United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell, United States District Judge.
Duane Houart, a Florida inmate, filed a pro se
petition for writ of habeas corpus under 28 U.S.C. §
2254 challenging his Sarasota County convictions. (Dkt. 1.)
Respondent filed a response (Dkt. 15), which acknowledges the
petition's timeliness. Houart did not file a reply. Upon
consideration, Houart's petition will be denied.
was convicted after a jury trial of one count of sexual
battery by a person 18 years of age or older upon a child
less than 12 years of age and three counts of lewd or
lascivious molestation by a person 18 years of age or older
upon a child less than 12 years of age. (Dkt. 18, Ex. 1, Vol.
II, pp. 272-73.) He was found not guilty of one count of
sexual battery by a person 18 years of age or older upon a
child less than 12 years of age and three counts of showing
obscene material to a minor. (Id.) Houart was
sentenced to life imprisonment. (Id., pp. 327-31.)
The state appellate court per curiam affirmed. (Dkt.
18, Ex. 4.) The trial court then granted the State of
Florida's motion to designate Houart as a sexual
predator. (Dkt. 18, Ex. 6, Vol. I, p. 75.) The state
appellate court per curiam affirmed. (Dkt. 18, Ex.
10.) The state court summarily denied Houart's motion for
postconviction relief filed under Florida Rule of Criminal
Procedure 3.850. (Dkt. 18, Exs. 11, 12.) The state appellate
court per curiam affirmed. (Dkt. 18, Ex. 14.)
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). 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;
(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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the
Supreme Court interpreted this deferential standard:
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
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).
state appellate court affirmed Houart's convictions and
sentences and affirmed the denial of postconviction relief
without discussion. The court's decisions warrant
deference under § 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. 2002). 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
One, Two and Four
Ground One, Houart argues that the trial court erred in
denying his motion for mistrial. In Ground Two, he claims
that the trial court erred in denying his motion to access
the victims' foster care records. In Ground Four, he
argues that the trial court erred in denying his motion to
prevent juror contact with a “victims'
monument” located outside the courthouse. Houart
alleges violations of his federal rights to due process,
confrontation, and a fair trial.
federal habeas petitioner must exhaust his claims for relief
by raising them in state court before presenting them in his
petition. 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.”). 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).
One, Two, and Four are unexhausted because, on direct appeal,
Houart relied solely on state law and did not present the
federal dimension of the claims. (Dkt. 18, Ex. 2, pp. 15-28,
40-42.) Although Houart referred to a United States Supreme
Court decision, Cooter & Gell v. Hartmax Corp.,
496 U.S. 384 (1990), this reference was made only for a
definition of abuse of judicial discretion and failed to
alert the state appellate court that Houart intended to raise
a federal constitutional claim. See Pearson v. Sec'y,
Dep't of Corr., 273 Fed.App'x 847, 849-50 (11th
Cir. 2008) (“The exhaustion doctrine requires the
petitioner to ‘fairly present' his federal claims
to the state courts in a manner to alert them that the ruling
under review violated a federal constitutional
right.”); Zeigler v. Crosby, 345 F.3d 1300,
1307 (11th Cir. 2003) (“To present a federal
constitutional claim properly in state court, ‘the
petitioner must make the state court aware that the claims
asserted present federal constitutional issues.'”)
(quoting Snowden v. Singletary, 135 F.3d 732, 735
(11th Cir. 1998)).
procedural rules do not allow for successive direct appeals.
See Fla. R. App. P. 9.140(b)(3) (a defendant must
appeal a final judgment within 30 days following rendition of
a written order imposing sentence). Consequently,
Houart's claims are procedurally defaulted. See Smith
v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001)
(“If 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.”).
Houart does not argue or demonstrate that an exception
applies to overcome the procedural default. Grounds One, Two,
and Four are therefore barred from federal habeas review.
argues that the trial court lacked jurisdiction to designate
him a sexual predator, resulting in a federal due process
violation. Respondent's contention that Houart failed to
raise a federal claim when he appealed the sexual predator
designation is unpersuasive. Houart clearly alleged a
violation of his Fifth and Fourteenth Amendment rights. (Dkt.
18, Ex. 8, pp. 5, 7-8.)
Houart's assertion concerns a matter of state law for
which federal habeas corpus relief is not available. See
Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)
(“[A] habeas petition grounded on issues of state law
provides no basis for habeas relief.”). See also
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[I]t
is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”);
Wainwright v. Goode, 464 U.S. 78, 83 (1983)
(“It is axiomatic that federal courts may intervene in
the state judicial process only to correct wrongs of a
constitutional dimension.”) (citations omitted).
Houart's assertion of a federal constitutional
deprivation does not alter this conclusion. See
Branan, 861 F.2d at 1508 (the limitation on federal
habeas review “is of equal force when a petition, which
actually involves state law issues, is ‘couched in
terms of equal protection and due process.'”)
(quoting Willeford v. Estelle, 538 F.2d 1194, 1198
(5th Cir. 1976)). Accordingly, Houart has not presented a
cognizable claim for relief in Ground Five.
victims were Houart's nephews. Prior to their placement
in foster care, they lived in a home with numerous family
members including Houart and his mother, Connie Houart. Ms.
Houart passed away prior to trial. The state trial court
denied the defense's request to introduce parts of Ms.
Houart's discovery deposition. It made its decision after
the State argued that the discovery deposition was
inadmissible because (1) the deposition was not taken with
the purpose of perpetuating testimony in accordance with the
requirements of Florida Rule of Criminal Procedure 3.190; (2)
the deposition contained hearsay within hearsay; and (3) the
defense had not laid a proper foundation to use the
deposition for impeachment purposes. (Dkt. 18, Ex. 1, Supp.
V, pp. 898-902.)
alleges that the state trial court erred in excluding this
deposition testimony, thereby preventing him from raising a
defense in violation of his federal rights to due process and
a fair trial. See Crane v. Kentucky, 476 U.S. 683,
690 (1986) (“[T]he Constitution guarantees criminal
defendants ‘a meaningful opportunity to present a
complete defense.'”) (quoting California v.
Trombetta, 467 U.S. 479, 485 (1984)). He brought this
claim of trial court error on direct appeal. Respondent's
assertion that Houart failed to exhaust a federal claim is
not supported by the record. Houart clearly argued that
although the trial court's ruling was consistent with
Florida law, it nevertheless violated his federal rights to
due process and a fair trial. (Dkt. 18, Ex. 2, pp. 32-39.) In
support, he cited Chambers v. Mississippi, 410 U.S.
284 (1973). See id. at 294 (“The right of an
accused in a criminal trial to due process is, in essence,
the right to a fair opportunity to defend against the
assuming, however, that Ms. Houart's discovery deposition
should have been admitted, any constitutional error by the
trial court in excluding this evidence is subject to the
harmless-error test set out in Brecht v. Abrahamson,
507 U.S. 619 (1993):
In § 2254 proceedings, federal courts must evaluate
constitutional errors under the harmless-error standard
articulated in Brecht v. Abrahamson, 507 U.S. 619,
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). As Brecht
explained, “[federal] habeas petitioners may obtain
plenary review of their constitutional claims, but they are
not entitled to habeas relief based on trial error unless
they can establish that it resulted in ‘actual
prejudice.'” Id. at 637, 113 S.Ct. at
1722. To find “actual prejudice, ” a federal
habeas court must conclude that the error “had
substantial and injurious effect or influence in determining
the jury's verdict.” Id. (quoting
Kotteakos v. United States, 328 U.S. 750, 776, 66
S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)).
Hittson v. GDCP Warden, 759 F.3d 1210, 1233-34 (11th
Cir. 2014) (footnote omitted).
does not show that the exclusion of Ms. Houart's
deposition testimony had “substantial and injurious
effect or influence” on the verdict such that he
suffered actual prejudice. In the first portion of Ms.
Houart's deposition, she testified that one of the
victims, H.B., said that his foster mother would buy him
“a new PSP” if he talked to the judge. (Dkt. 18,
Ex. 1, Vol. II, pp. 237-40.) She also testified that when she
asked H.B. why he did not tell her what had happened, he
stated that he was not sure if it really happened or if he
dreamt it. (Id.)
Ms. Houart's statement about the PSP would have been
cumulative to trial testimony of the victims' biological
mother that, during a visitation at which Ms. Houart was
present, she heard H.B. say that his foster mother would buy
him a PSP2 if he went to the judge. (Dkt. 18. Ex. 1, Supp.
IV, pp. 401-02.) Furthermore, the implication that H.B.'s
recollection was not reliable was addressed through other
means. The defense cross-examined H.B. about discrepancies
between his trial testimony and his earlier statements.
(Id., pp. 498-99, 506-10, 517-18.) The defense also
argued to the jury that the nature and length of the
investigation caused the victims to develop false memories
and presented expert testimony of Dr. Eddy Regnier, a
clinical psychologist, to support this theory. (Dkt. 18, Ex.
1, Supp. V, pp. 960-1031; Supp. VI, pp. 1166-68.)
second portion of Ms. Houart's deposition, she testified
that she would have killed Houart herself if she saw him
touching the victims. (Dkt. 18, Ex. 1, Vol. II, pp. 295;
Supp. V, p. 876.) Houart appears to argue that this would
have cast doubt on the testimony of victims E.B. and H.B.
that they did not initially report the activity because Ms.
Houart told them not to tell anyone. (Dkt. 18, Ex. 1, Supp.
IV, pp. 496, 562, 569, 573-74, 640.) But Ms. Houart's
deposition testimony did not directly refute H.B.'s and
E.B.'s trial testimony that she told them not to tell
anyone. And even if her statement would have cast doubt on