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Lingebach v. Jones

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

December 14, 2017

JOSHUA LINGEBACH, Petitioner,
v.
JULIE JONES AND FLORIDA ATTORNEY GENERAL, Respondents.

          ORDER

          BRIAN J. DAVIS, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Petitioner Joshua Lingebach challenges a 2007 Duval County conviction for armed robbery. See Amended Petition for Writ of Habeas Corpus (Amended Petition) (Doc. 8). He raises four claims for habeas relief, claiming he received the ineffective assistance of trial or appellate counsel. This Court must be mindful that in order to prevail on this Sixth Amendment claim, Petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that he show both deficient performance (counsel's representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). Also of note, when addressing a claim of ineffective assistance of appellate counsel, the two-part Strickland standard is applicable.

         Respondents filed an Answer in Response to Order to Show Cause and Petition for Writ of Habeas Corpus (Response) (Doc. 19) and ask that the Amended Petition be denied. In support of their Response, they submitted Exhibits (Doc. 19).[1] Petitioner filed a Reply to Respondents' Answer Brief (Reply) (Doc. 20).

         II. CLAIMS OF PETITION

         Petitioner raises four grounds in his Amended Petition. They are: (1) the ineffective assistance of appellate counsel for failure to assert as error the trial court's denial of the motion to suppress physical evidence; (2) the ineffective assistance of appellate counsel for failure to argue on direct appeal that trial counsel was ineffective for failing to make certain arguments during the hearing on the motion to suppress;[2] (3) the ineffective assistance of trial counsel for failure to do anything about a sleeping juror; and (4) the ineffective assistance of trial counsel for failure to accuse an officer of committing fraud through a written report.

         Respondents contend that ground one is without merit and the First District Court of Appeal's decision is due deference. Response at 6-13. They assert that ground two, raised for the first time in the Amended Petition, is untimely and should be dismissed as untimely; otherwise, they contend it is without merit. Id. at 13-18. If found to be timely, they assert deference is due to the state court's ruling. Id. With regard to ground three, Respondents claim it is also untimely raised as it does not relate back to the original petition and it was raised after the relevant one-year limitation period expired. Id. at 18. If found to be timely filed by this Court, Respondents contend the state court's ruling on this ground is entitled to deference. Id. at 19. Finally, concerning ground four, Respondents assert it is barred as unexhausted and procedurally defaulted. Id. at 20-22. Alternatively, they assert deference is due to the state court's decision. Id. at 23-24.

         The Court will address Petitioner's four grounds, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992), but no evidentiary proceedings are required in this Court.

         III. STANDARD OF REVIEW

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). "AEDPA limits the scope of federal habeas review of state court judgments[.]" Pittman v. Sec'y, Fla. Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017). As such, AEDPA ensures that federal habeas relief is limited to extreme malfunctions, and not used as a means to attempt to correct state court errors. Ledford, 818 F.3d at 642 (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).

         The Eleventh Circuit recently outlined the parameters of review:

Thus, under AEDPA, a person in custody pursuant to the judgment of a state court shall not be granted habeas relief on a claim "that was adjudicated on the merits in State court proceedings" unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or ... 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). "For § 2254(d), clearly established federal law includes only the holdings of the Supreme Court-not Supreme Court dicta, nor the opinions of this Court." Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th Cir. 2014).
As for 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 [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Terry Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 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 Supreme Court's] decisions but unreasonably applies that principle to the facts." Id. at 413, 120 S.Ct. 1495. "In other words, a federal court may grant relief when a state court has misapplied a 'governing legal principle' to 'a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). And "an 'unreasonable application of' [Supreme Court] holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam) (quotation omitted). To overcome this substantial hurdle, "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, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). This is "meant to be" a difficult standard to meet. Id. at 102, 131 S.Ct. 770.

Pittman, 871 F.3d at 1243-44.

         There is a presumption of correctness of state court's factual findings, unless the presumption is rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The standard of proof is demanding, requiring that a claim be highly probable. Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert. denied, 135 S.Ct. 67 (2014). Also, the trial court's determination will not be superseded if reasonable minds might disagree about the factual finding. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015). Also of note, "[t]his presumption of correctness applies equally to factual determinations made by the state trial and appellate courts." Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).

         In applying AEDPA deference, the first step is to identify the last state court decision that evaluated the claim on its merits. Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).[3] Once identified, the Court reviews the state court's decision, "not necessarily its rationale." Pittman, 871 F.3d at 1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785 (11th Cir. 2003) (citation omitted)).

         Regardless of whether the last state court provided a reasoned opinion, "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." Harrington v. Richter, 562 U.S. 86, 99 (2011). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

         Where the last adjudication on the merits is unaccompanied by an explanation, the petitioner must demonstrate there was no reasonable basis for the state court to deny relief. Id. at 98. "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court." Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.

         Although the § 2254(d) standard is difficult to meet, it was meant to be difficult. Rimmer v. Sec'y, Fla. Dep't of Corr., No. 15-14257, 2017 WL 5476795, at *11 (11th Cir. Nov. 15, 2017) (opining that to reach the level of an unreasonable application of federal law, the ruling must be objectively unreasonable, not merely wrong or even clear error). Indeed, in order to obtain habeas relief, "a state prisoner must show that the state court's ruling on the claim being presented . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.

         IV. PROCEDURAL HISTORY

         Respondents provide the procedural history in their Response. Response at 1-3.

         V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

         A. Ground One

         In his first ground, Petitioner claims his appellate counsel was ineffective for failure to assert that the lower court erred in determining that Petitioner's motion to suppress physical evidence should be denied. Amended Petition at 5. Petitioner raised this claim in his Petition for Belated Appeal, construed to be a petition alleging ineffective assistance of appellate counsel. Ex. F. The First District Court of Appeal (1st DCA) denied the petition alleging ineffective assistance of appellate counsel on its merits. Ex. G. Petitioner moved for rehearing, Ex. H, and the 1st DCA denied the motion. Ex. I.

         Thus, there is a qualifying state court opinion for AEDPA purposes. Based on the 1st DCA's denial of the claim on its merits, this Court must "review it using the deferential standard set out in § 2254(d)(1)." Rambaran v. Sec'y, Dep't of Corr., 821 F.3d 1325, 1330 (11th Cir.), cert. denied, 137 S.Ct. 505 (2016).

         The two-part Strickland test is applicable to a claim of ineffective assistance of appellate counsel:

To prevail on a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish that his counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Brooks v. Comm'r, Ala. Dep't of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013) ("Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland.") (quotation marks omitted). Under the deficient performance prong, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. "The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." Harrington, 562 U.S. at 105, 131 S.Ct. at 788 (quotation marks and citations omitted); see also Gissendaner v. Seaboldt, 735 F.3d 1311, 1323 (11th Cir. 2013) ("This double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.") (quotation marks and alteration omitted). "If this standard is difficult to meet, that is because it was meant to be." Harrington, 562 U.S. at 102, 131 S.Ct. at 786.

Rambaran, 821 F.3d at 1331.

         Reviewing the record before the Court, appellate counsel did not perform deficiently. She raised the issue that Petitioner was deprived of his right to a fair trial by the prosecutor's closing argument. Ex. B; Ex. C. The 1st DCA agreed that the "statement made during closing argument by the prosecutor was inappropriate[, ]" but found that the overwhelming evidence of guilt means the error "could not have reasonably affected or contributed to the verdict[, ]" and ultimately concluded that but for the overwhelming evidence of guilt, the inappropriate comment on Petitioner's right to a jury trial would have required reversal. Ex. D.

         Appellate counsel presented a persuasive argument that the comment constituted an inappropriate comment by the prosecutor on Petitioner's right to jury and penalized him for exercising his constitutional rights. Ex. B at 8. Counsel urged the 1st DCA to find that this was a comment on Petitioner exercising his right to a jury trial. Id. at 10. Counsel submitted that not only was the comment improper, it ...


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