United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION TO DENY § 2254
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
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.
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.
and Procedural History
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. 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.
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. 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. Ex. N. See Verne v. State,
104 So.3d 1289 (Fla. 1st DCA 2013) (mem).
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.
filed an amended Rule 3.850 motion on February 7, 2013, and
an “amended supplement motion” for
post-conviction relief on July 30, 2013. 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. 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).
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).
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
(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
(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
(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
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;
(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).
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).
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)).
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).
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).
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).
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).
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.
1: Fair and Impartial Judge and Trial
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.
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.
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. Petitioner had the
victim's blood on his shoes.
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
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
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 WITNESS: Yes.
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.
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
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.
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
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,
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.
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
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.
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.
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:
. . . .
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 ...