied, 537 U.S. 812 (2002), 537 U.S. 1105 (2003).

VI. Procedural History

Petitioner was charged by amended information, filed on November 23, 1998, with three counts of sexual battery. Ex. A. A jury trial was conducted, Ex. B,*fn6 and Petitioner was convicted of three counts of capital sexual battery. Ex. C. A motion for new trial was filed, Ex. D, and the motion was denied. Ex. E; Ex. G at 340. Petitioner was sentenced to life terms in prison on each count, to be served consecutively. Ex. F; Ex. G at 346. Petitioner appealed. Ex. H. He raised three grounds: (1) the trial court erred in refusing to allow appellant to tell the jury what the interrogating detectives informed him was the nature of the penalty for the charged offenses; (2) the trial court erred in refusing to instruct on the lesser included offense of simple battery because defense counsel refused to agree to have the jury instructed on attempted sexual battery as well; and (3) the trial court erred in denying appellant's motion for judgment of acquittal because the state failed to prove that the crimes occurred within the time frame narrowed by the state's amended statement of particulars. The state answered, Ex. I, and Petitioner replied.

Ex. J. The First District Court of Appeal affirmed per curiam on June 28, 2000. Ex. K. The mandate issued on July 14, 2000. Ex. L. On April 5, 2001, Petitioner filed a pro se motion for post conviction relief pursuant to Fla. R. Crim. P. 3.850, Ex. M; on June 1, 2001, Petitioner filed an amended pro se Rule 3.850 motion,

Ex. N; and on September 26, 2001, Petitioner filed a second amended pro se Rule 3.850 motion. Ex. O. On November 1, 2002, Petitioner, through counsel, filed a Third Amended Motion for Post-conviction Relief (hereinafter Third Amended Rule 3.850 Motion). Ex. P. The following grounds were raised therein: (1) ineffective assistance of counsel for failure to prepare for and counter the testimony of Nurse Practitioner Mary Prevatt, a state witness;*fn7 (2) ineffective assistance of counsel for failure to retain and utilize the services and testimony of a child psychologist; (3) ineffective assistance of counsel for failure to suppress, exclude and object to Petitioner's confession; (4) the state committed a Brady*fn8 violation, keeping key evidence from the Petitioner and preventing him from receiving a fair trial; and (5) ineffective assistance of counsel for submitting the team emergency assessment summary, prepared by case coordinator Christy Wright of the Children's Crisis Center, into evidence for review by the jury. Id.

Petitioner was represented by counsel at an evidentiary hearing conducted on July 8, 2003 and July 16, 2003. Ex. Q. Ground two was abandoned. Id. at 1176. An Order Denying Defendant's Motion for Post Conviction Relief was filed on October 15, 2003. Ex. R.

On appeal, Petitioner was represented by the same counsel who represented him on the Third Amended Rule 3.850 Motion and evidentiary hearing. After an initial appeal brief was filed by counsel on February 11, 2004, Petitioner filed a pro se Request for Stay of Proceedings and Request for Leave to File Supplement Initial Brief, on February 26, 2004, pursuant to the mailbox rule. Ex. Y at 2. The pro se Request for Stay of Proceedings and Request for Leave to File Supplement Initial Brief was denied by the First District Court of Appeal on March 4, 2004. Ex. Z.

In the Amended Initial Brief of Appellant filed by counsel and dated March 11, 2004, two issues are raised: (1) the trial court erred in failing to find that Appellant suffered from ineffective assistance of counsel due to his trial lawyer's failure to use a defense medical expert at trial, and (2) the trial court erred in failing to find that Appellant suffered from ineffective assistance of counsel due to his trial lawyer's failure to bring a pre-trial motion to suppress Defendant's confession. Ex. S at ii. These issues correlate with grounds 1(b) and 3 of the Third Amended Rule 3.850 Motion. The state filed an answer brief.*fn9 Ex. T. A reply brief, dated April 2, 2004, was filed by Petitioner's counsel. Ex. U. On December 27, 2004, the First District Court of Appeal affirmed per curiam. Ex. V. The mandate issued on January 12, 2005. Ex. W.

VII. Findings of Fact and Conclusions of Law

A. Ground One

In the first ground, it is asserted that the trial court erred in refusing to allow Petitioner to tell the jury what the interrogating detectives informed him would be the nature of the penalty he would face if he went to trial, which was a penalty of life in prison. The issue was raised on appeal and affirmed by the First District Court of Appeal.

At first blush this claim appears to be a state law claim addressing an evidentiary ruling by the trial court. To the extent it was presented as a claim of trial court error based on an improper trial court evidentiary ruling, without an underlying due process claim, it presents an issue of state law that is not cognizable in this federal habeas proceeding. The purpose of a federal habeas proceeding is review of the lawfulness of Petitioner's custody to determine whether that custody is in violation of the Constitution or laws or treaties of the United States. See Coleman v. Thompson, 501 U.S. 722 (1991). This Court will not re-examine state-court determinations on issues of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, to the extent this ground is a state law claim complaining about an evidentiary ruling by the trial court, Petitioner is not entitled to federal habeas corpus relief as there has been no breach of a federal constitutional mandate.

It does appear, however, that appellate counsel cited Crane v. Kentucky, 476 U.S. 683 (1986), a case concerning the deprivation of rights under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. In Crane, 476 U.S. at 691, the Supreme Court found the Kentucky courts had erred in forbidding Crane's efforts to introduce testimony concerning the physical environment and the circumstances in which his confession was secured, finding that the circumstances of an interrogation and confession bear on the issue of credibility, a factual issue relevant to guilt or innocence.

In the instant case, Petitioner was allowed to testify as to the circumstances of his confession, however, he was prohibited from stating he was facing a life sentence, although he was allowed to attest that the severity of the penalty was so harsh, it made him make a decision to make a statement/confession that would get him probation. Ex. B at 544, 600. Petitioner did not face the blanket exclusion of all testimony regarding his version of the events. Indeed, he testified as to the circumstances of the interrogation and the varied details about the environment he was in when he made his confession. He was only limited in referencing the specific life sentence he faced. "This is not the kind of blanket exclusion prohibited by Crane." United States v. Gibbs, 237 Fed.Appx. 550, 560 (11th Cir.) (per curiam) (not selected for publication in the Federal Reporter), cert. denied, 552 U.S. 1005 (2007).

To the extent a federal constitutional claim was raised on appeal, the decision of the First District Court of Appeal is entitled to deference under AEDPA. The adjudication of the state appellate court resulted in a decision that involved a reasonable application of clearly established federal law, as determined by the United States Supreme Court. Therefore, Petitioner is not entitled to relief on ground one because the state court's decision was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

B. Ground Two

In ground two, Petitioner claims that the trial court erred in refusing to instruct the jury on the lesser included offense of simple battery when trial counsel refused to agree to have the jury instructed on attempted sexual battery as well. This ground was raised on appeal and affirmed per curiam.

The claim was presented to the First District Court of Appeal as a claim of trial court error, not a claim of constitutional dimension. The claim exhausted in the state court system was a state law claim. There is no entitlement to habeas relief on state law errors. Since there was no breach of a federal constitutional mandate, Petitioner is not entitled to habeas relief on ground two.

In the alternative, to the extent a federal constitutional claim was raised on appeal, the decision of the First District Court of Appeal is entitled to deference under AEDPA. The adjudication of the state appellate court resulted in a decision that involved a reasonable application of clearly established federal law, as determined by the United States Supreme Court.

Therefore, Petitioner is not entitled to relief on ground two because the state court's decision was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

C. Ground Three

In his third ground, Petitioner claims the trial court erred in denying the motion for judgment of acquittal. The ground was raised on appeal, and the appellate court per curiam affirmed. The trial court record shows that a motion for judgment of acquittal was made at the close of the state's case:

MR. MILLER [defense counsel]: Yes, Your

Honor.

At this time I would like to make an Oral Motion for Judgment of Acquittal, and I would rely on Audano v. State, 674 So.2d 882, which is a Florida Second DCA, 1996 case.

Your Honor, it is my contention that the evidence presented by the State, places the child at the ages of eight or nine years old. On two occasions she stated --- one occasion she stated eight or nine.

If this Court will take notice of her date of birth, which is July 1st, and she is twelve years old at this moment, going back in time when she was nine years old, that would have been July '95 through July '96. When she was eight ...


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