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Bunion v. Secretary, Department of Corrections

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

February 27, 2018

JERRY LEE BUNION, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          Charlene Edwards Honeywell ' United States District Judge.

         Petitioner, a Florida prisoner, initiated this action for habeas corpus relief pursuant to 28 U.S.C. Section 2254 (Dkt. 1). Upon consideration of the petition, the Court ordered Respondent to show cause why the relief sought in the petition should not be granted (Dkt. 5). Thereafter, Respondent filed a response (Dkt. 6) and a supplemental response (Dkt. 10) to the petition in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts. Although afforded the opportunity (see Dkts. 5, 9), Petitioner did not file a reply to either the response or supplemental response.

         Petitioner alleges three claims in his petition:

1. “Trial counsel was ineffective for failing to raise viable strategy of defense;”
2. “Trial counsel was ineffective for failing to have Petitioner tested for the disease trichomoniasis;” and
3. “Trial court abused its discrection [sic] by allowing the prosecutor to improperly asked [sic] Petitioner to comment on the credibility of previous witnesses during cross examination.”

         I. PROCEDURAL HISTORY

         Petitioner was convicted of trespass in a structure with a human being inside and sexual battery (Respondent's Ex. 1, Vol. V, pp. 829-30). He was sentenced to 364 days on the trespass conviction, and 30 years on the sexual battery conviction (Id., pp. 837-46). The convictions and sentences were affirmed on appeal (Respondent's Ex. 5).

         Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, alleging ineffective assistance of trial counsel (Respondent's Exs. 7, 9). The motion was denied after an evidentiary hearing (Respondent's Exs. 11, 12). The denial of the motion was affirmed on appeal (Respondent's Ex. 15).

         Petitioner thereafter filed his federal habeas petition in this Court (Dkt. 1).

         II. GOVERNING LEGAL PRINCIPLES

         Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential standard of review of state habeas judgments, ” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to “prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

         A. Standard of Review Under the AEDPA

         Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) 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; or
(2) 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.

28 U.S.C. § 2254(d). The phrase “clearly established Federal law, ” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

         “[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to' and ‘unreasonable application' clauses articulate independent considerations a federal court must consider.” Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the “contrary to” clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme 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 ...

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