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Verne v. Jones

United States District Court, N.D. Florida, Pensacola Division

March 10, 2017

JULIE L. JONES, Secretary, Department of Corrections, Respondent.



         Petitioner, Donald Stanley Verne, a prisoner in the custody of the Florida Department of Corrections, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 with exhibits on December 3, 2014, under the mailbox rule. ECF No. 1. The Respondent filed a response with attachments on September 15, 2015. ECF No. 13. Petitioner filed a motion to stay proceedings on September 23, 2015, on the grounds that a case he relied on was pending in the Florida Supreme Court. ECF No. 15. After response and reply, the Court denied the motion for stay. ECF No. 19. Petitioner then filed a reply to the Respondent's response to the § 2254 petition on January 15, 2016. ECF No. 22.

         The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this amended § 2254 petition should be denied.

         Facts and Procedural History

         On August 30, 2010, Petitioner was charged by Information in the circuit court of the First Judicial Circuit, Escambia County, Florida, with the July 29, 2010, second-degree murder of Peter James Delmonico, in violation of section 782.04(2), Florida Statutes. Ex. A at 1.[1] Prior to trial, Petitioner filed a motion to dismiss pursuant to section 776.032, Florida Statutes, Florida's “Stand Your Ground” law, which provides immunity from prosecution under certain circumstances. Ex. A at 39. The motion was heard and denied. Ex. A at 79. Jury trial was held on February 21-23, 2011. Ex. E &F. Petitioner was found guilty as charged, with the specific finding that Petitioner did use, carry, or display a weapon. Ex. A at 113. Judgment and sentence were entered on March 23, 2011, Ex. A at 127-35, and Petitioner was sentenced to life in prison, with credit for 238 days time served. Ex. A at 115-122.

         Petitioner appealed to the state First District Court of Appeal, Ex. G, H, and I, and the court affirmed per curiam without opinion on January 27, 2012.[2] Ex. J. The mandate was issued on February 14, 2012. Ex. K. See Verne v. State, 78 So.3d 540 (Fla. 1st DCA 2012) (table). Petitioner filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel on December 16, 2012, Ex. L, which was denied on the merits on January 11, 2013.[3] Ex. N. See Verne v. State, 104 So.3d 1289 (Fla. 1st DCA 2013) (mem).

         On November 5, 2012, Petitioner filed his initial motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Ex. O at 1-144. The motion was amended on November 25, 2012, Ex. O at 145-51, and on January 8, 2013, the trial court entered an order striking the motion and amended motion as facially insufficient, although without prejudice to filing a further facially sufficient amended motion. Ex. O at 152-53.

         Petitioner filed an amended Rule 3.850 motion on February 7, 2013, and an “amended supplement motion” for post-conviction relief on July 30, 2013.[4] Ex. P at 184-215. The motions were summarily denied on October 15, 2013, by order with attachments. Ex. P at 216-44. Rehearing was denied on November 20, 2013, and Petitioner appealed. Ex. P at 358, 360. The state appellate court affirmed per curiam on April 24, 2014.[5] Ex. Q. Rehearing was denied and the mandate was issued on July 8, 2014. Ex. T. See Verne v. State, 141 So.3d 185 (Fla. 1st DCA 2014) (table).

         Petitioner filed a successive Rule 3.850 motion on February 11, 2014, Ex. U at 1-78, which was dismissed. Ex. U at 79-104. Rehearing was denied and Petitioner appealed. The state district court of appeal affirmed per curiam on July 17, 2014, Ex. V, and the mandate was issued on August 12, 2014. Ex. W. See Verne v. State, 147 So.3d 990 (Fla. 1st DCA 2014) (table) (Case No. 1D14-1713). Petitioner's pro se petition for writ of habeas corpus to correct manifest injustice was filed in the state First District Court of Appeal on July 25, 2014, Ex. X, and was denied per curiam on August 19, 2014. Ex. Y. See Verne v. State, 147 So.3d 990 (1st DCA 2014) (table) (Case No. 1D14-3404).

         Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court on December 3, 2014, raising the following grounds for relief:

(1) Petitioner was deprived of a fair and impartial trial, and thus deprived of due process, because the trial judge twice departed from a position of neutrality by sua sponte questioning the medical examiner and by examining Petitioner. ECF No. 1 at 4.
(2) The trial court violated Petitioner's Fifth, Sixth, and Fourteenth Amendment rights by erroneously giving the jury instruction on the justifiable use of force, which imposed a duty to retreat. ECF No. 1 at 6.
(3) The trial court violated Petitioner's Fifth, Sixth, and Fourteenth Amendment rights by failing to instruct the jury on Florida's “Stand Your Ground” immunity. ECF No. 1 at 7.
(4) Trial counsel rendered ineffective assistance by failing to interview, depose, or call as a witness Paul Koski, who would have provided exculpatory evidence. ECF No. 1 at 9.
(5) Trial counsel rendered ineffective assistance by failing to object to the jury instruction on justifiable use of deadly force, which was invalid because the Florida Supreme Court invalidated the “duty to retreat” requirement. ECF No. 1 at 10.
(6) Trial counsel rendered ineffective assistance by failing to object to the court's erroneous jury instructions and failing to provide complete jury instructions. ECF No. 1 at 12.
(7) Trial counsel rendered ineffective assistance by failing to object to exclusion of all evidence of the victim's propensity for violence, which was relevant to Petitioner's defense. ECF No. 1 at 14.
(8) Trial counsel rendered ineffective assistance by failing to object to the trial judge's departure from his position as a neutral and impartial magistrate when the judge questioned the medical examiner and Petitioner. ECF No. 1 at 15.
(9) Trial counsel rendered ineffective assistance by failing to object to the State's use of a photograph of the victim's hands because the photograph was not taken at the time of the incident and the medical examiner explained swelling in the hands was caused by introduction of the IV needle; if the photograph had been taken timely it would have proven that the victim struck the Petitioner. ECF No. 1 at 17.
(10) Trial counsel rendered ineffective assistance by failing to investigate evidence that the victim could have received the cuts to the back of his head by falling against a chair. ECF No. 1 at 19
(11) Trial counsel rendered ineffective assistance by failing to present exculpatory photographic evidence showing Petitioner's neck was swollen and his eye was swollen shut. ECF No. 1 at 21.
(12) Trial counsel rendered ineffective assistance by failing to request a crime scene reconstruction expert to reconstruct the crime scene, which would have shown crime scene evidence was mishandled. ECF No. 1 at 22.
(13) Trial counsel rendered ineffective assistance by failing to investigate the contamination of the crime scene evidence. ECF No. 1 at 24.
(14) The state district court of appeal denied Petitioner due process and equal protection when it arbitrarily withheld the benefit of state law and treated Petitioner unequally on the issue of the “Stand Your Ground” law. ECF No. 1 at 26.


         Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody only under certain specified circumstances. Section 2254(d) provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) 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; or
(2) 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). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring). “Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413 (O'Connor, J., concurring).

         The Supreme Court has explained that “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court stated:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings. . . . It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no further. Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems, ” not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, 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.

Id. at 102-03 (citation omitted). The federal court employs a “ ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.' ” Pinholster, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).

         “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b). The Petitioner must have apprised the state court of the federal constitutional claim, not just the underlying facts of the claim or a “somewhat similar state-law claim.” Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (quoting Anderson v. Harless, 459 U.S. 4, 5-6 (1982)). In order for remedies to be exhausted, “the petitioner must have given the state courts a ‘meaningful opportunity' to address his federal claim.” Preston v. Secretary, Florida Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (quoting McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)). Petitioner must “fairly present” his claim in each appropriate state court in order to alert the state courts to the federal nature of the claim. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 275 (1971).

         In order to obtain review where a claim is unexhausted and, thus, procedurally defaulted, the Petitioner must show cause for the default and prejudice resulting therefrom or a fundamental miscarriage of justice. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993). In order to demonstrate cause, Petitioner must show that an “external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497 (1991) (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). A federal court may grant a habeas petition on a procedurally defaulted claim without a showing of cause or prejudice if necessary to correct a fundamental miscarriage of justice. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). In order to satisfy the miscarriage of justice exception, the Petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quoting Carrier, 477 U.S. at 496).

         This Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563 U.S. at 181. The state court's factual findings are entitled to a presumption of correctness and to rebut that presumption, the Petitioner must show by clear and convincing evidence that the state court determinations are not fairly supported by the record. See 28 U.S.C. § 2254(e)(1).

         For claims of ineffective assistance of counsel, the United States Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a “defendant must show that counsel's performance fell below an objective standard of reasonableness.” Id. at 688. Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 690). Federal courts are to afford “both the state court and the defense attorney the benefit of the doubt.” Id. at 13. The reasonableness of counsel's conduct must be viewed as of the time of counsel's conduct. See Maryland v. Kulbicki, 136 S.Ct. 2, 4 (2015) (citing Strickland, 466 U.S. at 690).

         To demonstrate prejudice under Strickland, a 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.” 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. For this Court's purposes, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable-a substantially higher threshold.' ” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Mirzayance, 556 U.S. at 123. A “doubly deferential judicial review” applies to a Strickland claim evaluated under the § 2254(d)(1) standard. Id.

         Ground 1: Fair and Impartial Judge and Trial

         Petitioner contends that he was deprived of a fair and impartial trial, and thus deprived of due process, because the trial judge twice departed from a position of neutrality by sua sponte questioning the medical examiner and by examining Petitioner. ECF No. 1 at 4. Petitioner raised this claim on direct appeal as fundamental error and the appellate court affirmed per curiam without opinion. Ex. G at 16; Ex. J.

         Petitioner's contention on direct appeal was that the judge questioned the medical examiner in the presence of the jury, eliciting testimony as to the number of blows to the victim's head, which had not come out in the direct or redirect examination. Further, Petitioner contended that the court's questioning suggested a line of argument which the prosecutor later used to argue the number of blows proved murder and not self-defense. Petitioner contended that while a judge may questions witnesses in his or her discretion, the court may not make comments or elicit testimony to supply essential elements of the State's case. The State disagrees and contends that the questioning by the trial judge took place after direct and cross-examination and outside the presence of the jury, and was simply to clarify the medical examiner's testimony. ECF No. 13 at 9.

         At the jury trial, the jury was asked to decide whether Petitioner committed second-degree murder or was acting in self-defense and used justifiable deadly force when he struck and killed the victim. The evidence at trial was that the victim, Peter “Pete” Delmonico, was a 51 year-old lung transplant victim in declining health. He was found on the floor of his home injured by blunt force trauma to his head consistent with being hit by a two-by-four. A two-by-four board was found in the kitchen with one area of blood on it belonging to the victim and, in another location, a weak indication of blood with mixed DNA. Petitioner could have been a contributor either by blood cells or skin cells to that weak sample. Petitioner was present in the kitchen when the victim was found by a friend and said he just got there and did not know what had happened. When the police were called, Petitioner left in the direction of a wooded area, saying he was scared. After Petitioner was taken into custody, his shirt was tested and blood was found on it matching Petitioner, and one area of blood did not match either Petitioner or the victim.[6] Petitioner had the victim's blood on his shoes.

         The judge's inquiry to the medical examiner, which Petitioner contends constituted improper judicial intervention in the trial, followed the medical examiner's testimony and occurred outside the presence of the jury. The medical examiner Dr. Andy Minyard testified that when she autopsied the victim, she found extensive injuries to his head and several obvious fractures of his skull. Ex. E at 79. She identified a large injury to the left side of the head in which the bone had come loose from its surroundings and been pushed into the brain. Ex. E at 84. The medical examiner also described a large injury to the back of the head that included a fracture at the base of his skull described as a hinge fracture, which she said was seen “a lot of time in car accidents. . . . [n]ot so much in beatings, simply because of the force required.” Ex. E at 84. The victim also had “various injuries mostly confined to the back and sides of the head.” Ex. E at 81. The blows caused swelling and contusions on the victim's brain. Ex. E at 82. After Dr. Minyard's testimony, the trial judge inquired of her outside the presence of the jury as follows:

THE COURT (to the jury): . . . . While you're on break, let's not discuss the case in any way. But you're certainly free to talk back and forth and become better acquainted.
(Jury out)
THE COURT: Were there multiple wound sites detected on Mr. Delmonico's skull, is that correct?
THE WITNESS (Dr. Minyard): That's correct.
THE COURT: Would that be consistent with more than one traumatic event or wound or striking of the skull?
THE WITNESS: That's correct.
THE COURT: Now can one blow to the skull cause multiple events or fractures?
THE WITNESS: Well, it can. But they would - - the contact area of the one blow would be the area fractured. There wouldn't be several different fractures of the exterior surface.
THE COURT: All right. So in this case, though, how many blows would there have been to Mr. Delmonico's skull?
THE WITNESS: I'd like to review the pictures. I haven't been directly asked that before.
THE COURT: Right, okay.
THE WITNESS: At least three, though, from what I can - -
THE COURT: At least three?
THE COURT: And that's what I wanted to be sure, that there were at least multiple blows or strikes to the skull. More than just one?
THE WITNESS: Yes, sir.

Ex. E at 99-101. The state was then allowed to recall Dr. Minyard to testify before the jury, which testimony transpired as follows:

Q (Prosecutor). Dr. Minyard, I know when you testified on direct examination you mentioned several fractures of the skull and several lacerations.
A. Yes.
Q. Is that consistent with being struck more than one time?
A. Yes, it is.
Q. Approximately how many injuries did you see?
A. At least three.
Q. Could one blow to the head cause multiple fractures or lacerations?
A. Well it could in fact that one blow on the outer surface of the skull could cause enough force to fracture the inside of the skull. But generally, when you have fractures of various parts of the outer part of the skull, no, those have to be separate individual blows.

Ex. E at 102-03. No objection was made to the trial judge's questioning or to the recalling of the medical examiner to impart this last information to the jury.

         During the defense case, Petitioner testified that he was living in a trailer in the victim's backyard and that the victim was his landlord. Petitioner said that, under the rental agreement, he had use of the house as well, in order to use the kitchen and the bathroom. Ex. E at 183. Petitioner testified that when he went into the residence that day, the victim came from the kitchen and asked about rent. According to Petitioner, when he said he did not have it, the victim got angry and hit him in the head with his fist and then in the neck with a two-by-four board. Ex. E at 187. Petitioner told the jury he feared for his life so he grabbed the two-by-four and hit the victim with it three times. Ex. E at 187, 189.

         During closing argument, the prosecutor argued, “One blow could have killed him. He hit him three times in the back of the head.” Ex. F at 252. He later argued that all the blows were on the back of the victim's head and that “[h]e was hit from behind at least three times with massive force.” Ex. F at 254. The prosecutor made reference to three blows with the two-by-four several more times in closing argument. See Ex. E at 258, 259, 260, 261.

         The state courts adjudication of this claim, finding that fundamental error did not occur by the trial court questioning the medical examiner, is entitled to AEDPA deference and has not been shown to be objectively unreasonable. The medical examiner initially testified on direct examination to at least two large injuries to the victim's head. Thus, evidence was already before the jury from which it could reasonably infer that more than one blow was struck. The trial judge's questioning clarified that at least three blows were struck. In either case, the prosecutor could argue during closing that multiple blows was evidence of murder and not self-defense.

         Under Florida law, “[a] court may question witnesses when required by the interests of justice. Questioning may be necessary, in the court's discretion, to ascertain the truth or to clarify an issue.” R.O. v. State, 46 So.3d 124, 126 (Fla. 3d DCA 2010) (citation omitted). Section 90.615, Florida Statutes, provides that “[w]hen required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.” § 90.615(2), Fla. Stat. (2011). The questioning must not cause prejudice, and the judge must not depart from the strict neutrality required of his position. Sims v. State, 184 So.2d 217, 221 (Fla. 2d DCA 1966).

         Federal Rule of Evidence 614 also provides that the court may examine a witness regardless of which party has called the witness. See Fed. R. Evid. 614(b). Under federal law, a trial judge has wide discretion in managing a trial, including questioning witnesses and eliciting facts not yet adduced, or clarifying facts previously presented. See United States v. Day, 405 F.3d 1293, 1297 (11th Cir. 2005) (citing United States v. Hawkins, 661 F.2d 436, 450 (5th Cir. Unit B 1981)). The trial judge is not relegated to silence or inaction during the criminal trial. See United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004). A judge's participation deprives the parties of a fair trial only if the record shows the court departed from neutrality or expressed bias or prejudice. Id.

         The questions posed by the trial judge in this case did not indicate any partiality to the prosecution, and were posed in order to clarify the medical examiner's earlier testimony that there were several large injuries to the victim's head causing serious skull fracturing and traumatic brain injury. “It is entirely proper for the trial court to make inquiries of a witness in order to clarify the evidence presented.” Hanson v. Waller, 888 F.2d 806, 813 (11th Cir. 1989). The record demonstrates that the trial judge's questions to the medical examiner were not error and Petitioner was not prejudiced by the trial judge's clarification. Even without the judge's questions and the medical examiner's clarification, the prosecutor could have argued multiple blows were proven by the disparate locations of extensive fracturing that the medical examiner first testified to on direct examination.

         Petitioner also contends that the trial court deprived him of due process by questioning him outside the presence of the jury. After Petitioner testified, and when the jury was not present, the trial court asked Petitioner to explain the chronology of events that happened the day the victim was injured at his home. Ex. F at 208-11. Everything Petitioner stated in response to the questions asked by the judge had previously been stated to the jury, with the exception of portions of the following:

(Jury out)
. . . .
THE COURT: All right. And he's hitting you with a two-by-four, but you're not frightened?
THE DEFENDANT: I must have been frightened because I grabbed it. I grabbed it from him.
THE COURT: But you don't leave - - you've got the two-by-four in your hands now?
THE DEFENDANT: He was still coming at me and then I hit him. I hit him ...

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