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Melton v. Secretary, Florida Dept. of Corrections

United States District Court, N.D. Florida, Pensacola Division

January 31, 2018

GARNETT MELTON, Petitioner,
v.
SECRETARY, FLORIDA DEPT. OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE.

         Petitioner initiated this case by filing a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In his Petition, Petitioner raises ten grounds for relief, the majority of which involve claims of ineffective assistance of counsel. (Id.) Respondent filed a response, ECF No. 11, along with relevant portions of the state-court record. (ECF Nos. 11-1-11-5 (“Ex.”).[1]) Petitioner then filed a reply. (ECF No. 15.) Upon due consideration of the Petition, the Response, the state-court record, and the Reply, the undersigned recommends that the Petition be denied.[2]

         Summary of State-Court Proceedings

         In October 2009 Petitioner was charged with selling, manufacturing, delivering, or possessing with intent to sell, manufacture, or deliver a controlled substance (Count 1); trafficking in amphetamine (Count 2); unlawful possession of listed chemical (Count 3); and possession of drug paraphernalia (Count 4). (Ex. A at 18.) Petitioner proceeded to a jury trial on his charges, and he was found guilty as charged in March 2010. (Id. at 160-61.) Petitioner was sentenced on June 3, 2010, to concurrent terms of 10 years in prison, with a 7 year minimum, for Counts 1, 2, and 3, and he was sentenced to time served on Count 4. (Ex. B at 232-37; Ex. F at 13-21.)

         Petitioner filed a direct appeal to the First District Court of Appeal (“First DCA”). (Ex. G.) The First DCA affirmed as to Counts 2, 3, and 4, but reversed Count 1 based on double jeopardy. (Ex. I at 1-3.) Petitioner's motion for rehearing was denied on November 3, 2011, and the mandate followed on November 21, 2011. (Id. at 12-13.) Then on remand, the trial court entered a new judgment on November 20, 2012, with Count 1 vacated. (Ex. J.)

         While the direct appeal was on remand, Petitioner submitted for mailing his first state habeas petition in December 2011, alleging ineffective assistance of appellate counsel. (Ex. K.) The First DCA per curiam denied the petition on January 31, 2012. (Ex. L at 1.) Petitioner sought to amend his brief, but the First DCA denied the motion as moot. (Id. at 2-3, 43.)

         Petitioner then filed his second state habeas petition in March 2012, while his appeal was still on remand, again alleging ineffective assistance of appellate counsel. (Ex. M at 1-20.) The First DCA also per curiam denied this petition on April 13, 2012, and it denied Petitioner's motion for rehearing on May 24, 2012. (Id. at 21, 28.)

         Then on September 19, 2012, with his direct appeal still on remand, Petitioner filed yet another state habeas petition. (Ex. N.) In this petition, Petitioner alleged manifest injustice due to the First DCA's denial of his petitions alleging ineffective assistance of appellate counsel. (Id. at 1-20.) The First DCA then ordered the State to show why the petition for writ of certiorari should not be granted, and the State responded. (Id. at 21-40.) The First DCA then dismissed the petition on March 20, 2013, citing Rule 9.141(d)(6)(C) of the Florida Rules of Appellate Procedure. (Id. at 41.) And on April 26, 2013, the First DCA denied Petitioner's motion for rehearing. (Id. at 82.)

         On December 31, 2012, Petitioner submitted for mailing his second amended Rule 3.850 motion.[3] (Ex. P at 1-43.)[4] After the State responded, the court granted an evidentiary hearing on five of the issues. (Ex. P at 130-200; Ex. Q at 201-300.) The hearing was held in September 2013. (Ex. R at 412-82.) On December 6, 2013, the court denied the Rule 3.850 motion. (Ex. R at 483-514.) The First DCA per curiam affirmed without opinion on December 4, 2014, and the mandate followed on December 30, 2014. (Ex. AA.)

         Petitioner then submitted the instant habeas petition to prison officials for mailing on February 8, 2015. (ECF No. 1.)

         Section 2254 Standard of Review

         The role of a federal habeas court when reviewing a state prisoner's application pursuant to 28 U.S.C. § 2254 is limited. Williams v. Taylor, 529 U.S. 362, 403-04 (2000). Under section 2254(a), federal courts “shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

         Additionally, federal courts must give deference to state court adjudications unless the state court's adjudication of the claim is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

         With regard to factual findings, under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state prisoner's application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless that adjudication “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.” Under § 2254(e)(1), the petitioner must advance clear and convincing evidence that the state court's factual determination was “objectively unreasonable” to rebut the presumption that the determination was correct. Gill v. Mecusker, 633 F.3d 1272, 1287 (11th Cir. 2011); 28 U.S.C. § 2254(e)(1). “‘[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'” Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).

         As to legal findings, as mentioned above, a petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of the federal claim “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.” § 2254(d)(1). “[C]learly established Federal law, as determined by the Supreme Court of the United States, ” refers only to holdings (rather than dicta) of the Supreme Court, but decisions of lower federal courts may be considered to the extent that they demonstrate how those courts applied Supreme Court holdings. Hawkins v. Alabama, 318 F.3d 1302, 1309 (11th Cir. 2003); see also Carey v. Musladin, 549 U.S. 70, 74-77 (2006).

         “Under § 2254(d)(1)'s ‘contrary to' clause, we grant relief only ‘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.'” Jones v. GDCP Warden, 753 F.3d 1171, 1182 (11th Cir. 2014) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). For § 2254(d)(1), clearly established federal law includes only the holdings, not the dicta of Supreme Court decisions. White v. Woodall, 134 S.Ct. 1697, 1702 (2014). “Under § 2254(d)(1)'s ‘unreasonable application' clause, we grant relief only ‘if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Jones, 753 F.3d at 1182 (alteration in original) (quoting Williams, 529 U.S. at 413).

         The Supreme Court has interpreted § 2254(d) as requiring that “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). “[A]n ‘unreasonable application' of [Supreme Court] holdings must be ‘objectively unreasonable, ' not merely wrong; even ‘clear error' will not suffice.” Woodall, 134 S.Ct. at 1702. In other words, Petitioner must establish that no fairminded jurist would have reached the Florida court's conclusion. See Richter, 562 U.S. at 102-03; Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257-58 (11th Cir.2012). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

         In light of Gill, the “unreasonable determination of facts” standard plays a limited role in habeas review because the district court considers the reasonableness of the trial court's fact-finding only to the extent that the state court's ultimate conclusion relied on it. 633 F.3d at 1292. A federal habeas court can consider the full record before it to answer “the only question” that matters: “whether the state court's determination [was] objectively unreasonable.” Id. at 1290.

         Ineffective Assistance of Counsel

         Because many of Petitioner's claims allege ineffective assistance, a review of the applicable law is necessary. Under Strickland v. Washington, to prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate that (1) his counsel's performance was below an objective and reasonable professional norm, and (2) he was prejudiced by this inadequacy. Strickland, 466 U.S. 668, 686-96 (1984). The court may dispose of the claim if a defendant fails to carry his burden of proof on either the performance or the prejudice prong. Id. at 697.

         To show counsel's performance was unreasonable, a defendant must establish that “no competent counsel would have taken the action that his counsel did take.” Grayson v. Thompson, 257 F.3d 1194, 1216 (11th Cir. 2001) (emphasis omitted). “The relevant question is not whether counsel's choices were strategic, but whether they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000). There are no “absolute rules” for determining whether counsel's actions were indeed reasonable, as “[a]bsolute rules would interfere with counsel's independence-which is also constitutionally protected-and would restrict the wide latitude counsel have in making tactical decisions.” Putnam v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001). “To uphold a lawyer's strategy, [the Court] need not attempt to divine the lawyer's mental processes underlying the strategy.” Chandler v. United States, 218 F.3d 1305, 1314 n.16 (11th Cir. 2000) (en banc). “No lawyer can be expected to have considered all of the ways [to provide effective assistance].” Id.

If a defense lawyer pursued course A, it is immaterial that some other reasonable courses of defense (that the lawyer did not think of at all) existed and that the lawyer's pursuit of course A was not a deliberate choice between course A, course B, and so on. The lawyer's strategy was course A. And [the Court's] inquiry is limited to whether this strategy, that is, course A, might have been a reasonable one.

Id.

         To show prejudice, a defendant must show more than simply that counsel's unreasonable conduct might have had “some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693. Instead, a defendant must show 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 defined as a probability sufficient to undermine confidence in the outcome.” Id.

         When the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief is a difficult one. Harrington, 562 U.S. at 102. The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, 562 U.S. at 100 (internal quotation marks omitted). And “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102.

         A federal habeas court “must determine what arguments or theories supported or, [if none were stated], 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 Supreme] Court.” Id. So long as fairminded jurists could disagree about whether the state court's denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id. Stated another way, only if “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents” may the federal court grant relief. Id.

         Even without the deference due under § 2254, the Strickland standard for judging the performance of counsel “is a most deferential one.” Id. at 105. When combined with the extra layer of deference that § 2254 provides, the result is double deference, and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. 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 a state court denied on the merits is found to merit relief in a federal habeas proceeding.

         Section 2254 Exhaustion Requirement

         Before bringing a habeas action in federal court, a petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion requires that prisoners give the state courts a “full and fair opportunity” to resolve all federal constitutional claims by “invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To properly exhaust a federal claim, a petitioner must fairly present the claim in each appropriate state court, thereby affording the state courts a meaningful “opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)).

         DISCUSSION

         Ground One: Petitioner's counsel was not ineffective for failing to object to the court's jury instructions or for failing to request different jury instructions regarding constructive possession.

         Petitioner contends that his trial counsel was ineffective for failing to object to the allegedly improper jury instructions regarding constructive possession. Specifically, Petitioner says that the jury instructions did not include the State's burden on how to prove and establish constructive possession as appears in the Florida Supreme Court Jury Instructions. Petitioner argues that his counsel's failure to object to this omission regarding constructive possession cannot be viewed as effective assistance of counsel as guaranteed by the Sixth Amendment under Strickland. (ECF No. 1 at 6-8.)

         On post-conviction review, the state court interpreted Petitioner's claim as alleging “that his counsel was ineffective for failing to request that the verbatim full-length jury instructions be used.” The state court held an evidentiary hearing on this claim.

         In rejecting this claim, the state court relied on testimony from Petitioner's trial counsel at the evidentiary hearing. Petitioner's counsel testified that he reviewed the jury instructions with Petitioner, that Petitioner did not object to the jury instructions, and that his decision regarding the jury instructions was strategic. Petitioner's trial counsel further testified that the jury instructions contained the converse of the specified additional language and that his closing argument described the issues regarding constructive possession that the State failed to prove. (Ex. R at 486-88.)

         The state court then determined,

After considering the testimony presented at the evidentiary hearing, the Court concludes that the defendant has failed to demonstrate an entitlement to relief. The Court finds Mr. Jason McKinney's testimony to be credible. The defendant does not establish that counsel's performance was deficient. Specifically, Mr. Jason McKinney testified that his decision regarding the jury instructions was a “strategy decision.” The record reflects that Mr. Jason McKinney reviewed the jury instructions with the defendant and that the defendant did not raise any issues with the instructions. The Court also finds that Mr. Jason McKinney's decision not to object to the omission of the specified portions of the jury instructions regarding construction possession was a strategic decision. The Court further finds that Mr. Jason McKinney's decision not to request any additional portions of the jury instructions regarding constructive possession was a strategic decision. Contrary to the defendant's allegation, he does not establish prejudice merely because he believes additional portions of standard jury instructions were “material and pertinent” to the jury's determination. Therefore, counsel was not ineffective, and the defendant is not entitled to relief.

(Id. at 488-89) (footnotes omitted). The First DCA per curiam affirmed without opinion. (Ex. AA.)

         Considering the state court denied this claim on the merits, the Court must give the state court's finding double deference so that the question for this Court becomes whether “there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105. Here, a reasonable argument exists that counsel satisfied Strickland's deferential standard and, therefore, that the state court's rejection of Petitioner's argument and application of Strickland was not objectively unreasonable.

         As discussed above, to prevail on this claim based on ineffectiveness of counsel, Petitioner must show (1) that his counsel's performance was below an objective and reasonable professional norm, and (2) that Petitioner was prejudiced by this inadequacy. Strickland, 466 U.S. at 686. The Court may dispose of the claim if Petitioner fails to carry his burden of proof on either the performance or the prejudice prong. Id. at 697.

         With regard to the performance prong, Petitioner has failed to show that counsel's conduct was below an objective and reasonable professional norm in not objecting to the jury instructions. To meet this standard, Petitioner must show that “no competent counsel would have taken the action that his counsel did take.” Grayson, 257 F.3d at 1216.

         Although Petitioner makes the conclusory argument that such a strategy was unreasonable because it was based on a misunderstanding of the law, he has failed to show that his counsel acted unreasonably or that no other competent counsel would have decided not to object to these instructions. It was a reasonable strategy to argue in closing argument that the State failed to prove its case, particularly where the actual possession and constructive possession were defined in the jury instructions and particularly where Petitioner did not object to the jury instructions at trial. Trial counsel testified credibly to this at the evidentiary hearing, and the record reflects his testimony. (Ex D. at 196-200; Ex. E at 201-5; Ex. T at 813-14, 817-28.) Accordingly, counsel's performance was not deficient. See Strickland, 466 U.S. at 681 (“Because advocacy is an art and not a science, and because the adversary system requires deference to counsel's informed decisions, strategic choices must be respected . . . if they are based on professional judgment.”).

         With regard to the prejudice prong, Petitioner has failed to show that he was prejudiced by his counsel's conduct. To show prejudice, a defendant must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability is defined as a probability sufficient to undermine confidence in the outcome.” Id. at 693. Although Petitioner argues that the omitted jury instructions resulted in lessening the State's burden in proving its case, and constituted fundamental error, such a conclusory allegation fails to actually prove prejudice.

         To grant habeas relief, the Court must find that the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). Because Petitioner has failed to prove either prong of the Strickland test, nothing Petitioner has presented demonstrates that the state court's rejection of this ineffective assistance claim was “so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement.” Burt, 134 S.Ct. at 12 (quoting Harrington, 131 S.Ct. at 787). The Court therefore concludes that there is a reasonable argument that his counsel satisfied Strickland's deferential standard, so Petitioner is not entitled to federal habeas relief on ground one.

         Ground Two: Petitioner's counsel was not ineffective for failing to move to suppress the custodial interrogation that was allegedly obtained in violation of Petitioner's constitutional rights.

         Petitioner contends that his trial counsel was also ineffective for failing to move to suppress his testimony acquired through a custodial interrogation, which occurred when Petitioner was detained at his residence while waiting for the investigator to arrive. Petitioner says this interrogation was used to compel Petitioner to provide incriminating information about himself. Consequently, Petitioner argues, the testimony should have been suppressed as “fruits of the poisonous tree” doctrine after the court determined that there was an illegal entry and search. (ECF No. 1 at 9-10.)

         On post-conviction review, the state court also held an evidentiary hearing with regard to this claim. Mr. Steven Tector, a deputy with the Walton County Sheriff's Office; Mr. Jason McKinney, Petitioner's trial counsel; and Ms. Patricia Wallens, an individual Petitioner called the night of the search, testified at the evidentiary hearing. Specifically, Petitioner's trial counsel stated that he investigated the circumstances surrounding the statements Petitioner made to law enforcement, including discussing them with Petitioner, deposing officers, and reviewing the records provided in discovery. Petitioner's trial counsel stated that he filed a motion to suppress related to the protective sweep because it would have made it very difficult for the State to prove anything if that evidence were suppressed. After the hearing on the motion to suppress, Petitioner's counsel found no good faith basis for filing a separate motion related to the custodial interrogation. (Ex. R at 503-04.)

         In rejecting the claim, the state court stated,

After considering the testimony and exhibits presented at the evidentiary hearing, the Court concludes that the defendant has failed to demonstrate an entitlement to relief. The Court finds Mr. Jason McKinney's testimony to be credible. The testimony reflects that the defendant's trial counsel made a strategic decision not to file a motion to suppress regarding the defendant's “custodial interrogation.” Instead, Mr. Jason McKinney filed a motion to suppress regarding the protective sweep, which if granted in its entirety would have resulted in all of the seized evidence being suppressed. Although the trial court held that the protect sweep was illegal, such a ruling did not result in all of the evidence being suppressed because the trial court also held that sufficient evidence existed for a search warrant. The testimony also reflects that Mr. Jason McKinney had discussions with the defendant regarding the motion to suppress that was filed and that the defendant was present during the motion to suppress hearing. The Court will not second guess a strategic decision by counsel merely because the defendant now wishes counsel had used a different strategy. Therefore, the instant claim is denied.

(Ex. R at 504-05) (footnotes omitted). The First DCA per curiam affirmed without opinion. (Ex. AA.)

         Petitioner's conclusory allegations that the strategy was based on a failure to understand the law and that the testimony regarding the substance of the conversation with the investigator violated Petitioner's Fourth and Fifth Amendment rights, and thus should have been suppressed, fails to show that counsel's performance ...


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