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Williams v. Secretary

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

June 28, 2019

TROY WILLIAMS, Petitioner,
v.
SECRETARY, Department of Corrections, and FLORIDA ATTORNEY GENERAL, Respondents.

          ORDER

          WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE

         On July 5, 2017, the Court received Petitioner Williams's petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. Dkt. 1. He seeks relief from a 2012 Florida state court conviction. Id. at 1. Respondents have filed a response in opposition, Dkt. 11, and Petitioner has filed a reply, Dkt. 13. The Court finds that no hearing is necessary and DENIES the petition.

         BACKGROUND

         On August 21, 2012, a jury in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, found Petitioner guilty of one count of lewd and lascivious conduct and one count of lewd and lascivious battery on a child. Dkt. 12-2 at 8; see also Dkt. 12-1 at 127. Petitioner was sentenced to incarceration of seven and a half years, and ten years of probation. Dkt. 12-2 at 1, 11-12.[1]

         Through counsel, Petitioner moved for a judgment of acquittal and arrest of judgment that was denied. Dkt. 12-1 at 133. He argued that there was no evidence presented as to the venue or dates for the lewd and lascivious conduct. This was also the sole issue raised in his appeal. Dkt. 12-5 at 44. The District Court of Appeal for the Fifth District of Florida (5th DCA) per curiam affirmed the judgment. Dkt. 12-5 at 62.

         Petitioner then filed a pro se habeas petition in the Fifth DCA alleging ineffective assistance of appellate counsel. Dkt. 12-5 at 65-76. The Fifth DCA denied the petition, Dkt. 12-5 at 106, and subsequent motion for rehearing, id. at 114. Petitioner next filed a pro se 3.850 motion for postconviction relief in the circuit court, raising eight grounds for ineffective assistance of trial counsel. Dkt. 12-5 at 132-52. The postconviction court denied some of the grounds and ordered the State to respond to the remaining grounds. Dkt. 12-5 at 165. The court held an evidentiary hearing on the remaining grounds (grounds II and VII here) before denying them. Dkt. 12-6 at 76.

         Petitioner's counsel on the appeal of the 3.850 denial filed an Anders brief.[2]Dkt. 12-7 at 51. Petitioner filed a pro se brief for the appeal. Dkt. 12-7 at 66. The Fifth DCA per curiam affirmed. Dkt. 12-8 at 41-42. Petitioner then filed a pro se successive motion for postconviction relief raising two additional grounds for relief. Dkt. 12-8 at 46-51. The postconviction court denied the motion, finding it successive and procedurally barred. Dkt. 12-8 at 58. The Fifth DCA per curiam affirmed. Dkt. 12-8 at 94-95. Petitioner then timely filed the instant petition.

         Petitioner raises ten grounds for relief, all premised on ineffective assistance of trial counsel: (1) counsel failed to challenge the police's warrantless arrest of Petitioner in a residence; (2) counsel did not object to the prosecution's use of recorded testimony of the victim's stepfather; (3) counsel did not investigate a possible exculpatory witness; (4) counsel did not move for a bill of particulars to narrow the timeframe of offending conduct; (5) counsel did not challenge the location or venue of an offending act; (6) counsel did not challenge the credibility of the victim; (7) counsel did not explore a possible ulterior motive of the victim or his stepfather; (8) counsel did not object to incomplete jury instructions; (9) counsel did not seek a preliminary hearing; and (10) cumulative error.

         LEGAL STANDARD

         This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA “establishes a highly deferential standard for reviewing state court judgments, ” Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 768 (11th Cir. 2003) (citation omitted), that does not allow relief for a state court conviction on a claim “‘that was adjudicated on the merits in the State court proceedings' unless the state court's decision was ‘(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, '” Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28 U.S.C. § 2254(d)).

         “Clearly established Federal law” means holdings of the U.S. Supreme Court “as of the time of the relevant state-court decision.” Id. at 1288-89 (citation omitted). “Contrary to” requires a state court 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.” Id. at 1289 (citations omitted) (alterations in original). The “unreasonable application” clause applies only “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. (citation omitted) (alterations in original).

         A state court's factual determination, meanwhile, “is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Id. (citation omitted). AEDPA “requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Id. (citation omitted). This is a “demanding but not insatiable standard, requiring proof that a claim is highly probable.” Id. (citation and internal quotation marks omitted).

         Counsel is ineffective under the Sixth Amendment if “(1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d 1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). But in the habeas context, “[t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation and internal quotation marks omitted). “If there is ‘any reasonable argument that counsel satisfied Strickland's deferential standard,' then a federal court may not disturb a state-court decision denying the claim.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (citation omitted).

         DISCUSSION

         Respondents argue that claims one, eight, and ten are procedurally defaulted, and that Petitioner's ineffective assistance of counsel claims are without merit. The Court finds that a hearing is unnecessary, see Turner v. Crosby, 339 F.3d 1247, 1274-75 (11th Cir. 2003), and will handle the issues in turn.

         Claim I. Warrantless Arrest of Petitioner in a Residence

         Petitioner raised this claim in his second motion for postconviction relief, which the state court denied because it was successive and procedurally barred. Dkt. 12-8 at 58. The Fifth DCA per curiam affirmed. Dkt. 12-8 at 94-95. To avoid default of federal claims, (1) “the applicant must have fairly apprised the highest court of his state with the appropriate jurisdiction of the federal rights which allegedly were violated, ” and (2) “the applicant must have presented his claims in state court in a procedurally correct manner.” Upshaw v Singletary, 70 F.3d 576, 578-79 (11th Cir. 1995).

         Because at this stage Petitioner is unable to present his claims to the state court, the grounds are procedurally defaulted. See, e.g., Crosby v. Crosby, No. 502cv129OC10GRJ, 2005 WL 1126563, at * 2 n.15 (M.D. Fla. May 5, 2005) (citing Tafero v. State, 561 So.2d 557 (Fla. 1990) for proposition that “additional claims of ineffective assistance of counsel cannot be raised in a successive motion for post conviction relief where ineffectiveness was raised and addressed in the first motion”); Allen v. Sec'y, DOC, No. 2:12-CV-644-FTM-29CM, 2016 WL 762648, at *5 (M.D. Fla. Feb. 24, 2016), aff'd, 767 Fed.Appx. 786 (11th Cir. Apr. 3, 2019) (“Petitioner cannot return to state court to present this claim because Florida procedural rules preclude a second, untimely Rule 3.850 motion absent certain extenuating circumstances that are not present in this case.”); see also Frazier v. State, 898 So.2d 1183, 1183-84 (Fla. 3d DCA 2005) (barring as successive claims that could have and should have been made in previous post-conviction motion).

         “[A] state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default.” Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (citation omitted). “Cause exists if there was ‘some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule.'” Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (citation omitted). It is not enough that a prisoner is pro se. Harmon v Barton, 894 F.2d 1268, 1274 (11th Cir. 1990). Actual prejudice requires Petitioner to show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

         To establish cause, Petitioner states that he “was unaware of this serious constitutional rights violation until conducting research for the initial brief for the appeal of the first Rule 3.850 motion.” Dkt. 13 at 2-3. He further emphasizes his lack of familiarity in the legal system. Id. at 3. This is insufficient. Nor can Petitioner establish prejudice because an unconstitutional arrest cannot plausibly affect the result of trial. For example, Plaintiff does not specify any evidence that could have been suppressed following any unconstitutional arrest.

         Yet “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez v. Ryan, 566 U.S. 1, 17-18 (2012). This exception applies only where (1) a state requires a prisoner to raise ineffective-trial-counsel claims at the initial-review stage of a state collateral proceeding and precludes those claims during direct appeal; (2) the prisoner did not comply with state rules and failed properly to raise ineffective-trial-counsel claims in his state initial-review collateral proceeding; (3) the prisoner did not have counsel (or his appointed counsel was ineffective by not raising ineffective-trial-counsel claims) in that initial-review collateral proceeding; and (4) failing to excuse the prisoner's procedural default would cause the prisoner to lose a ‘substantial' ineffective-trial-counsel claim. Arthur v. Thomas, 739 F.3d 611, 629 (11th Cir. 2014). “A defaulted claim is substantial if the resolution of its merits would be debatable among jurists of reason.” Duffy v. Sec'y, Dep't of Corr., 729 Fed.Appx. 669, 670 (11th Cir. 2018) (citation omitted).

         And although a defendant cannot typically raise ineffective assistance of trial counsel claims on direct appeal in Florida, Rigg v. Warden, Blackwater River Corr. Facility, 685 Fed.Appx. 812, 815-16 (11th Cir. 2017) (citing Reynolds v. State, 99 So.3d 459, 474 (Fla. 2012)); Ellerbee v. State, 87 So.3d 730, 739 (Fla. 2012), Petitioner did raise a number of ineffective assistance of counsel claims in his state initial-review collateral proceeding. In any event, there is no indication on the record that not excusing the procedural default would cause the prisoner to lose a “substantial” ineffective-trial-counsel claim. Arthur, 739 F.3d at 629.

         Petitioner claims that when officers arrested Petitioner at his residence without a warrant, they had to first enter his yard through a closed perimeter fence. Dkt. 1 at 7. They entered “for the sole purpose of taking [Petitioner] into custody.” Id. But it is not clear whether police actually entered Petitioner's dwelling when they arrested him, see Moore v. Pederson, 806 F.3d 1036, 1039 (11th Cir. 2015), and courts have upheld seemingly more intrusive conduct than opening a clasped but unlocked fence, see, e.g., United States v. Holmes, 143 F.Supp.3d 1252, 1254 (M.D. Fla. 2015), aff'd, No. 17-15404, 2019 WL 2293167 (11th Cir. May 29, 2019) (finding no Fourth Amendment violation where police entered fenced property with “No Trespassing” sign and then unlocked screen door onto enclosed front porch).

         Furthermore, though Plaintiff argues that his trial counsel “was negligent at protecting his rights guaranteed under the Fourth Amendment, ” id. at 8, Petitioner does not specify what trial counsel should have done. As mentioned above, Petitioner does not direct the Court to any illegally obtained evidence that could have been suppressed. See Bradley v. Nagle, 212 F.3d 559, 565 (11th Cir. 2000). And a Fourth Amendment violation during arrest does not by itself warrant habeas relief. See McDougald v. Houston Cty. Sheriff's Office, No. 1:16-CV-838-MHT, 2017 WL 3015886, at *1 (M.D. Ala. June 14, 2017), report and recommendation adopted, No. 1:16CV838-MHT, 2017 WL 3015810 (M.D. Ala. July 14, 2017) (collecting cases).

         Petitioner does not establish cause or prejudice, and this is not a substantial claim.

         Claim II. Use of Stepfather's Recorded ...


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