Brown v. Jones

          REPORT AND RECOMMENDATION

          CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.

         Before 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).^[1] 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.

         BACKGROUND AND PROCEDURAL HISTORY

         In the 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.).

         When 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).

         Shelby 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).

         Petitioner 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).^[2] 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).

         On 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).

         Petitioner 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).

         SECTION 2254 STANDARD OF REVIEW

         Federal 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).

         The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000).^[3] Justice O'Connor described the appropriate test:

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 prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Under 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)).

         After 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).

         If the “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 this way:

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.

         Section 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).

         Only if 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).

         DISCUSSION

         Ground One “Counsel Rendered Ineffective Assistance By Failing To Discover/Surface A Bias[ed] Juror During Voir Dire Proceedings. . . .” (Doc. 4, p. 6).

         Petitioner 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 total picture?

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 evidence?

PROSPECTIVE JUROR: Absolutely.

         (Doc. 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 ...