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Whitfield v. Secretary, Department of Corrections

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

July 26, 2018

KENNETH C. WHITFIELD, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         On November 8, 2006, a man shot Daniel Tatum while Tatum and several friends played dominoes outside the Bradenton home of Fairey Lynah, a relative of Tatum. Flown by helicopter to Bayfront Medical Center, Tatum survived the shot and recovered after a protracted hospital stay. The State of Florida charged Kenneth Whitfield with attempted murder in the first degree, and in 2007 a jury convicted Whitfield. The presiding judge sentenced Whitfield to a term of forty years, which includes a minimum mandatory term of twenty-five years based on Whitfield's criminal history. In both the direct appeal and the state-court collateral challenge to the conviction, the Second District Court of Appeal affirmed per curiam.[1] Whitfield petitions (Doc. 4) under Section 2254 for a writ of habeas corpus and claims violations of the Fifth, Sixth, and Fourteenth Amendments.

         THE TRIAL

         At trial, Tatum testified that he knew Whitfield because Whitfield dated a relative of Tatum's wife. Tatum, who owns a moving company affiliated with Spirit Movers, hired Whitfield as an employee, and Tatum identified no problem with Whitfield's job performance. (Tr. Trans. at 239) In fact, Tatum recommended Whitfield to Spirit Movers, and the corporate parent hired Whitfield.

         But testimony revealed several strains in Tatum's relation with Whitfield. Tatum testified that he confronted Whitfield at a Super Bowl party after Whitfield purportedly mistreated a woman related to Tatum's wife. (Tr. Trans. at 207-08) Describing the incident, Tatum testified at one point that Whitfield “supposedly” possessed a gun at the party. The presiding judge promptly instructed the jury to disregard the testimony about Whitfield's supposedly possessing a gun at the party. (Tr. Trans. at 252)

         Tatum testified to two more tensions between Whitfield and him. At a barbecue one day, Whitfield reportedly punched another man, and Tatum purportedly told Whitfield that he “was dead wrong” for punching the man. (Tr. Trans. at 252) Also, Tatum testified that the police inquired with Tatum about Whitfield's whereabouts, and Tatum told the police about Whitfield's employment with Spirit Movers. According to Tatum's testimony at trial, Whitfield reportedly lost his job because he stopped attending work, which happened because Whitfield thought the police “were looking for him.” (Tr. Trans. at 208) Whitfield moved for a mistrial based on Tatum's testimony that Whitfield thought the police “were looking for” Whitfield, but the trial judge denied the motion after observing that Tatum never said the police sought to arrest Whitfield at that moment and never said the police suspected Whitfield of a crime at that time. (Tr. Trans. at 210-15) In several follow-up questions, the state elicited testimony from Tatum that the police inquiry about Whitfield's whereabouts had no connection to the incident at the Super Bowl party. (Tr. Trans. at 225) Based on the two confrontations and Whitfield's loss of his job, Tatum believed that Whitfield had a “beef” with Tatum.

         Tatum testified that, while playing dominoes and drinking beer with friends in the yard or driveway outside Lynah's house, Tatum saw Whitfield walking toward him. (Tr. Trans. at 243) After he saw Whitfield reach into his pants, Tatum turned to run and heard a shot, which struck him. (Tr. Trans. at 243) Tatum, who testified that he ran inside the house and barricaded himself in a back room, said that he heard two or three more shots after he entered the house. Although testifying that he saw Whitfield approach the house immediately before the shooting, Tatum said that he never saw Whitfield with a weapon. (Tr. Trans. at 243)

         The location of Tatum's injury was featured prominently at trial. Whitfield attempted to impeach Tatum based on Tatum's purportedly inconsistent statements about the location of the bullet; Whitfield argued that Tatum alternatively claimed an injury to his back, butt, and chest. (For example, Tr. Trans. at 246) The parties stipulated to several facts about the injury, including that the bullet penetrated Tatum's front beneath his left nipple line, traveled laterally, and exited Tatum's back on the right side. Also, the parties stipulated that the bullet's entrance and exit were “consistent with” Tatum's turning during the shooting. In closing, Whitfield assailed Tatum's credibility partly because someone with an entry wound in the chest presumably faced his attacker. Whitfield reminded the jury that Tatum testified that he did not see Whitfield pull the trigger.

         Although differing in some details, other witnesses corroborated Tatum's account. Two witnesses, Tarrell Boynton and Fairey Lynah, testified to seeing Whitfield approach the house and fire at Tatum. (Tr. Trans. at 260, 270, 284-86) A neighbor, Bernard Travis, testified that he saw Whitfield approach Tatum's house immediately before the shooting, although he never saw Whitfield pull the trigger. Several witnesses testified to seeing Whitfield exit (before the shooting) or enter (after the shooting) a “beige-looking” vehicle. Another witness, Carradine Allen, testified that she saw Whitfield driving toward the house several minutes before the shooting. (Tr. Trans. at 345) Allen confirmed to police that a vehicle abandoned in the yard of a nearby house matched the vehicle that Allen saw Whitfield driving immediately before the shooting. (Tr. Trans. at 346-47)

         A detective testified to recovering the vehicle, a “beige” or “pewter-looking” Dodge Neon, abandoned in the yard of a house blocks from the shooting. Jimmy Lee Boyd, who resided in the house and who knew Whitfield from high school, testified that he was cleaning his barbecue grill when the vehicle careened into the yard. (Tr. Trans. at 513-16) According to Boyd, the driver jumped out of the vehicle, smiled - his gold teeth shone brightly, but Whitfield has no gold teeth - and ran away. (Tr. Trans. at 513-16 and 518) Boyd testified that the driver was not Whitfield and that he did not know the driver. On cross-examination, Boyd testified that he never asked who owned the car, who the driver was, why the driver parked erratically in a stranger's front yard, or whether the driver would move the car.[2](Tr. Trans. at 516-17)

         DISCUSSION

         Under Section 2254(d)(1), a federal court can grant habeas relief only if the state-court proceeding resulted in a decision “that was contrary to, or involved an unreasonable application of, clearly established Federal law” as announced by the Supreme Court. Whitfield claims half a dozen constitutional violations. First, Whitfield claims a denial of due process under the Fourteenth Amendment based on three purportedly prejudicial statements: Tatum's testimony that Whitfield stopped attending work at Spirit Movers because “he thought the police were looking for him, ” a statement that Whitfield turned himself into the police eight days after the shooting, and Tatum's statement about Whitfield supposedly possessing a gun at the Super Bowl party.

         The writ of habeas corpus remedies a detention that violates a federal constitutional right, but the writ ordinarily provides no relief to a prisoner who protests an adverse evidentiary ruling under state law. Estelle v. McGuire, 502 U.S. 62 (1991); Woods v. Estelle, 547 F.2d 269 (5th Cir. 1977). To establish a due process violation based on an erroneous evidentiary ruling, the petitioner must show that the improper or inadmissible evidence rendered the trial “fundamentally” unfair. In other words, the evidence - viewed in light of the trial as a whole - must have “so infected the entire trial that the resulting conviction violates due process.” McGuire, 502 U.S. at 72 (citations omitted). Considered separately or cumulatively, these three statements produced no “fundamentally unfair” trial that violated Whitfield's right to due process.[3]

         Second, Whitfield claims a denial of due process under the Fourteenth Amendment based on a comment by the State Attorney during the closing argument. Responding to Whitfield's assertion that the someone other than Whitfield might have driven the beige car the night of the incident, the State Attorney said to the jury that “you would hear about it” if “the state couldn't connect the petitioner to” the car. (Tr. Trans. at 594) Whitfield contends that this statement tacitly shifted the burden of proof to Whitfield. In this circumstance, a single oblique comment about Whitfield's not presenting testimony or evidence about another driver establishes no due-process violation. In any event, the presiding judge instructed the jury that the State bears the burden of proving the charge beyond a reasonable doubt, [4] and the jury presumptively followed that instruction. See Richardson v. Marsh, 481 U.S. 200, 206-07 (1987).

         Third, Whitfield complains about several other comments in the State Attorney's closing argument. The State Attorney said that little or no evidence supported Whitfield's “phantom shooter” argument. (Tr. Trans. at 584-87) Also, the State Attorney suggested to the jury that, if a co-worker of a juror committed a crime in front of the juror, the juror could easily identify the co-worker. Additionally, Whitfield protests the State Attorney's thanking the jurors for their time and attention. Finally, Whitfield complains about the State Attorney's comment that “all of the witnesses” identified Whitfield as the shooter. (In fact, some witnesses, such as a paramedic, did not identify Whitfield - or anyone else - as the shooter, but the eyewitnesses uniformly identified Whitfield as the shooter or spotted Whitfield approaching Lynah's house immediately before the shooting.) Considered separately or cumulatively, these remarks in the State Attorney's closing argument establish no violation of Whitfield's right to due process or of any other constitutional right.[5]

         Fourth, Whitfield claims ineffective assistance of counsel and bases the claim on counsel's decision to stipulate to the location of Tatum's injury. To prevail on an ineffective-assistance claim, a petitioner must show both deficient performance by counsel and consequent prejudice. Strickland v. Washington, 466 U.S. 668 (1984). Strickland commands deference to an attorney's strategic decision; only if the counsel's decision falls outside the “wide range of reasonable professional assistance” might the claim succeed. Even if a petitioner shows that counsel deviated from the “wide range” of acceptable conduct, a petitioner's claim succeeds only if the petitioner shows a “reasonable probability” that the “result of the proceeding would have been different” but for “counsel's unprofessional errors.” A reasonable probability means a probability “sufficient to undermine confidence in the outcome.” Additionally, Whitfield's custody results from the judgment of a Florida state court. Under Section 2254(d)(1), a federal court may grant habeas relief only if the state-court proceeding resulted in a decision ...


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