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Trice v. Secretary, Department of Corrections

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

September 7, 2017

CHARLES TRICE, Applicant,
v.
SECRETARY, Department of Corrections, Respondent.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         Charles Trice applies (Doc. 1) under 28 U.S.C. § 2254 for the writ of habeas corpus and challenges his convictions for first degree murder, violation of a domestic violence injunction, and burglary of a dwelling with assault, for which convictions Trice is imprisoned for life. The respondent moved to dismiss the application as time-barred, which motion was denied because Trice's post-conviction counsel's misconduct allowed for equitable tolling under Holland v. Florida, 560 U.S. 631 (2010). The respondent filed her response in opposition to the application, which response is supported by seven exhibits (“Exhibit 1-7”). (Doc. 9) The respondent argues (1) that Grounds Two, Three, and Four are not fully exhausted because Trice failed to fairly present the constitutional dimension of these claims to the appellate court and (2) that these unexhausted grounds are procedurally barred from federal review. Trice replies. (Doc. 14) The application is fully briefed and ripe for a decision.

         BACKGROUND

         Trice was convicted for killing his estranged wife at their marital residence. The couple was separated and Trice was no longer living at the residence at the time of the shooting. However, Trice had access to an office that was attached to the back of the house. The office was accessible through an exterior door that allowed Trice to enter his office without entering the rest of the residence. A domestic violence injunction barred Trice from entering the rest of the residence but allowed him to access the office through the exterior door. Trice was a trooper with the Florida Highway Patrol and kept tools and paperwork for his job in the office. A door connected the office and the rest of the residence; however, that door could be locked from both the residence and the office.

         On the day of the shooting Trice visited the residence on two occasions. On the first visit Trice brought the couple's daughter back to the residence after she had spent the day with him. Trice returned a second time later that day and entered the residence through the garage door in violation of the domestic injunction violation. The prosecution used this trespass to charge Trice with felony-murder and burglary with assault.

         During the second visit Trice and the victim argued in his office over who would possess the couple's Corvette. The sports car had been a source of several altercations between Trice and the victim. During the altercation Trice shot and killed the victim. After emergency personnel arrived at the scene, Trice was taken to a hospital and treated for a stab wound to his shoulder. Sgt. Ken Lane, a Florida Highway Patrol Trooper (“Trooper Lane”) accompanied Trice to the hospital.

         Trooper Lane returned the next day and accompanied Trice back to the residence. Trooper Lane was not conducting an investigation of the shooting but testified that he accompanied Trice as his friend. While at the residence, Trice detailed to Trooper Lane what happened during the shooting. Trice told Trooper Lane that he and the victim were arguing. Trice stated that he was kneeling with his back to the victim retrieving some equipment from the office closet. When he turned around, the victim stabbed him in the shoulder with a paring knife. Trice stated that he was in shock and feared for his life. Trice grabbed his .357 revolver from a shelf and shot the victim at point-blank range. Trice entered the residence, called 911, and took his young daughter to her room.

         After hearing Trice's explanation of the shooting, Trooper Lane told him his story was not supported by the blood splatter, the body tissue residue, and the hole-in-the wall created when the slug exited the victim's body. Trooper Lane further noted that - based on the marks in the carpet - the furniture apparently had been rearranged in the office to support Trice's explanation. Maintaining that he acted in self-defense, Trice persisted in this explanation through the trial and the appeal. The forensic evidence supported the prosecutor's theory that Trice stabbed himself with the small paring knife after he shot and killed the victim.

         STANDARD OF REVIEW

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this application. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of a state court adjudication, states 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 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, 412S13 (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, 693 (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, 131 S.Ct. 770, 786S87 (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 we are 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 v. Taylor, 529 U.S. at 412.

         The purpose of federal review is not to re-try the state 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.” Bell v. Cone, 535 U.S. at 694. A federal court must afford due deference to a state court's decision. “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, 131 S.Ct. 1388, 1398 (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).

         In a per curiam decision without a written opinion, the state appellate court on direct appeal affirmed Trice's convictions and sentence. (Respondent's Exhibit 2) Similarly, in another per curiam decision without a written opinion, the state appellate court affirmed the denial of Trice's subsequent Rule 3.850 motion to vacate. (Respondent's Exhibit 6) The state appellate court's per curiam affirmances warrant 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, 131 S.Ct. at 784S85 (“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.”), and Bishop v. Warden, 726 F.3d 1243, 1255S56 (11th Cir. 2013) (describing the difference between an “opinion” or “analysis” and a “decision” or “ruling” and explaining that deference is accorded the state court's “decision” or “ruling” even if there is no “opinion” or “analysis”).

         As Pinholster, 131 S.Ct. at 1398, explains, 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.

         Trice 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). The state court's rejection of Trice's post-conviction claims warrants deference in this case. (Order Denying Motion for Post-Conviction Relief, Respondent's Exhibit 7)

         EXHAUSTION AND PROCEDURAL DEFAULT

         An applicant must present each claim to a state court before raising the claim in federal court. “[E]xhaustion of state remedies requires that petitioners ‘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), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518S19 (1982) (“A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.”), and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) (“[T]he applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated.”). Also, a petitioner must present to the federal court the same claim presented to the state court. Picard v. Connor, 404 U.S. at 275 (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). “Mere similarity of claims is insufficient to exhaust.” Duncan v. Henry, 513 U.S. at 366.

         An applicant must alert the state court that he is raising a federal claim and not only a state law claim:

A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim “federal.”

Baldwin v. Reese, 541 U.S. 27, 32 (2004). As a consequence, “[i]t is not enough that all the facts necessary to support the federal claim were before the state courts, or that a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6 (1982). See also Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004) (“The exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.”) (citations omitted).

         Finally, presenting a federal claim to a state court without the facts necessary to support the claim is insufficient. See, e.g., Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983) (“The exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in support of the writ before the federal court.”). Specifically based on Trice's failure to exhaust, the respondent opposes Grounds Two, Three, and Four.[1]

         The respondent argues (1) that on direct appeal Trice summarily briefed the constitutional claims alleged in Grounds Two, Three, and Four but without explaining the manner in which those rights were violated and (2) that Trice's summary constitutional claims in the state court were inadequate to alert the trial court to the specific constitutional violation alleged. Although the respondent is correct that a federal applicant for the writ of habeas corpus must first exhaust the claim in the state court, the respondent's suggestion - as the respondent calls his argument - is not well taken. Although Trice's claims on direct appeal may have lacked the exactness that respondent claims is necessary, the presentation alerted the state court that Trice asserted a constitutional claim. Therefore, the grounds warrant a review on the merits.

         INEFFECTIVE ASSISTANCE OF COUNSEL

         Trice claims ineffective assistance of counsel, a difficult claim to sustain. “[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of counsel claim:

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.

         Strickland requires proof of both deficient performance and consequent prejudice. Strickland, 466 U.S. at 697 (“There 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.”). “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[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.” 466 U.S. at 690. Strickland requires that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” 466 U.S. at 690.

         Trice 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.” 466 U.S. at 691S92. To meet this burden, Trice must show “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.” 466 U.S. at 694.

         Strickland cautions that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 466 U.S. at 690S91. Trice cannot meet his burden merely by showing that the avenue chosen by counsel proved 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, 1220S21 (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)). The required extent of counsel's investigation was addressed recently ...


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