Miller v. Secretary, Department of Corrections

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.

         Reilies 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 DENIED.

         Procedural History

         Miller 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).

         Facts^[1]

         Miller 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.

         Alicia 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.

         Alicia 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.

         After 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.

         Hickey was shot four times. The medical examiner determined that the fatal wound was a gunshot to the right side of Hickey's head.

         Standard Of Review

         The 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; 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.

         A 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.

         The 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 disagreement.”).

         The 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).

         Exhaustion Of State Court Remedies; Procedural Default

         A 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.”).

         The 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).

         Discussion

         Ground One

         Miller 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))).

         In his 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.

         State 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.

         Ground Two Through Eight: Ineffective Assistance Of Counsel

         The 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 judgment.” Id.

         Miller 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.

         The 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.

         Obtaining 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.”).

         Ground Two

         Miller 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 appellate counsel.

         Whether 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 Two.

         Ground Three

         Miller 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.

         Miller 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).

         The 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).

         Miller 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?

[COUNSEL]: Yes.

THE COURT: And he maintains canals. I saw his deposition on file.

[COUNSEL]: Yes.

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?

[COUNSEL]: Correct.

(Id., pp. 726-27).

         The 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).

         The 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 ...