United States District Court, M.D. Florida, Orlando Division
BENJAMIN E. SMITH, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
ANTOON II UNITED STATES DISTRICT JUDGE
Benjamin E. Smith ("Smith"), initiated this action
by filing a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. (Doc. 1). Respondents filed a Response
to the Petition in accordance with this Court's
instructions. (Doc. 13). Smith thereafter filed a Reply to
the State's Response (Doc. 16), and then an Amended Reply
to the State's Response. (Doc 18). For the reasons set
forth below, the petition is denied.
procedural history is lengthy and spans nearly twenty years.
In August 1998, a grand jury returned an indictment charging
Smith with first degree murder, attempted first degree
murder, and attempted burglary of a vehicle. (Doc. 14-1 at
65-66). In May 2000 a jury found Smith guilty as charged
(Doc. 14-2 at 80-84), and the trial judge sentenced him to
life for first degree murder, fifteen years for attempted
first degree murder, and three years for attempted burglary.
(Doc. 14-2 at 96-98). Smith appealed. (Doc. 14-6 at 2). The
Florida Fifth District Court of Appeal (the "Fifth
DCA") affirmed per curiam in May 2001. (Doc.
14-6 at 85).
filed a motion for post-conviction relief pursuant to Rule
3.850 of the Florida Rules of Criminal Procedure in April
2003. (Doc. 14-6 at 90). The trial court denied the motion in
September 2004. (Doc. 14-7 at 96). Smith appealed (Doc. 14-8
at 2), and the Fifth DCA affirmed per curiam in
February 2005. (Doc. 14-8 at 62).
filed a second motion for post-conviction relief in March
2006. (Doc. 14-8 at 67, 77). This motion challenged
his conviction on the ground of newly-discovered evidence.
Smith argued that one of the State's witnesses (Mazie
Pauldo) recanted her earlier identification of him as the
shooter and that, without this identification, the State
could not prove its case against him. The trial court denied
this motion in March 2008. (Doc. 14-9 at 53). Smith appealed
(Doc. 14-9 at 58), and the Fifth DCA reversed and remanded
for an evidentiary hearing. (Doc. 14-9 at 99).
trial court conducted an evidentiary hearing and, at the
conclusion, granted Smith's motion and ordered a new
trial. (Doc. 14-10 at 335, 338). The State appealed (Doc.
14-10 at 341), and the Fifth DCA reversed and remanded in
January 2011, instructing the trial court to determine
whether there was sufficient evidence to find police or
prosecutorial misconduct. (Doc. 14-11 at 2).
an evidentiary hearing in March 2011, the trial court
determined that there was insufficient evidence to support
findings of misconduct. (Doc. 14-11 at 32). Smith appealed
(Doc. 14-11 at 35), and the Fifth DCA affirmed per
curiam in March 2013. (Doc. 14-11 at 89). Smith filed a
motion for rehearing (Doc. 14-11 at 91), which the Fifth DCA
denied in April 2013. (Doc. 14-11 at 97).
then sought a writ of mandamus from the Florida Supreme
Court. (Doc. 14-11 at 149). That Court denied the writ in
December 2013. (Doc. 14-11 at 173). Smith next sought a
similar writ from the Fifth DCA. (Doc. 14-11 at 175). The
Fifth DCA denied the writ in September 2014. (Doc. 14-11 at
now seeks habeas relief in this Court, claiming actual
innocence and a violation of his constitutional rights based
on police and prosecutorial misconduct in connection with the
investigation that led to his arrest and the prosecution that
followed. (Doc. 1).
1996, a group of family members and friends attended an event
at the Citrus Bowl in Orlando. (Doc. 14-3 at 215). As the
group returned to the parking lot Terry Manley saw a Black
male acting suspiciously in the area where the group had
parked. (Doc. 14-3 at 217). Manley approached and saw someone
inside one of the vehicles. (Doc. 14-3 at 220). Manley
startled the individual, causing him to flee, but not before
the individual brandished a gun. (Doc. 14-3 at 221-22).
Manley, along with three other members of the group (Ellis
Tapley, Kenneth Dozier and Lee Keith) began to chase the
suspect (Doc. 14-3 at 222-23). During the chase, the suspect
shot Tapley and Dozier (Doc. 14-3 at 230); Tapley died at the
scene. (Doc. 14-3 at 231). Mazie Pauldo witnessed
Tapley's shooting from her car, which was parked on an
adjacent street. (Doc. 14-4 at 56-59). The shooter ultimately
eluded capture by his pursuers.
enforcement officers investigating the shooting showed
Manley, Pauldo and Keith photo arrays of people in an effort
to identify the suspect. Manley and Pauldo identified Smith.
(Doc. 14-3 at 232-33 & Doc. 14-4 at 161). Keith could not
make a positive identification of the shooter, identifying
more than one as possibly being the shooter (including
Smith). (Doc. 14-3 at 337, 369-70; Doc. 14-4 at 45-46).
Manley, Pauldo, Keith and Tommy Whitmer (the deceased
victim's younger brother) later participated in a live
lineup that included Smith. Manley also could not make an
identification. (Doc. 14-3 at 233-34). But Pauldo and Whitmer
identified Smith as the shooter. (Doc. 14-4 at 64-65 &
Doc. 14-3 at 381-82). Keith identified Smith too but conceded
he was only 98% sure. (Doc. 14-3 at 338-39).
case proceeded to trial and the prosecution emphasized the
witnesses' earlier identifications of Smith. The bulk of
the evidence in the State's case-in-chief was testimony
about the witnesses' respective identifications of Smith
in photographs and at the live lineup. This testimony
included the following:
testified that law enforcement showed him photographs after
the incident and that he recognized Smith. (Doc. 14-3 at
232-33). But he acknowledged he could not identify the
shooter at the live lineup. (Doc. 14-3 at 233-34). Defense
counsel cross-examined Manley about certain inconsistencies
between his contemporaneous description of the shooter and
Smith's appearance at trial. (Doc. 14-3 at 250).
testified that he had identified Smith at the live lineup
(Doc. 14-3 at 338), but acknowledged that he was not
"one hundred percent" certain about the
identification, being only "about ninety-eight
percent" sure. (Doc. 14-3 at 338-39). Defense counsel
impeached Keith on cross-examination with prior, equivocal
statements about whether he saw the shooter's face. (Doc.
14-3 at 354). The trial judge ultimately read Keith's
earlier statements and instructed the jurors to give them
whatever weight they believed appropriate. (Doc. 14-3 at
(who was ten years old at the time of the shooting) testified
that he recognized Smith at the live lineup. (Doc. 14-3 at
381-82). Whitmer said that when Smith ran past him the night
of the shooting, Smith was fifteen to twenty feet away from
him (Doc. 14-3 at 406); on cross-examination, however, this
testimony was impeached with earlier statements in which he
indicated Smith was a block away (Doc. 14-3 at 408), and
Smith was a couple blocks away. (Doc. 14-3 at 414). Counsel
also cross-examined Whitmer as to the length of time he saw
Smith and Whitmer acknowledged he saw him for a "matter
of seconds" as he ran past. (Doc. 14-3 at 406).
Detective Glen Gause.
testified that within days of the shooting he showed Manley
various photographs that did not include Smith's
photograph and that Manley did not identify the shooter in
any of those photographs. (Doc. 14-4 at 37). But Gause
explained that when he showed Manley additional photographs
about two months later that included Smith's photograph,
Manley identified Smith as the shooter. (Doc. 14-4 at 44).
Gause also showed various photographs to Keith, who
identified three possible individuals as the shooter, one of
whom was Smith. (Doc. 14-4 at 45-46). Gause described
Whitmer's identification saying Whitmer's lip
quivered and he began to cry when he saw the individuals in
the live lineup but that he held up four fingers to indicate
the person he saw on the night of the shooting - the ordinal
position that Smith occupied in the lineup. (Doc. 14-4 at
testified she saw the shooter "square in the face"
and "clearly". (Doc. 14-4 at 61-62). Police showed
Pauldo various photographs over the succeeding months (Doc.
14-4 at 63), and she eventually recognized Smith in one of
them. (Doc. 14-4 at 63-65). Pauldo identified "number
four" as the shooter at the live lineup. (Doc. 14-4 at
64-65). Pauldo acknowledged she had been convicted of four
felonies and that she had also been convicted of a
misdemeanor involving the making of false statements. (Doc.
14-4 at 65-66).
cross-examination, Pauldo conceded that the suspect's
knuckles as described in her statement to police did not
resemble Smith's knuckles as they appeared at trial.
(Doc. 14-4 at 116, 126). She also conceded that the
suspect's height as she described it to police was not
consistent with Smith's actual height (Doc. 14-4 at 118,
126), and the suspect's hair as she described it to
police was not consistent with Smith's hair as it
appeared at trial. (Doc. 14-4 at 116, 128). She also admitted
that she told the police the shooter was between the ages of
sixteen and nineteen, several years younger than Smith's
age at the time of the shooting. (Doc. 14-4 at 97, 99 &
Doc. 14-2 at 90). Pauldo's cross-examination ended with a
question about whether Smith was the man she saw. She
answered in relevant part: "I don't know."
(Doc. 14-4 at 128).
Detective Glen Gause.
recall by the State, Gause testified that Pauldo was shown
more than one hundred photographs but eventually recognized
the shooter when shown Smith's photograph. Gause
recounted that upon being shown Smith's photograph Pauldo
stated "that's your shooter." (Doc. 14-4 at
basic defense was that law enforcement arrested the wrong man
and the shooter was actually his cousin, Vincent Hubbard, a
Georgia resident who was staying with Smith's family at
the time of the shooting. The testimony included the
Gibson, Smith's mother (Doc. 14-4 at 193), testified that
Smith entered her house before the gunfire began (Doc. 14-4
at 196-97), and that Hubbard entered after it ended. (Doc.
14-4 at 199). But on cross-examination, Pauline acknowledged
that she did not tell anyone that Hubbard entered the house
after the gunfire ended until Smith was charged with first
degree murder. (Doc. 14-4 at 252-53).
Gibson is Smith's stepfather. (Doc. 14-4 at 274). Gibson
confirmed on cross-examination that Pauline did not say
anything about Hubbard being outside at the time of the
shooting until after Smith's arrest. (Doc. 14-4 at 292).
Proctor, Smith's friend (Doc. 14-4 at 299), testified
that she and Smith were talking on the phone at the time of
the shooting and that she could hear gunfire in the
background. (Doc. 14-4 at 302). Proctor heard "someone
yelling, get back, I have a gun. I'll shoot." (Doc.
14-4 at 301-02). But the prosecution impeached Proctor on
cross-examination with an earlier statement in which she did
not mention hearing someone yell "I have a gun" or
"I'll shoot". (Doc. 14-4 at 317).
Petitioner Benjamin Smith.
identified a photograph of himself taken at or about the time
of the shooting with his hair in an afro style. (Doc. 14-4 at
362-63). He acknowledged on cross-examination that he had
previously been convicted of four felonies. (Doc. 14-4 at
is Pauline Gibson's neighbor. (Doc. 14-5 at 10). Demunck
testified she heard gunshots and screams outside her home
(Doc. 14-5 at 11), and saw Pauline Gibson and Smith come out
of Pauline's house about ten to fifteen minutes after the
shooting stopped. (Doc. 14-5 at 16). She spoke with Pauline
who told her that she and Smith were in her house at the time
of the shooting. (Doc. 14-5 at 17-18). Demunck confirmed on
cross-examination that Pauline did not say anything about
Hubbard being outside at the time of the shooting. (Doc. 14-5
at 21-22). Demunck also acknowledged that she did not hear
anyone say "I've got a gun, get back, I'm going
to shoot you." (Doc. 14-5 at 22).
Detective Glen Gause.
also called Gause as a witness. Gause testified that
Smith's family members identified Vincent Hubbard as a
suspect in the shooting (Doc. 14-5 at 49). Gause travelled to
Georgia and met with Hubbard and Hubbard's father. (Doc.
14-5 at 50). Gauze explained that Hubbard did not fit the
description of the suspect. (Doc. 14-5 at 51).
We were looking for someone that had a mustache, was older,
had a gut. And when looking at [Hubbard] he couldn't grow
any hair, if he wanted to, especially on his upper lip. He
had no gut at that time. He was broad shouldered but he was
solid, real solid kid. Football player.
(Doc. 14-5 at 51). Gauze continued:
What [Mazie Pauldo] and other witnesses had said, the other
witness had said how the person was running and would have to
stop intermittently. And then [Mazie] later said this person
appeared to be out of breath when he got to her point. And so
this kid here was a running back for a football team and did
not appear to be for that short of a distance to run out of
gas or anything.
(Doc 14-5 at 52). Gauze spoke with Smith before the live
lineup and Smith never suggested that Hubbard was involved in
the shooting. To the contrary, Smith said that Hubbard was in
the house at the time of the shooting. (Doc. 14-5 at
77). Gause told Smith that Smith was a suspect.
(Doc. 14-5 at 77).
Gibson is Smith's sister. (Doc. 14-5 at 133). Lorisa
testified that she spoke with Hubbard the day after the
shooting and he appeared "very nervous and scared."
(Doc. 14-5 at 136). Lorisa noticed scratches on Hubbard's
arm. (Doc. 14-5 at 148). According to Lorisa, the day after
the shooting, Hubbard admitted to her that he was the
shooter. (Doc. 14 -5 at 138). Lorisa acknowledged on
cross-examination, however, that she did not tell Smith's
lawyer about Hubbard's confession even after the lawyer
told her that Smith had been arrested for murder. (Doc. 14-5
at 158-60). Lorisa also acknowledged she did not contact the
police to tell them about Hubbard's confession until
after Smith's arrest, approximately two and one-half
years after Hubbard's alleged confession. (Doc. 14-5 at
168). Lorisa conceded at the end of cross-examination that
she was testifying to keep her brother from going to prison.
(Doc. 14-5 at 169).
is the father of Lorisa Gibson's children. (Doc. 14-5 at
178). Patrick testified that he saw Hubbard after the
shooting with scratches on his arm (Doc. 14-5 at 180),
describing Hubbard as "scared",
"paranoid" and "shaking". (Doc. 14-5 at
180). Patrick said that Hubbard bragged several months later
about getting away with the shooting. (Doc. 14-5 at 182-83).
But Patrick admitted on cross-examination that he did not
contact police about Hubbard's statements (Doc. 14-5 at
187), even after Smith's arrest (Doc. 14-5 at 190), and,
in fact, did not tell anyone. (Doc. 14-5 at 187).
Petitioner Benjamin Smith.
was again called to testify. He explained that on the day of
the shooting, he returned to his mother's home shortly
before the shooting. (Doc. 14-5 at 205-08). Soon after
entering the house, Smith telephoned Proctor. (Doc. 14-5 at
210). While he was talking to Proctor, he heard shots
outside. (Doc. 14-5 at 210). Smith said he went downstairs
and Hubbard ran into the house (Doc. 14-5 at 214), appearing
"frightened" and "just [a] different
person." (Doc. 14-5 at 216). Smith saw Hubbard the next
day and Hubbard had cuts on his arm (Doc. 14-5 at 220).
According to Smith, Hubbard later admitted to him that he was
the shooter. (Doc. 14-5 at 226-27). But Smith conceded on
cross-examination that he did not tell the police about
Hubbard's confession at the time because "it
ain't my problem" (Doc. 14-5 at 227), and did not
tell law enforcement about Hubbard's admission even after
learning he was a suspect in the shooting (Doc. 14-5 at 230),
or later when he was arrested. (Doc. 14-5 at 244). Smith also
admitted that he had earlier told investigators a different
story- that he knew Hubbard was not the shooter because
Hubbard was at home when the shooting occurred. (Doc. 14-5 at
was in his room at the Gibson house at the time of the
shooting. (Doc. 14-5 at 101). He explained that gun shots
woke him and he went downstairs (Doc. 14-5 at 102), at which
time he could hear people and sirens outside. (Doc. 14-5 at