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White v. Secretary, Department of Corrections

United States District Court, M.D. Florida, Tampa Division

March 29, 2017



          CHARLENE EDWARDS HONEYWELL, United States District Judge

         David Andrew White, a Florida prisoner proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. 1.) He challenges a judgment entered by the Circuit Court for the Sixth Judicial Circuit, in and for Pasco County, Florida, in 2008. In its response, Respondent agrees that the petition is timely. (Dkt. 20.) White filed a reply. (Dkt. 32.) White's petition is due to be denied.


         A jury convicted White of one count of second degree murder. (Dkt. 25, Ex. 3.) The trial court sentenced him to forty-six years in prison, with ten years suspended. (Dkt. 25, Ex. 7.) The state appellate court per curiam affirmed the conviction and sentence. (Dkt. 25, Exs. 11, 12.) White filed a motion and amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 25, Exs. 16, 18.) The state court summarily denied relief. (Dkt. 25, Exs. 19, 21.) The state appellate court per curiam affirmed the lower court. (Dkt. 25, Ex. 24.) White also filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). (Dkt. 25, Ex. 32.) The state court denied his motion, and the state appellate court per curiam affirmed the order of denial. (Dkt. 25, Exs. 33, 37.)


         Andrea White went missing on the night of July 11, 2005. Her husband, Petitioner David White, told numerous family members and acquaintances that they got into an argument and she left their home that night. The couple was known to have marital difficulties. On July 12, White did not go to work, telling his boss that Andrea left and he was attempting to get custody of their daughters. That day, Andrea's best friend, Desiree Patton, repeatedly attempted to call Andrea but could not reach her. Concerned, Patton called White and went to the Whites' house. White told her that Andrea, a diabetic, took her insulin with her when she left. But when Patton looked inside Andrea's purse, which she had apparently left behind in the house, she saw Andrea's pouch of insulin and syringes. In Patton's experience, Andrea never left home without insulin. Andrea also noticed damp pillows in the laundry area.

         Deputy Norman Gay of the Pasco County Sheriff's Office responded to the Whites' home that evening to perform a welfare check on Andrea.[2] White told him that Andrea left on foot following the argument. But, when Gay confronted him with Patton's statement that White told her Andrea left in a blue car, White agreed that he believed Andrea got into an unknown blue car. White left for New York with his and Andrea's two daughters. He stayed with family when he arrived there.

         On July 14, Andrea White's body was found in a shallow retention pond near Cheltnam Court. Her death was from homicidal violence of undetermined etiology. The circumstances in which she was found-in a remote area, barefoot and wearing night clothes, and about five miles from her home-were crucial to this conclusion. When her body was found, she likely had been dead for days. Evidence suggested her body may have been in the water since the morning of July 12.[3] Police learned that White, who had worked maintaining rental homes, had worked on a home on Cheltnam Court.

         Detectives from the Pasco County Sheriff's Office arrived in New York on July 15. White spoke to them in New York and agreed to return to Florida with them. He gave an interview at the Sheriff's Office upon arriving in Florida. Meanwhile, several of Andrea's family members had stayed at the house after Andrea's body was found. White was arrested almost a year later, in June 2006, in New York.


         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

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.

         In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied-the state-court adjudication resulted in a decision that (1) “was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.” 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. 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.

         “The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “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.” Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide.”). The phrase “clearly established Federal law” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412.

         The purpose of federal review is not to re-try the case. “The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Cone, 535 U.S. at 693. In other words, “AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet, ' . . . and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .”) (citations omitted).

         The state appellate court affirmed the denial of White's postconviction motions in per curiam decisions without written opinions. These decisions warrant deference under Section 2254(d)(1) because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”).

         Review of the state court decision is limited to the record that was before the state court. Pinholster, 563 U.S. at 181-82. White bears the burden of overcoming by clear and convincing evidence a state court factual determination. “[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir. 2001).


         Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.”) (citations omitted). A state prisoner “‘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, ' including review by the state's court of last resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845).

         To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'”) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented.” Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971).

         The doctrine of procedural default provides that “[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The petitioner must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

         Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.


         Claims of ineffective assistance are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). A petitioner must show both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance “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. Deficient performance is established if, “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. Additionally, “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id.

         White must demonstrate that counsel's alleged error prejudiced the defense because “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691-92. To show prejudice, a petitioner must demonstrate “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. A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:

The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial . . . . We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992).

         Sustaining a claim of ineffective assistance of counsel on federal habeas review is difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential, ' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). See also Pinholster, 563 U.S. at 202 (a petitioner must overcome the “‘doubly deferential' standard of Strickland and AEDPA.”). If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”)


         Ground One

         White alleges that the State's failure to present sufficient evidence of second degree murder resulted in a federal due process violation. He argues that the State did not show that Andrea died due to “the criminal agency of another person, ” rather than as a result of natural or accidental causes. (Dkt. 1, p. 5.)

         A review of the trial transcript shows that the State's evidence of White's guilt was circumstantial. And White stated in his brief that the evidence of a criminal act was circumstantial. (Dkt. 25, Ex. 2; Ex. 9, pp. 11-12.) Florida's standard of review for circumstantial evidence cases provides that “‘[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.'” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 460 (11th Cir. 2015) (quoting Thorp v. State, 777 So.2d 385, 389 (Fla. 2000)). This involves a higher standard of proof than the federal sufficiency of the evidence standard applied in Jackson v. Virginia, 443 U.S. 307 (1979). See Id. at 451 (Florida uses a “heightened burden of proof for cases involving circumstantial evidence.”).

         White raised only state law to support his argument when he brought it on direct appeal. (Dkt. 25, Ex. 9, pp. 11-14.) He did not cite Jackson or refer to any federal authority or constitutional provision. (Id.) His reliance on state law in this circumstantial evidence case, without any mention of federal law, was insufficient to exhaust a federal claim in state court. See id. at 460-62. State procedural rules do not provide for successive direct appeals. See Fla. R. App. P. 9.140. Therefore, White's unexhausted claim is procedurally defaulted. See Smith, 256 F.3d at 1138. White does not argue or demonstrate that an exception applies to overcome the default. The claim presented in Ground One is procedurally barred from federal habeas review.

         Ground Two

         The State theorized that White smothered Andrea with a pillow. White alleges that trial counsel was ineffective for failing to investigate and file a motion to suppress the pillows found in the home. He further claims that counsel should have moved to suppress Andrea's purse, which was also recovered from the Whites' home. White alleges that Desiree Patton and Andrea's family members may have tampered with these items when they entered the house during his absence.

         The state postconviction court denied White's ineffective assistance claim:

Defendant alleges ineffective assistance of counsel for failing to investigate and file a proper motion to suppress. Defendant alleges that the pillow that the State asserted was the murder weapon should have been suppressed because the victim's mother and friends lived at the house where the crime took place for three days before the police investigation began. Defendant asserts that if the pillows were washed, as the State alleged, they could have been washed within the three days that these people were staying at the house. The State's argument being that the Defendant washed the pillows to conceal evidence of the crime.
The Defendant also claims that the purse of the victim should have also been suppressed because this evidence also had the potential to be tampered with while the guests were staying at the house prior to the police investigation. Defendant alleges he was prejudiced by this evidence being introduced because the State was allowed to draw inferences from them to persuade the jury that the Defendant was guilty.
With regard to the pillows, the record refutes the Defendant's claim. The pillows were never introduced into evidence, and therefore trial counsel cannot be deemed ineffective for failing to move to suppress them. Furthermore, defense counsel argued in closing argument that the State lacked sufficient evidence by referencing the fact that the pillows were never introduced at trial.
With regard to the victim's purse and its contents, the Defendant has not stated any valid basis to suppress this item. All relevant evidence is admissible at trial except as otherwise provided by law. See § 90.402, Florida Statutes. Relevant evidence is evidence is evidence tending to prove or disprove a material fact. § 90.401, Florida Statutes.
Furthermore, the record refutes the Defendant's claim that the purse was “planted” after he vacated the premises. There was ample testimony at trial, including the Defendant's own, that shows that the victim's purse was found at the house the day after the victim disappeared while the Defendant was still living there. Lastly, Officer Norman Gay, arriving at the house in response to a report by the victim's mother that the victim was missing, testified that he spoke to the Defendant about the purse and that the Defendant told the officer that he had put the purse in the closet and that the victim's insulin was in the purse. Therefore, the evidence indicates that the purse and the insulin inside the purse were found while the Defendant was still living in the house.
Lastly, defense counsel did argue that the purse identified by the victim's friend as the one she took out of the closet was not the actual purse pulled out of the closet, and that this was supported by the testimony of the Defendant and other witnesses. The State notes in its response that discrepancies in evidence are decided by the jury - they are not a basis to suppress evidence. See Hertz v. State, 803 So.2d 629, 647 (Fla. 2001); I.R. v. State, 385 So.2d 686 (Fla. 3d DCA 1980). The Defendant has failed to sufficiently show ineffectiveness of counsel. This claim is denied.

(Dkt. 25, Ex. 21) (court's record citations omitted).

         The state court determined that no basis for suppression existed. This Court must accept the state court's conclusion that, under Florida evidentiary law, [4] counsel had no grounds to seek suppression. See, e.g., Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) (“The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done. . . . It is a ‘fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'”) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (“[T]he Alabama Court of Criminal Appeals has already answered the question of what would have happened had [petitioner's counsel] objected to the introduction of [petitioner's] statements based on [state law]-the objection would have been overruled. . . . Therefore, [petitioner's counsel] was not ineffective for failing to make that objection.”). See also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus.”).

         White has not shown that the state court's determination was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. He is not entitled to relief on Ground Two.

         Ground Three

         White alleges that trial counsel was ineffective for failing to argue that his statements to detectives in New York, in transit from New York to Florida, and at the police station upon returning to Florida were obtained in violation of his constitutional rights. Specifically, he asserts that law enforcement conducted custodial interrogations without providing him warnings under Miranda v. Arizona, 384 U.S. 436 (1966). White claims that he was not free to leave because “from the time [he] met with the Florida detectives in New York he was under [police] supervision and control.” (Dkt. 1, p. 9.)

         Under the Fifth Amendment, an individual has a “privilege . . . not to be compelled to incriminate himself.” Id. at 439. Whether White was in custody when he spoke to police matters because “the right to Miranda warnings attaches when a custodial interrogation begins.” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006).[5] Determining custody involves examining the circumstances surrounding the interrogation and whether, under those circumstances, a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane, 516 U.S. 99, 112 (1995). While a court determining whether an individual was in custody must examine all of the circumstances of the interrogation, “the ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)) (internal quotation marks omitted). See also Miranda, 384 U.S. at 444 (“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”). “The test is objective: the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant.” United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996.)

         The state court rejected White's claim of ineffective assistance of counsel, finding that White was not in custody when he spoke to officers:

Defendant alleges ineffective assistance of counsel for failure to raise Miranda violations. Defendant claims it was a violation of Miranda for Detectives from Florida to travel to New York to inform the Defendant that his wife had died and to ask him questions and search the house at which he was staying in New York. This was not a violation of Miranda because there was no custodial interrogation involved and therefore no Miranda warnings were necessary. See Ramirez v. State, 739 So.2d 568 (Fla. 1999).
Defendant also claims it was a violation Miranda for the Detectives to escort Defendant home on a flight from New York to Florida without reading him his warnings. Defendant does not allege that any questioning went on during this flight and therefore no Miranda issues exist. Id. However, Defendant claims that upon landing, the Detectives drove the Defendant directly to the police station where he was placed in an interrogation room and was questioned for hours. Defendant claims that because the interrogation was not recorded, the Detectives did not Mirandize him before they started the questioning and that counsel should have moved to suppress any statements made by Defendant in this interview. Defendant alleges he was prejudiced because the State was able to admit conflicting statements made by Defendant in response to questions asked by the Detectives.
The Defendant's claim is refuted by the record. The Defendant testified at trial that he voluntarily spoke with Detective Mazza in New York and that he voluntarily returned to Florida. Most importantly, the Defendant testified that he initially consented to the interview at the police station and when he stopped the interview, the officers drove him home. Specifically, the State points to Defendant's testimony that Detective Sessa asked him if he was willing to talk to which Defendant responded “What choice do I have at that point? Just told me I can't go anywhere. I said yes.” The State further notes in a footnote in its response, that while Defendant testified at that point that he could not leave, the rest of the Defendant's testimony contradicts that statement, specifically where the Defendant testified that the officers drove him home when he stopped the interview and refused to waive his rights. Furthermore, aside from the Defendant's internally contradictory testimony, Detectives Sessa and Mazza testified in contradiction with the Defendant's assertion that he was told he was not allowed to leave. Detective Mazza testified that the Defendant agreed to be interviewed before going home after the flight from New York because he “wanted to get it over with.” The Defendant testified that Detective Mazza told him to sign a release form but that upon his refusal, the detective stated, “well, then I'll take you home.” Consequently, there was no violation of Miranda in this situation. The Defendant spoke to the officers voluntarily and was not in custody, therefore no Miranda warnings were necessary and there was no basis for which defense counsel could have moved to suppress the Defendant's statements. This claim is denied.

(Dkt. 25, Ex. 21) (court's record citations omitted).[6]

         White has not shown he was in custody when he talked to Detective Lisa Mazza in New York about Andrea's disappearance. White agreed to talk with Mazza and was cooperative during their conversation. (Dkt. 25, Ex. 2D, pp. 538, 542; Ex. 2H, p. 1198.) White was not under arrest. They met at White's brother's house and talked outside by a bonfire. (Dkt. 25, Ex. 2D, pp. 538, 474-75; Ex. 2H, p. 1198). See, e.g., Brown, 441 F.3d at 1348 (“Although the location of the interview is surely not dispositive in determining whether the interviewee was in custody, [c]ourts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings, such as the suspect's home.”) (quoting United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994)) (internal quotation marks omitted) (emphasis original). There is no indication that White sought to leave, asked police to leave, or decided he no longer wanted to speak to them. At the end of the meeting, White agreed when Mazza asked him to return to Florida with her. (Dkt. 25, Ex. 2D, p. 483-84; Ex. 2H, p. 1200.) White has not shown any Miranda violation when he met with detectives at his brother's house in New York.

         Nor does White show any Miranda violation during travel from New York to Florida. White voluntarily agreed to return to Florida with police. (Dkt. 25, Ex. 2D, pp. 483-84; Ex. 2H, p. 1200.) Police picked him up at his sister's house the day after he talked to Mazza. (Dkt. 25, Ex. 2D, p. 484; Ex. 2E, p. 567; Ex. 2H, p. 1201.) Mazza testified that they had “casual” conversation at the airport, and White testified that Mazza asked him about his relationship with Andrea in the days prior to her disappearance. (Dkt. 25, Ex. 2E, p. 569; Ex. 2H, p. 1202.) However, the record contains no indication that he changed his mind and wanted to stay in New York or that he became unwilling to talk to law enforcement. White was not under arrest, and there is no evidence that White's contact with officers during transit was involuntary at any time. The record therefore supports the state court's finding that Miranda was not required because White was not in custody.

         Finally, the detectives' testimony supports the finding that White was not subject to custodial interrogation when White spoke to Sergeant James Sessa upon returning to Florida. Mazza testified that when she told him the interview would take place after they arrived in Florida, “He's like, good. He wanted to get it over with.” (Dkt. 25, Ex. 2E, p. 573.) Sessa testified that White agreed to talk and was cooperative. (Dkt. 25, Ex. 2G, pp. 897, 898.)[7] Sessa further testified that White was informed he was not under arrest and was free to leave at any time. (Id., p. 897.) Therefore, there is record support for the state court's conclusion that counsel did not perform deficiently for not seeking to suppress White's statements because he was not in custody.

         However, White testified that he was not permitted to leave the interview room when he tried to do so. (Dkt. 25, Ex. 2H, p. 1204.)[8] Even assuming that counsel was deficient for not moving to suppress White's statements in light of his recollection of the interview, he does not demonstrate resulting prejudice. The crux of his comments to Sessa were introduced through other witnesses.[9]

         White told Sessa about difficulties in the marriage. Sessa testified that White reported problems with Andrea, whom he called a “bitch.” (Dkt. 25, Ex. 2G, p. 899.) He also said Andrea was not happy with him and threatened to take the children. (Id.) Other witnesses testified to White's statements about marital trouble and potential child custody issues. Gay testified that White told him that Andrea was considering divorce. (Dkt. 25, Ex. 2C, p. 313.) Susan Gula testified that White brought up his martial problems and stated that Andrea was going to leave him. (Id., pp. 401-03.) Rhonda Draper testified that White told her he would never let Andrea have the children. (Dkt. 25, Ex. 2D, p. 430.) Marianne Salo testified that White told her Andrea was crazy and that they fought. (Dkt. 25, Ex. 2E, p. 700-01.) Rod Mick testified that White discussed marital difficulties, said Andrea was insane, and stated that he could not leave because he would lose the children. (Dkt. 25, Ex. 2G, pp. 814-16, 822.) Heather Hart said that White told her Andrea was leaving. (Id., p. 832.) Finally, White himself testified to his marital problems. (Dkt. 25, Ex. 2H, pp. 1140-42.) Therefore, the jury knew of White's statements about his marriage and children from sources other than Sessa.

         White also gave Sessa a description of events immediately prior to Andrea's disappearance on the night of July 11. Sessa testified that White told him that he and Andrea had sex and then had an argument. (Dkt. 25, Ex. 2G, pp. 899-900.) White told Sessa that Andrea slapped him, and also told Sessa that after the argument, Andrea pointed a gun at him and pulled the trigger, but the gun misfired. (Id., pp. 902, 908.) He stated that he slapped the gun away and that Andrea then picked it up and walked out of the house. (Id., pp. 902-03.) White told Sessa that ...

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