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Means v. Secretary, Dept. of Corrections

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

February 20, 2018



         This cause comes on for consideration upon the Magistrate Judge's Report and Recommendation dated December 26, 2017. (ECF. No. 25). The parties have been furnished a copy of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Petitioner has filed objections at ECF No. 27. This Court has made a de novo review based on those objections.

         Having considered the Report and Recommendation, and the timely filed objection, this Court has determined that the Report and Recommendation should be adopted. Petitioner asserted three grounds for habeas corpus relief: (1) the circumstantial evidence was insufficient to find him guilty and therefore the trial court erred in denying his motion for judgment of acquittal; (2) the trial court erred by giving a jury instruction on “principals;” and (3) trial counsel was ineffective for failing to inform the court of his mental health issues.

         This Court agrees with the Magistrate Judge that Grounds One and Two can be analyzed together, as Ground One explicitly concerns the sufficiency of the evidence, and Ground Two - as the Magistrate Judge found - restates petitioner's sufficiency-of-the-evidence argument. In short, with both Grounds One and Two, petitioner failed to exhaust all state court remedies that are available for challenging his conviction.

         This Court also agrees that Grounds One and Two are both procedurally defaulted for federal habeas corpus review because they were not exhausted. Exhaustion requires that prisoners give the State a “full and fair opportunity” to resolve a federal constitutional claim 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. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

         This Court finds that petitioner never provided the state with a “full and fair opportunity” to consider Grounds One and Two as federal constitutional claims. In petitioner's motions for post-conviction relief, with respect to Grounds One and Two, petitioner never cites to any federal cases, or Constitutional Amendments, and only mentions “Due Process” and “fair trial” in passing. ECF 17-3 at 224-28; 265-267. Additionally, in petitioner's amended motion for post-conviction relief, he once again only mentions “Due Process, ” and “fair trial” in passing, and only in reference to his state law claims. Id. at 341-43. The mere incantation of constitutional buzzwords, unaccompanied by any federal constitutional analysis, does not suffice to carry the burden of demonstrating fair presentment of a federal claim. Adelson v. Dipaola, 131 F.3d 259, 263 (1st Cir. 1997). In Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015), the Eleventh Circuit reviewed a habeas petition wherein the petitioner asserted that he fairly presented a federal claim in state court by referencing the Constitution, and using terms such as “sufficiency of the evidence, ” and “Due Process, ” in his briefs and motions. The Preston court opined that referencing a federal claim does not require the use of “magic words or talismanic phrases;” however, “simply referring” to sufficiency of the evidence, and Due process “is not a sufficient reference to a federal claim” Id. at 459. Additionally, in Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1352 (11th Cir. 2012) the Eleventh Circuit stated that “referring to a ‘constitutional right of confrontation of witnesses' is not a sufficient reference to a federal claim.” Further, the Supreme Court found in Baldwin, that a state prisoner does not "fairly present" a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim to find material - such as a lower court opinion in the case - that does so. Baldwin, at 32-33. Categorically, a petitioner's passing reference to constitutional buzzwords such as “sufficiency of the evidence, ” “Due Process, ” and “a constitutional right” is not a sufficient reference to a federal claim that would provide the state with a full and fair opportunity to adjudicate the federal claim. Therefore, petitioner must “do more than scatter some makeshift needles in the haystack of the state court record” to fairly present a federal claim. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005) (quotations and citations omitted). Accordingly, because petitioner failed to fairly present Grounds One and Two as federal questions, these claims are not exhausted and are procedurally barred from habeas corpus review.

         Moreover, even if petitioner had exhausted Grounds One and Two, his claims would still fail on the merits. The evidence against the petitioner that could lead a rational trier of fact to find petitioner guilty includes:

1. One of the suspects fleeing the burglary was wearing a black flat-billed baseball cap, while the other had on a yellow jacket or shirt, and a backpack. Officer Sweeting identified petitioner as the man wearing the black flat-billed baseball cap.
2. Officers searched a tan Buick not belonging to any residents. Inside the Buick, officers found a silver cell phone; the “wallpaper” of the cell phone was identified by Officers as the man in the baseball cap (petitioner).
3. The owner of the tan Buick was Tashieka Holmes (petitioner's sister).
4. Tyrese Kirksy was apprehended, and identified as the suspect in the yellow shirt with the backpack.
5. Officers recovered the black baseball cap, the yellow long-sleeved shirt, and the backpack with stolen items.
6. Petitioner was taken into custody and searched. In petitioner's possession was a set of Buick car keys - for the tan Buick.
7. Petitioner admitted to being with Tyrese Kirksy in the complex, and in the Buick.
8. Tyrese Kirksy's fingerprints were discovered on the cell phone's interior screen. Petitioner's fingerprints were discovered: on the cell phone's battery; the exterior driver's door ...

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