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Simmons v. Secretary of Florida Department of Corrections

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

February 20, 2018




         I. Status

         Petitioner, an inmate of the Florida penal system, initiated this case by filing a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). He subsequently obtained counsel and is currently proceeding on a Second Amended Petition (Doc. 22) that includes a supporting Memorandum of Law and Fact (Doc. 22-1). Petitioner challenges his 2007 state court (Duval County) judgment of conviction for first degree murder, for which he is serving life imprisonment. Respondents filed an Answer (Doc. 28) including exhibits (Ex.). Petitioner, through counsel, filed a Reply (Doc. 31). The case is ripe for review.[1]

         II. Governing Legal Principles

         A. Standard of Review

         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief 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, ” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” id. § 2254(d)(2). A state court's factual findings are presumed correct unless rebutted by clear and convincing evidence.[] Id. § 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).
AEDPA “imposes a highly deferential standard for evaluating state court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted). “It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. [at 102] (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12');">540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations modified).

         “[A] federal court reviewing the judgment of a state court must first identify the last adjudication on the merits. It does not matter whether that adjudication provided a reasoned opinion because section 2254(d) ‘refers only to a decision' and does not ‘requir[e] a statement of reasons.'” Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (quoting Richter, 562 U.S. at 98), cert. granted, 137 S.Ct. 1203 (2017). 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.” Richter, 562 U.S. at 99 (citation omitted). When the last adjudication on the merits “‘is unaccompanied by an explanation, ' a petitioner's burden under section 2254(d) is to ‘show[] there was no reasonable basis for the state court to deny relief.'” Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S. at 98). “‘[A] habeas court must determine what arguments or theories supported or . . . 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.'” Id. (quoting Richter, 562 U.S. at 102).

When the reasoning of the state trial court was reasonable, there is necessarily at least one reasonable basis on which the state supreme court could have denied relief and our inquiry ends. In this way, federal courts can use previous opinions as evidence that the relevant state court decision under review is reasonable. But the relevant state court decision for federal habeas review remains the last adjudication on the merits, and federal courts are not limited to assessing the reasoning of the lower court.

Id. at 1239.[2]

         B. Exhaustion and Procedural Default

         There are prerequisites to federal habeas review. Before filing a habeas petition in federal court, a petitioner must exhaust all available state court remedies. To exhaust state remedies, the petitioner must “fairly present[]” each issue raised in his federal petition to the state's highest court. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). This means that a “state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Raleigh v. Sec'y, Fla. Dep't of Corr., 827 F.3d 938, 956 (11th Cir. 2016), cert. denied, Raleigh v. Jones, 137 S.Ct. 2160 (2017) (“The petitioner must have presented the claim in a manner that affords the State a full and fair opportunity to address and resolve the claim on the merits.” (quotations and citation omitted)). It is not “sufficient merely that the federal habeas petitioner has been through the state courts, nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state-law claim was made.” Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015). Rather, “[t]he crux of the exhaustion requirement is simply that the petitioner must have put the state court on notice that he intended to raise a federal claim.” Id.

         Failure to exhaust results in a procedural default which raises a potential bar to federal habeas review. “A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show ‘cause' to excuse his failure to comply with the state procedural rule and ‘actual prejudice resulting from the alleged constitutional violation.'” Davila v. Davis, 137 S.Ct. 2058, 2064-65 (2017) (citing Wainwright v. Sykes, 433 U.S. 72, 84 (1977); Coleman v. Thompson, 501 U.S. 722, 750 (1991)). To show cause for a procedural default, “the petitioner must demonstrate ‘some objective factor external to the defense' that impeded his effort to raise the claim properly in state court.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). “[T]o show prejudice, a petitioner must demonstrate that ‘the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness.'” Id. (quoting McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992) (per curiam)).

         A petitioner may also obtain review of a federal habeas claim that is procedurally defaulted if he can show that a fundamental miscarriage of justice has occurred; meaning that a “constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Murray, 477 U.S. at 496. Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must “show that it is more likely than not that no reasonable juror would have convicted him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). “To be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).

         C. Ineffective Assistance of Counsel

         “The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person challenging a conviction must show that “counsel's representation fell below an objective standard of reasonableness.” [Strickland, ] 466 U.S. at 688. A court considering a claim of ineffective assistance must apply a “strong presumption” that counsel's representation was within the “wide range” of reasonable professional assistance. Id. at 689. The challenger's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. at 687.[]
With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687.

Richter, 562 U.S. at 104; Marshall, 828 F.3d at 1284 (recognizing that to proceed on a claim of ineffective assistance of trial counsel, “the petitioner has to show both that his counsel's performance was deficient and that that deficient performance was prejudicial-that is, that there is a ‘reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” (quoting Strickland, 466 U.S. at 687, 694)). Since both prongs of the two-part Strickland “test must be satisfied to show a Sixth Amendment violation, a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010) (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).

         “‘The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.'” Marshall, 828 F.3d at 1285 (quoting Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016)).

“The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is “any reasonable argument that counsel satisfied Strickland's deferential standard, ” then a federal court may not disturb a state-court decision denying the claim. Richter, 562 U.S. at 86.

Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014).

         III. Analysis

         A. Ground 1(A)

         Petitioner argues that his trial “counsel was ineffective for failing to investigate and properly argue against the false evidence in the affidavit for the search warrant and in conceding to the facts in the search warrant.” Second Amended Petition at 6 (capitalization and emphasis omitted). Respondents contend that this claim is procedurally barred, and this Court agrees.

         Petitioner did not present this claim in his initial Rule 3.850 motion as an ineffectiveness claim; rather, he presented it as a trial court error claim. Ex. I at 3-7. Before the state court ruled on the motion, Petitioner filed a motion for leave to amend recognizing “that he inadvertently included claims of trial court errors that are not cognizable under Rule 3.850” and he requested leave “to add additional claims related to the ineffectiveness of trial counsel.” Id. at 24. The court granted his request, id. at 27-28, and he filed an amended Rule 3.850 motion raising two ineffective assistance of trial counsel claims-neither of which related to the search warrant affidavit or the motion to suppress. Id. at 29-33. After holding an evidentiary hearing on one of Petitioner's claims, the postconviction court entered an order acknowledging that the trial court error claim regarding the search warrant affidavit was not cognizable in a Rule 3.850 proceeding. Id. at 52-53.

         Petitioner appealed, and raised one issue: “Trial court abused it's [sic] discretion when it denied Defendant's motion, and multiple oral request[s ] for appointment of 3.850 counsel.” Ex. J. at 4 (some capitalization omitted). Petitioner's substantive argument focused on the postconviction court's denial of his requests for counsel. See i d. at 4-8. The state responded on the merits, arguing that the postconviction court did not abuse its discretion in denying Petitioner's requests for counsel. Ex. K. The First District Court of Appeal (DCA) entered a per curiam affirmance without issuing a written opinion, Ex. L, and subsequently denied Petitioner's motion for rehearing, Ex. O.

         Petitioner filed a second or successive Rule 3.850 motion, in which he argued that his counsel was ineffective for conceding at the suppression hearing that only the killer and law enforcement would have known that the victim had been covered in household cleaner. Ex. P. The postconviction court found the motion to be untimely filed, but then denied the claim on the merits. Ex. Q.

Even if Defendant filed the instant Motion within two years of his judgment and sentence becoming final, his claim would fail. In his original Motion for Postconviction Relief, Defendant included a ground contending the detective investigating the crime “entered false statements in his affidavit for the search warrant.” The Court dismissed this ground because it was not cognizable in a rule 3.850 motion. Defendant now raises the same issue as one of ineffective assistance of counsel.
Defendant asserts counsel was ineffective for conceding to an integral fact at the Motion to Suppress hearing held on June 4, 2007. According to Defendant, the search warrant was based on a detective's “material false statement” that the victim's body smelled as if it had been washed with a household cleaner.[] Defendant contends the detective included that fact only to corroborate Linette Resto's statement to the police and when counsel conceded to that statement he “disadvocated the Defendant's cause.” Resto, Defendant's former girlfriend, testified at trial that Defendant told her he “slit [the victim's] throat, and that he cut out eyeballs and that he moved her body and he poured Clorox and Pinesol on her.” Detective Warkentien testified the fact that the victim's clothes smelled like Pinesol was not made public.
At the suppression hearing, counsel told the Court the affidavit for the search warrant contained information that Resto “knew . . . the victim was covered with household cleaner.” Counsel went on to say, “the only fact that [Resto] reported which was unknown to the general public was the household cleaner. And I agree with that because we have not been able to find anybody else who knew that.”[]
It was reasonable for counsel to concede to the fact that no one else knew the victim's clothes smelled like household cleaner when the detectives did not make this fact public and when Resto expressed knowledge of that fact. See Strickland, 466 U.S. at 689 (finding strong presumption counsel's performance “falls within the wide range of reasonable professional assistance”). Here, Defendant merely speculates that because “no one who came in contact with the victim while she was still alive, or deceased, mentioned that the victim smelled of a cleaning solution[, ]” then these individuals did not detect the odor of household cleaner. Defendant's Motion lacks specific examples, necessary detail, or appropriate supporting documentation. See id. at 690 (explaining ineffective assistance claim must identify with specificity acts or omissions defendant alleges to be outside range of professional conduct). So, even if the Court finds-and it does not-counsel acted unreasonably, Defendant does not show how this prejudiced the outcome of the proceedings.

Id. at 2-4 (footnote and citations omitted). The court also recognized that counsel argued at the suppression hearing “that relying on Resto's comment was not enough to find probable cause, ” because the search warrant affidavit failed to contain any information “‘about her credibility, so the credibility determination would have to be made entirely on'” the fact regarding the household cleaner. Id. at 3 n.1 (quoting Ex. A at 142). The court's order specifically advised Petitioner that he had thirty days to file a notice of appeal, but he did not do so. Id. at 4.

         Because Petitioner did not raise this claim in his initial Rule 3.850 proceeding and he did not file an appeal in his second Rule 3.850 proceeding, [3] he failed to “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845. He cannot now return to state court and properly exhaust this claim; thus, the claim is procedurally barred on federal habeas review.

         Petitioner argues that Martinez v. Ryan, 566 U.S. 1 (2012), excuses the procedural bar and permits this Court to hear the claim on the merits.

In Martinez, the U.S. Supreme Court enunciated a narrow exception to the general rule that the lack of an attorney or attorney error in state post-conviction proceedings does not establish cause to excuse the procedural default of a substantive claim. The Supreme Court, however, set strict parameters on the application of this exception. It applies only where (1) state law requires a prisoner to raise ineffective-trial-counsel claims during an initial collateral proceeding and precludes those claims during direct appeal; (2) the prisoner failed to properly raise ineffective-trial-counsel claims during the initial collateral proceeding; (3) the prisoner either did not have counsel or his counsel was ineffective during those initial state collateral proceedings; and (4) failing to excuse the prisoner's procedural default would result in the loss of a “substantial” ineffective-trial-counsel claim.

Lambrix v. Sec'y, Fla. Dep't of Corr., 851 F.3d 1158, 1164 (11th Cir. 2017), cert. denied, 138 S.Ct. 217 (2017) (citations omitted); see Luciano v. Sec'y, Dep't of Corr., 701 F. App'x 792, 793 (11th Cir. 2017); Sullivan v. Sec'y, Fla. Dep't of Corr., 837 F.3d 1195, 1201 (11th Cir. 2016). The Supreme Court expressly limited its holding:

The rule of Coleman governs in all but the limited circumstances recognized here. The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts. It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons.

Martinez, 566 U.S. at 16.

         Assuming Martinez applies, the Court finds that Petitioner has failed to show this is a “substantial” claim, because as explained below, the claim is without merit.[4]

         In the Second Amended Petition, Petitioner argues that counsel was ineffective for conceding at the suppression hearing that Ms. Resto (the witness on whose statement the search warrant affidavit was based) knew about a fact (the victim was covered in household cleaner) that only the killer and law enforcement would have known, and for failing “to argue that several relevant facts were omitted from the affidavit and several facts contained within the affidavit were misstatements.”[5] Second Amended Petition at 9-10.

         Before trial, Petitioner's counsel filed a motion to suppress the DNA swabs and resulting DNA evidence. Ex. A at 37-39. He argued:

1. On March 23, 2006, Quentin Simmons was transported from the jail to the Homicide section of the Police Memorial Building where he was interviewed by Detectives Warkent[ie]n, Durfee and Dingee about a homicide that had occurred on March 7, 2005. At the time of this interview Mr. Simmons was in jail on an unrelated charge.
2. During the interview Mr. Simmons denied being involved in the homicide and denied telling his girlfriend, Linette Resto, anything about the murder.
3. After talking for a while Mr. Simmons invoked his right to remain silent and also refused to give his consent to cheek swabs for DNA.
4. Detective Warkent[ie]n then held Mr. Simmons in the interview room while he prepared an Affidavit for Search Warrant and presented the Affidavit to Honorable Hugh A. ...

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