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Sciammetta v. Secretary, Dept. of Corrections

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

February 21, 2018

FRANK SCIAMMETTA, Petitioner,
v.
SECRETARY, 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.) He then filed an amended petition, which stems from his Leon County conviction for burglary of a dwelling and robbery with a firearm. (ECF No. 4.) Respondent has filed a motion to dismiss and appendix with relevant portions of the state-court record, arguing that the Petition should be dismissed because Petitioner's claims are unexhausted and procedurally defaulted. (ECF No. 20.) Petitioner filed a response, (ECF No. 27), and the motion is therefore ripe for review. Upon due consideration, the undersigned recommends that the motion to dismiss should be granted and the Petition should be dismissed.[1]

         I. Summary of State Court Proceedings

         Petitioner was charged by information in May 2009 with one count of burglary of a dwelling with possession of a firearm and two counts of robbery with possession of a firearm. (ECF No. 20-1 at 16.) Petitioner proceed to trial and was convicted on all counts on February 8, 2011. (Id. at 96-101, 104-13.) He was thereafter sentenced on March 30, 2011, to concurrent ten-year minimum mandatory terms of imprisonment on each count, with credit for 703-days time-served, to be followed by five years probation. (Id. at 104-13, 127-48.)

         Petitioner appealed to the First DCA on April 14, 2011, arguing that (1) the trial court erred in allowing the officer to testify that he believed the state's witnesses, and (2) the trial court erred in allowing the state to cross-examine Petitioner about his possession of marijuana-a crime of which he was not convicted-when he was later arrested. (Id. at 120-21; ECF No. 20-2 at 298-340.) The First DCA per curiam affirmed Petitioner's conviction and sentence without written opinion on September 6, 2012, and the mandate followed on October 2, 2012. (ECF No. 20-3 at 27-28.)

         Petitioner then filed a pro se petition for writ of habeas corpus in the First DCA on December 18, 2012, alleging that appellate counsel rendered ineffective assistance for failing to argue on appeal that the trial court abused its discretion in: (1) not holding a complete plea hearing; (2) allowing the state to bolster its witnesses' testimony over defense counsel's objection; (3) not granting a new trial due to prosecutorial misconduct; and (4) overruling defense counsel's objection to Officer Boccio's testimony based on flawed interpretation of the law. (Id. at 31-68.). The First DCA per curiam denied the petition on the merits on January 17, 2013. (Id. at 71.)

         Next, Petitioner filed a Rule 3.850 motion for postconviction relief on April 26, 2013. (Id. at 76-103.) The circuit court struck two grounds, however, as facially insufficient on July 1, 2013, with leave to amend. (Id. at 108.) Accordingly, Petitioner filed an amended motion for postconviction relief on August 5, 2013. (Id. at 110-39.) The amended motion for postconviction relief presented six grounds of ineffective assistance of trial counsel: (1) failure to advise Petitioner that he was subject to minimum mandatory sentences, which caused him to reject a favorable plea offer; (2) failure to call, interview, or present Cory Blank as a witness at trial; (3) failure to depose the victim and the state's witnesses, which prevented trial counsel from obtaining impeachment evidence to refute the state's theory; (4) failure to adequately prepare Petitioner to testify, which resulted in prejudicial subsequent bad acts evidence being introduced at trial, and failure to move to preclude this evidence from being introduced at trial; (5) failure to investigate witnesses; and (6) failure to lay the proper foundation to admit an enhanced 911 call at trial. (Id.) Following an evidentiary hearing, the circuit court denied Petitioner's amended motion for postconviction relief on December 19, 2014. (Id. at 162-67.)

         Petitioner initiated an appeal to the First DCA. (ECF No. 20-5 at 78-122.) On March 15, 2016, however, the First DCA per curiam affirmed without written opinion. (ECF No. 20-6 at 52.) The mandate followed on April 12, 2016. (Id. at 53.)

         In the meantime, in May 2015, Petitioner filed various motions in the circuit court, including a motion for leave to file a second amended motion for postconviction relief, his proposed second amended motion for postconviction relief, and a motion for leave to reopen the postconviction proceedings (Id. at 57-78.) The trial court denied the motions on May 11, 2016, including the second amended motion for postconviction relief as successive. (Id. at 104-107.) The First DCA then per curiam affirmed without written opinion on October 24, 2016, and the mandate followed on November 21, 2016. (Id. at 149, 169-70.)

         While his appeal was pending in the First DCA, Petitioner filed his original Petition in this Court on June 30, 2016. (ECF No. 1.)

         II. Section 2254 Standard of Review

         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 postconviction 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); see Castille v. Peoples, 489 U.S. 346, 351 (1989) (to exhaust state remedies, a petition must fairly present each issue to the state's highest court).

         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.

         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); see also § 2254(e)(1).

         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). “[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) (citations omitted) (“The decisions of other federal circuit courts (and our decisions for that matter) are helpful to the AEDPA inquiry only to the extent that the decisions demonstrate that the Supreme Court's pre-existing, clearly established law compelled the circuit courts (and by implication would compel a state court) to decide in a definite way the case before them.”). See also Carey v. Musladin, 549 U.S. 70, 74-77 (2006) (§ 2254 refers to holdings, rather than dicta, of the Supreme Court, collecting circuit cases “[r]eflecting the lack of guidance from this Court, ” on the issue).

         The “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have independent meanings. Williams v. Taylor, 529 U.S. 362, 404-06 (2000); Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams, 529 U.S. at 362). “Under the ‘contrary to' clause, a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts. Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 412-13. “Avoiding these pitfalls [described in Williams v. Taylor ] does not require citation of our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002) (emphasis in original). Further, “whether a state court's decision was unreasonable must be assessed in light of the record the court had before it.” Holland v. Jackson, 542 U.S. 649, 652 (2004).

         In Gill, the Eleventh Circuit clarified how the federal habeas court should address the “unreasonable application of law” and the “unreasonable determination of facts” tests. The court acknowledged the well-settled principle that summary affirmances, such as the Florida First District Court of Appeal's in this case, are presumed adjudicated on the merits and warrant deference. 633 F.3d at 1288 (citing Harrington v. Richter, 526 U.S. 86 (2011), and Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002)). “A judicial decision and a judicial opinion are not the same thing, ” and the Supreme Court has confirmed that determining whether the state court unreasonably applied the law or unreasonably determined the facts requires only a decision, not an opinion. Id. at 1291 (citing Harrington, 131 S.Ct. at 784). Yet, the Supreme Court has never squarely addressed whether under the “unreasonable application” test a federal habeas court “looks exclusively to the objective reasonableness of the state court's ultimate conclusion or must also consider the method by which the state court arrives at its conclusion.” Id. at 1289 (quoting Neal v. Puckett, 286 F.3d 230, 244-45 (5th Cir. 2002) (summarizing the emerging circuit split)). The Eleventh Circuit concluded that district courts must apply the plain language of § 2254(d) and answer the “precise question” raised in a claim based on the state court's ultimate legal conclusion, and should not “evaluate or rely upon the correctness of the state court's process of reasoning.” Id. at 1291. In short, the court stated, “the statutory language focuses on the result, not on the reasoning that led to the result.” Id.

         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. Id. 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 decision was objectively unreasonable. Gill, 133 F.3d at 1290.

         To prevail on a constitutional claim of ineffective assistance of counsel, a defendant must demonstrate (1) that his counsel's performance was below an objective and reasonable professional norm, and (2) that he was prejudiced by this inadequacy. Strickland v. Washington, 466 U.S. 668, 686 (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 (quotation marks omitted). “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102.

         When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, 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 the other 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 relief be granted. Id.

         Even without the deference due under § 2254, the Strickland standard for judging the performance of counsel “is a most deferential one.” Id. at 788. 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 was denied on the merits in state court is found to merit relief in a federal habeas proceeding.

         III. Discussion

         A. Ground One: “The state court unreasonably applied clearly established federal precedent as determined by the United States Supreme Court in Chapman v. California[2] when the court per curiam affirmed ground one of Petitioner's state court direct appeal."

         Petitioner says that at trial, Officer Kelly testified for the state that one of the alleged victims was being honest when he told police that cannabis had been taken from him and that he had smoked cannabis earlier on the night of the incident. Trial counsel objected, but the trial court overruled the objection, finding that counsel had opened the door during cross-examination by asking the witness whether the victims could have lied.

         Petitioner, through appellate counsel, argued in ground one of his direct appeal that the trial court erred in allowing the officer to testify over counsel's objection that he believed the state's witnesses. Petitioner now argues that the First DCA unreasonably applied Chapman v. California, 386 U.S. 18 (1967), in affirming ground one on direct appeal per curium. Respondent argues that this claim is unexhausted and procedurally defaulted.

         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); O'Sullivan, 526 U.S. at 842 (“Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.”). To exhaust state court remedies, the petitioner must fairly present the federal claims to the state court in order to give the State the opportunity to pass upon and correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). Failure to exhaust state remedies may result in the claim being procedurally defaulted. Sullivan v. Wainwright, 695 F.2d 1306, 1310 (11th Cir. 1983).

         This claim is unexhausted because Petitioner did not present his claim as a federal claim in state court.[3] Although appellate counsel argued that the trial court committed reversible error in allowing the officer to testify that he believed the witnesses, the argument is devoid of any reference to Chapman, federal law, or Petitioner's constitutional rights. Instead, appellate counsel merely presented the argument as an issue of state law. Notably, because the First DCA per curiam affirmed without written opinion, nothing suggests that the First DCA ...


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