United States District Court, M.D. Florida, Tampa Division
SAYSINH P. KHIANTHALAT, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
Charlene Edwards Honeywell United States District Judge
Saysinh P. Khianthalat, an inmate in the Florida Department
of Corrections proceeding pro se, filed an amended
petition for writ of habeas corpus under 28 U.S.C. §
2254 (Dkt. 11). He challenges his convictions entered by the
Circuit Court for the Tenth Judicial Circuit, Polk County,
Florida, in 2005. Respondent filed a response (Dkt. 15), in
which it concedes the petition's timeliness. Khianthalat
filed a reply (Dkt. 22) and notices of supplemental authority
(Dkts. 23, 24). Upon review, the petition must be denied.
State charged Khianthalat with nine counts of lewd battery on
a child 12 years of age or older but less than 16 years of
age (counts one through nine), one count of solicitation to
commit perjury in an official proceeding (count ten), and one
count of tampering with a witness (count eleven). (Dkt. 18,
Ex. 1.) The trial court granted judgments of acquittal on
counts six, eight, and nine. (Dkt. 18, Ex. 2, pp. 277, 282.)
A jury convicted Khianthalat of the remaining counts. (Dkt.
18, Ex. 3.)
trial court sentenced Khianthalat to an overall sentence of
45 years in prison. (Dkt. 18, Ex. 5, pp. 1-2.) The Second
District Court of Appeal affirmed the convictions and
sentences in a written opinion. Khianthalat v.
State, 935 So.2d 583 (Fla. 2d DCA 2006). The Florida
Supreme Court affirmed the decision of the Second District
Court of Appeal in a written opinion. Khianthalat v.
State, 974 So.2d 359 (Fla. 2008). The United States
Supreme Court denied Khianthalat's petition for writ of
certiorari. (Dkt. 18, Ex. 7.) The state appellate court
denied Khianthalat's petition alleging ineffective
assistance of appellate counsel. (Dkt. 18, Exs. 9, 10.)
Khianthalat was resentenced as a result of a motion to
correct illegal sentence. The trial court sentenced
Khianthalat to an overall term of 33 years in prison. (Dkt.
18, Ex. 12.) The Second District Court of Appeal per
curiam affirmed this sentence. (Dkt. 18, Ex. 19.)
then filed a motion for postconviction relief under Florida
Rule of Criminal Procedure 3.850. (Dkt. 18, Ex. 14.) The
state court summarily denied several claims, dismissed two
claims with leave to amend, and directed the State to respond
to the remaining claims. (Dkt. 18, Ex. 15.) After Khianthalat
filed an amended petition and the State filed its response,
the state court denied some of Khianthalat's claims but
held an evidentiary hearing on his other claims. (Dkt. 18,
Exs. 16, 17.) Following the evidentiary hearing, the state
court entered a final order denying Khianthalat's
postconviction motion. (Dkt. 18, Ex. 20.) On appeal,
Khianthalat raised one issue. (Dkt. 18, Ex. 21.) The Second
District Court of Appeal per curiam affirmed the
denial. Khianthalat v. State, 140 So.3d 587 (Fla. 2d
DCA 2013) (table).
charges stem from his relationship with S.T. Khianthalat was
divorced from S.T.'s older sister but had regular contact
with the sisters' family. Khianthalat engaged in vaginal
and oral sex with S.T. and digitally penetrated S.T.'s
vagina. These acts began to occur when S.T. was thirteen
years old and continued when she was fourteen years old.
S.T. and her mother approached law enforcement, Detectives
Scott Kercher and Steven Richburg obtained a statement from
S.T. They next spoke to Khianthalat at his place of
employment. After some initial discussion, they began taping
the interview. In his recorded statements, Khianthalat
admitted to sexual activity with S.T.
was arrested at a later date. Following his arrest, he called
S.T. from jail. This call was recorded. Khianthalat told S.T.
that at a trial, “all you have to do is say you made it
all up.” He and S.T. discussed dropping the charges,
but S.T. told him she could get in trouble for changing her
trial, Khianthalat denied sexual activity with S.T. He
testified that he only ever gave S.T. one “peck on the
cheek.” Khianthalat further testified that he admitted
to the sexual activity during his interview with police to
tell the detectives what “they wanted to hear” so
that he could return to work.
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;
(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.
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.
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.
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' . . . .”)
state appellate court affirmed the rejection of
Khianthalat's postconviction claims in a per
curiam decision without a written opinion. This decision
warrants 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.”).
of the state court decision is limited to the record that was
before the state court:
We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits. Section 2254(d)(1) refers, in the
past tense, to a state-court adjudication that
“resulted in” a decision that was contrary to, or
“involved” an unreasonable application of,
established law. This backward-looking language requires an
examination of the state-court decision at the time it was
made. It follows that the record under review is limited to
the record in existence at that same time, i.e., the record
before the state court.
Pinholster, 563 U.S. at 181-82. Khianthalat 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.), cert.
denied, 534 U.S. 1046 (2001).
OF STATE COURT REMEDIES; PROCEDURAL DEFAULT
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).
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 as 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
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).
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.
Default Of Ground One, Ground Two, And Ground Three Subclaims
A And D Through I
raised the arguments presented in Grounds One, Two, and
Three, Subclaims A through I, in his state court
postconviction motion. With the exceptions of Grounds Three,
Subclaims B and C, these arguments are unexhausted due to
Khianthalat's failure to raise them on postconviction
state court denied Khianthalat's postconviction motion
after conducting an evidentiary hearing on some claims.
Florida Rule of Appellate Procedure 9.141(b)(3) governs
collateral proceedings when a motion has been granted or
denied after an evidentiary hearing was held on one or more
claims. In Cunningham v. State, 131 So.3d 793 (Fla.
2d DCA 2012), addressing the application of this Rule,
“Florida's Second District Court of Appeal
clarified that [between December 2000 and September 2010],
where the state post-conviction court had summarily denied
some grounds, but denied others after an evidentiary hearing,
the Second District would consider the merits, without
briefing, of all grounds that the state
post-conviction court had summarily denied.”
Bucklon v. Sec'y, Dep't of Corr., 606 Fed.
App'x 490, 492 (11th Cir. 2015) (emphasis in original).
the Second District Court of Appeal explained that it changed
its policy so that as of October 2010 “[i]f any ground
is resolved after an evidentiary hearing, we require the
appellant to process the appeal under rule
9.141(b)(3).” Cunningham, 131 So.3d at 795. In
Florida, an appellant is considered to have abandoned claims
that were not briefed with specific argument. Simmons v.
State, 934 So.2d 1100, 1111 n. 12 (Fla. 2006) (citing
Coolen v. State, 696 So.2d 738, 742 n.2 (Fla.
Khianthalat's collateral appeal was initiated in 2012,
the Second District Court of Appeal treated it under the
procedures set forth in Cunningham. His failure to
present these claims to the state appellate court results in
a lack of exhaustion for purposes of federal habeas review.
Khianthalat cannot return to state court to file a
successive, untimely postconviction appeal. See Fla.
R. App. P. 9.141. Accordingly, these claims are procedurally
defaulted. See Smith, 256 F.3d at 1138. Khianthalat
does not establish that either the cause and prejudice or
fundamental miscarriage of justice exception applies to
overcome the default. Notwithstanding the default based on
his failure to exhaust the claims on collateral appeal,
Khianthalat is not entitled to relief.
One: Giglio Violation
alleges that the State violated Giglio v. United
States, 405 U.S. 150 (1972) by eliciting false testimony
from Detective Kercher concerning Khianthalat's
interview. Specifically, when the prosecutor asked Kercher
whether the pre-tape discussion detailed the allegations,
Kercher testified that he gave Khianthalat no specifics:
Q. And describe to the jury, when you arrived at
[Khianthalat's] place of employment, what did you do
A. [ ] I introduced myself. Detective Richburg introduced
himself. We told him we had received a report down at the
police department, and what it was about. And it went from
Q. Did you give him any specific details or descriptions
about what [S.T.] had told you and Detective Richburg?
A. Only by telling him that [S.T.] had made a report, along
with her mother, in reference to some sexual allegations that
he may be involved in.
Q. Any more details that you provided to him, in terms of
what [S.T.] had told you, or was it just what you just said?
A. Just that, no specifics.
(Dkt. 18, Ex. 2, p. 251.)
the State re-called Kercher as a rebuttal witness, he
Q. Did you ever tell [Khianthalat] what to say?
Q. Did you ever recite every single word that [S.T.] told
you, and then tell him - - for him to tell you that on tape?
Q. Did he have any information, besides the bare minimums,
from you about what it was that [S.T.] had told you?
A. No, just what I said we had talked about earlier.
(Id., p. 342.)
alleges that, in fact, Kercher and Richburg discussed the
specific allegations with him before beginning to record his
statements. Khianthalat asserts that he simply repeated this
information back to the detectives because it was what they
“wanted to hear.” (Dkt. 11, p. 7.)
state court held an evidentiary hearing on this claim.
Khianthalat testified that, “There's a lot of stuff
that was not in the transcripts” of the interview, but
did not state what specific information detectives provided
him before the interview. (Dkt. 18, Ex. 18, p. 160.) Kercher
testified at the evidentiary hearing that he spoke only
briefly with Khianthalat before starting the tape.
(Id., p. 174-75.) Richburg testified that he and
Kercher did not tell Khianthalat what S.T. said upon
beginning the interview. (Id., pp. 187-88.) After
the evidentiary hearing, the state court rejected his claim,
finding that, “[b]ased on a review of the testimony
presented at the evidentiary hearing, the Court finds the
Defendant has failed to establish any of the
[Giglio] factors, much less all of them, and
therefore Defendant's claim 1 is DENIED.” (Dkt. 18,
Ex. 20, p. 230.)
record supports the rejection of this claim. “To
make out a valid Giglio claim, a petitioner
‘must establish that (1) the prosecutor knowingly used
perjured testimony or failed to correct what he subsequently
learned was false testimony; and (2) such use was material,
i.e., that there is any reasonable likelihood that the false
testimony could have affected the judgment.'”
Ferguson v. Sec'y, Dep't of Corr., 580 F.3d
1183, 1208 (11th Cir. 2009) (quoting Davis v. Terry,
465 F.3d 1249, 1253 (11th Cir. 2006)).
has not demonstrated that Kercher testified falsely.
Furthermore, even assuming Khianthalat had shown
Kercher's testimony was untruthful, Khianthalat fails to
demonstrate that the State knew this testimony to be false.
The prosecutor testified at Khianthalat's postconviction
evidentiary hearing that he did not present false testimony
and he had no knowledge of any false testimony by Kercher or
any state witness. (Dkt. 11, Ex. 18, p. 215.) Khianthalat
raises no challenge to the credibility of the
prosecutor's evidentiary hearing testimony.
even assuming Khianthalat met the first prong of the test
described in Ferguson, he fails to show materiality.
Even if telling Khianthalat the details of S.T.'s
allegations accounts for Khianthalat's ability to recite
this information, it does not explain why he admitted to
engaging in sexual activity with S.T. Thus, Khianthalat does
not show any reasonable likelihood that the testimony in
question affected the judgment. Because Khianthalat has not
established any Giglio violation, Ground One
warrants no relief.
Two: Brady Violation
claims that the State violated Brady v. Maryland,
373 U.S. 83 (1963) by withholding exculpatory information
from the defense. As addressed, the argument presented in
Ground Two is procedurally defaulted due to Khianthalat's
failure to challenge the denial of this claim on
postconviction appeal. Notwithstanding the default,
Khianthalat shows no entitlement to relief.
argues that the State violated Brady by failing to
disclose that Kercher and Richburg provided him inadequate
Miranda warnings at his interview. To establish a
Brady violation, a petitioner must show that:
“(1) the evidence at issue is favorable to the accused,
either because it is exculpatory or because it is impeaching;
(2) the evidence was suppressed by the State, either wilfully
or inadvertently; and (3) the defendant incurred
prejudice.” Wright v. Sec'y, Fla. Dep't of
Corr., 761 F.3d 1256, 1278 (11th Cir. 2014). “A
defendant cannot meet the second prong when, ‘prior to
trial, [he] had within [his] knowledge the information by
which [he] could have ascertained the alleged Brady
material.'” Id. (quoting Maharaj v.
Sec'y for Dep't of Corr., 432 F.3d 1292, 1315
(11th Cir. 2005)).
prejudice prong, “also referred to as the
‘materiality prong, ' is met when ‘there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.'” Id. (quoting Kyles v.
Whitley, 514 U.S. 419, 433 (1995)). The inquiry asks
“‘whether the government's evidentiary
suppressions, viewed cumulatively, undermine the confidence
in the guilty verdict.'” Id. (quoting
Allen v. Sec'y, Fla. Dep't of Corr., 611
F.3d 740, 746 (11th Cir. 2010)). This requires the court to
“evaluate the effect of each suppressed item on its own
and then weigh the cumulative impact of all the suppressed
evidence.” Id. (citing Kyles, 514
U.S. at 436 n.10).
does not establish that the State withheld any information
about insufficient Miranda warnings. Nor does he
show that he could not have ascertained that the detectives
allegedly failed to provide proper Miranda warnings.
Not only was he present at the interview, but evidentiary
hearing testimony reflects that Khianthalat and his attorney
were provided a transcript of the interview that referenced
pre-interview discussions with the detectives. (Dkt. 18, Ex.
18, pp. 163-64, 197.) Finally, Khianthalat does not show that
the allegedly withheld information was material such that
there is a reasonable probability the result of the
proceeding would have been different had it been disclosed.
As addressed in Ground Three, Subclaims B and C,
infra, Khianthalat has not shown that his statement
was subject to suppression based on involuntariness or a lack
of Miranda warnings. Moreover, even assuming that
his statements were excluded from evidence, the jury still
would have heard S.T.'s testimony about the events and
the phone call during which Khianthalat indicated S.T. could
say that her previous statements were not true. Khianthalat
has not established that the State committed a Brady
violation for the reasons asserted in Ground Two, Subclaim A.
argues that the State failed to disclose “[t]he
conversation of the alleged victim with the man.” (Dkt.
11, p. 10.) He claims that when S.T. contacted the State
Attorney's Office in an attempt to drop the charges, she
talked to a man who told her that she would face prosecution
if she withdrew the accusations. Khianthalat states that this
information became apparent through a recorded call he made
to S.T. from the Polk County Jail. The call reflects that
S.T. told Khianthalat she tried to talk to someone about not
pursuing charges but that she was informed she could get into
trouble if she changed her statements. (Dkt. 18, Ex. 2, pp.
does not establish that the State withheld information. He
does not allege that the defense was not provided with this
recording. Nor does he show he was unable to ascertain the
allegedly suppressed information, as he participated in the
conversation with S.T. Additionally, the record demonstrates
that the defense was aware that S.T. believed she could be
punished for recanting her statements. Counsel questioned
S.T. about this during cross-examination, and repeatedly
asserted in closing arguments that S.T. was told she would
face trouble if she changed her statements. (Id.,
pp. 215, 218-19, 388, 393, 418.) Because he fails to show
that the State withheld exculpatory information, Khianthalat
has not established any Brady violation on the basis
asserted in Ground Two, Subclaim B.
Three: Ineffective Assistance Of Trial Counsel
alleges ineffective assistance of trial counsel in Ground
assistance claims are analyzed under the test set forth in
Strickland v. Washington, 466 U.S. 668 (1984):
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the Supreme Court set forth a two-part test for
analyzing ineffective assistance of counsel claims. According
to Strickland, 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, 466 U.S. at
687, 104 S.Ct. 2052.
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir.
1998). 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.” Strickland,
466 U.S. 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.
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.
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
White v. Singletary, 972 F.2d 1218, 1220-21 (11th
Cir. 1992). Accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000)
(“To state the obvious: the trial lawyers, in every
case, could have done something more or something different.
So, omissions are inevitable . . . . [T]he issue is not what
is possible or ‘what is prudent or appropriate, but
only what is constitutionally compelled.'”) (en
banc) (quoting Burger v. Kemp, 483 U.S. 776, 794
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.”).
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. 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.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of
ineffectiveness claims on either of its two grounds.”).
alleges that trial counsel was ineffective for failing to
advise him of the potential deportation consequences if he
“preceded [sic] to trial.” (Dkt. 11, p. 12.)
Khianthalat states that he received three plea offers from
the State but rejected them all. He claims that, under the
terms of the final offer, he would have pleaded guilty to an
unspecified “lesser charge” and received a
sentence of time served and eight years of probation.
(Id.) Khianthalat asserts that, absent counsel's
misadvice, he would have entered a plea and thus would not
have been subject to deportation. He alleges “(1)
acceptance of the State's offer, would have resulted in
an extremely less severe sentence; (2) not face deportation
consequences, had it not been for defense counsel's
failure to advise; and (3) Petitioner would not have advanced
to stand trial.” (Id.)
state court rejected Khianthalat's claim when he raised
it in his postconviction motion, finding that he incorrectly
asserted he would not have been subjected to deportation had
he entered a plea:
Subpart (a) alleges trial counsel failed to sufficiently
advise Defendant of the consequences and penalties he faced,
specifically the potential for deportation. . . . Defendant
alleges that had he been properly informed, he would have
accepted the State's last plea offer and would not have
faced deportation consequences. The Court finds
Defendant's argument to be without legal merit, as the
law is clear that the entry of a plea by a non-citizen
Defendant to a criminal offense subjects the Defendant to the
possibility of deportation. Accordingly, claim 3(a) is
(Dkt. 18, Ex. 15, pp. 86-87.)
does not show that the state court made an unreasonable
determination that a conviction may make him eligible for
deportation regardless of whether it stemmed from a plea or a
trial. Nor does he explain what “lesser charge”
he would have pleaded to, or how this would have rendered him
ineligible for deportation.
although this claim was summarily denied, the advice
Khianthalat received with respect to deportation was
addressed at the evidentiary hearing. Khianthalat's
testimony reflects that “an immigration hold” had
been placed on him at the time of the hearing. (Dkt. 18, Ex.
18, p. 143.) Counsel testified that, prior to trial,
Khianthalat wanted to volunteer to return to his home country
if he could “have all this go away.”
(Id., pp. 204, 211.) The prosecutor rejected this
proposal when counsel presented it. (Id., pp.
212-13.) Counsel testified that Khianthalat was aware he
could be deported upon conviction and that she discussed this
possibility with him. (Id., pp. 211, 213.)
Specifically, she testified that she likely said to him that
there existed “a very real possibility” of his
deportation unless he was acquitted. (Id., p. 213.)
court allowed this testimony from counsel in connection with
Khianthalat's claim that counsel was ineffective for
failing to file a motion to suppress his statement to police.
rejecting that claim, the state court found counsel's
testimony to be credible. A federal habeas court must defer
to factual findings of the state court. 28 U.S.C. §
2254(e)(1). Khianthalat does not overcome the presumption of
correctness afforded to the state court's determination
that counsel's testimony was credible. See Baldwin v.
Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) (“We
must accept the state court's credibility determination
and thus credit [the attorney's] testimony over [the
petitioner's].”); Devier v. Zant, 3 F.3d
1445, 1456 (11th Cir. 1993) (“Findings by the state
court concerning historical facts and assessments of witness
credibility are . . . entitled to the same presumption
accorded findings of fact under 28 U.S.C. §
2254(d).”). See also Gore v. Sec'y, Dep't
of Corr., 492 F.3d 1273, 1300 (11th Cir. 2007) (“A
certain amount of deference is always given to a trial
court's credibility determinations. That the case is
before us on habeas review heightens that deference.”)
(citations omitted). Khianthalat does not overcome this
presumption of correctness.
testimony the state court found credible provides that
Khianthalat was aware he could be deported upon conviction,
and his attorney discussed the likelihood of deportation with
him. Khianthalat does not establish that the state
court's rejection of his claim was contrary to or an
unreasonable application of Strickland or based on
an unreasonable determination of the facts. He is not
entitled to relief on Ground Three, Subclaim A.
B and C
Ground Three, Subclaim B, Khianthalat alleges that counsel
was ineffective for not moving to suppress his statement to
law enforcement as involuntary and given without proper
Miranda warnings. In Ground Three, Subclaim C,
Khianthalat argues that trial counsel was ineffective for
failing to object to the statement's introduction and
thus preserve for appellate review the question of whether
his statement was involuntary. The state court granted an
evidentiary hearing on these claims when Khianthalat raised
them in his postconviction motion.
testified at the evidentiary hearing that he was not read
Miranda warnings prior to questioning and that
Richburg said his statements could not be used against him in
court. (Dkt. 18, Ex. 18, pp. 144, 145, 151.) Khianthalat
further testified that, during the interview, he tried
turning around and going back to work but the detectives told
him it would not take long and he would not be arrested that
day. (Id., p. 147.) He believed he would be arrested
if he did not cooperate. (Id., pp. 147, 150-51.)
However, Khianthalat conceded that he did not have to speak
without an attorney, that he was not restrained in handcuffs,
and that no one was between him and the door. (Id.,
pp. 159, 160.) While Khianthalat agreed that nobody forced
him to say anything, he testified that he said his statements
were voluntary at the end of the interview so that he could
go back to work (Id., p. 162). Khianthalat testified
that he requested counsel file a motion to suppress several
times. (Id., p. 149.)
testified that she would have discussed a motion to suppress
with Khianthalat. (Id., p. 194.) She believed no
legal basis existed to move to suppress his statements, and
stated that she did not file a motion because Khianthalat was
free to leave the interview. (Id., pp. 194, 195,
206.) Counsel was aware that Khianthalat was concerned about
his job but denied that Khianthalat told her law enforcement
forced him to make statements or told him what to say before
they began the tape. (Id., p. 206.) She further
testified that her discussions with Khianthalat about
“feeling threatened during the interview . . . assisted
[her]” in deciding not to file a motion to suppress his
statement. (Id., p. 207.)
state court denied Khianthalat's claims after the
Defendant alleged counsel was ineffective for failing to file
a Motion to Suppress Defendant's statement and for
failing to object to the admission of the statement at trial
in order to preserve the issue for appellate review.
Defendant testified at the hearing that his statement was not
voluntarily made because he felt as though if didn't
cooperate he would have been arrested. Counsel testified she
spoke with Defendant regarding the circumstances of the
interview, but did not feel there was a legal basis for the
filing of such a motion. Based on a review of the record and
testimony adduced at the hearing, the Court finds the
testimony of trial counsel to be more credible. The Court
cannot find counsel to be ineffective for failing to file a
Motion to Suppress without a good faith basis for such, nor
can the Court find counsel ineffective for failing to object
to the admission of the statement to preserve such issue for
appeal. Accordingly, the Court finds Defendant has failed to
establish the first prong under Strickland, and
therefore claims 3b and 3c are DENIED.
(Dkt. 18, Ex. 20, p. 231).
record supports the rejection of Khianthalat's claim.
Initially, the record reflects that Khianthalat was not in
custody when he made his statements to officers.
A defendant is in custody for the purposes of
Miranda when there has been a formal arrest or
restraint on freedom of movement of the degree associated
with a formal arrest. Whether [a defendant] was in custody
prior to his formal arrest depends on whether under the
totality of the circumstances, a reasonable man in his
position would feel a restraint on his freedom of movement to
such extent that he would not feel free to leave. 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. Under the objective standard,
the reasonable person from whose perspective
‘custody' is defined is a reasonable innocent
United States v. Barry, 479 F. App'x 297, 299
(11th Cir. 2012) (quoting United States v. Brown,
441 F.3d 1330, 1347 (11th Cir. 2006)).
was interviewed inside a room or office at his place of
employment. (Dkt. 18, Ex. 2, pp. 226-27, 251.) He was not
placed under arrest, and was told that he would not be placed
under arrest. (Id., pp. 226-27, 252, 256-57.)
Khianthalat was not physically restrained within the room and
he makes no allegation that he was physically unable to leave
the room. (Dkt. 18, Ex. 18, p. 160.) No one was located
between Khianthalat and the door. (Id.) Detectives
informed Khianthalat that he could leave at any time, and he
indicated that he understood this. (Dkt. 18, Ex. 2, pp. 227,
252, 257.) Accordingly, Khianthalat fails to show any
restraint on his freedom of movement such that a reasonable
innocent person would not feel free to leave.
Khianthalat was not in custody when he spoke to detectives,
Miranda warnings were not necessary. See Rhode
Island v. Innis, 446 U.S. 291, 300 (1980) (“We
conclude that the Miranda safeguards come into play
whenever a person in custody is subjected to either express
questioning or its functional equivalent.”); Oregon
v. Mathiason, 429 U.S. 492, 495 (1977) (“Miranda
warnings are required only where there has been such a
restriction on a person's freedom as to render him
the record supports the conclusion that Khianthalat's
statement was voluntary. In determining voluntariness, courts
evaluate “the totality of all the surrounding
circumstances-both the characteristics of the accused and the
details of the interrogation.” Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973). Cases in which
confessions have been found involuntary “all have
contained a substantial element of coercive police
conduct.” Colorado v. Connelly, 479 U.S. 157,
164 (1986). “‘Sufficiently coercive conduct
normally involves subjecting the accused to an exhaustingly
long interrogation, the application of physical force or the
threat to do so, or the making of a promise that induces a
confession.'” United States v. Thompson,
422 F.3d 1285, 1295-96 (11th Cir. 2005) (quoting United
States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir
1992)). See also Waldrop v. Jones, 77 F.3d 1308,
1316 (11th Cir. 1996) (“Factors to be considered
include the “[accused's] lack of education, or his
low intelligence, the lack of any advice to the accused of
his constitutional rights, the length of detention, the
repeated and prolonged nature of the questioning, and the use
of physical punishment such as the deprivation of food or
sleep.'”) (quoting Schneckloth, 412 U.S.
record supports the conclusion that Khianthalat's
statement was voluntary. It occurred at his place of
employment and, by Khianthalat's own account, was not
excessively lengthy. Specifically, Khianthalat testified at
the evidentiary hearing that he spoke with detectives for
about fifteen to twenty minutes before recording. (Dkt. 18,
Ex. 18, p. 148.) When asked whether the recorded interview
lasted for fifteen minutes, he said he was not sure but did
not contest this estimation. (Id., p. 158.)
Khianthalat was informed that he could leave at any time and
makes no allegation that he was physically prevented from
leaving. Moreover, Khianthalat agreed on tape that he spoke
voluntarily, that detectives did not threaten or coerce him,
and that he was not under the influence. The transcript of
this recording is devoid of any evidence of coercion, force,
or threat of force by the detectives. Khianthalat's
allegations of promises and coercion by the detectives in
support of his ineffective assistance of counsel claim are
vague and unsubstantiated. Furthermore, his claim that the
detectives told him the interview would be short when he
tried to leave does not reflect that the detectives coerced
him into making incriminating statements.
state court heard testimony from counsel and Khianthalat on
his claims of ineffective assistance relating to a motion to
suppress. The state court's factual finding that
counsel's testimony was more credible is presumed
correct. See Baldwin, 152 F.3d at 1316;
Devier, 3 F.3d at 1456. Khianthalat does not
overcome the presumption of correctness. Furthermore, despite
his allegation of involuntariness, the record supports the
conclusion that counsel had no basis to file a motion to
suppress Khianthalat's statement based on a lack of
voluntariness or inadequate Miranda warnings. The
decision to forego a meritless motion provides no basis to
find counsel ineffective. See Brownlee v. Haley, 306
F.3d 1043, 1066 (11th Cir. 2002) (“Counsel was not
ineffective for failing to raise these issues because they
clearly lack merit.”). Similarly, counsel cannot be
deemed ineffective for failing to preserve for appellate
review an issue that is without merit. See United States
v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (counsel
is not ineffective for failing to argue or preserve a
meritless issue). Finally, Khianthalat does not demonstrate
prejudice as a result of counsel's actions because he
does not show a reasonable probability that the trial court
would have granted a motion to suppress.
has not shown that the state court unreasonably applied
Strickland or unreasonably determined the facts in
rejecting his claims. He is not entitled to relief on Ground
Three, Subclaims B and C.
argues that trial counsel was ineffective for failing to
object to a State discovery violation and request a
Richardson hearing. He claims that the State
failed to disclose that he made statements to detectives
before they began recording the interview. The state court
summarily denied this claim when Khianthalat raised it in his
Defendant alleged that counsel was ineffective for failing to
object to a discovery violation and request a
Richardson hearing. Specifically, Defendant alleged
the State failed to disclose oral statements made by
Defendant prior to his recorded interview. At the hearing,
Defendant testified that he received a transcript of his
recorded statement as part of the discovery from counsel and
reviewed it, at least briefly. Counsel testified that within
the transcript, there were references to statements made by
the Defendant prior to recording. Counsel also testified that
Defendant returned the transcript to her with additional
notes written on it. The Court cannot find a discovery
violation existed because Defendant clearly knew about the
pre- recorded statements. Accordingly, claim 3d is DENIED.
(Dkt. 18, Ex. 20, p. 231.) The record supports the denial of
this claim. As the state court noted, both Khianthalat and
counsel testified at the evidentiary hearing that they
received a transcript of Khianthalat's recorded statement
prior to trial. (Dkt. 18, Ex. 18, pp. 163-64, 197.)
Specifically, counsel testified that this transcript revealed
Khianthalat and police had “an off-tape
conversation.” (197-98.) Counsel testified at the
evidentiary hearing that, as a result of this transcript, she
did not believe the State committed any discovery violation.
(Id., p. 197.)
to his allegation in Ground Two, Subclaim A, supra,
Khianthalat has not established that the State failed to
disclose that he made statements to law enforcement prior to
detectives recording his interview. Accordingly, he does not
show that counsel was ineffective for failing to object to a
discovery violation on this basis. Because Khianthalat fails
to establish that the state court unreasonably applied
Strickland or unreasonably determined the facts in
rejecting his claim, Ground Three Subclaim D warrants no
argues that counsel was ineffective for failing to object
when a partially redacted recording of his statement was
played for the jury. The state court summarily denied this
In subpart (e), Defendant alleges ineffective assistance of
counsel for failing to object to the incomplete recorded
statement of Defendant being played before the jury. However,
Defendant fails to allege which portions of his recorded
statement were not presented to the jury. Furthermore, a
review of the record indicates that at the hearing prior to
the start of the trial, the State was instructed they either
had to use all of the Defendant's statement, or none of
it. The State chose to present Defendant's recorded
statement in its entirety. (TT 126). As it is directly
refuted by the record, Defendant's claim 3(e) is denied.
(Dkt. 18, Ex. 15, p. 87.)
record supports the denial of this claim. The trial court did
not permit the State to present an edited version of the
THE COURT: [ ] Here we are talking about the completeness of
a defendant's statement that the state is using to prove
his guilt. . . .
THE COURT: I thought you were trying to use it?
[THE STATE]: I am, Your Honor. But that section that is the
defendant's words should not come in because, in effect,
it's disparaging the victim.
THE COURT: Okay. Let's not use then any of it.
[THE STATE]: Well, obviously, Your Honor, the state wants to
use it, but thinks there are certain provisions that are
THE COURT: No, you can't do that. You use it all or - -
unless the defense is in agreement, you use it all or you
don't use any.
[THE STATE]: Okay. If that's the court's ruling, then
that's no problem. We'll use it all, Your Honor. That
makes it quick and easy.
THE COURT: Okay.
(Dkt. 18, Ex. 2, pp. 125-26.)
does not specify what part of the recording he believes was
omitted, nor does he present any evidence in support of his
allegation. Khianthalat fails to show that, when the
recording was played for the jury, counsel had any basis to
object to its completeness. Accordingly, he does not
demonstrate that the state court unreasonably applied
Strickland or unreasonably determined the facts in
rejecting his claim. Ground Three, Subclaim E warrants no
alleges that counsel was ineffective for not calling as
witnesses his ex-wife, who is S.T.'s older sister, and
S.T.'s younger sister. Khianthalat argues that S.T.'s
older sister would have testified that Khianthalat knew
details of the allegations only because she confronted him
with this information prior to his police interview.
Khianthalat argues that S.T.'s younger sister would have
testified that she was present on the dates when the
allegations were alleged to have occurred, and that no sexual
activity between Khianthalat and S.T. took place. He states
S.T.'s younger sister would have testified that the
family's policy was for S.T. and S.T.'s younger
sister to accompany each other when either one left the
family's home. Khianthalat also claims that she
would have testified that S.T.'s only motive for pursuing
the allegations was that S.T.'s mother told her she would
not obtain her learner's permit if she did not testify
state court conducted an evidentiary hearing on this claim.
Khianthalat testified that he told counsel he wanted these
witnesses called. (Dkt. 18, Ex. 18, pp. 154-55.) On
cross-examination, however, he agreed that S.T.'s older
sister caught him “French-kissing” S.T. and when
asked whether she “didn't take too kindly” to
this answered, “I guess not.” (Id., p.
165-66.) Khianthalat ...