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Blackmon v. Secretary, Dept. of Corrections

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

January 31, 2018

GREGORY LAMAR BLACKMON, Petitioner,
v.
SECRETARY, DEPT. OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

         Petitioner initiated this case by filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, ECF No. 1. He is proceeding pursuant to an Amended Petition, ECF No. 6. The Court previously denied Respondent's motion to dismiss the case as time-barred, ECF No. 25, and this case is now before the Court on Respondent's response to the merits of the Petition, ECF No. 27. Petitioner has filed a reply, ECF No. 29, and therefore this matter is ripe for determination. Upon due consideration of the Petition, the response, the state-court record, and the reply, the undersigned recommends that the Petition be denied.[1]

         I. State-Court Proceedings

         Petitioner was charged with armed robbery with a firearm. Petitioner was tried jointly with his co-defendant, Jermaine Earl. Both defendants were represented by the same defense attorney, John Eagen. The case was tried with separate jury panels for each defendant. At the conclusion of jury selection, the trial court denied Petitioner's attempt to use a peremptory challenge to strike one of his prospective jurors, Robert Chamberlain. ECF No. 20-2 at 61.

         The evidence adduced at trial may be summarized as follows. Michael Moore, a manager of Sonny's BBQ restaurant on Monroe Street in Tallahassee, testified that after he closed the restaurant on August 14, 2009, he was entering his car when he was approached by three men. Moore could ascertain that two of the men were black and one was white, although they had concealed their faces. The men forced him out of his car at gunpoint and tied his hands. Moore unlocked the restaurant and turned off the alarm. He gave the men the money from the safe, which contained between $3, 000-$4, 000. The men then “hog-tied” Moore with wire and left. A surveillance video camera recorded the incident, and the video was played for the jury. Moore freed himself and called 911. ECF No. 20-2 at 115-57.

         The subsequent investigation and search for suspects included a dog-tracking search that led officers from the restaurant through some woods to the Cabot Lodge. Although latent prints were recovered from the scene, no evidence regarding the identity of the prints was offered. Id. at 158-89, 214-21.

         Tallahassee Police Department (TPD) Investigator Vincent Boccio testified that several weeks after the robbery he was informed that Michael Chester was in custody and had information about the Sonny's robbery. Boccio interviewed Chester, who admitted that he participated in the robbery along with Charles Green, Jermaine Earl, and Petitioner. Green and Earl appear on the Sonny's surveillance video. The police recovered Petitioner's cell phone in a subsequent search of his residence. Id. at 189-204.

         TPD Investigator Scott Cherry testified that a search of Earl's residence yielded clothing consistent with what is seen on the surveillance video as well as two cell phones. A firearm was found in a vehicle parked in front of Earl's residence. Cherry subsequently interviewed Petitioner after Petitioner waived his Miranda rights. Petitioner identified the cell phone found in his residence and stated that he almost never lets anyone else use it. Id. at 221-54.

         Officer Christopher Corbitt, an expert on cell phone tracking, reviewed cell phone records obtained from Earl's and Petitioner's carriers, and discussed the location of cell phone towers with respect to determining where a phone is located when a call is made. He testified that Earl's phone was used to talk to Petitioner's phone during the time period of the robbery, and that based on tower location it was his opinion that the phones could have been in proximity to the Sonny's on North Monroe Street during the robbery. It was extremely unlikely that Petitioner's phone would have used the cellular towers near Sonny's if Petitioner was at his home. Id. at 255-79.

         Michael Chester, the white perpetrator by the victim, testified that he participated in the Sonny's robbery. He testified that at the time of the trial he was in the Leon County Jail on pending criminal charges. Prior to the robbery, Petitioner told Chester that he was planning to rob the restaurant. Chester, Green and Earl went to Sonny's to “case it out.” On the night of the robbery, Chester, Petitioner, Earl, Green and another man met at Earl's apartment. The unidentified man either worked at Sonny's or used to work there, and described the layout of the restaurant. Petitioner and Earl provided the firearms. Chester, Earl, and Green covered their faces and left for Sonny's in a gold Monte Carlo. Petitioner and the “other dude” left in a red Expedition. Chester testified that Petitioner's role was as lookout - “he would drive up and down . . . North Monroe, look out, tell us when the police - if he saw any police cars and stuff.” Chester and the men in the Monte Carlo would execute the robbery. Following the robbery, Chester, Green, and Earl hid in the woods. Earl called Petitioner and Petitioner confirmed that he was still driving and acting as lookout. While the men in the Monte Carlo were returning to Earl's apartment, Earl called Petitioner again on his cell phone. The men all met back at Earl's residence and divided the money. Each person, including Petitioner, received $500 or $600. Chester testified that he accepted responsibility for his involvement in the robbery. On cross-examination, Chester testified that he had not yet entered a plea, but believed his cooperation would result in some leniency. On redirect, Chester testified that he had been truthful with the State and truthful during the trial. Id. at 292-331.

         Petitioner was found guilty as charged and sentenced as a prison releasee reoffender (PRR) to life imprisonment. Petitioner appealed, arguing that the trial court erred in denying his peremptory challenge to juror Chamberlain and that his PRR sentence enhancement should have been charged in the indictment. ECF No. 20-3 at 152. The First DCA affirmed, per curiam, without written opinion. ECF No. 20-3 at 238.

         Petitioner filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of appellate counsel. Petitioner argued that counsel should have raised the following additional claims on direct appeal: the trial court erred in overruling a hearsay objection; his trial counsel should have stricken two additional jurors for cause; and the trial court erred by failing to advise Petitioner of the adverse consequences of joint representation. ECF No. 20-3 at 242-67. The First DCA denied the petition on the merits. Id. at 339.

         Petitioner then sought postconviction relief pursuant to Fla. R. Crim. P. 3.850. In an amended motion filed through counsel, Petitioner raised five claims of ineffective assistance of trial counsel. ECF No. 20-4 at 24-56. Following an evidentiary hearing, at which Petitioner was represented by counsel, the trial court denied relief on each of Petitioner's claims. ECF No. 20-4 at 179-87.

         Petitioner then filed the instant federal habeas petition. Petitioner asserts the following claims: (1) the trial court erred in failing to allow Eagen to strike juror Chamberlain; (2) appellate counsel was ineffective for failing to appeal a hearsay issue and for failing to appeal the trial court's failure to advise of the adverse consequences of joint representation; (3) trial counsel was ineffective for failing to impeach Chester, failing to object to the State's closing argument, failing to request an accomplice instruction, failing to impeach Cherry, and failing to present alibi testimony; (4) Petitioner's collateral counsel was ineffective for failing to appeal all 3.850 claims; and (5) cumulative error.

         II. 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) (quotation omitted).

         When a petitioner fails to properly exhaust a federal claim in state court, and it is obvious that the unexhausted claim would now be procedurally barred under state law, the claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). Federal habeas courts are precluded from reviewing the merits of procedurally defaulted claims unless the petitioner can show either (1) cause for the failure to properly present the claim and actual prejudice from the default, or (2) that a fundamental miscarriage of justice would result if the claim were not considered. Id. at 1302, 1306. A fundamental miscarriage of justice exists “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). To state a credible claim of actual innocence, a petitioner must present new reliable evidence that was not presented at trial showing that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

         III. Section 2254 Standard of Review

         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), “a determination of a factual issue made by a State court shall be presumed to be correct, ” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” “‘[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, ___ U.S. ___, 134 S.Ct. 10, 15 (2013)(quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841(2010)).

         As to legal findings, 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); see Burt, 134 S.Ct. at 15 (standard for reviewing claims of legal error by state courts is “highly deferential”). This standard “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Id. This highly deferential standard carries special force in habeas cases asserting ineffective assistance claims: “Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland[2]-a claim state courts have now adjudicated in countless criminal cases for nearly 30 years-‘there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.'” Id. (quoting Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037 (1976)).

         In view of the deference afforded to the state courts' adjudication of constitutional claims, “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires ‘a state prisoner [to] 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 . . . beyond any possibility for fairminded disagreement.'” Id. at 15-16 (quoting Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786-787 (2011). “‘If this standard is difficult to meet'-and it is-‘that is because it was meant to be.'” Id. at 16 (quoting Harrington, 131 S.Ct. at 786). “We will not lightly conclude that a State's criminal justice system has experienced the ‘extreme malfunction' for which federal habeas relief is the remedy.” Id. (quoting Harrington, 131 S.Ct. at 786).

         IV. Discussion

         A. Trial Court's Denial of Peremptory Challenge

         Petitioner, who is black, contends that his constitutional rights were violated when the trial court denied Eagen's attempt to exercise a peremptory strike as to juror Chamberlain. ECF No. 6 at 5.

         The trial record reflects that when Eagen attempted to strike Chamberlain, who is white, the State asked for a race-neutral reason. Eagen, who is visually impaired, responded that Petitioner and Eagen's assistant felt that Chamberlain's “demeanor” would favor the State and therefore created doubt as to his impartiality. Eagen stated that the defense felt Chamberlain was “more responsive” to the State than some of the other potential jurors. Eagen's assistant informed him that Chamberlain had fallen asleep while Eagen was speaking, whereas Chamberlain had stated that he was “listening intently” when the prosecutor asked him a question during voir dire. The court stated that he had not observed Chamberlain sleeping, and no one had brought it to his attention. The court concluded that the record did not support a peremptory strike of Chamberlain because Eagen's objections to Chamberlain were too vague and general. In the court's view, “all the jurors were fairly equally responsive” to Eagen's voir dire. ECF No. 20-2 at 57-61.

         Respondent concedes that Petitioner exhausted this claim in state court in his direct appeal, and that the claim was denied on the merits. ECF No. 27 at 17. Respondent argues that the state court's denial of this claim was not contrary to, or an unreasonable application of, federal law. Id.

         This Court's scope of review in habeas corpus cases is limited to violations of federal constitutional law. “Neither federal nor state defendants enjoy any right under the Federal Constitution to peremptory challenges.” United States v. Williams, 731 F.3d 1222, 1235 (11th Cir. 2013) (citing Rivera v. Illinois, 556 U.S. 148, 157-58 (2009)). In Rivera, the Supreme Court held that a state court's erroneous denial of a peremptory strike did not amount to a deprivation of a defendant's Fourteenth Amendment due process right and was thus subject to harmless error review. Rivera, 556 U.S. at 152. Rivera, as with this case, concerned a “reverse-Batson[ 3]” claim in which a Hispanic defendant used a peremptory strike to remove a black female prospective juror. Because the defendant had already used two strikes to remove women, including a black woman, the trial court sua sponte raised Batson and required the defense to offer a race- or gender-neutral explanation for the strike. The trial court ultimately rejected the defense's proffered reasons and the juror sat as the jury's foreperson. Following the defendant's conviction, the state supreme court affirmed. The court found that although the trial court erred in sua sponte raising Batson because the record did not support a prima facie case of discrimination, such error was harmless beyond a reasonable doubt, in light of the overwhelming evidence of guilt presented at trial. Id. The U.S. Supreme Court affirmed, holding that “there is no freestanding constitutional right to peremptory challenges, ” and therefore “the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.” Id. at 157. Because the challenged juror was not removable for cause, the defendant's jury “was impartial for Sixth Amendment purposes.” Id. at 159.

         In this case, the Court concludes that the record presents no ground for habeas relief on this claim. First, Petitioner has not shown that the state court misapplied Batson in finding that the record did not support defense counsel's proffered reasons for exercising a ...


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