United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.
the court is an amended petition for writ of habeas corpus
filed under 28 U.S.C. § 2254. (Doc. 4). Respondent filed
an answer, providing relevant portions of the state court
record. (Docs. 19, 21). Petitioner replied. (Doc. 25). The
matter is referred to the undersigned Magistrate Judge for
report and recommendation pursuant to 28 U.S.C. § 636
and N.D. Fla. Loc. R. 72.2(B). After careful consideration,
the undersigned concludes that no evidentiary hearing is
required for the disposition of this matter. Rule 8(a) of the
Rules Governing Section 2254 Cases in the United States
District Courts. The undersigned further concludes that the
pleadings and attachments before the court show that
petitioner is not entitled to habeas relief.
AND PROCEDURAL HISTORY
early morning hours of July 25, 2009, the victim Misty Shelby
left the motel room she shared with her boyfriend, and
started walking to the Cutty Sark, a bar/liquor store. (Doc.
19, Ex. E, pp. 126-27). Shelby had been arguing with her
boyfriend, was intoxicated, and wanted to buy more cigarettes
and alcohol. (Id., pp. 127, 151). Shelby's
boyfriend walked part of the way with her, but she told him
to go back to the motel after they continued to argue.
(Id., p. 127). As Shelby walked alone, a black Dodge
pick-up truck passed her. (Id., p. 129). As it turns
out, petitioner was driving the truck. (Id.).
Shelby arrived at the parking lot of the liquor store, she
observed petitioner in his black pick-up truck parked at the
far end of the store. (Id., p. 129). Shelby tried
the door to the store, but it was locked. (Id., pp.
128, 130). The store closed at 3:00 a.m. (Id.).
Petitioner called Shelby over to his truck. (Id., p.
130). When Shelby approached, petitioner asked her if she
wanted a ride, but she said no. (Id., pp. 130-32).
As Shelby turned to walk away, petitioner opened the door of
his truck and struck Shelby with it, causing her to fall to
the ground. (Id.). Petitioner then got out of his
truck, grabbed Shelby by the hair, and pulled her into his
truck. (Id.). Shelby identified petitioner, in
court, as the man who pulled her into the truck.
(Id., p. 133).
could not get out of petitioner's truck because the door
was locked. (Id., pp. 133-34). Petitioner backed out
of the liquor store and drove toward Citrus Road.
(Id., p. 134). Shelby was afraid for her life.
(Id.). Shelby told petitioner to let her out, but
petitioner said he was taking her somewhere, “he's
got a place for us to go.” (Id., p. 135).
Petitioner flashed money in his left hand. (Id., p.
160). Shelby tried to get petitioner to drive to the motel
(because her boyfriend was there and “it was a way to
get out [of] the truck”), but petitioner refused.
(Id., p. 135). Shelby repeatedly begged petitioner
to let her out of the truck, but he refused. (Id.,
pp. 137-40). At one point Shelby tried to throw the truck
into park, but petitioner reached over,
“back-handed” her on the left side of her face,
and restored the gear to drive. (Id., pp. 138-39).
Shelby decided she had to get out of the truck even if it
meant jumping. (Id.). Shelby testified: “At
that point I reached over, I opened the door, I looked down
at the ground and all I could say is God help me, I'm
fixing to die. And he reached over and pushed me.”
(Id., p. 140). Petitioner pushed Shelby
“pretty hard” out of the moving vehicle while
simultaneously accelerating. (Id., pp. 140- 41).
Shelby bounced off the concrete and eventually gathered
herself. She saw homes nearby and started knocking on doors
screaming for help while also trying to hide from
petitioner's view. (Id., pp. 142-43).
Petitioner, in the meantime, drove his truck back and forth
along the road, revving the engine. (Id., pp.
142-43). Shelby eventually heard a voice calling to her from
across the road. (Id., pp. 143-44). Shelby crossed
and saw two men fishing near a lake. (Id., p. 144).
One of the men called 911, and an ambulance arrived.
(Id., pp. 145). Shelby was taken to a local
emergency room where she was treated for multiple abrasions
to the face, knees, left upper arm and right arm.
(Id., pp. 117-18). Shelby also had a broken nose.
(Id.). Shelby was later contacted by law enforcement
and shown a photo line-up. (Id., p. 145). She
identified petitioner out of the lineup as the perpetrator.
(Doc. 19, Ex. E, pp. 146-47 and Ex. F, pp. 206-207; Doc. 21,
Ex. B, pp. 255-56).
was charged in Escambia County Circuit Court No.
2009-CF-5361, with kidnapping to inflict bodily harm or to
terrorize the victim (Count 1) and felony battery with great
bodily harm, permanent disability or permanent disfigurement
(Count 2). (Doc. 19, Ex. A, p. 4). Petitioner's first trial
ended in a mistrial. (Doc. 19, Ex. A, p. 40; Doc. 21, Ex. D,
pp. 226-28). After a second jury trial on June 28, 2011,
petitioner was found guilty of both counts as charged. (Doc.
19, Ex. F, pp. 287-88 (reading of verdict); Doc. 19, Ex. A,
p. 144 (written verdict)). Petitioner was adjudicated guilty
and sentenced to consecutive terms of 30 years'
imprisonment for the kidnapping and 5 years' imprisonment
for the battery. (Doc. 19, Ex. A, pp. 183-90 (judgment and
sentence)). On June 7, 2013, the Florida First District Court
of Appeal (First DCA) affirmed the judgment per curiam
without opinion. Brown v. State, 114 So.3d 940 (Fla.
1st DCA 2013) (Table) (copy at Doc. 19, Ex. I).
August 28, 2014, petitioner filed a pro se motion
for postconviction relief under Florida Rule of Criminal
Procedure 3.850, which he twice amended. (Doc. 19, Ex. J, pp.
1-50, 59-110, 113-84). The state circuit court denied relief
without an evidentiary hearing. (Doc. 19, Ex. K, pp.
185-254). The First DCA affirmed per curiam without opinion.
Brown v. State, 197 So.3d 44 (Fla. 1st DCA 2016)
(Table) (copy at Doc. 19, Ex. N). The mandate issued August
30, 2016. (Doc. 19, Ex. P).
filed his original federal habeas petition on July 13, 2016.
(Doc. 1, p. 1). Petitioner's amended petition raises five
claims - four grounds of ineffective assistance of trial
counsel and one ground of trial court error. (Doc. 4).
2254 STANDARD OF REVIEW
courts are precluded from granting a habeas petition on a
claim that was adjudicated on the merits in state court
unless the state court's decision (1) “was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,
” or (2) “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). A state court's factual determinations are
presumed correct, unless the petitioner rebuts the
presumption of correctness by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1).
United States Supreme Court explained the framework for
§ 2254 review in Williams v. Taylor, 529 U.S.
362 (2000). Justice O'Connor described the
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 this 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
Id., 529 U.S. at 412-13 (O'Connor, J.,
the Williams framework, the federal court must first
ascertain the “clearly established Federal law, ”
namely, “the governing legal principle or principles
set forth by the Supreme Court at the time the state court
render[ed] its decision.” Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003). The law is “clearly
established” only when a Supreme Court holding at the
time of the state court decision embodies the legal principle
at issue. See Thaler v. Haynes, 559 U.S. 43, 47
(2010); Woods v. Donald, 575 U.S. ___, ___, 135
S.Ct. 1372, 1376 (2015) (“We have explained that
clearly established Federal law for purposes of §
2254(d)(1) includes only the holdings, as opposed to the
dicta, of this Court's decisions.” (internal
quotation marks and citation omitted)).
identifying the governing legal principle(s), the federal
court determines whether the state court adjudication is
contrary to the clearly established Supreme Court case law.
The adjudication is not contrary to Supreme Court precedent
merely because it fails to cite to that precedent. Rather,
the adjudication is “contrary” only if either the
reasoning or the result contradicts the relevant Supreme
Court cases. See Early v. Packer, 537 U.S. 3, 8
(2002) (“Avoiding th[e] pitfalls [of § 2254(d)(1)]
does not require citation to 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.”). Where there is no Supreme Court
precedent on point, the state court's conclusion cannot
be contrary to clearly established federal law. See
Woods, 135 S.Ct. at 1377 (holding, as to claim that
counsel was per se ineffective in being absent from
the courtroom for ten minutes during testimony concerning
other defendants: “Because none of our cases confront
the specific question presented by this case, the state
court's decision could not be contrary to any holding
from this Court.” (internal quotation marks and
citation omitted)). If the state court decision is contrary
to clearly established federal law, the federal habeas court
must independently consider the merits of the
petitioner's claim. See Panetti v. Quarterman,
551 U.S. 930, 954 (2007).
“contrary to” clause is not satisfied, the
federal habeas court next determines whether the state court
“unreasonably applied” the governing legal
principles set forth in the Supreme Court's cases. The
federal court defers to the state court's reasoning
unless the state court's application of the legal
principle(s) was “objectively unreasonable” in
light of the record before the state court. See
Williams, 529 U.S. at 409; Holland v.
Jackson, 542 U.S. 649, 652 (2004). The Supreme Court
described the “unreasonable application” standard
When reviewing state criminal convictions on collateral
review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong. Federal
habeas review thus exists as “a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through
appeal.” Harrington, supra, at 102-103, 131
S.Ct. 770 (internal quotation marks omitted).
Woods, 135 S.Ct. at 1376 (quoting Harrington v.
Richter, 562 U.S. 86 (2011)). The § 2254(d)
standard “is difficult to meet . . . because it was
meant to be.” Richter, 562 U.S. at 102.
2254(d) also allows federal habeas relief for a claim
adjudicated on the merits in state court where 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.” 28
U.S.C. § 2254(d)(2). The “unreasonable
determination of the facts” standard is implicated only
to the extent the validity of the state court's ultimate
conclusion is premised on unreasonable fact finding.
See Gill v. Mecusker, 633 F.3d 1272, 1292
(11th Cir. 2011). As with the “unreasonable
application” clause, the federal court applies an
objective test. See Miller-El v. Cockrell, 537 U.S.
322, 340 (2003) (holding that a state court decision based on
a factual determination “will not be overturned on
factual grounds unless objectively unreasonable in light of
the evidence presented in the state court
proceeding.”). Federal courts “may not
characterize . . . state-court factual determinations as
unreasonable merely because we would have reached a different
conclusion in the first instance.” Brumfield v.
Cain, 576 U.S. ___, ___, 135 S.Ct. 2269, 2277 (2015)
(quotation marks omitted).
the federal habeas court finds that the petitioner satisfied
§ 2254(d), does the court take the final step of
conducting an independent review of the merits of the
petitioner's claims. See Panetti, 551 U.S. at
954. Even then, the writ will not issue unless the petitioner
shows that he is in custody “in violation of the
Constitution or laws and treaties of the United
States.” 28 U.S.C. § 2254(a).
One “Counsel Rendered Ineffective Assistance
By Failing To Discover/Surface A Bias[ed] Juror
During Voir Dire Proceedings. . . .” (Doc. 4, p.
claims trial counsel was ineffective during jury selection
when he failed to adequately question Juror Sindel to
discover her anti-defendant bias. Sindel disclosed on her
jury questionnaire that her occupation was “community
activist”. (Doc. 19, Ex. E, pp. 86-87). The prosecutor
questioned Sindel about that response:
MS. SMITH [Prosecutor]: What areas are you active in?
PROSPECTIVE JUROR [SINDEL]: I'm on the board for Navy
League. I'm on the board for Tiger Bay Panhandle.
I've done volunteer work with the pink ribbon tennis
tournaments, Spring Fest, WSRE wine event.
MS. SMITH: Is there anything about these charges that would
affect your ability to be fair and impartial if you were
chosen as a juror?
PROSPECTIVE JUROR: No, ma'am.
MS. SMITH: Okay. You could listen to all the evidence, the
PROSEPCTIVE JUROR: Oh, yes.
MS. SMITH: And you understand that the defendant has the
right to remain silent, doesn't have to put on any
PROSPECTIVE JUROR: Absolutely.
19, Ex. E, p. 87). Petitioner asserts that Sindel's
disclosure “would indicate an anti-crime activist that
would more likely be prejudicial toward those defendants
accused of criminal offenses.” (Doc. 4, p. 8).
Petitioner contends that had counsel asked the right
questions after this exchange, counsel would have discovered
that Sindel was on the board of directors of a local chapter
of Crime Stoppers - a fact counsel later discovered after
trial and used to argue for a new trial based on juror
misconduct (which was denied after evidentiary hearing).
Petitioner claims that counsel's deficient questioning
during jury ...