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Houart v. Secretary, Department of Corrections

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

September 12, 2017



          Charlene Edwards Honeywell, United States District Judge.

         Richard 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.


         Houart 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.)


         The 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; 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, 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 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, 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).

         The 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 contrary.”).


         Grounds One, Two and Four

         In 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.

         A 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).

         Grounds 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)).

         State 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.

         Ground Five

         Houart 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.)

         However, 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.

         Ground Three

         The 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.)

         Houart 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 State's accusations.”)

         Even 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).

         Houart 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”[1] 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.)

         However, 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.)

         In the 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 ...

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