Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Khianthalat v. Secretary, Department of Corrections

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

March 31, 2017

SAYSINH P. KHIANTHALAT, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          Charlene Edwards Honeywell United States District Judge

         Petitioner 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.

         PROCEDURAL HISTORY

         The 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.)

         The 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.)

         Subsequently, 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.)

         Khianthalat 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).

         FACTUAL BACKGROUND[1]

         Khianthalat's 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.

         After 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.

         Khianthalat 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 statements.

         At 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.

         STANDARD OF REVIEW

         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 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.”).

         Review 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).

         EXHAUSTION OF STATE COURT REMEDIES; PROCEDURAL DEFAULT

         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 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 (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.

         DISCUSSION

         Procedural Default Of Ground One, Ground Two, And Ground Three Subclaims A And D Through I

         Khianthalat 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 appeal.[2]

         The 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).

         However, 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. 1997)).

         Because 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.

         Ground One: Giglio Violation

         Khianthalat 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 first?
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 there.
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.)

         When the State re-called Kercher as a rebuttal witness, he testified:

Q. Did you ever tell [Khianthalat] what to say?
A. No.
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?
A. No.
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.)

         Khianthalat 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.)

         The 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.)

         The record supports the rejection of this claim.[3] “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)).

         Khianthalat 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.

         Furthermore, 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.[4]

         Ground Two: Brady Violation

         Khianthalat 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.

         Subclaim A

         Khianthalat 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)).

         The 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).

         Khianthalat does not establish that the State withheld any information about insufficient Miranda warnings.[5] 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.

         Subclaim B

         Khianthalat 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. 197-98, 205-06.)

         Khianthalat 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.

         Ground Three: Ineffective Assistance Of Trial Counsel

         Khianthalat alleges ineffective assistance of trial counsel in Ground Three.

         Ineffective 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.

         Khianthalat 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). 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 (1987)).

         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. 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.”).

         Subclaim A

         Khianthalat 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.)

         The 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 DENIED.

(Dkt. 18, Ex. 15, pp. 86-87.)

         Khianthalat 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.

         Moreover, 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.)

         The 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.

         In 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.

         The 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.[6] He is not entitled to relief on Ground Three, Subclaim A.

         Subclaims B and C

         In 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.[7] 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.

         Khianthalat 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.)

         Counsel 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.)

         The state court denied Khianthalat's claims after the evidentiary hearing:

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).

         The 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 person.

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)).

         Khianthalat 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.[8]

         Because 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 ‘in custody.'”).

         Furthermore, 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. at 226).

         The 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.[9] 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.

         The 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.

         Khianthalat 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.

         Subclaim D

         Khianthalat argues that trial counsel was ineffective for failing to object to a State discovery violation and request a Richardson[10] 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 postconviction motion:

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.)[11]

         Similar 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 relief.

         Subclaim E

         Khianthalat 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 claim:

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.)

         The record supports the denial of this claim. The trial court did not permit the State to present an edited version of the recording:

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 inappropriate.
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.)

         Khianthalat 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 relief.

         Subclaim F

         Khianthalat 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.[12] 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 against Khianthalat.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.