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Walsh v. Secretary, Dept. of Corrections

United States District Court, N.D. Florida, Tallahassee Division

May 1, 2019

KEVIN JOSEPH WALSH, Petitioner,
v.
SECRETARY, DEPT. OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

         Petitioner initiated this case by filing a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1). Petitioner is proceeding pursuant to a second amended petition, ECF No. 27 (“Petition”). The Petition stems from Petitioner's 2008 Leon County conviction of arson of a dwelling, for which Petitioner received a 30-year sentence as a prison releasee reoffender (“PRR”). The Respondent has filed a response in opposition to the petition, together with relevant portions of the state-court record, and Petitioner has filed a reply. ECF Nos. 38, 41. Upon due consideration of the pleadings and the state-court record, the undersigned recommends that the Petition be denied.[1]

         I. State-Court Proceedings

         Petitioner was charged by information with one count of arson of a dwelling (Count I) and one count of violation of a domestic violence injunction (Count II). ECF No. 41-1 at 13. Petitioner was represented at trial by conflict counsel Gregory J. Cummings. The evidence adduced at trial may be summarized as follows.

         Barbara Waltz testified that she is the mother of Petitioner's then-girlfriend, Nichole Waltz. Barbara Waltz had a restraining order against Petitioner, and she identified Petitioner in court. Waltz lived in a ground floor apartment in Building 300 at Savannah Sound apartments in Tallahassee. Petitioner and Nichole had previously lived in the apartment. In the early morning hours of August 23, 2006, Waltz awakened to discover that an exterior wall of her apartment was on fire. Waltz and other neighbors evacuated the building. Her personal property within the apartment was damaged. ECF No. 41-1 at 115-22.

         Marcita Barrington testified that she was working the night shift at a Circle K gas station off of Capital Circle and Centerville Road on the night of the fire. Petitioner arrived driving a taxicab and came into the store. Barrington remembered Petitioner because he mentioned that she was alone and referred to himself as the “creepy white guy.” Barrington recalled that Petitioner bought gasoline and a cigarette lighter. Barrington identified security camera photos showing the cab and Petitioner. Id. at 122-26.

         Tallahassee Fire Department (“TFD”) Battalion Chief Rod Jones testified that he responded to a call for a multi-residential fire at Savannah Sound Apartments around 2:30 in the morning of August 23, 2006. Ultimately, 25 responders were on the scene throughout the night and the rest of the following day. The building consisted of eight apartments, all occupied. Id. at 127-32.

         TFD Investigator Frank Mohr testified that when he arrived on the scene the front of the building and part of the roof were burned. Waltz's apartment had smoke, fire, and water damage, and the apartment above her had heavy damage. Most of the roof was burned off. Waltz told Mohr that she believed Petitioner may have had something to do with the fire. Mohr contacted the state Fire Marshal and requested the assistance of a K-9 trained to detect fire accelerant. Detective Jason Roberts arrived and deployed the dog, which alerted on several places in front of the building. Mohr collected samples from those areas for analysis by the Fire Marshal's lab. Photographs of the scene and fire damage were admitted into evidence. The investigation showed that the fire originated in the front exterior of the building. The front of the building was burned “from the foundation all the way up to the top and went into the attic.” Some of the pine straw mulch outside of the building was burned also. Mohr could not determine whether the fire started on the building or in the pine straw. Id. at 132-43.

         Detective Jason Roberts testified that he smelled gasoline when he walked up to the building. The K-9 alerted in several locations, and samples were taken. Roberts determined that the fire originated on the exterior of the building and worked its way up the wall to the second floor in the roof area. He could not determine whether the fire started on the building or on the ground next to the building. The K-9 was alerting within three feet of the building. It was determined that the fire was intentionally set and involved a “significant amount” of accelerant. Even after the building had been through fire suppression, there was a significant amount of accelerant that the K-9 alerted to and that “everybody could smell.” Roberts also went to the taxicab yard and worked the K-9 through Cab No. 90, which was the cab driven by Petitioner. The K-9 alerted on the interior near the trunk area and in the trunk. Roberts also collected samples from the cab for analysis. Id. at 143-62.

         Lieutenant Joseph Steadman of the Florida State Fire Marshal's Office testified that when he arrived at the scene of the fire he noticed a very strong odor consistent with gasoline. Mohr and Roberts informed Steadman that they had identified a suspect. Steadman contacted ATF Special Agent Visnovske to assist with the investigation. Steadman went to the taxicab yard. When Petitioner arrived he was taken into custody. Id. at 177-78.

         Steadman interviewed Petitioner at the Leon County Sheriff's Office. When Steadman and Visnovske entered the interrogation room where Petitioner had been waiting, they detected a strong odor of gasoline. They advised Petitioner of his Miranda rights, and Petitioner executed a written waiver of his rights. Petitioner appeared nervous and had a cough, which he said was due to childhood bronchitis. Petitioner told the officers that he did not smoke except occasionally when he is out at a bar but that it had been several weeks since he had done that. He told the officers about Waltz's injunction against him. Petitioner told the officers that he had gotten gasoline on his clothing while working on his motorcycle. He stated that he had taken the gas tank off of the motorcycle and put it in the back of his cab, and a valve on the bottom of the tank leaked. Steadman subsequently went to Petitioner's house and inspected the motorcycle. There was no indication that gasoline had leaked from the tank. Id. at 178-84.

         Following a break in the interview, the officers confronted Petitioner with the video evidence from the Circle K store showing that he had purchased gasoline and a lighter shortly before the fire. Petitioner dropped his head and said “well, I'm f***ed” and stated that he needed to speak with Nichole in order to take care of some financial and personal matters for her. Petitioner admitted that he was angry with Waltz. He admitted that he bought gasoline for his cab and put about 2 gallons of gasoline into a plastic bucket in the trunk of the cab. Petitioner admitted that he purchased a lighter. He became emotional and told the officers several times that he dumped the gasoline on the grass by the apartment and did not mean to burn the building. Id. at 184-94.

         State crime laboratory analysts testified that the submitted samples from the fire scene and cab tested positive for gasoline. Id. at 164-75, 195-205.

         At the close of the state's case in chief, Cummings moved for a judgment of acquittal on the arson count. Counsel argued that the State had not established a prima facie case on the intent element of the arson charge. The court denied the motion, finding that there was sufficient circumstantial evidence of intent to create a fact issue for the jury. Id. at 218-24.

         The court conducted a colloquy with Petitioner regarding his decision to testify on his own behalf. The court also addressed the fact that the videotape of Petitioner's interrogation was not admitted into evidence. Petitioner stated that “I think it would help if we put it in, but I think Mr. Cummings did a good job going over, I guess, what I would have wanted the jury to see anyway.” Cummings stated that there were “a lot of issues about the tape that the Court doesn't know about, ” such as statements by Petitioner regarding criminal charges in Georgia and many comments about his relationship with Ms. Waltz. The court explained that irrelevant matter could be edited out. Petitioner stated “I don't want it in. I was just saying I thought it could have helped, but Mr. Cummings pointed out the same things that if they seen it, I feel he accomplished the same thing.” The court reiterated that the tape could be edited if Petitioner wanted it admitted, and that if Petitioner did not want the tape admitted he could not “complain later that your lawyer was ineffective for not showing you the tape or not editing it or not admitting it because [sic] sat right here and told me you decided not to look at it, you decided to trust your attorney, and that's fine to trust him, but these are judgment calls he has made . . . . You can't second guess him later, if you are sitting in prison and decide to look at this tape. It will be too late, and that's all I need to settle, is that you understand you are making an important decision here.” Petitioner responded “yes, ma'am.” Id. at 215-29.

         Cummings called Nichole Waltz as a defense witness. Waltz testified that Petitioner did not smell like gasoline when he came home early in the morning after the fire. She testified that Petitioner told her that “he had lit the ground on fire” outside the apartment and did not know that the building burned until later in the day when Waltz's grandfather called to tell her. She testified that Petitioner was “shocked” at the news. Id. at 234-39.

         Petitioner testified that on the night of the fire he was drinking and taking prescription medication for anxiety due to an “earlier situation” with Barbara Waltz that had upset him. He went to the Circle K and bought gasoline, a soda, a candy bar, a small cigar, and a lighter. Petitioner put gasoline in his cab and also put one-and-a-half to two gallons of gasoline in a five-gallon bucket in his trunk. Petitioner then drove to Waltz's apartment complex. He testified that most of the gas spilled and there was maybe a gallon left in the bucket. He poured the gas on the ground to spell the word “bitch” at what he thought was a safe distance away from the building. He testified that the area where he poured the gas was about a foot-and- a-half to two-and-a-half feet wide by one foot tall. He set the bucket in front of the word, lit the word and bucket on fire, and left. Petitioner denied pouring any gas on the building. He started the fire between three and five feet from the building at what he thought was a safe distance, “but I was inebriated, so obviously I wasn't right.” He described his actions later to Nichole as a “prank to upset her mother.” Id. at 239-48.

         On cross-examination, Petitioner admitted that he initially lied to investigators following his arrest. Petitioner testified that he didn't know whether he told the investigators that he spelled the word “bitch” in the grass with the gasoline. He testified that he drank about eight rum and cokes before deciding to go to Waltz's apartment and start a fire. He was also taking Xanax. Id. at 248-54; ECF No. 41-2 at 255.

         The State called Lt. Steadman as a rebuttal witness. Steadman testified that during his interview Petitioner never said he used gasoline to spell the word “bitch” in front of Waltz's apartment. ECF No. 41-2 at 2. No. additional witnesses were called. Cummings did not renew his motion for a judgment of acquittal at the close of all of the evidence.

         Prior to Petitioner's testimony, the court discussed the proposed jury instructions. After conferring with Petitioner, Mr. Cummings informed the court that Petitioner wanted a jury instruction on arson, but not the lesser- included offense of attempted arson, and a jury instruction on criminal mischief causing more than $1000 in damage, a third-degree felony. Petitioner stipulated that the damage to the building was at least $100, 000. The court delivered the requested standard jury instructions without objection by the defense. ECF 41-1 at 208-12.

         While the jury was deliberating, the court conducted a colloquy with Petitioner during which Petitioner stated that he was satisfied with Cummings' services and there were no witnesses or defenses that Petitioner asked him to investigate that he failed or refused to investigate. ECF No. 42-2 at 45. The court asked Cummings if he had any concerns about Petitioner's legal competency, and Cummings responded that he had no such concerns, and that Petitioner had been “properly screened” for competency and for insanity at the time of the offense. Id. at 46-49.

         The jury found Petitioner guilty of arson of a dwelling and violation of a domestic violence injunction. Petitioner was sentenced to a mandatory 30-year term as a prison releasee reoffender. Id. at 50-52. Petitioner appealed, arguing that the evidence was insufficient to convict him of arson and that the jury instructions for arson were incomplete and confusing to the jury. Id. at 58-88. The First DCA affirmed, per curiam, without written opinion, and denied rehearing. Id. at 118, 137.

         Petitioner sought postconviction relief. For purposes of this case, the relevant state postconviction proceeding is Petitioner's third amended Rule 3.850 postconviction motion, in which he asserted 27 claims for relief. ECF No. 41-6 at 31-189; ECF No. 41-7 at 1-41. The trial court (Judge Frank E. Sheffield) entered a nonfinal order summarily denying postconviction relief on Petitioner's Grounds 1-10, 12, 17, 21-25 and 27. The court set nine claims (Grounds 11, 13, 14, 15, 16, 18, 19, 20 and 26) for an evidentiary hearing. ECF No. 41-7 at 86-98. Petitioner filed a motion for disqualification and recusal of Judge Sheffield, arguing that Judge Sheffield had been an attorney of record appointed to represent Petitioner for a two-month period while his criminal case was pending. Judge Sheffield recused himself and following additional recusals Petitioner's postconviction proceeding was ultimately presided over by Judge James C. Hankinson. ECF No. 41-9 at 56-177. The court appointed postconviction counsel for Petitioner, but subsequently discharged counsel on Petitioner's motion. ECF 41-8 at 69. At the conclusion of the evidentiary hearing, the court denied Petitioner's remaining postconviction claims. ECF No. 41-9 at 171-77. Petitioner appealed, and the First DCA affirmed the denial of relief per curiam, without a written opinion. ECF No. 41-10 at 145.

         The instant federal petition, which Respondent concedes is timely, followed. Petitioner asserts nine claims for relief: (1) His arrest on a Georgia warrant was unlawful and counsel was ineffective for failing to move to suppress his subsequent confession; (2) His confession was obtained in violation of his Miranda rights; (3) Counsel was ineffective with respect to the jury instructions on arson and criminal mischief; (4) His conviction reflects “fundamental error” because the evidence was insufficient to convict him of arson; (5) Counsel was ineffective for failing to raise a “relevant” defense; (6) Florida's PRR sentencing statute is unconstitutional; (7) Cumulative errors by counsel; (8) Trial court error for failing to hold a Faretta-type hearing on Petitioner's motion to discharge postconviction counsel; and (9) Petitioner's constitutional rights were violated when Judge Sheffield summarily denied 18 of his postconviction claims. ECF No. 27.

         II. Section 2254 Exhaustion Requirement

         Before bringing a habeas action in federal court, a petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1), (c). Exhaustion requires that prisoners give the state courts a “full and fair opportunity” to resolve all federal constitutional claims by “invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). To properly exhaust a federal claim, a petitioner must “fairly present” the claim in each appropriate state court, thereby affording the state courts a meaningful opportunity to “pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation omitted).

         When a petitioner fails to properly exhaust a federal claim in state court, and it is obvious that the unexhausted claim would now be procedurally barred under state law, the claim is procedurally defaulted. Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). Federal habeas courts are precluded from reviewing the merits of procedurally defaulted claims unless the petitioner can show either (1) cause for the failure to properly present the claim and actual prejudice from the default, or (2) that a fundamental miscarriage of justice would result if the claim were not considered. Id. at 1302, 1306. A fundamental miscarriage of justice exists “where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). To state a credible claim of actual innocence, a petitioner must present new reliable evidence that was not presented at trial showing that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 324 (1995).

         III. Section 2254 Standard of Review

         Under 28 U.S.C. § 2254(d)(2), a federal court may not grant a state prisoner's application for a writ of habeas corpus based on a claim already adjudicated on the merits in state court unless 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.” Under § 2254(e)(1), “a determination of a factual issue made by a State court shall be presumed to be correct, ” and the petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” “‘[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'” Burt v. Titlow, ___U.S.___, 134 S.Ct. 10, 15 (2013) (quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841 (2010)).

         As to legal findings, a petitioner is entitled to federal habeas relief only if the state court's adjudication of the merits of the federal claim “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.” § 2254(d)(1); see Burt, 134 S.Ct. at 15 (standard for reviewing claims of legal error by state courts is “highly deferential”). This standard “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Id. This highly deferential standard carries special force in habeas cases asserting ineffective assistance claims: “Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland[2]-a claim state courts have now adjudicated in countless criminal cases for nearly 30 years-‘there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.'” Id. (quoting Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037 (1976)).

         In view of the deference afforded to the state courts' adjudication of constitutional claims, “AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires ‘a state prisoner [to] 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 . . . beyond any possibility for fairminded disagreement.'” Id. at 15-16 (quoting Harrington v. Richter, 562 U.S.____, 131 S.Ct. 770, 786-787 (2011). “‘If this standard is difficult to meet'-and it is---‘that is because it was meant to be.'” Id. at 16 (quoting Harrington, 131 S.Ct. at 786). “We will not lightly conclude that a State's criminal justice system has experienced the ‘extreme malfunction' for which federal habeas relief is the remedy.” Id. (quoting Harrington, 131 S.Ct. at 786).

         IV. Discussion

         A. Claim (1): “Unlawful” Arrest and Ineffective Assistance

         Petitioner contends that he was unlawfully arrested pursuant to a “non-extradition” warrant from Lowndes County, Georgia. Petitioner argues that the Georgia warrant was facially insufficient, and that his subsequent interrogation by Fire Marshal Steadman resulted ...


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