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Palumbo v. Secretary, Department of Corrections

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

December 18, 2017




         THIS CAUSE is before the Court on a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Patrick Palumbo ("Petitioner" or "Palumbo"). (Doc. 1, filed July 15, 2016). In compliance with this Court's Order (Doc. 3), Respondents filed a Response to Petition. (Doc. 16). Palumbo filed a Reply (Doc. 18), and the Petition is ripe for review. For the reasons set forth below, the Petition will be denied.


         On September 22, 2005, the State of Florida charged Palumbo with sexual battery on a person less than twelve years of age by a person older than eighteen, in violation of Florida Statute § 794.011(2) (count one) and lewd and lascivious molestation (count two). (Ex. A at 122).[1] A jury found Palumbo guilty as charged. (Id. at 385-90). He was sentenced to life in prison on count one, and the conviction on count two was vacated. (Id. at 391-94, 475, 482, 485-86). Florida's Fifth District Court of Appeal affirmed. (Id. at 488); Palumbo v. State, 52 So.3d 834 (Fla. 5th DCA 2011).

         On November 9, 2012, Palumbo filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 Motion"). (Ex. E at 1). He filed an amended motion on May 9, 2013. (Id. at 298). The motions were denied by the post-conviction court in two separate orders. (Ex. at 363, 403, 417). On May 31, 2016, Florida's Fifth District Court of Appeal affirmed. (Ex. F-43).


         A. The Antiterrorism Effective Death Penalty Act (AEDPA)

         Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S.Ct. 1697, 1702(2014).

         "Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S.Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of, " that federal law. 29 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

         A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).

         Notably, even when the opinion of a lower state post-conviction court contains flawed reasoning, the federal court must give the last state court to adjudicate the prisoner's claim on the merits "the benefit of the doubt." Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert granted Wilson v. Sellers, No. 16-6855, 137 S.Ct. 1203 (2017). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits-warranting deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Therefore, to determine which theories could have supported the state appellate court's decision, the federal habeas court may look to a state post-conviction court's previous opinion as one example of a reasonable application of law or determination of fact; however, the federal court is not limited to assessing the reasoning of the lower court. Wilson, 834 F.3d at 1239.

         Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[, ]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S.Ct. 10, 15 (2013) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.") (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

         B. Ineffective Assistance of Counsel

         In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a "doubly deferential" standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S.Ct. at 13 (citing Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).

         The focus of inquiry under Strickland's performance prong is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Indeed, the petitioner bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct, " applying a "highly deferential" level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).

         As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice "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. That is, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

         III. ANALYSIS

         Palumbo raises nine grounds of ineffective assistance of counsel and one claim of cumulative error in his § 2254 petition. The first eight grounds were raised in Petitioner's Rule 3.850 Motion, and affirmed by Florida's Fifth District Court of Appeal without a written opinion. (Ex. F at 43). Accordingly, these grounds are exhausted. The silent affirmance of the postconviction court is entitled to deference, and the Court must determine whether any arguments or theories could have supported the appellate court's decisions. Wilson, 834 F.3d at 1235. Each ground will be addressed separately.

         A. Ground One

         Palumbo asserts that Counsel was ineffective for failing to challenge for cause or use a peremptory strike to remove Juror Reynolds from the jury panel. (Doc. 1 at 18). Palumbo takes issue with Reynolds' response to a question regarding a prior crime that had been committed against her. When asked whether anyone had been arrested for the crime, Reynolds stated: "No. Understand that. I accept that. Also, that's not the point. My mind goes right toward whatever it was that he did, or is accused of doing. But something happened that wasn't right or a child wouldn't have said that. In my mind he's partially guilty of something." (T. at 140). Reynolds then affirmed that her opinion had no bearing on her ability to sit on the case. (Id.).[2] Palumbo raised this claim in his first Rule 3.850 Motion. It was denied because Palumbo had expressed satisfaction with the jury panel and had ratified the jury selection procedure. (Ex. E at 403). The record supports the state courts' rejection of Ground One.

         The Sixth Amendment guarantees the accused a trial by an impartial jury in federal criminal prosecutions. U.S. Const, amend VI. The Due Process Clause of the Fourteenth Amendment guarantees the same right to the accused in state criminal prosecutions. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). As with federal law, the test for determining juror competency in the Florida courts is "whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984).

         The Eleventh Circuit has cautioned that courts applying Strickland must "defer to trial counsel's performance and eschew the distorting effects of hindsight" when interpreting a prospective juror's statements and trial counsel's decision to leave that person on the jury. Harvey v. Warden, Union Correctional Institution, 629 F.3d 1228, 1247 (11th Cir. 2011) (internal quotations omitted); see also Babb v. Crosby, 197 Fed.Appx. 885, 887 (11th Cir. 2006) ("the Supreme Court has not concluded that a lawyer who leaves an arguably biased juror on a jury is per se ineffective"). Moreover, "[a]ssessing jurors during voir dire also requires an evaluation of demeanor and credibility. Review of counsel's performance is highly deferential in any case, but the case for deference is even greater when counsel is evaluating credibility." Bell v. United States, 351 Fed.Appx. 357, 360 (11th Cir. 2009) (internal citation omitted).

         Palumbo has adduced no evidence, other than the transcript of the jury selection proceeding, to support his claim that trial counsel had an obligation to strike Reynolds from the jury pool. Prior to Reynolds' suspect statement, the trial judge asked the panel whether any of the venire had bias or prejudice against Palumbo or the state, and Reynolds tacitly indicated that she was not biased and could sit as an impartial juror. (T. at 46-51, 61-62). Later, several other jurors expressed an opinion that they thought it unlikely a child would fabricate an allegation of molestation. (T. at 156-64). The state then asked whether "[a]nybody else have a similar opinion as to Mrs. Rodriguez, Mr. Sullivan, and Mr. Belfi, they would be bias and because it's a child making the accusations, they would be bias toward the state?" (Id. at 165). Reynolds did not express agreement with the other jurors' bias. Thereafter, Counsel asked the jurors several times if they could be fair and impartial, and Reynolds again tacitly indicated that she could. (Id. at 172-84). Palumbo, who was present in the courtroom during the entire voir dire, affirmed that he found the jury acceptable. (T. at 84-87). Reynolds was given multiple opportunities to affirm her alleged bias and did not do so. Palumbo has not shown that no competent counsel would have failed to strike Reynolds from the jury panel. See Chandler v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) ("[B]ecause counsel's conduct is presumed reasonable, for a petitioner to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take.").

         Moreover, a habeas petitioner who challenges the impartiality of a juror after the verdict is returned in his state trial "is entitled to habeas relief only upon a showing that the juror was actually biased or incompetent." Rogers v. McMullen, 673 F.2d 1185, 1190 (11th Cir. 1982). Palumbo has made no such showing, and the record does not support such a showing. In fact, during its charge to the jury, the trial court specifically instructed that the state had the burden of proof and that the jury's verdict "should not be influenced by feelings of prejudice, bias or sympathy." (T. at 491-92). Jurors are presumed to follow directions, Weeks v. Angelone, 528 U.S. 225, 234 (2000), and Palumbo has offered nothing to rebut that presumption. Palumbo cannot show that trial counsel performed deficiently, or that any deficient performance prejudiced his defense.

         The state court's adjudication of Ground One was neither contrary to Strickland nor based upon an unreasonable determination of the facts. Ground One is denied.

         B. ...

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