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Jean v. Secretary, Doc

United States District Court, M.D. Florida, Fort Myers Division

March 31, 2017

GERMAIN JEAN, Petitioner,
v.
SECRETARY, DOC and FLORIDA ATTORNEY GENERAL, Respondents.[1]

          OPINION AND ORDER [2]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon a pro se petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Germain Jean (“Petitioner”) (Doc. 1, filed May 19, 2014). Petitioner, a prisoner of the Florida Department of Corrections, attacks the convictions entered by the Twentieth Judicial Circuit Court in and for Collier County, Florida for two counts of capital sexual battery against a child less than twelve years old (Doc. 1 at 1). Respondent filed a response to the petition (Doc. 14). Petitioner filed a reply (Doc. 23), and the petition is now ripe for review.

         Petitioner raises six claims in his petition. Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be dismissed as unexhausted or denied. Because the petition may be resolved on the basis of the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

         I. Background and Procedural History[3]

         On April 13, 2005, the state of Florida charged Petitioner with three counts of sexual battery on a child less than twelve years of age, in violation of Florida Statute § 794.011(2) (Ex. 1 at 15-16).[4] Petitioner's first trial that ended in a mistrial after a state witness commented on Petitioner's right to remain silent (Ex. 1 at 45-49). Thereafter, the state amended the information to reflect only two counts of capital sexual battery and to change the dates of the alleged offenses (Ex. 1 at 50a-50b).

         After a second trial, the jury found Petitioner guilty as charged (Ex. 1 at 67-68). Petitioner received two life sentences (Ex. 1 at 75-106). Florida's Second District Court of Appeal affirmed the judgments and sentences without a written opinion (Ex. 4); Jean v. State, 967 So.2d 207 (Fla. 2d DCA 2007).

         On February 14, 2006, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 motion”) (Ex. 6 at 1 -20). Petitioner filed an amended Rule 3.850 motion on July 15, 2009 (Ex. 6a at 296-336). On September 27, 2010, an evidentiary hearing was held on ground five of the Rule 3.850 motion (Ex. 6a). Thereafter, the post-conviction court denied all claims raised in the Rule 3.850 motions (Ex. 6a at 351 -55). Florida's Second District Court of Appeal affirmed without a written opinion (Ex. 10); Jean v. State, 124 So.3d 237 (Fla. 2d DCA 2013).

         Petitioner signed the instant Petition on May 16, 2014 (Doc. 1).

         II. Governing Legal Principles

         a. Standard of Review Under the Antiterrorism Effective Death Penalty Act (“AEDPA”)

         Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

         “Clearly established federal law” consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S.Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the Supreme Court has also explained that “the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since ‘a general standard' from [the Supreme Court's] cases can supply such law.” Marshall v. Rodgers, 133 S.Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts “must reasonably apply the rules ‘squarely established' by [the Supreme] Court's holdings to the facts of each case.” White, 134 S.Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).

         Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was “contrary to, or an unreasonable application of, ” that federal law. 29 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

         A state court decision involves an “unreasonable application” of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, “it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.” Knowles, 556 U.S. at 122.

         Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any “determination of a factual issue made by a State court shall be presumed to be correct[, ]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

         b. Ineffective Assistance of Counsel

         In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a “doubly deferential” standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S.Ct. at 13 (citing Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).

         The focus of inquiry under Strickland's performance prong is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that “counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Indeed, the petitioner bears the heavy burden to “prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must “judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct, ” applying a “highly deferential” level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).

         As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice “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. That is, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

         c. Exhaustion and Procedural Default

         The AEDPA precludes federal courts, absent exceptional circumstances, from granting habeas relief unless a petitioner has exhausted all means of available relief under state law. 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 upon and correct alleged violations of its prisoners' federal rights[.]” Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)). The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). In addition, a federal habeas court is precluded from considering claims that are not exhausted but would clearly be barred if returned to state court. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed to exhaust state remedies and the state court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, there is a procedural default for federal habeas purposes regardless of the decision of the last state court to which the petitioner actually presented his claims). Finally, a federal court must dismiss those claims or portions of claims that have been denied on adequate and independent procedural grounds under state law. Coleman, 501 U.S. at 750. If a petitioner attempts to raise a claim in a manner not permitted by state procedural rules, he is barred from pursuing the same claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).

         Procedural default will be excused only in two narrow circumstances. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both “cause” for the default and actual “prejudice” resulting from the default. “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) (internal quotation marks omitted). To establish prejudice, a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

         The second exception, known as the fundamental miscarriage of justice, only occurs in an extraordinary case, where a “constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Murray v. Carrier, 477 U.S. 478, 479-80 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must “show that it is more likely than not that no reasonable juror would have convicted him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, “[t]o be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).

         III. Analysis

         Petitioner raises six claims of ineffective assistance of counsel in his petition. He asserts that defense counsel (“Counsel”) was ineffective for failing to: (1) adequately investigate or subpoena the custodian of Budget Inn and the victim's father to testify at trial; (2) object to the prosecutor's amended information; (3) call defense witness Renol Jean to testify; (4) object to the translator's inadequate translation; (5) challenge Juror Perry Sheppard; and (6) file a motion for a judgment of acquittal and a new trial (Doc. 1 at 5-12). Each claim will be addressed separately.

         a. Claim One

         Petitioner urges that Counsel was ineffective for failing to investigate and subpoena the custodian of Budget Inn and the victim's (“E.L.'s”) father to testify at his trial (Doc. 1 at 5). He asserts that E.L.'s father would have testified that: Petitioner was not living with E.L. at the time of the alleged offense; he had used his credit card to pay for Petitioner's room at the Budget Inn; and E.L.'s mother never told him about E.L.'s molestation as she had testified at trial. Id. He asserts that the custodian would have “provided further support that Petitioner was not living at the residence at the time the alleged offense occurred.” Id. Petitioner raised this claim in his first Rule 3.850 motion (Ex. 6 at 9). The claim was stricken by the post-conviction court as facially insufficient, but Petitioner was provided leave to amend the claim, which he did not timely do (Ex. 6a ta 353). Accordingly, the claim was denied as abandoned. Id. Florida's Second District Court of Appeal affirmed (Ex. 10).

         Respondent argues that Claim One is unexhausted and procedurally barred because Petitioner did not timely amend his Rule 3.850 motion (Doc. 14 at 13-14). Petitioner urges that any failure to exhaust this claim is excused by the United States Supreme Court's decision in Martinez v. Ryan[5] (Doc. 23 at 2-7). Upon review of the record, the Court finds that Claim One is unexhausted because it is not “substantial” and does not fall within Martinez' equitable exception to the procedural bar since Petitioner does not demonstrate Strickland prejudice.

         Petitioner asserts that, had Counsel called E.L.'s father and the unnamed custodian of Budget Inn to testify at trial, they would have testified that Petitioner did not live with E.L.'s family during the time the crimes were alleged to have occurred and that E.L.'s mother fabricated the story of sexual abuse because she did not like Petitioner (Doc. 1 at 5). However, he has not provided any evidence to the Court in support of his assertions.[6] He has not produced a sworn statement of these witnesses' putative testimony or even asserted that they would have been available to testify. Consequently, the claim is too speculative to warrant relief. SeeJohnson v. Alabama,256 F.3d 1156, 1187 (11th Cir. 2001) (“Johnson offers only speculation that the missing witnesses would have been helpful. This kind of speculation is ‘insufficient to carry the burden of a habeas corpus petitioner.'”) (quoting Aldrich v. Wainwright,777 F.2d 630, 636 (11th Cir. 1985)); see alsoUnited States v. Ashimi,932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the ...


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