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Wood v. Secretary, Department of Corrections

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

June 21, 2017

CHRISTOPHER J. WOOD, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

          ORDER

          Roy B. Dalton United States District Judge

         THIS CAUSE is before the Court on Petitioner Christopher J. Wood's Petition for Writ of Habeas Corpus (“Petition, ” Doc. 1) pursuant to 28 U.S.C. § 2254. Respondents filed a Second Supplemental Response to the Petition (Doc. 37). Petitioner filed a Reply to the Second Supplemental Response to Petition (Doc. 38).

         Petitioner asserts thirty-one grounds for relief.[1] For the following reasons, the Petition is denied.

         I. Procedural History

         Petitioner was charged by second amended information with kidnapping (Count One), aggravated battery (Count Two), and six counts of sexual battery by use of great force (Counts Three through Eight). (Doc. 15-1 at 11). A jury found Petitioner guilty as charged as to Counts One, Four, and Five and guilty of the lesser included offense of felony battery as to Count Two and sexual battery as to Counts Three, Six, Seven, and Eight. (Doc. 15-23 at 44-51). The state court sentenced Petitioner to a thirty-year term of imprisonment for Count One, a five-year term of imprisonment for Count Two, 51.75-year terms of imprisonment for Counts Four and Five, and fifteen-year terms of imprisonment for Counts Three, Six, Seven and Eight with all sentences to run concurrently. (Doc. 15-2 at 50-54). Petitioner appealed, and on August 5, 2008, the Fifth District Court of Appeal of Florida (“Fifth DCA”) affirmed per curiam. (Doc. 15-2 at 94).

         On September 21, 2008, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. (Doc. 15-2 at 99). The state court denied the motion. (Doc. 15-4 at 52-67). Petitioner appealed, and the Fifth DCA affirmed per curiam. (Doc. 15-7 at 49). Mandate issued on July 9, 2009. (Id. at 53).

         On May 20, 2010, Petitioner filed a state habeas petition. (Doc. 15-7 at 56). The Fifth DCA denied the petition. (Doc. 15-10 at 39). Petitioner filed a motion for rehearing, which was denied on September 17, 2010. (Id. at 41).

         On August 18, 2010, Petitioner filed a second Rule 3.850 motion. (Doc. 15-11 at 22). The state court denied the motion as successive. (Doc. 15-14 at 60-65). Petitioner appealed but later filed a notice of voluntary dismissal. The Fifth DCA dismissed the appeal on April 17, 2012. (Doc. 15-15 at 77).

         Petitioner filed a third Rule 3.850 motion. The state court dismissed based on lack of jurisdiction. (Doc. 15-29 at 32-33). Petitioner appealed, and the Fifth DCA affirmed per curiam. (Id. at 36). Mandate issued on March 2, 2012. (Id. at 35).

         On January 5, 2012, Petitioner filed a fourth Rule 3.850 motion. (Doc. Nos. 15-18 at 81-99; 15-19 at 1-42). The state court denied the motion on April 23, 2012. (Doc. 15-19 at 51-54). Petitioner appealed. (Doc. 15-19 at 80). The Fifth DCA affirmed per curiam. (Id. at 83). Mandate issued on August 24, 2012. (Id. at 85).

         On July 11, 2012, Petitioner filed a motion for return of property and a fifth Rule 3.850 motion. (Doc. Nos. 15-19 at 87; 15-20 at 1-36, 82-93; 15-21 at 1-36). On July 22, 2013, the state court denied both motions. (Doc. Nos. 15-20 at 47-51; 15-23 at 17-39). Petitioner appealed the denial of the motion for return of property. (Doc. 15-20 at 59-63). The Fifth DCA affirmed per curiam. (Doc. 15-20 at 76). Petitioner filed a motion for rehearing in which he raised arguments concerning his motion for return of property and his fifth Rule 3.850 motion. (Doc. 28-1 at 83-85). The Fifth DCA denied the motion. (Doc. 15-20 at 78). Mandate issued on July 15, 2014. (Id. at 80).

         II. Legal Standards

         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). The phrase “clearly established Federal law, ” encompasses only the holdings of the Supreme Court of the United States “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

         “[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to' and ‘unreasonable application' clauses articulate independent considerations a federal court must consider.” Maharajv.Sec'yforDep'tofCorr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the “contrary to” clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme 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 [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

         Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was “objectively unreasonable.” Id.

         Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

         B. Standard For Ineffective Assistance Of Counsel

         The Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and “fell below an objective standard of reasonableness”; and (2) whether the deficient performance prejudiced the defense.[2] Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. “Thus, 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. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

         As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

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. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. 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) (citation omitted). Under those rules and presumptions, “the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

         C. Exhaustion and Procedural Default One procedural requirement precludes federal courts, absent exceptional circumstances, from granting habeas relief unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-43 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). Specifically, 28 U.S.C. § 2254 provides in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1). Thus, 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 v. Thompson, 501 U.S. 722, 750 (1991), holding modified by Martinez v. Ryan, 566 U.S. 1 (2012). 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. Id. at 735 n.1 (stating that if the petitioner failed to exhaust state remedies and the 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).

         In order to satisfy the exhaustion requirement, a state petitioner must “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, 404 U.S. at 275-76) (internal quotation marks omitted). 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). Furthermore, “[i]n Florida, exhaustion usually requires not only the filing of a Rule 3.850 motion, but an appeal from its denial.” Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (citing Lee v. Wainwright, 468 F.2d 809, 810 (5th Cir. 1972)).

         Procedural default will be excused 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 procedural default, a petitioner must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). “[E]xternal impediments include evidence that could not reasonably have been discovered in time to comply with the rule; interference by state officials that made compliance impossible; and ineffective assistance of counsel at a stage where the petitioner had a right to counsel.” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (citing Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)). To establish “prejudice” so as to warrant review of a procedurally defaulted claim, 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) (citations omitted).

         The second exception, known as the “fundamental miscarriage of justice, ” only occurs in an extraordinary case, in which a “constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 496 (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 A. Ground One

         i. Subpart A

         Petitioner asserts counsel rendered ineffective assistance by failing to notify the trial court that a juror was sleeping during the testimony of a witness. (Doc. 1 at 6). According to Petitioner, he told counsel about the juror. (Id.). However, Petitioner does not know what portion of the trial through which the juror slept, although he believes it was during the direct testimony of the victim, who was his wife. (Id.).

         Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief pursuant to Strickland. (Doc. 15-14 at 73). The state court noted that Petitioner asserted that the juror fell asleep for approximately five minutes, but the trial lasted for four days. (Id.). The state court reasoned that the victim testified at length twice and Petitioner did not specify what testimony the juror missed. (Id.). The state court concluded that prejudice did not result. (Id.).

         Petitioner has not established that the state court's denial of this ground is contrary to, or an unreasonable application of, Strickland. Multiple witnesses were called during the four-day trial. The victim testified at length during both the prosecution and defense's case, and she was thoroughly cross-examined by the defense. (Doc. 28-2 at 48-151, 272-317). In addition, the jury saw the one and one-half hour video made by Petitioner, which he maintained was a rape/torture pornographic movie that he and the victim agreed to make, that showed him committing the offenses. Assuming that a juror fell asleep during five minutes of the victim's testimony, a reasonable probability does not exist that the outcome of the trial would have been different had counsel notified the trial court about the juror. Accordingly, ground one is denied pursuant to § 2254(d).

         ii. Subpart (b)

         Petitioner contends counsel rendered ineffective assistance by failing to impeach his wife's mother, Vanera Rodgers. (Doc. 1 at 7). Specifically, Petitioner complains that counsel failed to elicit that his wife's mother did not like him because he came from a poor family and did not have sufficient money. (Id.). Petitioner notes that his wife's mother testified in her deposition that she and her husband offered to help their daughter leave Petitioner. (Id.).

         Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief pursuant to Strickland. (Doc. 15-14 at 73-74). The state court reasoned that most of Vanera Rodgers' testimony was corroborated by Deputy Robert Tabaczynski and she admitted on cross-examination that she did not like Petitioner. (Id. at 74). The state court concluded that prejudice did not result because the jury heard that Vanera Rodgers was biased against Petitioner and her testimony was largely corroborated by other witnesses. (Id.).

         Petitioner has not established that the state court's denial of this ground is contrary to, or an unreasonable application of, Strickland. Vanera Rodgers admitted on cross-examination that she did not like Petitioner. (Doc. 28-2 at 254). Furthermore, her testimony largely related to the victim's appearance and demeanor after the offenses and was corroborated by Deputy Tabaczynski's testimony. See Doc. 28-2 at 177-79, 241-45, 247. Consequently, prejudice did not result from counsel's failure to further question Vanera Rodgers about her bias against Petitioner. Accordingly, ground two is denied pursuant to § 2254(d).

         iii. Subpart c

         Petitioner maintains counsel rendered ineffective assistance by failing to impeach his wife's father, William Rodgers, to show he was biased against Petitioner. (Doc. 1 at 8). Petitioner further contends that counsel failed to elicit from William Rodgers that Petitioner helped him cut a tree the morning of the offenses. (Id.). According to Petitioner, this testimony would have refuted the victim's testimony that Petitioner had time to take the video equipment and props by himself to the scene of the offenses. (Id.).

         Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief pursuant to Strickland. (Doc. 15-14 at 74-75). The state court reasoned that most of William Rodgers' testimony was corroborated by Deputy Tabaczynski's testimony and William Rodgers admitted on cross-examination that he did not like Petitioner. (Id. at 74). The state court further reasoned that Petitioner testified that he helped William Rodgers cut down a tree the morning of the incident, Petitioner's timeline coincided with the victim's timeline, and Petitioner testified that he and his wife got the props and equipment together the morning of the offenses, but he had found the location to film the video at a nearby canal several days before the offenses. (Id. at 75). The state court concluded that counsel had no reason to elicit evidence to contradict the victim's timeline because it did not conflict with Petitioner's timeline. (Id.).

         Petitioner has not established that the state court's denial of this ground is contrary to, or an unreasonable application of, Strickland. William Rodgers admitted on cross-examination that he never liked Petitioner, and his testimony was substantially corroborated by Deputy Tabaczynski's testimony. (Doc. 28-2 at 162). Furthermore, the victim testified that Petitioner helped her father cut down a tree before Petitioner went to the canal on the date of the offenses and that she met him at 2:00 P.M. at the canal. (Id. at 110-11). Consistent with the victim's testimony, Petitioner testified that he helped William Rodgers cut down a tree around 9:15 A.M. and was home by 11:30 A.M. on the morning of the incident. (Id. at 339-40). Petitioner also testified that he left the house around 12:30, got to the canal around 1:15, and met his wife at the canal around 2:30. (Id. at 345-46). Petitioner further testified that he found the location where he and the victim intended to make the video a few days before the offenses occurred. (Id. at 335-36). The victim's testimony regarding the events leading up to the offenses was largely consistent with Petitioner's testimony. Therefore, a reasonable probability does not exist that the outcome of the trial would have been different had counsel questioned William Rodgers regarding whether Petitioner helped him cut down a tree before the offenses occurred. Accordingly, this ground is denied pursuant to § 2254(d).

         iv. Subpart d

         Petitioner asserts counsel rendered ineffective assistance by failing to impeach the victim. (Doc. 1 at 9-10). In support of this ground, Petitioner argues counsel should have elicited testimony that the victim's parents offered her money to leave him and she was afraid Petitioner would get custody of the children.[3] (Id.). Petitioner maintains that this would have demonstrated that the victim had a motive to fabricate the charges against him in order to obtain their property and custody of the children. (Id.)

         Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief pursuant to Strickland. (Doc. 15-14 at 75-76). The state court noted that counsel attempted to challenge the victim's credibility by questioning her regarding her fear of losing custody of the children if she divorced Petitioner. (Id. at 75). The state court further noted that after counsel proffered questions concerning the couple's history, past domestic violence, and threats to take the children, the trial court warned counsel that further inquiry would open the door to uncharged crimes and result in a mistrial. (Id.). The state court concluded that counsel made a reasonable decision not to ask further questions because the jury had essentially heard about the victim's concerns and asking further questions would risk a mistrial. (Id.).

         Petitioner has not established that the state court's denial of this ground is contrary to, or an unreasonable application of, Strickland. The victim admitted that Petitioner had threatened to take the children in the past. (Doc. 28-2 at 290, 296-97). Thereafter, counsel proffered additional questions to the victim regarding divorce and custody of the children to demonstrate the victim's motive to fabricate her story. (Id. at 300-04). The trial court indicated counsel was allowed to further question the victim on the issue but noted such questioning could open the door to other matters which could result in a mistrial. (Id. at 304). Counsel then decided not to question the victim further on the issue because the jury had already heard testimony about the matter. (Id.). Counsel's decision not to ask additional questions regarding these issues was reasonable given that the victim admitted Petitioner had threatened to take the children in the past and that further questioning could have resulted in a mistrial. Counsel, therefore, was not deficient. In addition, a reasonable probability does not exist that the outcome of the trial would have been different had counsel further questioned the victim in light of the evidence against Petitioner, which included a video of the offenses. Accordingly, this ground is denied pursuant to § 2254(d).

         v. Subpart e

         Petitioner maintains counsel rendered ineffective assistance by failing to know the proper procedure to impeach a witness with her prior statement. (Doc. 1 at 10). Petitioner raised this ground in his first Rule 3.850 motion. The state court denied relief pursuant to Strickland. (Doc. 15-14 at 76). The state court concluded that Petitioner failed to demonstrate prejudice resulted from counsel's performance. (Id.).

         Petitioner has not established that the state court's denial of this ground is contrary to, or an unreasonable application of, Strickland. Although counsel did not understand the proper procedure to impeach a witness with a prior inconsistent statement, Petitioner has not established that a reasonable probability exists that the outcome of the trial would have been different had counsel known the proper procedure. As discussed more fully infra in ground one, subpart f, Petitioner has not demonstrated a reasonable probability exists ...


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