Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Turner v. Inch

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

May 6, 2019

CHARMDAR MONTEZ TURNER, Petitioner,
v.
MARK S. INCH,[1] Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE

         This cause is before the court on Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (ECF No. 1). Respondent filed an answer and relevant portions of the state court record (ECF No. 14). Petitioner filed a reply (ECF No. 16).

         The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful consideration of all issues presented by the parties, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a), Rules Governing Section 2254 Cases. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.

         I. BACKGROUND AND PROCEDURAL HISTORY

         The relevant aspects of the procedural background of this case are established by the state court record (see ECF No. 14).[2] Petitioner was charged in the Circuit Court in and for Escambia County, Florida, No. 2011-CF-1306, with one count of Principal to Second Degree Murder with a Firearm (Count 1) and one count of Principal to Attempted Robbery While Armed with a Firearm (Count 2) (see Ex. A at 2). Following a jury trial, Petitioner was found guilty as charged (Ex. A at 197, Exs. C, D, E). On April 4, 2013, Petitioner was sentenced to fifty (50) years in prison on Count 1, and a concurrent term of fifteen (15) years in prison on Count 2, with pre-sentence jail credit of 272 days (Ex. B at 199-232).

         Petitioner, through counsel, appealed the judgment to the Florida First District Court of Appeal (“First DCA”), No. 1D13-2235 (Exs. F, G, H). The First DCA affirmed the judgment per curiam without written opinion on April 24, 2014 (Ex. I). Turner v. State, 136 So.3d 597 (Fla. 1st DCA 2014) (Table). The mandate issued May 12, 2014.

         On October 16, 2014, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. J at 1-5). The state circuit court struck the motion as facially insufficient, without prejudice to Petitioner's filing an amended motion within sixty (60) days (id. at 6-7). Petitioner filed an amended motion, and then a second and third amended motion (id. at 8-67). The state circuit court treated the three amended motions collectively as a single amended Rule 3.850 motion, and summarily denied it on October 19, 2015 (id. at 68-78). Petitioner appealed the decision to the First DCA, No. 1D15-5601 (id. at 167). The First DCA affirmed the decision per curiam without written opinion on April 21, 2016 (Ex. K). Turner v. State, 189 So.3d 765 (Fla. 1st DCA 2016) (Table). The mandate issued May 17, 2016 (Ex. K).

         On April 28, 2016, Petitioner filed a petition for writ of habeas corpus in the First DCA, No. 1D16-1965, alleging ineffective assistance of appellate counsel (Ex. L). The First DCA denied the petition on the merits on May 18, 2016 (Ex. M). Turner v. State, 190 So.3d 1161 (Fla. 1st DCA 2016) (Mem).

         On August 22, 2016, Petitioner filed a motion to correct illegal sentence, pursuant to Rule 3.800(a) of the Florida Rules of Criminal Procedure (Ex. N at 1- 8). On September 14, 2016, the state circuit court denied the motion, on the ground that Petitioner's claim was not cognizable in a Rule 3.800(a) motion (id. at 9-10). Petitioner appealed the decision to the First DCA, No. 1D16-5327 (Ex. O). The First DCA affirmed the decision per curiam without written opinion on May 17, 2017 (Ex. Q). Turner v. State, 226 So.3d 813 (Fla. 1st DCA 2017) (Table). The mandate issued June 13, 2017 (Ex. Q).

         Petitioner filed the instant federal habeas action on December 4, 2017 (ECF No. 1).

         II. STANDARD OF REVIEW

         Federal courts may grant habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Pub. L. 104-132, § 104, 110 Stat. 1214, 1218-19. Section 2254(d) provides, in relevant part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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.

28 U.S.C. § 2254(d) (2011).

         The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The appropriate test was described by Justice O'Connor as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Id., 529 U.S. at 412-13 (O'Connor, J., concurring).

         Employing the Williams framework, on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a state court proceeding, the federal court must first ascertain the “clearly established Federal law, ” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is “clearly established” only when a Supreme Court holding at the time of the state court decision embodies the legal principle at issue. Thaler v. Haynes, 559 U.S. 43, 47, 130 S.Ct. 1171, 175 L.Ed.2d 1003 (2010); Woods v. Donald, __ U.S. __, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (“We have explained that clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions.” (internal quotation marks and citation omitted)).

         After identifying the governing legal principle(s), the federal court determines whether the state court adjudication is contrary to the clearly established Supreme Court case law. The adjudication is not contrary to Supreme Court precedent merely because it fails to cite to that precedent. Rather, the adjudication is “contrary” only if either the reasoning or the result contradicts the relevant Supreme Court cases. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (“Avoiding th[e] pitfalls [of § 2254(d)(1)] does not require citation to our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.”). Where there is no Supreme Court precedent on point, the state court's conclusion cannot be contrary to clearly established federal law. See Woods, 135 S.Ct. at 1377 (holding, as to claim that counsel was per se ineffective in being absent from the courtroom for ten minutes during testimony concerning other defendants: “Because none of our cases confront the specific question presented by this case, the state court's decision could not be contrary to any holding from this Court.” (internal quotation marks and citation omitted)). If the state court decision is contrary to clearly established federal law, the federal habeas court must independently consider the merits of the petitioner's claim. See Panetti v. Quarterman, 551 U.S. 930, 954, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

         If the “contrary to” clause is not satisfied, the federal habeas court next determines whether the state court “unreasonably applied” the governing legal principles set forth in the Supreme Court's cases. The federal court defers to the state court's reasoning unless the state court's application of the legal principle(s) was “objectively unreasonable” in light of the record before the state court. Williams, 529 U.S. at 409; see Holland v. Jackson, 542 U.S. 649, 652, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004) (per curiam). In applying this standard, the Supreme Court has emphasized:

When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as “a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Harrington, supra, at 102-103, 131 S.Ct. 770 (internal quotation marks omitted).

Woods, 135 S.Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).

         Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in state court where 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.” 28 U.S.C. § 2254(d)(2). The “unreasonable determination of the facts” standard is implicated only to the extent the validity of the state court's ultimate conclusion is premised on unreasonable fact finding. See Gill v. Mecusker, 633 F.3d 1272, 1292 (11th Cir. 2011). As with the “unreasonable application” clause, the federal court applies an objective test. Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (holding that a state court decision based on a factual determination “will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.”). Federal courts “may not characterize . . . state-court factual determinations as unreasonable merely because we would have reached a different conclusion in the first instance.” Brumfield v. Cain, __ U.S. __, 135 S.Ct. 2269, 2277, 192 L.Ed.2d 356 (2015) (quotation marks omitted).

         When performing review under § 2254(d), the federal court presumes that all factual determinations made by the state court are correct. 28 U.S.C. § 2254(e)(1). The petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id.; see, e.g., Miller-El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court's factual finding and, when guided by the AEDPA, “conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence”). Neither the Supreme Court nor the Eleventh Circuit has interpreted how § 2254(d)(2) and § 2254(e)(1) interact in the context of fact-based challenges to state court adjudications. See Cave v. Sec'y for Dep't of Corr., 638 F.3d. 739 (11th Cir. 2011). However, the Eleventh Circuit has declined to grant habeas relief under § 2254(d)(2) in the context of a state appellate court's summary affirmance, where it found that the validity of the state court decision was not premised on the trial court's unreasonable fact finding, and that the petitioner failed to demonstrate “by clear and convincing evidence that the record reflect[ed] an insufficient factual basis for affirming the state court's decision.” Gill, 633 F.3d at 1292.

         Only if the federal habeas court finds that the petitioner satisfied the AEDPA and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti, 551 U.S. at 954. Even then, the writ will not issue unless the petitioner shows that he is in custody “in violation of the Constitution or laws and treaties of the United States.” 28 U.S.C. § 2254(a). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

         III. EXHAUSTION AND PROCEDURAL DEFAULT

         It is a long-standing prerequisite to the filing of a federal habeas corpus petition that the petitioner exhaust available state court remedies, see 28 U.S.C. § 2254(b)(1), thereby giving the State the “‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971) (citation omitted)). To satisfy the exhaustion requirement, the petitioner must “fairly present” his claim in each appropriate state court, alerting that court to the federal nature of the claim. Duncan, 513 U.S. at 365-66; O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard, 404 U.S. at 277-78.

         The Supreme Court has provided lower courts with guidance for determining whether a habeas petitioner has met the “fair presentation” requirement. In Picard v. Connor, the Court held that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief. 404 U.S. at 277. In announcing that “the substance of a federal habeas corpus claim must first be presented to the state courts, ” id., 404 U.S. at 278, the Court rejected the contention in that case that the petitioner satisfied the exhaustion requirement by presenting the state courts only with the facts necessary to state a claim for relief.

         Additionally, the Court has indicated that it is not enough that a petitioner makes a general appeal to a constitutional guarantee as broad as due process to present the “substance” of such a claim to a state court. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982). In Anderson, the Sixth Circuit Court of Appeals granted the habeas petition on the ground that a jury instruction violated due process because it obviated the requirement that the prosecutor prove all the elements of the crime beyond a reasonable doubt. 459 U.S. at 7 (citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979)). The only manner in which the habeas petitioner cited federal authority was by referring to a state court decision in which “the defendant . . . asserted a broad federal due process right to jury instructions that properly explain state law.” Anderson, 459 U.S. at 7. On review by the Supreme Court, the Court expressed doubt that a defendant's citation to a state-court decision predicated solely on state law was sufficient to fairly apprise a reviewing court of a potential federal claim merely because the defendant in the cited case advanced a federal claim. Id., 459 U.S. at 7 & n.3. Furthermore, the Court clarified that such a citation was obviously insufficient when the record satisfied the federal habeas court that the federal claim asserted in the cited case was not the same as the federal claim on which federal habeas relief was sought. Id.

         Years later, the Supreme Court readdressed the “fair presentation” requirement in Duncan v. Henry, 513 U.S. 364. The Duncan Court strictly construed the exhaustion requirement so as to mandate that, if state and federal constitutional law overlap in their applicability to a petitioner's claim, the petitioner must raise his issue in terms of the applicable federal right in state court in order to obtain federal review of the issue.[3] The Supreme Court explained, “[i]f a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal, but in state court.” Duncan, 513 U.S. at 365-66.

         In Baldwin v. Reese, the Supreme Court again focused upon the requirement of “fair presentation, ” holding that “ordinarily a state prisoner does not ‘fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion in the case, that does so.” 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The Baldwin court commented that “[a] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.'” Id., 541 U.S. at 32. With regard to this language, the Eleventh Circuit explained in McNair v. Campbell, 416 F.3d 1291 (11th Cir. 2005):

If read in a vacuum, this dicta might be thought to create a low floor indeed for petitioners seeking to establish exhaustion. However, we agree with the district court that this language must be “applied with common sense and in light of the purpose underlying the exhaustion requirement[:] ‘to afford the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.'” McNair [v. Campbell], 315 F.Supp.2d at 1184 (quoting Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986)). This is consistent with settled law established by the Supreme Court. . . . We therefore hold that “‘[t]he exhaustion doctrine requires a habeas applicant to do more than scatter some makeshift needles in the haystack of the state court record.'”

416 F.3d at 1302-03 (citations omitted).[4]

         An issue that was not properly presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, that is, procedurally barred from federal review. See Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). This court will also consider a claim procedurally defaulted if it was presented in state court and rejected on the independent and adequate state ground of procedural bar or default. See Coleman v. Thompson, 501 U.S. 722, 734-35 & n.1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) (“[C]laims that have been held to be procedurally defaulted under state law cannot be addressed by federal courts.”); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (applicable state procedural bar should be enforced by federal court even as to a claim which has never been presented to a state court); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev'd on other grounds, 498 U.S. 308, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). In the first instance, the federal court must determine whether any future attempt to exhaust state remedies would be futile under the state's procedural default doctrine. Bailey, 172 F.3d at 1303. In the second instance, a federal court must determine whether the last state court rendering judgment clearly and expressly stated its judgment rested on a procedural bar. Id. A federal court is not required to honor a state's procedural default ruling unless that ruling rests on adequate state grounds independent of the federal question. See Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The adequacy of a state procedural bar to the assertion of a federal question is itself a federal question. Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 885, 151 L.Ed.2d 820 (2002).

         The Eleventh Circuit has set forth a three-part test to determine whether a state court's procedural ruling constitutes an independent and adequate state rule of decision. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). First, the last state court rendering judgment must clearly and expressly state it is relying on state procedural rules to resolve the federal claim.[5] Second, the state court's decision on the procedural issue must rest entirely on state law grounds and not be intertwined with an interpretation of federal law. Id. Third, the state procedural rule must be adequate. Id. The adequacy requirement has been interpreted to mean the rule must be firmly established and regularly followed, that is, not applied in an arbitrary or unprecedented fashion. Id.

         To overcome a procedural default, the petitioner must show cause for the default and prejudice resulting therefrom, or that the federal court's failure to reach the merits of the claim would result in a fundamental miscarriage of justice. Tower, 7 F.3d at 210; Parker, 876 F.2d 1470. “For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim.” McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To satisfy the miscarriage of justice exception, the petitioner must show that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 85, 130 L.Ed.2d 808 (1995). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him.” Schlup, 513 U.S. at 327. Further:

a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.

Id. Although a habeas petitioner asserting a convincing claim of actual innocence need not prove diligence to overcome a procedural bar, timing is a factor relevant in evaluating the reliability of a petitioner's proof of innocence. See McQuiggin v. Perkins, __ U.S. __, 133 S.Ct. 1924, 1935, 185 L.Ed.2d 1019 (2013). As the Court stated in Schlup, “[a] court may consider how the timing of the submission and the likely credibility of [a petitioner's] affiants bear on the probable reliability of . . . evidence [of actual innocence].” 513 U.S. at 332; see also House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006).

         Within this framework, the court will review Petitioner's claims.

         IV. PETITIONER'S CLAIMS

         A. Ground One: “Trial court violated due process by prohibiting relevant evidence of defense's theory of innocence. U.S.C.A. Const. 5, 14.”

         Petitioner alleges the State “opened the door” to evidence that the victim was a drug dealer “known to have money” (ECF No. 1 at 5).[6] Petitioner argues that once the State “opened the door, ” the trial court erred by refusing to allow the defense to present evidence in support of Petitioner's theory of defense, specifically, testimony that the victim was “a known drug dealer” (id. at 5-6). Petitioner asserts he presented this issue on direct appeal of his conviction (id. at 6).

         Respondent contends to the extent Petitioner intends to present the same due process claim in federal court as he presented to the First DCA on direct appeal, the claim is unexhausted and procedurally barred (ECF No. 14 at 15-25). Respondent argues that the “sole source of Petitioner's constitutional due process claim” presented on direct appeal was “his very general citation Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)” (id. at 18). Respondent acknowledges that the First DCA's silent affirmance of Petitioner's conviction is presumed to be an adjudication “on the merits” of Petitioner's federal due process claim, within the meaning of § 2254(d) (id. at 20). But Respondent argues the presumption is overcome, because there are reasons to think the First DCA decided the issue on purely state law grounds (id. at 21-22). Respondent contends Petitioner asserted no federal basis for his argument in the trial court, and instead argued only that the evidence (that the victim was “a known drug dealer”) was admissible under Florida's rules of evidence (id. at 18-22). Respondent argues the only reasoning the First DCA could have adopted in affirming the trial court is that such evidence was not admissible under state law (id. at 18-22). Respondent further argues that if the First DCA considered Petitioner's federal due process claim in the first instance on direct appeal, it would have done so under Florida's standard of fundamental error which, again, is purely a state law issue (id. at 21-22). Respondent contends Petitioner cannot show cause for the procedural default, and Petitioner asserts no claim of actual innocence; therefore, the claim is procedurally barred from federal review (id. at 23-25).

         Respondent argues that if this court disagrees with its assessment of the exhaustion and procedural default issue, then the First DCA's rejection of Petitioner's claim would necessarily be “on the merits” (ECF No. 14 at 26). Respondent contends the state court's adjudication must be afforded deference under § 2254(d), because it was not contrary to or an unreasonable application of clearly established federal law (id. at 26-27).

         In reply, Petitioner argues that his appellate counsel was ineffective for failing to present a federal due process claim on direct appeal (ECF No. 16 at 2-3). Petitioner contends he is entitled to federal review of his due process claim under Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d (2012) and the fundamental miscarriage of justice exception (id.).

         The state court record demonstrates that Petitioner presented the following issue as Issue III on direct appeal:

The trial court violated appellant's right to due process when it prohibited appellant from presenting evidence relevant to his defense and to which the state had opened the door on direct examination of state witness jessie.

(Ex. F at 38). Petitioner argued that the issue was preserved for appellate review (id.). With respect to the merits, Petitioner argued that, under Chambers, an accused has a fundamental right to present witnesses in his own defense, and this was so even if other rules of evidence, such as a hearsay rule, would normally cause such evidence to be excluded (id. at 38-39, 43). Petitioner cited at least two Florida state cases which resolved the due process issue on federal grounds, Washington v. State, 737 So.2d 1208 (Fla. 1st DCA 1999) and Vannier v. State, 714 So.2d 470 (Fla. 4th DCA 1998) (id. at 39-40). The undersigned concludes this was sufficient to alert the First DCA to the federal nature of Petitioner's claim, and thus satisfied the “fair presentation” requirement.

         The next question is whether the First DCA adjudicated the merits of Petitioner's federal due process claim. Section § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been “adjudicated on the merits.” See Richter, 562 U.S. at 99. When a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits in the absence of any indication or state-law procedural principles to the contrary. Id. The presumption may be overcome when there is a reason to think some other explanation for the state court's decision is more likely. Id. at 99-100.

         Here, there is no reason to think the First DCA rejected Petitioner's claim on grounds other than the merits. In the parties' briefs to the First DCA, neither party argued that the federal issue was not preserved for appellate review, and the State did not argue that the claim should be resolved on any ground other than the merits (see Exs. F, G). Further, neither the trial court nor the First DCA indicated that it was deciding the claim on state-procedural principles or grounds other than the merits. Therefore, Respondent has not overcome the presumption that the First DCA adjudicated Petitioner's federal claim on the merits. The next step of the federal habeas analysis, then, is to determine whether Petitioner has demonstrated that the First DCA's adjudication of the federal due process claim was based upon an unreasonable determination of the facts, contrary to clearly established federal law, or an unreasonable application of that law.

         1. Clearly Established Federal Law

         In Nevada v. Jackson, 569 U.S. 505, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2013), the United States Supreme Court said:

“[T]he Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense, '” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)), but we have also recognized that “‘state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials, '” Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998)). Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence. See [Holmes, ] 547 U.S. at 331, 126 S.Ct. 1727 (rule did not rationally serve any discernible purpose); Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (rule arbitrary); Chambers v. Mississippi, 410 U.S. 284, 302-303, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (State did not even attempt to explain the reason for its rule); Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (rule could not be rationally defended).

Id. at 509. A defendant's right to a meaningful opportunity to present a complete defense is abridged by evidentiary rules that “infring[e] upon a weighty interest of the accused” and are “‘arbitrary' or ‘disproportionate to the purposes they are designed to serve.'” Scheffer, 523 U.S. at 308 (quoting Rock, 483 U.S. at 56, 58).

         In Holmes, the state trial court excluded evidence of third-party guilt in a capital murder case, on the ground that the proffered evidence did not raise a reasonable inference of the defendant's innocence, in light of strong forensic evidence of the defendant's guilt. 547 U.S. at 329. The Supreme Court opined that the state court's ruling was arbitrary, because it evaluated the strength of only one party's evidence (the prosecution's), and thus could reach no logical conclusion regarding the probative value or the potential adverse effects of admitting the evidence offered by the defense. Id. at 331.

         In Rock, the Supreme Court held that a rule prohibiting hypnotically refreshed testimony was unconstitutional because “[w]holesale inadmissibility of a defendant's testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnosis recollections.” 483 U.S. at 61.

         Another arbitrary rule was held unconstitutional in Crane. There, the defendant was prevented from attempting to show that his confession was unreliable because of the circumstances under which it was obtained, and neither the state supreme court nor the prosecution “advanced any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence.” 476 U.S. at 691.

         In Chambers, a murder defendant called as a witness a man named McDonald, who had previously confessed to the murder. When McDonald repudiated the confession on the stand, the defendant was denied permission to examine McDonald as an adverse witness based on the State's “‘voucher' rule, ” which barred parties from impeaching their own witnesses. 410 U.S. at 294. In addition, because the state hearsay rule did not include an exception for statements against penal interest, the defendant was not permitted to introduce evidence that McDonald had made self-incriminating statements to three other persons. Noting that the State had not even attempted to “defend” or “explain [the] underlying rationale” of the “voucher rule, ” id. at 297, the Supreme Court held that “the exclusion of [the evidence of McDonald's out-of-court statements], coupled with the State's refusal to permit [the defendant] to cross-examine McDonald, denied [the defendant] a trial in accord with traditional and fundamental standards of due process, ” id. at 302.

         Finally, in Washington, state statutes barred a person who had been charged as a participant in a crime from testifying in defense of another alleged participant unless the witness had been acquitted. As a result, when defendant Washington was tried for murder, he was precluded from calling as a witness a person who had been charged and previously convicted of committing the same murder. Holding that the defendant's right to put on a defense had been violated, the Supreme Court noted that the rule embodied in the state statutes could not “even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury, ” since the rule allowed an alleged participant to testify if he or she had been acquitted or was called by the prosecution. 388 U.S. at 22-23.

         The Eleventh Circuit uses the following analysis in applying Supreme Court precedent to the issue of whether a trial court's evidentiary ruling deprived a defendant of his constitutional right to a meaningful opportunity to present a complete defense, under the Fifth and Sixth Amendments: (1) whether the right was actually violated; and if so, (2) whether the error was “harmless beyond a reasonable doubt.” United States v. Hurn, 368 F.3d 1359, 1362-63 (11th Cir. 2004). A trial court's exclusion of a defendant's evidence violates the Compulsory Process and Due Process guarantees in four circumstances:

First, a defendant must generally be permitted to introduce evidence directly pertaining to any of the actual elements of the charged offense or an affirmative defense. Second, a defendant must generally be permitted to introduce evidence pertaining to collateral matters that, through a reasonable chain of inferences, could make the existence of one or more of the elements of the charged offense or an affirmative defense more or less certain. Third, a defendant generally has the right to introduce evidence that is not itself tied to any of the elements of a crime or affirmative defense, but that could have a substantial impact on the credibility of an important government witness. Finally, a defendant must generally be permitted to introduce evidence that, while not directly or indirectly relevant to any of the elements of the charged events, nevertheless tends to place the story presented by the prosecution in a significantly different light, such that a reasonable jury might receive it differently.

Id. at 1363.

         2. Federal Review of State Court Decision

         The evidentiary ruling at issue in this case was the trial court's exclusion of testimony that the victim was “a known drug dealer.” To put this proffered testimony in context, the following is an overview of the charges, the story presented by the State, and the defense theory.

         Petitioner was charged as a principal to second degree murder with a firearm of Donald “Diego” Turner, and principal to attempted armed robbery of Donald “Diego” Turner (Ex. A at 2). The story presented by the State at trial was that on March 21, 2010, Petitioner (known as “Sean”) drove Jarvis Jessie, Mario Brewer, and Anthony (“Ant”) Bell to Diego Turner's home with the intent to rob him; that the men saw Diego and approached him; that during the attempted robbery, Petitioner encouraged Jarvis Jessie to shoot Diego; and that Jarvis Jessie shot and killed Diego (Ex. C at 154-66).

         The theory presented by the defense during opening statements was that the evidence supported only a manslaughter charge as to Jarvis Jessie; that it would show that Petitioner had no involvement in the actual shooting of Diego Turner; and that it would show that Jarvis Jessie, Petitioner, Mario Brewer, and Anthony Bell never even made an attempt to rob Diego Turner (Ex. C at 166-80). Defense counsel asserted the evidence would show that Jarvis Jessie was charged with the killing of Diego Turner; that he entered a plea to manslaughter; that he was facing a maximum sentence of 30 years; and that he was anticipating that his sentence would not exceed 10.8 years, but was hopeful that his sentence would be even less if he testified against Petitioner (id.). Defense counsel asserted the facts supported Mr. Jessie's guilt of manslaughter, but not second degree murder (id.). Counsel asserted the evidence would show that Petitioner, Mr. Brewer, and Mr. Bell began to approach Diego's home, but then decided to run back to their vehicle (id.). Counsel asserted the evidence would show that Jarvis Jessie, who was the only person carrying a gun, also began to run away, but then looked back toward Diego's house (id.). Counsel asserted Jessie would testify he thought he saw something in Diego's hand and was afraid it was a gun, so Jessie shot in Diego's direction to “scare him off” and enable him (Jessie) to flee (id.).

         The State presented testimony of Sheryl Bowden, who stated she was Petitioner's grandmother and Diego's aunt (Petitioner and Diego were cousins) (Ex. D at 257). Ms. Bowden testified that on the evening of the shooting, Petitioner, Anthony Bell, and a third man came to her home and borrowed a car, because Petitioner stated his baby was sick (id. at 258-59).

         Meka Turner, the victim's wife, testified that Petitioner was her husband's younger cousin (Ex. D at 261-62). Ms. Turner testified she had known Petitioner for four or five years (id. at 262). Ms. Turner testified that Diego's relationship with Petitioner had become “bad” in the week prior to the shooting, and the two were mad at each other, because Diego suspected that Petitioner had burglarized his vehicle (id. at 263-64). Ms. Turner testified that when she and Diego arrived home on the night of March 21, 2010, she saw three men as she was getting out of the vehicle (id. at 66-69). Ms. Turner testified she alerted Diego, and he told her to run (id.). Ms. Turner testified that as she was running to the front door of their home, she heard a voice say, “Go. Get that Nigger. Shoot that Nigger. Get him” (id. at 269). Ms. Turner testified Diego was facing the front door of their home, and she was behind him and could see three people “just standing there, not moving, not saying anything” (id.). Ms. Turner testified Diego was trying to get the key in the door of and said, “Oh my gosh. I can't believe this is happening to us.” (id.). Ms. Turner testified she heard the man with the gun say, “Don't move, don't move, ” and it was a different voice than the voice that said, “Get him” (id. at 270, 291). Ms. Turner continued:

So as we're at the door, my husband-the person with the gun is down here. They have the gun raised up over the wooden staircase like that at both of us and he's [Diego] able to get the door open. He brings the door and that's-I'm coming around, he grabs me by my front of my bra here and swings me into the house. So when I'm coming into the living room falling backward like this, and my husband comes into the trailer, he's out-the door is still wide open. He comes in, and not even a foot, he stops, and then he turns and he goes to the door and reaches out like that in a kneeling position, like this. He reaches out like that. And as he did that, we hear pow. And I was like, “'Oh, my God.” And I jumped down and I stood up immediately, and he just stood up like this. He stood up and he shut the door with his back turned towards me. And he was like, “Oh, I've been shot.” And I was like, “Oh, my God. Where, where, where?”
And he takes off running to the back room. And as I'm running behind him, I stop in the middle of the hallway and I recognize that the door was still open. So I run, try to lock the door. I turn around and I came back to my husband in the room on the floor and that's where I was talking to him at. . . . .
He was breathing. He didn't move. He was laying [sic] chest down and his face was to the side, and he was like (heavy breathing).

(Ex. D at 270-71). Ms. Turner testified that she recognized the voice of the person who said, “Get him, shoot him, ” and it was Petitioner's voice (id. at 272, 276, 284, 287-88, 290, 294). Ms. Turner testified that Diego did not have a gun at any point that evening (id. at 272).

         The medical examiner testified that Diego died from a gunshot wound to the chest (Ex. C at 201-08).

         Ricardo Turner, the victim's brother, testified that approximately one week prior to the shooting, he, Diego, and Petitioner left Diego's trailer and went to the dog track together (Ex. D at 339-40). Ricardo testified he (Ricardo) left the truck he had driven (a 2005 Dodge Ram 2300 which belonged to Diego but was being used by Ricardo) at Diego's trailer (id. at 343). Ricardo testified that Diego and Petitioner were on good terms when they went to the dog track (id. at 344-45). He testified that Diego tried to “look out for” Petitioner and was trying to be a role model for him (id.). Ricardo testified that when they arrived at the track, they went to play poker, but after “a little while, ” Petitioner “slipped away, ” and Ricardo assumed that Petitioner went to bet on the dogs (id. at 340, 344). Ricardo testified that he and Diego left the dog track and returned to Diego's trailer (id. at 340-41). Ricardo testified that when they arrived at the trailer, they found that the truck (the 2005 Dodge Ram 2300) had been broken into (id.). Ricardo testified he and Diego suspected Petitioner committed the burglary and called him on the phone to accuse him of it (id. at 340-42, 345-46). Ricardo testified Petitioner denied committing the burglary and became angry (id. at 342, 346-47). Ricardo testified he (Ricardo) threatened to “spank” Petitioner (id. at 342). He testified that Petitioner did not threaten to harm him or Diego (id.).

         Jennifer Norman, a crime scene technician with the Escambia County Sheriff's Office, testified that a semiautomatic handgun was found under Diego's body in the bedroom (Ex. D at 215, 225, 227). Ms. Norman testified there was no evidence that the handgun had been fired (id. at 225).

         Both Jarvis Jessie and Mario Brewer testified at Petitioner's trial. Mario Brewer testified that on the night of the shooting, Petitioner drove him, Anthony Bell, and a fourth man to the trailer park off Augusta Avenue “to see somebody, ” but Brewer did not know who they were going to see (Ex. E at 396). Brewer testified he did not know Diego Turner or anyone who lived in the trailer park off Augusta Avenue (id. at 395). Brewer testified the four of them got out of the vehicle and began walking on the side of the victim's trailer (id. at 397). Mr. Brewer testified that the fourth man (Jarvis Jessie) was “a little further up ahead, ” and when Brewer, Petitioner, and Bell got close to the trailer, they heard a gunshot (id.). Brewer testified Jarvis Jessie went one way, and he, Petitioner, and Bell went the other way (id. at 397-98).

         On cross-examination, Mario Brewer testified he heard Petitioner yell, “Get the Nigger” (Ex. E at 404-05). Brewer then admitted that during his pre-trial deposition, he stated he never heard Petitioner or anyone else yell anything on the night of the shooting (id. at 405-06). Upon further questioning by defense counsel, Brewer testified that he misspoke when he testified that he heard Petitioner yell something (id. at 406-07).

         Jarvis Jessie testified that he was charged with the killing of Diego Turner; that he entered a plea to manslaughter; that he was facing a maximum sentence of 30 years, but was anticipating a sentence of not more than 10.8 years; and that he was hopeful his sentence would be even less if he testified at Petitioner's trial (Ex. D at 348-51, 362). Mr. Jessie testified he did not remember which of the other three men in the car suggested they rob someone on the night of March 21, 2010, but as far as he knew, there was no confusion among the four of them that they were going to rob someone (id. at 353-54). Jessie testified there was no discussion of the details (id. at 356). Mr. Jessie testified Petitioner drove the vehicle to Augusta Avenue (the location of the victim's residence) (id. at 355). Jessie testified that when they first arrived, the victim's vehicle was not there, but the victim's vehicle arrived while Petitioner was parking (id.).

         The prosecutor continued to question Mr. Jessie as follows:

Q. What was the thought about why this person would be a good target?
A. Knowing they had money.
Q. And you got to speak a little bit louder for me, please.
A. Known to have money.
Q. Okay. So he was-the person that y'all were supposed to rob was known to have money?
A. Yeah, drug money.
Q. When you hear that you were going to hit a lick [sic], were you told who you were going to rob?
A. Probably, yeah. I don't know.
Q. You just don't remember?
A. Yeah.
Q. Okay. Did you know the name Diego Turner ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.