Petitioner Johns initiated this action by filing a pro se Petition for Writ of Habeas Corpus (Petition) (Doc. #1) under 28 U.S.C. § 2254 on March 30, 2009, pursuant to the mailbox rule. Additionally, he filed a Memorandum of Law in Support of his Petition (Memorandum) (Doc. #2). Johns challenges a 2004 state court (Duval County, Florida) judgment of conviction for sexual battery upon a person twelve years of age or older with the use of physical force likely to cause serious personal injury (count one), sexual battery upon a person twelve years of age or older (count two), and aggravated battery on a person sixty-five years of age or older (count four) on three grounds. Respondents have submitted a memorandum in opposition to the Petition. See Respondents' Response to Petition for Habeas Corpus (Response) (Doc. #11); Exhibits (Resp. Ex.) (Doc. #12). On April 17, 2009, the Court entered an Order to Show Cause and Notice to Petitioner (Doc. #7), admonishing Petitioner regarding his obligations and giving Petitioner a time frame in which to submit a reply. Petitioner submitted a brief in reply on November 26, 2010. See Petitioner's Response to the State's Response to Petitioner's Petition for Habeas Corpus Relief (Reply) (Doc. #24). This case is ripe for review.
On April 1, 2004, the State of Florida charged Lloyd William Johns with three counts of sexual battery and one count of aggravated battery on a person sixty-five years of age or older. Resp. Ex. A at 18-19, Amended Information. After jury selection, Johns proceeded to a jury trial. Resp. Exs. C; D; E; F; G; H, Transcripts of the Jury Trial Proceedings (Tr.). At the conclusion of the trial, a jury found Johns guilty of sexual battery upon a person twelve years of age or older with the use of physical force likely to cause serious personal injury (count one), the lesser included offense of sexual battery upon a person twelve years of age or older (count two), and aggravated battery on a person sixty-five years of age or older (count four). Tr. at 1113-14; Resp. Ex. A at 91-92, 94, Verdicts. The jury found Johns not guilty of count three. Tr. at 1114; Resp. Ex. A at 93, Verdict. On August 11, 2004, the trial court sentenced Johns, to a term of forty years of imprisonment on count one, fifteen years of imprisonment on count two, to run concurrently to count one, and thirty years of imprisonment on count four, to run concurrently. Resp. Ex. A at 102-09, Judgment.
On appeal, Petitioner, through counsel, filed an Initial Brief,
arguing that: (1) the trial court erroneously denied motions for
judgment of acquittal as to sexual battery and aggravated battery in
that the State failed to prove beyond a reasonable doubt that the
victim suffered great bodily harm, permanent disability or
disfigurement, and (2) the trial court erroneously overruled Johns'
objections to the prosecutor's comments that denigrated and disparaged
the defense's theory in the case. Resp. Ex. I. The State filed an
Answer Brief, see Resp. Ex. J, and Petitioner filed a Reply Brief, see
Resp. Ex. K. On October 26, 2005, the appellate court affirmed
Petitioner's conviction and sentence per curiam without issuing a
written opinion. Johns v. State, 913 So.2d 603 (Fla. 1st DCA 2005);
Resp. Ex. L. The mandate issued on November 14, 2005.*fn1
Resp. Ex. L. Petitioner did not seek review in the United
States Supreme Court.
On September 26, 2006, Petitioner filed a pro se petition for writ of habeas corpus, asserting that appellate counsel (James T. Miller) was ineffective for failing to raise the following issues on direct appeal: (1) insufficiency of the evidence, and (2) malicious prosecution. Resp. Ex. M. Without requiring a response from the State, the appellate court denied the petition on the merits on October 30, 2006. Johns v. State, 943 So.2d 847 (Fla. 1st DCA 2006); Resp. Ex. O. Johns filed a motion for rehearing, see Resp. Ex. P, which the court denied on December 14, 2006, see Resp. Ex. Q.*fn2
While his state habeas petition was still pending, Johns filed a pro se motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 motion). Resp. Ex. R at 1-22. In his request for post conviction relief, Petitioner asserted that his counsel was ineffective because she (Lara Nezami): failed to object and request a mistrial due to the prosecutor's prejudicial remarks in front of the jury (ground one); failed to have a psychological evaluation conducted on the victim (ground two); and failed to cross-examine the victim relating to her previously accusing her sister's husband of attempted rape (ground three). The circuit court denied Johns' Rule 3.850 motion on May 20, 2008. Id. at 92-99.
Johns appealed the denial and filed a brief. Resp. Ex. T. The State filed a notice that it would not file an Answer Brief. Resp. Ex. U. On January 23, 2009, the appellate court affirmed the denial per curiam. Johns v. State, 4 So.3d 1225 (Fla. 1st DCA 2009); Resp. Ex. V. Johns filed a motion for rehearing, see Resp. Ex. W, which the court denied on March 13, 2009, see Resp. Ex. X. The mandate issued on April 1, 2009. Resp. Ex. Y.*fn3
III. One-Year Limitations Period
The Petition is timely filed within the one-year period of limitations. See 28 U.S.C. § 2244(d); Response at 2-3.
"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The pertinent facts of this case are fully developed in the record before the Court. Because this 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), an evidentiary hearing will not be conducted.
The Court will analyze Petitioner's claims under 28 U.S.C. § 2254(d). 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 ]
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. Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (holding that section 2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits); 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). Thus, to the extent that Petitioner's claims were adjudicated on the merits in the state courts, they must be evaluated under § 2254(d).
VI. Exhaustion/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 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, 1732, 144 L.Ed.2d 1 (1999).
Maples v. Allen, 586 F.3d 879, 886 (11th Cir. 2009) (per curiam), petition granted in part, 131 S.Ct. 1718 (2011).
Procedural defaults may be excused under certain circumstances: "[n]otwithstanding that a claim has been procedurally defaulted, a federal court may still consider the claim if a state habeas petitioner can show either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage of justice." Id. at 890 (citations omitted). In order for Petitioner to establish cause, the procedural default "must result from some objective factor external to the defense that prevented [him] from raising the claim and which cannot be fairly attributable to his own conduct." McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier, 477 U.S. at 488, 106 S.Ct. 2639). Under the prejudice prong, [a petitioner] must show that "the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness." Id. at 1261 (quoting Carrier, 477 U.S. at 494, 106 S.Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999), cert. denied, 528 U.S. 934 (1999).
In the absence of a showing of cause and prejudice, a petitioner may receive consideration on the merits of a procedurally defaulted claim if he can establish that a fundamental miscarriage of justice, the continued incarceration of one who is actually innocent, otherwise would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there remains yet another avenue for him to receive consideration on the merits of his procedurally defaulted claim. "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Carrier, 477 U.S. at 496, 106 S.Ct. at 2649.[*fn5 ] "This exception is exceedingly narrow in scope," however, and requires proof of actual innocence, not just legal innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
Id. "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." Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)), cert. denied, 535 U.S. 926 (2002). Additionally, "'[t]o be credible,' a claim of actual innocence must be based on reliable evidence not presented at trial." Calderson v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the ...