Salter v. Secretary, Department of Corrections

          ORDER

          CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.

         Cedrick Salter, a Florida prisoner, timely filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County conviction. Respondent filed a response (Dkt. 8), and Salter filed a reply (Dkt. 11).^[1] Upon consideration, the petition will be DENIED.

         Procedural History

         Salter was convicted after a jury trial of one count of first degree murder and sentenced to life in prison. (Dkt. 10, Ex. 1f, pp. 107-08, 152). The state appellate court per curiam affirmed the conviction and sentence. (Dkt. 10, Ex. 1c). The state appellate court also per curiam affirmed the denial of Salter's motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. (Dkt. 10, Exs. 2a, 2f, 2j).

         Facts ^[2]

         Salter and Saquanda Simon, known as Mika, had two children together. Shortly before 5:00 p.m. on September 8, 2009, Salter sent a text message to Mika asking her whether they were “gonna work being together.” Between 8:12 p.m. and 8:59 p.m., Salter sent Mika more text messages, including several in which he threatened to kill her.

         Salter then arrived at the Tampa home where Mika and her children lived with her mother, Arleen Jackson, her brother, O.J. Bates, and Jackson's boyfriend, Joseph Bianco. Salter and Mika began angrily shouting at each other. Mika went into the master bathroom and closed the door. Salter attempted to open the bathroom door, and said that his life was over and that he wanted to talk to Mika outside. Jackson told Salter to get out of the house. Mika exited the bathroom and walked into the dining area. Bianco opened the front door and told Salter to leave; Bianco then walked back towards the master bedroom. Salter and Mika continued to argue, and Jackson noticed that Mika had her hand to her ear as if she was talking on the phone. Jackson heard Salter ask who Mika was talking to. O.J. Bates then saw Salter draw a gun from his right side and immediately “let off” two shots.^[3] When Mika fell to the ground, Salter fled the house. Jackson called 911 at approximately 9:13 p.m. Mika died as a result of a gunshot wound to the head.

         Salter turned himself in to police the next day. After waiving his Miranda^[4] rights, he gave a recorded statement in which he denied that he and Mika had been arguing. Salter explained that he carried the gun for protection because people in the neighborhood had tried to rob him, and that he sent text messages to Mika to get her attention. He stated that Jackson was upset, and that he pulled the gun out to give it to Jackson so that she would know he was not going to hurt Mika. Salter said that Joseph Bianco and O.J. Bates attacked him when he pulled the gun out, causing him to lurch forward and accidentally fire the gun. He repeatedly denied any intent to kill Mika.

         Standard Of Review

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this proceeding. See Penry v. Johnson, 532 U.S. 782, 792 (2001). 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 affirmed the denial of postconviction relief in a per curiam decision. 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).

         Ineffective Assistance Of Counsel

         Salter claims ineffective assistance of trial counsel. His claims are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Salter must demonstrate that his counsel performed deficiently in that “counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” Id.

         Salter must also show that he suffered prejudice by demonstrating “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. Obtaining relief on a claim of ineffective assistance of counsel is difficult because federal habeas review is “doubly” deferential to counsel's performance and the state court's decision. Richter, 562 U.S. at 105.

         Discussion

         Ground One

         At trial, the State introduced text messages sent from Salter's phone number to Mika's cell phone on the day she was killed. The State obtained these messages by looking at Mika's cell phone. The first message, sent at 4:58 p.m., stated, “Hey, I womna [sic] know if you seriously think we gonna work being together and if you-”. (Dkt. 10, Ex. 1m, p. 656). The other text messages, sent between 8:12 p.m. and 8:59 p.m., stated, “Can you answer me?”; “Okay. I'm fucked up right now, I helped you get where you at in life. You ignoring me. I'm out here trying to deal with these problems and you turned your back now. Okay.”; “I have nothing to lose or live for as of right now so be carefully [sic].”; “Threatening me will get you back into trouble.”;^[5] “We both dead. It don't matter anymore.”;^[6]“I'm gonna kill you no matter what when it's gonna happen.”; “You already got me involved with the law.”; and “I'm gonna kill you no matter what when it's gonna happen soon or later.” (Id., pp. 653-56).

         Salter denies sending any messages threatening to kill Mika. He therefore alleges that someone must have tampered with Mika's cell phone. He notes that police did not recover Mika's cell phone from her family until 20 days after the shooting and contends that this delay shows “an opportunity to and an inference of tampering.” (Dkt. 1, p. 8). Accordingly, he argues, trial counsel was ineffective in failing to hire an expert to investigate the source of the text messages. Salter claims that he was prejudiced because “the expert would have indeed found evidence of tampering and shown to the jury that petitioner did not send the messages that relate to ‘killing' the victim, there would not have been any evidence to show a premeditated intent to kill.” (Id., p. 9). The state court denied this claim after an evidentiary hearing:

In ground one, Defendant alleges trial counsel was ineffective for failing to hire an expert to investigate the source of certain text messages found on the victim's phone. Defendant alleges that the victim's cell phone was produced twenty days after her death. Defendant claims that he told his trial counsel that he did not send the text messages found on the victim's phone. Defendant argues that trial counsel was ineffective for failing to hire an expert to investigate whether the victim's phone had been tampered with after her death.

Defendant claims that he was apprehended and taken to the police department where he confessed to the crime. He alleges that during the confession, he admitted to sending threatening text messages to the victim but never admitted that he sent text messages saying he would kill himself or the victim. Defendant next alleges that at the crime scene, a cell phone battery was recovered but that the cell phone could not be located. Defendant claims that twenty days after the shooting, the victim's mother located the cell phone and handed it over to the police along with a charger and battery. Defendant claims that the police obtained a warrant to download text messages on the phone, but that neither the cell phone provider nor the police department had the equipment necessary to download the text messages. Defendant claims that a detective took pictures of the texts. The text messages were sent from a phone number belonging to Defendant and contained language threatening the victim.

Defendant next alleges that he advised counsel that he did not send the above-mentioned text messages and that he thought his phone had been tampered with. Defendant claims that counsel did object when the phone was introduced into evidence, and that the objection was based on an allegation that the cell phone had been tampered with by officials, but alleges that counsel did not investigate the issue any further. Defendant alleges that trial counsel should have hired an expert to investigate whether the phone had been tampered with after the shooting. Defendant alleges that had trial counsel hired an expert, the expert would have found evidence of tampering which would have shown that he did not send the text messages.

Defendant alleges that without the text messages, the State would not have been able to prove a premeditated intent to kill. Defendant alleges that had trial counsel hired an expert, he would have been convicted of a lesser included offense.

At the evidentiary hearing, Gregory Hill first testified about his employment history which included heading a private consulting firm, Forensic Development Services. He testified that for a period of time he consulted with the Department of Justice with regards to the development of a digital evidence program. Mr. Hill testified that “the digital evidence program that the Department of Justice was initiating was to assist lawyers and law enforcement in terms of understanding the nuances in the integration of digital evidence, computers, cell phones, text messaging, things of that nature, into a program where they could put out a training program to particular individuals”. Mr. Hill testified that to some degree, because of his experience heading his consulting firm, he became familiar with how text messaging works and how systems could be tampered with. Gregory Hill further testified as follows:

STATE: Did you become aware that there were some text messages between Defendant and the victim that became at issue?

MR. HILL: Yes, we did.

STATE: All right. And what was the nature of these text messages if you recall?

MR. HILL: There were a number of threatening text messages that were sent from Mr. Salter's cell phone to the victim's cell phone during the course leading up to, in fact, just moments before the actual shooting.

STATE: Do you recall if the State of Florida had access to the victim's cell phone or at least those text messages?

MR. HILL: As I recall, it did, yes.

STATE: All right. And were those turned over to you as - to the best of your recollection?

MR. HILL: As part of discovery, they were.

STATE: All right. What about Defendant's phone? Do you know if the State of Florida ever had access to Defendant's cell phone and/or his text messages?

MR. HILL: As I recall, Mr. Salter indicated to us that he had lost his cell phone somewhere during the course of time, and that it was later recovered a number of days after the event from the victim's mother, given to law enforcement, and those messages were also given to us as part of discovery.

STATE: Do you recall if when reviewing those messages, both for trial and even perhaps for today's hearing, if you found any inconsistencies between the text messages going between the two phones?

MR. HILL: No. Those were synched both the date time stamped on the respective phones.

STATE: Were these text messages a concern for Mr. Salter in terms of his defense?

MR. HILL: They were because they were very explicit in terms of threatening both - both killing her and killing himself.

STATE: And are these - did you have conversations with Mr. Salter about these text messages and his theory about these text messages that continued to escalate leading up the offense?

MR. HILL: We did. Mr. Littman [the first attorney assigned to the case] had initially contacted Mr. Salter when that was represented to - and contained in the case file that there was a certain text message expressly threatening to kill the victim, that he did not send that message. But the other messages that were sent were not disputed, according to Mr. Littman's notes, and the interview that Mr. Salter gave to law enforcement, he admitted that he sent those text messages, without carving out that one message, not as threatening, but only to get her attention because she did not apparently respond to his text messages.

STATE: Was there anything you did upon speaking to both Defendant, as well as reading Mr. Littman's notes, regarding Defendant's theory on the text messages that you did to help decide whether or not there may have been some tampering with these text messages?

MR. HILL: We did, actually. And, again, last week I was able to go through the case file with Ms. Shane and some of the electronic files that were maintained. Mr. Littman had - the Public Defender's Office, as part of the process in order to hire an expert witness, you have to request the authorization of funds, and that expenditure had been authorized through - you know, I dropped his name - but it was U.S. Forensics. That was the name of the company I believe in Pinellas County that Mr. Littman had initially requested funds from to be secured for.

Prior to expending any of those funds, I contacted Rick Green was his name, I believe. I contacted Mr. Green at U.S. Forensics and had a brief conversation with him, relying on my knowledge of the digital evidence and brief interaction with him, and whether that would be capable from just the cell phones itself. He told us that it would not be capable. So we investigated that.

Also, Mr. Littman had sent an investigation request to the investigators of the unit, and Investigator Pomponio had contacted T-Mobile to see whether such a process could be accomplished, and he was informed that it would not be.

STATE: All right. And do you know if either Investigator Pomponio or another investigator went out to meet with Defendant as well to discuss this theory with him and the results of their work?

MR. HILL: Prior to my taking over, I don't know whether they did. I know that we - I know Investigator Pomponio and myself did go speak with him. Also, Investigator Griffin, who was later - replaced Mr. Pomponio, went out and spoke to him about that as well.

STATE: Once you had conducted that portion of the investigation, did you have a final discussion with Defendant regarding whether or not it was a viable defense or theory of defense that there had been tampering with these text messages?

MR. HILL: We did have a conversation about that. The ultimate decision that was made was that there was no indication - there's no evidence of tampering, so there was no good faith basis to put that forward, as well as impeachment of that evidence, if that were an avenue that we approached.

STATE: Do you recall if at any point in time prior to the case being set for trial Ms. Shane litigated a motion in limine regarding the text messages?

MR. HILL: We did litigate a motion on that.

STATE: And then at trial did you again establish or assert a motion in limine again with some additional case law on the issue to the trial judge, Judge Battles?

MR. HILL: I believe we did, yes.

STATE: All right. And in each of those situations was it your intent and did you make an effort to have those text messages either redacted or suppressed, or just excluded altogether from the trial?

MR. HILL: Yes, we tried exclude them initially and then redact them, particularly since the way the messages were conveyed to the - on the evidence was photographs of the text messages, so they overlapped and were redundant in a number of cases.

STATE: And were your efforts, either pretrial or during trial, successful in terms of excluding any of those text messages?

MR. HILL: Only in terms of minimization of the redundancy.

After reviewing Defendant's allegations, the testimony and evidence adduced at the June 17, 2014, evidentiary hearing, the court file, and the record, the Court finds the testimony of trial counsel Gregory Hill to be credible. The Court notes that there is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690. A fair assessment of attorney performance requires that “every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689. “[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). Further, the defendant carries the burden of overcoming the presumption that a decision might be considered sound trial strategy. Strickland, 466 U.S. at 689.

At the outset, the Court finds that to the extent Defendant is alleging trial counsel was ineffective for failing to investigate whether the text messages had been tampered with, this claim has no merit. Trial counsel investigated the text messages himself using the knowledge and experience he gained through his consulting company, he contacted and discussed the tampering claim with U.S. Forensics and T-Mobile which both determined that there was no tampering, and investigators with the Public Defender's Office also investigated the issue and met with Defendant in jail to inform him that there was no evidence of tampering. As such, trial counsel cannot be deemed ineffective for failing to investigate the tampering claims as the record demonstrates that trial counsel did investigate the tampering claims.

To the extent Defendant is alleging trial counsel was ineffective for failing to hire an expert witness to investigate the text messages and pursue a tampering defense, the Court finds trial counsel was not ineffective. The Court finds that trial counsel made a strategic decision not to hire an expert to support a partial defense of tampering. The record demonstrates that based on the findings that there had been no signs of tampering made by the investigators with the Public Defender's Office, U.S. Forensics, and T-Mobile, trial counsel made a strategic decision not to hire an expert as there was no good-faith basis to pursue a tampering defense. The Court finds that this strategic decision was reasonable as the above-mentioned parties determined there was no basis for tampering. Further, where counsel has a reasonable basis to believe that pursuing certain lines of defense would be fruitless, counsel does not act unreasonably in not pursuing them. See Beasley v. State, 18 So.3d ...