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McGhee v. Secretary, Department of Corrections

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

July 26, 2019

COREY MCGHEE, Petitioner,



         Corey McGhee, [1] a Florida inmate, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) challenging his Polk County conviction. In the response (Doc. 8), Respondent does not contest the petition's timeliness. McGhee filed a reply. (Doc. 9). Upon review, the petition will be DENIED.

         Procedural History

          McGhee was convicted after a jury trial of attempted second degree murder and sentenced to 20 years in prison. (Doc. 8-4, Exs. 2, 3). The state appellate court per curiam affirmed the conviction and sentence. (Doc. 8-4, Ex. 6). After McGhee's initial postconviction motion under Florida Rule of Criminal Procedure 3.850 was dismissed, he filed a second postconviction motion, and an amendment to the motion. (Doc. 8-5, Exs. 10-12, 14). The state court summarily denied McGhee's claims. (Doc. 8-5, Exs. 13, 17). The state appellate court per curiam affirmed the denial of relief. (Doc. 8-5, Ex. 23). The state appellate court also denied McGhee's habeas petition alleging ineffective assistance of appellate counsel, filed under Florida Rule of Appellate Procedure 9.141. (Doc. 8-5, Exs. 20, 22).

         Facts [2]

         Corey McGhee, Ryan Pawl, John Hagestad, and Steven Reid lived in a camp in a wooded area near U.S. Route 98 and Duff Road in Polk County, Florida. Each man had his own tent in the camp. On August 8, 2014, McGhee and Pawl went to Hope House to take showers and get lunch. On their way back, they bought beer at a Circle K convenience store. When they returned to the camp, they began drinking the beer and playing cards with Hagestad. As McGhee became increasingly irritable, however, the gathering broke up, and Hagestand and Pawl headed to their tents. It appears that McGhee's irritability was at least partly due to an ongoing disagreement over whether the others would move out of the camp.[3]

         As Pawl walked to his tent, McGhee said that he would have Steven Reid beat Pawl up when Reid got out of jail. McGhee, who was holding a pocketknife, took a step toward Pawl. Pawl shoved McGhee. McGhee fell onto a reclining chair, knocking it over. Pawl said to McGhee, “don't worry, Steve will get out in a month or so and then he can fight for you.” (Doc. 8-3, Ex. 1, Vol. 3, doc. p. 171).

         Once inside his tent, Pawl lied down and began reading a book. He heard McGhee scream, “I don't need anybody to fight for me.” (Id.). McGhee then swung a hatchet through Pawl's tent, deeply cutting Pawl's right leg. Despite his injury, Pawl charged McGhee and they wrestled over the hatchet and pocketknife. During the struggle, McGhee stabbed Pawl in the ribs with the pocketknife and said that he was going to kill Pawl. Eventually, McGhee left and headed towards Route 98. Pawl called out to John Hagestad, who helped Pawl to the road and flagged down a passing car to call 911.

         McGhee traveled on foot to a nearby thrift store, where he complained of chest pains. After someone from the store called 911, McGhee was treated by EMS and transported to a hospital. There, he waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and gave an unrecorded statement to Detective Jeff Clark. McGhee told Detective Clark that he was sitting in a chair when he and Pawl began arguing. McGhee stated that Pawl forcefully grabbed him around the throat and squeezed his throat. McGhee said that he was able to reach the hatchet, and that he hit Pawl with the hatchet to defend himself. McGhee said that Pawl threw him from the chair, took the hatchet, held it to McGhee's throat, and told McGhee that he could kill him. McGhee stated that as soon as he could get away, he ran to the thrift store. McGhee initially denied possessing a knife, but later could not recall whether he had a knife. McGhee was arrested and charged with attempted second degree murder of Pawl.

         Standard Of Review

          The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an “unreasonable application” of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413.

         The AEDPA was meant “to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one.” Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) (“As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”).

         The state appellate court affirmed the judgment and sentence and the denial of postconviction relief without discussion. It also denied McGhee's state habeas petition without discussion. These decisions warrant deference under § 2254(d)(1) because “the summary nature of a state court's decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”).

         Exhaustion Of State Remedies; Procedural Default

         A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”).

         The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). “If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). See also Bailey v. Nagle, 172 F.3d 1299, 1305 (11th Cir. 1999) (“[F]ederal courts may treat unexhausted claims as procedurally defaulted, even absent a state court determination to that effect, if it is clear from state law that any future attempts at exhaustion would be futile. . . . A habeas petitioner can escape the procedural default doctrine either through showing cause for the default and prejudice . . . or establishing a ‘fundamental miscarriage of justice.'”).

         Ineffective Assistance Of Counsel

         Claims of ineffective assistance are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. To show deficient performance, McGhee must demonstrate that “counsel's representation fell below an objective standard of reasonableness.” Id. at 687-88. A court must consider whether, “in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance.” Id. at 690. However, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id.

         McGhee must demonstrate that counsel's alleged error prejudiced the defense because “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691-92. He must establish “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal habeas review because “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105 (citations omitted). See also Burt v. Titlow, 571 U.S. 12, 15 (2013) (this doubly deferential standard of review “gives both the state court and the defense attorney the benefit of the doubt.”).

         Strickland applies to claims of ineffective assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To succeed on such a claim, McGhee must establish a reasonable probability that, but for appellate counsel's objectively unreasonable performance, he would have prevailed on appeal. Robbins, 528 U.S. at 285-86.


         Ground One

         McGhee was charged with battery on Deputy Jessica Cranor, who responded to the thrift store. The trial court granted McGhee's motion to sever that charge from the charge of attempted second degree murder of Ryan Pawl. Accordingly, the trial only concerned the attempted murder charge. During her testimony, however, Deputy Cranor referenced another crime having been committed against her. Counsel immediately objected and moved for a mistrial on the basis that Deputy Cranor's testimony violated the severance order:

[PROSECUTOR]: [ ] Deputy Cranor, did you have any other substantial involvement in this case?
[DEPUTY CRANOR]: Other than the extra charge that was committed against myself - -
[COUNSEL]: Objection, Your Honor. May we do a sidebar?
(The attorneys, the defendant and the court reporter approached the bench and there was a discussion out of the hearing of the jury as follows:)
[COUNSEL]: I move for a mistrial based on the prior severance of the charges.
[PROSECUTOR]: Your Honor, I guess the state's position is that she didn't directly say what he did. It was he was responsible. I would ask for a curative instruction, given the fact that we're so far into the trial. I ask that you wait until - - that you[ ] reserve - -
THE COURT: I will reserve and wait until deliberations. I'll give them an instruction not to consider it.
[COUNSEL]: Yes, sir.
(The attorneys, the defendant and the court reporter left the bench.)
THE COURT: The jury will disregard the prior answer by the witness.

(Doc. 8-3, Ex. 1, Vol. 2, doc. pp. 214-15). The trial court later denied McGhee's motion for mistrial. (Doc. 8-2, Ex. 1, Vol. 1, doc. pp. 143-44).

         McGhee argues that the trial court erred in denying his motion for a mistrial, resulting in a federal due process violation. McGhee's federal claim is unexhausted because McGhee relied entirely on state law when he raised the alleged trial court error on direct appeal. (Doc. 8-4, Ex. 4, doc. pp. 22-23). See Pearson v. Sec'y, Dep't of Corr., 273 Fed. App'x 847, 849-50 (11th Cir. 2008) (“The exhaustion doctrine requires the petitioner to ‘fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right.”); Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) (“To present a federal constitutional claim properly in state court, ‘the petitioner must make the state court aware that the claims asserted present federal constitutional issues.'” (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998))). McGhee cannot return to state court to raise the federal claim in a second appeal. See Fla. R. App. P. 9.140(b)(3) (a notice of appeal must be filed within 30 days after rendition of the sentence). Accordingly, his claim is procedurally defaulted. See Smith, 256 F.3d at 1138. As McGhee does not establish that an exception applies to excuse the default, his claim is barred from review.[4]

         In his reply, McGhee contends that he raised the substance of this claim in “issue IX” of his state postconviction motion, as well as in “issue III” of his state habeas petition. Both of these claims allege ineffective assistance of counsel, and McGhee references ineffective assistance in his federal habeas petition. Accordingly, this Court liberally interprets McGhee's federal habeas petition as raising the ineffective assistance claims presented in the identified state court grounds.

         In claim 3 of his state habeas petition, McGhee claimed that appellate counsel was ineffective for not arguing that the trial court erred when it denied a mistrial simply because another trial would be too inconvenient. (Doc. 8-5, Ex. 20, doc. pp. 139-40). In support of his claim, McGhee references the instructions read to the jury at the beginning of trial. Consistent with Florida's standard instructions, the jurors were informed that “[a]ny juror who violates” rules governing juror conduct “jeopardizes the fairness of the proceedings and a mistrial could result that would result in the entire trial process starting over. A mistrial is a tremendous expense and inconvenience to the parties, the Court and the taxpayers.” (Doc. 8-3, Ex. 1, Vol. 2, doc. pp. 111-12). See Fla. Std. Jury Inst. 1.1 (Crim.). McGhee claimed in his state habeas petition that he “believe[d] the court's reluctance to grant the mistrial was based on the above.” (Doc. 8-5, Ex. 20, doc. p. 140).

         In Florida, “[a]n order granting mistrial is required only when the error upon which it rests is so prejudicial as to vitiate the entire trial, making a mistrial necessary to ensure that the defendant receives a fair trial.” Dessaure v. State, 891 So.2d 455, 464-65 (Fla. 2004) (citing Cole v. State, 701 So.2d 845, 853 (Fla. 1997)). The trial court denied the motion for mistrial after reviewing this standard and finding that Deputy Cranor made only “an isolated, inadvertent, and brief statement” that was not solicited by the ...

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