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Stallworth v. Inch

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

July 8, 2019

DIONTE LAMAR STALLWORTH, Petitioner,
v.
MARK S. INCH, Respondent.

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This cause is before the court on Petitioner's amended petition for writ of habeas corpus and supporting memorandum, filed pursuant to 28 U.S.C. § 2254 (ECF Nos. 5, 6). Respondent filed an answer and relevant portions of the state court record (ECF No. 27). Petitioner filed a reply (ECF No. 31).

         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. 27).[1] Petitioner was charged in the Circuit Court in and for Escambia County, Florida, No. 2011-CF-417, with one count of attempted armed kidnapping with a weapon (Count 1), one count of aggravated assault by threat with a firearm (Count 2), and one count of felony failure to appear (Count 3) (Ex. B1 at 3). On August 17, 2011, a jury trial was held on Counts 1 and 2; Count 3 was severed for trial (Ex. B2 at 106-200, Ex. B3 at 201-364). At the conclusion of trial, the jury found Petitioner guilty of attempted armed kidnapping as charged, with specific findings that Petitioner carried or used a weapon, actually possessed a firearm, and discharged a firearm during commission of the offense (Ex. B1 at 36-37). The jury also found Petitioner guilty of aggravated assault as charged, with specific findings that he carried and actually possessed a firearm, and discharged a firearm during commission of the offense (id.). On September 28, 2011, the court sentenced Petitioner to concurrent mandatory minimum terms of twenty (20) years in prison, with jail credit of 137 days (id. at 41-84). The State filed a nolle prosequi on Count 3 on September 30, 2011 (id. at 87).

         Petitioner, through counsel, appealed the judgment to the Florida First District Court of Appeal (“First DCA”), No. 1D11-5564 (Ex. B4). The First DCA affirmed the judgment per curiam without written opinion on April 17, 2013 (Ex. B7). Stallworth v. State, 110 So.3d 445 (Fla. 1st DCA 2013) (Table). The mandate issued May 3, 2013 (Ex. B8). On June 5, 2013, the First DCA denied Petitioner's motion for rehearing and/or written opinion (Ex. B10).

         On October 30, 2013, Petitioner filed a motion for post-conviction relief and supporting memorandum in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. C1 at 96-113). The court granted a limited evidentiary hearing on two of Petitioner's five claims (Grounds Two and Four), and appointed counsel for Petitioner (id. at 120-21). At the commencement of the evidentiary hearing on March 17, 2015, Petitioner's counsel announced they were abandoning Ground Four, and would proceed only on Ground Two (id. at 136-59). On June 30, 2015, the circuit court issued an order denying Petitioner's Rule 3.850 motion (id. at 160-65). Petitioner appealed the decision to the First DCA, No. 1D15-3657 (Ex. C2). The First DCA affirmed the lower court's decision per curiam without written opinion on June 21, 2016 (Ex. C5). Stallworth v. State, 193 So.3d 891 (Fla. 1st DCA 2016) (Table). The mandate issued July 19, 2016 (Ex. C6).

         On August 2, 2016, Petitioner filed a “Motion for Evidentiary Hearing Alleging Extraordinary Circumstances” in the state circuit court (Ex. D1 at 1-4). The court summarily denied the motion on January 31, 2017 (id. at 10-11). Petitioner appealed the decision to the First DCA, No. 1D17-0843 (Ex. D2). The First DCA affirmed the lower court's decision per curiam without written opinion on August 25, 2017 (Ex. D4). Stallworth v. State, 232 So.3d 987 (Fla. 1st DCA 2017) (Table). The mandate issued September 22, 2017 (Ex. D5).

         Petitioner filed the instant federal habeas action on December 19, 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. 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. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). 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 § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claim. 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.

         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 and 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 federal court “lacks jurisdiction to entertain a federal claim on review of a state court judgment, if that judgment rests on a state law ground that is both independent of the merits of the federal claim and an adequate basis for the court's decision.” Foster v. Chatman, - U.S. -, 136 S.Ct. 1737, 1745, 195 L.Ed.2d 1 (2016) (internal quotation marks and citation omitted). Even where a state court has ruled in the alternative, addressing both the independent state procedural ground and the merits of the federal claim, the federal court should apply the state procedural bar and decline to reach the merits of the claim. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994) (citing Harris, 489 U.S. at 264 n.10).

         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. 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).

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

         IV. PETITIONER'S CLAIMS

A. Ground One: “Ineffective assistance of counsel for failing to object to State's recall of victim to rebut the testimony of defense witness Jasper Hurd. Petitioner claims counsel was deficient because he objected on an incorrect basis.”
Ground Three: “Ineffective assistance of counsel (trial) for failing to object to verdict form and failing to request a special interrogatory be added for the jury to deliberate and find that the discharge was intentional.”
Ground Four: “Ineffective assistance of counsel for failing to investigate and call witness Ricky Henderson to testify at trial.”[2]

         In Ground One, Petitioner contends his trial counsel was deficient for failing to properly object when the State recalled the victim to rebut the testimony of defense witness Jasper Hurd (ECF No. 5 at 5, 15-18).[3] Petitioner acknowledges defense counsel objected to the rebuttal testimony, but Petitioner contends counsel objected on the wrong grounds (id.). Petitioner also contends defense counsel should have requested a Richardson[4] hearing, because the victim's rebuttal testimony had not been disclosed to the defense (id.). Petitioner further alleges that if defense counsel had deposed the victim and Jasper Hurd, counsel would have avoided “opening the door” to the victim's rebuttal testimony (id.). Petitioner contends absent counsel's errors, the outcome of trial would have been different (id.).

         In Ground Three, Petitioner contends the mandatory-minimum provision of his sentences was not appropriate absent a jury finding that the discharge of the firearm was intentional (ECF No. 5 at 8, 21-23). Petitioner contends defense counsel should have objected to the verdict form and requested a special interrogatory requiring the jury to find whether the discharge was intentional (id.).

         In Ground Four, Petitioner contends defense counsel should have presented testimony from Ricky Henderson (ECF No. 5 at 10, 24-27). Petitioner acknowledges that on the morning of trial, he “reluctantly agreed” to proceed without Mr. Henderson's testimony, but Petitioner asserts his agreement was based upon defense counsel's misadvice (id.). Petitioner contends absent counsel's failure to present Henderson's testimony, and counsel's misadvice, there is a reasonable probability the result of trial would have been different (id.).

         Respondent asserts an exhaustion defense as to these three claims (ECF No. 27 at 8-11). Respondent contends Petitioner presented the claims in his Rule 3.850 motion, but he abandoned Ground Four in the circuit court proceedings, and he abandoned Grounds One and Three in the post-conviction appeal (id.).

         In Petitioner's reply, he insists he did not abandon any of his claims; therefore, they are not procedurally barred from federal review (see ECF No. 31 at 1-6). Petitioner additionally contends this court should review Ground Four (i.e., trial counsel was ineffective for failing to call Ricky Henderson as a defense witness) due to “extraordinary circumstances” (id.).

         The Florida Rules of Appellate Procedure provide that in a case where a movant's Rule 3.850 motion is denied after an evidentiary hearing was held on one or more claims, as was the case here, a movant wishing to appeal the denial of his motion must file an initial brief. See Fla. R. App. P. 9.141(b)(3). The movant must present argument on all issues for which he seeks appellate review in his initial brief, regardless of whether the claim was summarily denied or litigated at the evidentiary hearing. See Kelley v. State, 109 So.3d 811, 812 n.1 (Fla. 1st DCA 2013); Prince v. State, 40 So.3d 11 (Fla. 4th DCA 2010); Pennington v. State, 34 So.3d 151, 153 n.1 (Fla. 1st DCA 2010) (briefing is required in appeal from non-summary denial of Rule 3.850 motion); Hammond v. State, 34 So.3d 58 (Fla. 4th DCA 2010) (claim for which appellant did not present argument, or for which he provided only conclusory argument, was insufficiently presented for appellate review, regardless of whether claim was among those claims litigated at evidentiary hearing or among those claims summarily denied by trial court); Williams v. State, 24 So.3d 1252 (Fla. 1st DCA 2009) (where appellant received evidentiary hearing on some of his post-conviction claims and others were summarily denied, appellate court would review only those summarily denied claims which movant argued in appellate brief).

         The Florida procedural rule deeming as waived or abandoned those claims for which an appellant has not presented any argument in his initial brief, even when the post-conviction evidentiary hearing was limited in scope to some but not all post-conviction claims and the appellant's insufficiently presented claims were summarily denied by the trial court, is a firmly established and regularly followed procedural rule for purposes of federal habeas. See, e.g., Granberry v. Tucker, No. 5:10cv129/RH/EMT, 2012 WL 2891245, at *26 (N.D. Fla. May 4, 2012), Report and Recommendation Adopted, 2012 WL 2890780 (N.D. Fla. July 14, 2012) (nonbinding but recognized as persuasive authority); Daniels v. Tucker, No. 5:09cv328/RS/EMT, 2011 WL 7153921, at *18 (N.D. Fla. Nov. 22, 2011), Report and Recommendation Adopted, 2012 WL 379590 (N.D. Fla. Feb. 3, 2012); Stoudmire v. Tucker, No. 3:09cv48/MCR/EMT, 2011 WL 5426239, at *9-11 (N.D. Fla. Aug. 30, 2011), Report and Recommendation Adopted, 2011 WL 5442091 (N.D. Fla. Nov. 9, 2011); Green v. McNeil, No. 1:09cv204/MMP/GRJ, 2011 WL 2790167, at *7 (N.D. Fla. June 22, 2011), Report and Recommendation Adopted, 2011 WL 2790180 (N.D. Fla. July 15, 2011); Curry v. Buss, No. 3:08cv539/LAC/EMT, 2011 WL 2174038 (N.D. Fla. Apr. 26, 2011), Report and Recommendation Adopted, 2011 WL 2149544 (N.D. Fla. June 1, 2011).

         Here, Petitioner filed an initial brief in the Rule 3.850 appeal, but he did not present any argument on Grounds One, Three, or Four (see Ex. C2), and thus did not properly exhaust them in the state courts. Moreover, Petitioner cannot now take a second appeal from the denial of his Rule 3.850 motion to attempt to successfully exhaust Grounds One, Three, and Four. Therefore, Grounds One, Three, and Four are procedurally defaulted.

         Petitioner has not alleged cause for his failure to present Grounds One, Three, and Four in his post-conviction appellate brief. However, the court construes Petitioner's “extraordinary circumstance” argument as an attempt to satisfy the miscarriage of justice exception to the procedural bar by arguing that he would not have been convicted if the jury had heard Ricky Henderson's testimony.

         As previously discussed, 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, 513 U.S. at 327. “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him.” Id. 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 ...

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