United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
Wayne Miller, a Florida inmate, timely filed a pro
se petition for writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his Sarasota County convictions.
(Doc. 1). Respondent filed a response (Doc. 10) and Miller
filed a reply (Doc. 17). Upon consideration, the petition is
was convicted after a jury trial of first degree murder and
grand theft motor vehicle. (Doc. 12, Ex. 1, p. 195). The
state trial court sentenced him to life in prison. (Doc. 12,
Ex. 1a, pp. 344-47). The state appellate court per
curiam affirmed the convictions and sentences. (Doc. 12,
Ex. 4). The state appellate court denied Miller's
petition alleging ineffective assistance of appellate
counsel, filed under Florida Rule of Appellate Procedure
9.141(d). (Doc. 12, Exs. 13, 14). Miller's motion for
postconviction relief filed under Florida Rule of Criminal
Procedure 3.850 was denied. (Doc. 12, Exs. 15, 16, 16a). The
state appellate court per curiam affirmed the denial
of relief. (Doc. 12, Ex. 20).
and his sister, Alicia Miller (“Alicia”), used
and sold pain killers. Miller and Alicia obtained pills in
part through Miller's prescriptions for Roxicodone and
Oxycontin. On the night of April 15, 2010, Miller and Alicia
wanted more pills but needed money. Joseph Hickey, whom they
had met once before, had called Alicia looking for pills.
Miller and Alicia decided to lure Hickey into meeting with
them by telling him that they had pills for sale, and then to
rob him. They agreed that it might become necessary to shoot
Hickey during the robbery if anything went wrong.
and Hickey had phone contact several times on the night of
April 15 into the morning of April 16. During this time,
Miller and Alicia stole a panel van. Alicia drove the van to
pick up Hickey at the arranged meeting site at about 6:00
a.m. on April 16. Miller rode in the front passenger's
seat. After Hickey entered through the rear passenger's
side sliding door, Miller turned in his seat and shot Hickey.
continued driving for a time before parking in a vacant
waterfront lot. She and Miller exited the van. Miller
apparently shifted the van into drive and weighted down the
gas pedal, causing the van to lurch forward. It came to rest
hanging over a sea wall. Alicia, thinking that they
“were leaving Joe Hickey there suffering, ”
refused to leave the scene. (Doc. 12, Ex. 1e, p. 612). Miller
returned to the van. After he shot inside the van several
times, he and Alicia fled on foot.
Miller's arrest, he initially denied involvement.
However, he then told police that Hickey “pulled a
knife” and “dove on” him, resulting in a
struggle during in the back of the van during which Hickey
“went for the gun” and the gun accidentally
discharged several times. (Doc. 12, Ex. 1d, pp. 477, 487,
489). Miller told police that he disassembled the gun and
threw pieces of it in a lake and a dumpster. Miller stated
that he took Hickey's knife from the van and threw it
into a lake.
was shot four times. The medical examiner determined that the
fatal wound was a gunshot to the right side of Hickey's
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs this proceeding. Carroll v.
Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009).
Habeas relief can only be granted if a petitioner is in
custody “in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
2254(a). Section 2254(d) provides that federal habeas relief
cannot be granted on a claim adjudicated on the merits in
state court unless the state court's adjudication:
(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;
(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.
decision is “contrary to” clearly established
federal law “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
[the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 412-13 (2000). A decision is an
“unreasonable application” of clearly established
federal law “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id. at 413.
AEDPA was meant “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).
Accordingly, “[t]he focus . . . is on whether the state
court's application of clearly established federal law is
objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.”
Id. at 694. See also Harrington v. Richter,
562 U.S. 86, 103 (2011) (“As a condition for obtaining
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
state appellate court denied Miller's petition alleging
ineffective assistance of counsel and affirmed the denial of
postconviction relief without discussion. This decision
warrants deference under § 2254(d)(1) because “the
summary nature of a state court's decision does not
lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See
also Richter, 562 U.S. at 99 (“When a federal
claim has been presented to a state court and the state court
has denied relief, 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.”). When a state appellate court issues a
silent affirmance, “the federal court should
‘look through' the unexplained decision to the last
related state-court decision that does provide a relevant
rationale” and “presume that the unexplained
decision adopted the same reasoning.” Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018).
Of State Court Remedies; Procedural Default
federal habeas petitioner must exhaust his claims for relief
by raising them in state court before presenting them in his
petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan
v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he
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.”).
requirement of exhausting state remedies as a prerequisite to
federal review is satisfied if the petitioner “fairly
presents” his claim in each appropriate state court and
alerts that court to the federal nature of the claim.
Picard v. Connor, 404 U.S. 270, 275-76 (1971).
“If the petitioner has failed to exhaust state remedies
that are no longer available, that failure is a procedural
default which will bar federal habeas relief, unless either
the cause and prejudice or the fundamental miscarriage of
justice exception is established.” Smith v.
Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
argues that the trial court erroneously gave a “stand
your ground” jury instruction. Because Miller has not
alleged a federal constitutional violation, his claim is not
cognizable in this federal habeas proceeding. See Branan
v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988)
(“[A] habeas petition grounded on issues of state law
provides no basis for habeas relief.”). Further, any
federal claim that could be construed from his argument is
unexhausted because Miller's appellate challenge to the
jury instructions relied solely on state law. (Doc. 12, Ex.
2, pp. 13-16). See Pearson v. Sec'y, Dep't of
Corr., 273 Fed. App'x 847, 849-50 (11th Cir. 2008)
(“The exhaustion doctrine requires the petitioner to
‘fairly present' his federal claims to the state
courts in a manner to alert them that the ruling under review
violated a federal constitutional right.”); Zeigler
v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003)
(“To present a federal constitutional claim properly in
state court, ‘the petitioner must make the state court
aware that the claims asserted present federal constitutional
issues.'” (quoting Snowden v. Singletary,
135 F.3d 732, 735 (11th Cir. 1998))).
reply, Miller appears to argue that he exhausted a federal
claim by citing two state decisions, Dorsey v.
State, 74 So.3d 521 (Fla. 4th DCA 2011), and Newman
v. State, 976 So.2d 76 (Fla. 4th DCA 2008). He alleges
that these decisions “establish the claim as a
deprivation of a constitution[al] right.” (Doc. 17, p.
4). However, neither decision involves federal constitutional
issues. See Id. And a state prisoner does not fairly
present a federal claim to a state court “if that court
must read beyond a petition or a brief . . . that does not
alert it to the presence of a federal claim.”
Baldwin v. Reese, 541 U.S. 27, 32 (2004).
Accordingly, Miller did not exhaust a federal claim
concerning the jury instructions.
procedural rules do not provide for successive direct
appeals. See Fla. R. App. P. 9.140(b)(3) (stating
that a notice of appeal must be filed within 30 days of the
rendition of a sentence). Because Miller therefore cannot
return to state court to present a federal claim, his ground
is procedurally defaulted. See Smith, 256 F.3d at
1138. Miller has not argued or established that either the
cause and prejudice exception or the fundamental miscarriage
of justice exception applies to overcome the default. Ground
One is therefore barred from review.
Two Through Eight: Ineffective Assistance Of Counsel
rest of Miller's claims allege ineffective assistance of
counsel. Claims of ineffective assistance are analyzed under
the test set forth in Strickland v. Washington, 466
U.S. 668 (1984). Strickland requires a showing of
deficient performance by counsel and resulting prejudice.
Id. at 687. To show deficient performance, Miller
must demonstrate that “counsel's representation
fell below an objective standard of reasonableness.”
Id. at 687-88. A court must consider whether,
“in light of all the circumstances, the identified acts
or omissions [of counsel] were outside the wide range of
professionally competent assistance.” Id. at
690. However, “counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
must demonstrate that counsel's alleged error prejudiced
the defense because “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no
effect on the judgment.” Id. at 691-92. He
must establish “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.
Strickland standard applies to claims of ineffective
assistance of trial counsel and appellate counsel. Smith
v. Robbins, 528 U.S. 259, 285 (2000); Heath v.
Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To show
deficient performance of appellate counsel, Miller must show
that appellate counsel's failure to identify and raise a
non-frivolous issue was an objectively unreasonable
performance. Robbins, 528 U.S. at 285-86. To show
prejudice, Miller must show a reasonable probability that,
but for counsel's unreasonable failure, he would have
prevailed on appeal. Id.
relief on a claim of ineffective assistance of counsel is
difficult because “[t]he standards created by
Strickland and § 2254(d) are both ‘highly
deferential,' and when the two apply in tandem, review is
‘doubly' so.” Richter, 562 U.S. at
105 (citations omitted). See also Cullen v.
Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must
overcome the “‘doubly deferential' standard
of Strickland and AEDPA.”).
contends that appellate counsel was ineffective in failing to
argue that the trial court abused its discretion when it
refused to allow the defense's expert witness to testify,
resulting in a due process violation. The state appellate
court rejected this claim without discussion when it denied
Miller's petition alleging ineffective assistance of
testimony is admissible concerns the application of Florida
evidentiary law. By denying Miller's petition, the state
appellate court determined what would have happened had
appellate counsel raised this state law claim. This Court
must defer to the state appellate court's underlying
determination of Florida law. See Herring v. Sec'y,
Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir.
2005) (“The Florida Supreme Court has already told us
how the issues would have been resolved under Florida state
law had [counsel] done what [Petitioner] argues he should
have done . . . It is a ‘fundamental principle that
state courts are the final arbiters of state law, and federal
habeas courts should not second-guess them on such
matters.'” (quoting Agan v. Vaughn, 119
F.3d 1538, 1549 (11th Cir. 1997))). See also Will v.
Sec'y, Dep't of Corr., 278 Fed. App'x 902,
908 (11th Cir. 2008) (“Although an
ineffective-assistance-of-counsel claim is a federal
constitutional claim, which we consider in light of the
clearly established rules of Strickland, when
‘the validity of the claim that [counsel] failed to
assert is clearly a question of state law, . . . we
must defer to the state's construction of its own
law.'” (quoting Alvord v. Wainwright, 725
F.2d 1282, 1291 (11th Cir. 1984))). Miller has not shown that
the state appellate court unreasonably applied
Strickland or unreasonably determined the facts in
denying his claim. He is not entitled to relief on Ground
contended that Hickey was experiencing drug withdrawal and
that it caused Hickey to act aggressively and attack him.
Before trial, the State moved to exclude evidence about
Hickey's alleged drug withdrawal. In ruling on the
motion, the trial court indicated that Miller could present
evidence “should a proper predicate be laid and
relevance established.” (Doc. 12, Ex. 1, p. 191).
Miller claims that his testimony would have laid a foundation
to allow the defense to call three witnesses: Dr. Goldberger,
Carol Springer, and Don Atkins. Miller claims that counsel
misadvised him that he did not need to testify in order for
the witnesses to be called and led him to believe “that
testimony of states witnesses alone was enough to lay a
foundation for expert and other defense witnesses.”
(Doc. 1, p. 8). He also argues that his testimony would have
contradicted Alicia's testimony, which incriminated him
in the murder.
proffered Dr. Goldberger's testimony to support his
theory that Hickey “was using pills, he was out, and he
was desperately seeking and persistently seeking
pills.” (Doc. 12, Ex. 1f, p. 767). Dr. Goldberger
testified that Hickey's blood and urine tested positive
for oxycodone. (Doc. 12, Ex. 1e, p. 751). Dr. Goldberger
opined that making multiple phone calls during the night and
agreeing to meet for drugs at 6:00 a.m. was activity
consistent with drug withdrawal, and that in addition to
displaying such drug-seeking activity, a person experiencing
withdrawal may become irritable or unpredictable in his
behavior. (Id., pp. 752-53). But Dr. Goldberger
conceded that he did not know whether Hickey was an addict or
was suffering from withdrawal at the time of his death.
(Id., pp. 754, 756).
State objected to Dr. Goldberger's testifying before the
jury. The State asserted that since there was no evidence
that Hickey was an addict, or that Hickey was seeking drugs
because he needed them to overcome withdrawal symptoms, Dr.
Goldberger's testimony was impermissibly speculative.
(Id., p. 758, 760; Ex. 1f, pp. 761, 763). The trial
court agreed, concluding that there was no “sufficient
basis to support the introduction of his testimony” but
noting that Dr. Goldberger could “potentially sit in if
the defendant were to testify” to such information.
(Doc. 12, Ex. 1f, p. 768).
wanted to call Springer and Atkins in connection with the
knife he claims Hickey carried. Miller told police that he
took Hickey's knife and threw it in a lake, but no
evidence at trial indicated that a knife was ever recovered.
Miller asserted that when he was in jail awaiting trial, he
told Springer where to look for the knife. (Doc. 12, Ex. 1e,
p. 727). Miller contended that Springer and Atkins could
testify about why Springer's search for Hickey's
knife was unsuccessful. Counsel addressed this proposed
testimony with the trial court:
[COUNSEL]: [Carol Springer] was described a knife and
locations to look for the knife. She conducted a search for
the knife in the canals along Gulf Gate, finding lots of
discarded metal but no knife; went to the maintenance people,
and they said, Well, given the time that you're now
searching for the knife - - the knife could have been
discarded in April. It was December when the information was
given up, that it was a wet, rainy season, and the knife
would have been washed down and buried under soot.
THE COURT: She won't be able to testify to what was told
to her. Is that what you would be offering Mr. Atkins for?
THE COURT: And he maintains canals. I saw his deposition on
THE COURT: So they would be presented together only for
looking for the knife and a potential hypothesis as to why
the knife could not be located?
(Id., pp. 726-27).
State objected to the presentation of these witnesses if
Miller did not testify. (Id., pp. 727-29). After
Miller decided not to testify, counsel informed the court
that the defense would not call Springer or Atkins. (Doc. 12,
Ex. 1f, pp. 769, 771). Counsel further agreed that
“that foundation is needed to be laid by Mr. Miller
testifying.” (Id., p. 770).
state court denied Miller's claim that counsel misadvised
him not to testify:
Defendant's first allegation is based on the State's
Motion in Limine. In short, the defense could bring in
testimony regarding the victim's alleged drug addiction
(and consequently, Defendant's self-defense theory that
the victim attacked him because he was in withdrawal)
only if there was a proper foundation for the
proposed evidence. Defendant sought to include testimony from
three witnesses. Defendant alleges that counsel advised him
he did not need to testify because the State's witnesses
laid the foundation to get the evidence in for the defense.
The Court heard the proffered testimony for those three
witnesses and ruled the testimony was not admissible. The
Court could not determine whether Defendant's testimony
would have laid the necessary predicate for the witnesses
because Defendant did not testify. Defendant believes his own
testimony would have laid the necessary foundation and his
attorney prejudiced him by misadvising him.
Defendant indicated in his motion he would have testified
consistently with his statement to law enforcement.
Specifically, Defendant maintains that: (1) he did not
attempt to rob the victim, (2) he only intended to sell the
victim pills, (3) he had the gun for protection because the
time of day for the sale was unusual, (4) the victim attacked
him and he shot the victim during that struggle, and (5) he
only lied, at first, to the Detective out of fear. All of
these statements were already in evidence (except
Defendant's justification for lying) via law
enforcement's videotaped conversation with him. Defense
counsel argued that Defendant's videotaped statement to
law enforcement shows Defendant thought something was off
about the drug deal due to the time of day and apparent
urgency of it. Therefore, the defense argued, the
doctor's testimony about drug addiction and withdrawal
would show the reasonableness of Defendant's state of
mind going into the situation.
However, Defendant's allegations that his testimony would
have made a difference are refuted by the record, and
Defendant has failed to show prejudice. There were three
witnesses at issue: Dr. Goldberger, Carol Springer, and Don
A[t]kins. Dr. Goldberger would have testified in support of
the defense that the victim was in drug withdrawal. Carol
Springer and Don A[t]kins would have testified about a search
for a knife they conducted based on Defendant's
information, and they would give potential reasons why the
knife could not be located.
As Ms. Springer['s] and Mr. A[t]kins['s] testimonies
would be based on the information Defendant initially gave
them about the knife's location, Defendant would have to
testify and lay the foundation that he did provide such
information and what that information was. Even if Defendant
testified, neither of the knife search witnesses found
anything, so any hypothesis about why they did not find it
would be speculation. As they did not find anything, their
ability to support the self-defense theory is not of such an
impact that it was reasonably probable that their testimony
would have changed the outcome of the proceeding. Defendant
has failed to show prejudice regarding these two witnesses.
Dr. Goldberger's testimony was excluded after proffer
because there was not enough evidence in the record to
support his opinion testimony. The doctor had no information
that the victim was an addict, or that he was suffering from
withdrawal at the time of the murder. His opinion testimony
then would be entirely speculation based on a hypothetical
situation without any knowledge of the actual events that
transpired. The Court advised the attorneys that in order for
Dr. Goldberger's testimony regarding possible drug
addiction or withdrawal to be admissible, there must have
been substantive evidence regarding drug use, but all that
was in evidence was discussion that he took one pill which
was within therapeutic range. There were no facts in evidence
that the victim was a drug addict, in withdrawal, or that he
was seeking pills to somehow help his cravings.
In order to overcome this barrier, Defendant's proposed
testimony would need to show that he knew or suspected that
the victim was in withdrawal in order for Dr.
Goldberger's testimony to have any relevance. Defendant
did not know the victim except that he met him once briefly
and sold him some drugs. Even if counsel had advised
Defendant to testify, Defendant could not testify as to the
victim's drug addiction or withdrawal because he did not
have any knowledge of that. Defendant's proposed
testimony, which was already known to the Court through law
enforcement, does not include any information about the
victim's purported drug addict condition. There is no
evidence that, even with Defendant's proposed testimony,
the Court would have permitted Dr. Goldberger's
testimony. Defendant has failed to show any prejudice from
defense counsel's failure to introduce Dr.
Goldberger's proposed testimony, and thus, counsel cannot
be found ineffective for advising Defendant not to testify.
Additionally, when the Court made its final decision to
exclude testimony, Defendant was thoroughly advised on the
matter. The Court explained to Defendant that his testimony
was “part of the equation for the court ruling on
admissibility of the doctor's testimony.” Defendant
admitted that before entering the courtroom he conferred with
counsel twice about testifying. Defendant took responsibility
for his decision, stating “I made the decision and [the
attorneys] were informed by me. We discussed this.” The
Court asked Defendant repeatedly if he wanted to testify, and
he consistently said no. He conferred with counsel to ensure
the issue was preserved for the record. The Court advised
Defendant at the very beginning of the trial to let his
attorneys know anytime he needed a break to speak to them if
he was confused or didn't understand something. The Court
specifically advised Defendant that his testimony was needed
to “potentially” get the other witnesses'
testimony in, and he still refused. His decision not to
testify impacted three total defense witnesses. He was aware
of that when he discussed the matter with his attorneys.
Defendant knew that the testimony would not come in unless
there was some other way to put evidence on to lay the