United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
McGhee,  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.
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).
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.
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).
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
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.
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;
(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.
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.
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
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.”).
Of State Remedies; Procedural Default
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.”).
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.'”).
Assistance Of Counsel
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
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.”).
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.
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 COURT: Yes.
(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
THE COURT: The jury will disregard the prior answer by the
(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).
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.
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.
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).
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 ...