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Brown v. Inch

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

August 5, 2019

CALVIN BROWN, 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 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. 13). Petitioner filed a reply (ECF No. 17).

         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. 13).[1] Petitioner was charged in the Circuit Court in and for Leon County, Florida, No. 2012-CF-1496, with one count of trafficking in hydrocodone (Count I) and one count of resisting an officer without violence (Count II) (Ex. A at 9). On June 4, 2014, a jury found Petitioner guilty of both charges, after deliberating for 17 minutes, with a specific finding that the trafficking charge involved an amount of hydrocodone weighing 14 grams or more but less than 28 grams (Ex. A at 62-64, Ex. B 1-163). The same day, the court sentenced Petitioner to a mandatory term of fifteen (15) years in prison on Count I and a concurrent term of 11 months and 29 days on Count II, with pre-sentence jail credit of 757 days (Ex. A at 68-77, Ex. B at 164-78).

         Petitioner filed a motion to correct sentencing error, pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure (Ex. D at 146-61). The trial court summarily denied the motion on March 9, 2015 (id. at 162-64).

         Petitioner, through counsel, appealed the sentence to the Florida First District Court of Appeal (“First DCA”), No. 1D14-2989 (Ex. E). The First DCA affirmed the judgment and sentence per curiam without written opinion on September 22, 2015 (Ex. H). Brown v. State, 174 So.2d 997 (Fla. 1st DCA 2015) (Table). The mandate issued October 8, 2015 (Ex. H).

         On March 7, 2016, Petitioner filed a motion for post-conviction relief in the state circuit court, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. K at 3-27). The circuit court appointed counsel to represent Petitioner and held an evidentiary hearing on all of Petitioner's claims (id. at 41, 48-120). The state circuit court denied the Rule 3.850 motion on May 30, 2017 (id. at 42-43). Petitioner appealed the decision to the First DCA, No. 1D17-2614 (Ex. L). The First DCA affirmed the circuit court's decision per curiam without written opinion on August 10, 2018 (Ex. N). Brown v. State, 252 So.3d 151 (Fla. 1st DCA 2018) (Table). The mandate issued October 3, 2018 (Ex. N).

         Petitioner filed the instant federal habeas action on October 29, 2018 (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”).

         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.

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

         III. PETITIONER'S CLAIMS

         A. Ground One: “Ineffective assistance of trial counsel for misadvising Defendant as to his sole affirmative defense, in violation of the U.S. Const. 6th Amend.”

         Ground Two: “Ineffective assistance of trial counsel for misadvising Defendant not to testify in his own defense, in violation of the U.S. Const. 6th Amend.”

         Ground Three: “Ineffective assistance of trial counsel for misadvising and failing to procure the attendance of a crucial witness for his trial violation [sic] of his 6th U.S. Amend. rights.”

         Ground Four: “The cumulative effect of trial counsel's deficient performance prejudiced the Defendant.”[2]

         Petitioner alleges his sole defense was a “prescription defense, ” but defense counsel erroneously advised him it was not a viable defense and instead pursued a sympathy/jury nullification defense (ECF No. 1 at 5, 7, 8; ECF No. 17 at 5-12).[3] Petitioner alleges prior to trial, he told defense counsel that the loose hydrocodone pills found in his pocket belonged to his sister, Margaret Bryant, who had a prescription for the pills, and that she left the pills at Petitioner's residence “for him to possess” (ECF No. 17 at 10). Petitioner alleges Ms. Bryant would have testified she had a valid prescription for “at least 15 pills” (id.). Petitioner alleges defense counsel advised him that Ms. Bryant's testimony would not support any defense (id.).

         Petitioner also alleges defense counsel misadvised him with respect to testifying on his own behalf (ECF No. 17 at 8). Petitioner alleges during trial, defense counsel advised the court that Petitioner intended to testify (id.). Petitioner alleges the trial court conducted a colloquy, during which the court advised Petitioner that he would be required to answer questions truthfully, including whether he had any prior convictions (id.). Petitioner alleges he decided not to testify, but his decision was based upon defense counsel's failure to advise him that although the prosecutor could inquire about the number of his prior convictions, the prosecutor could not inquire about any pending charges (id. at 9). Petitioner alleges if counsel had advised him about these limitations, he would have testified (id.). Petitioner also alleges counsel misadvised him that his testimony would not support a prescription defense (id. at 8).

         Petitioner contends the “total impact” of counsel's error produced a fundamentally flawed trial (ECF No. 1 at 10; ECF No. 17 at 13).

         Respondent appears to concede Petitioner exhausted these four claims in the state courts by presenting them in his Rule 3.850 motion (ECF No. 13 at 18-20, 30- 32, 39-40). Respondent contends the state court's adjudication of Grounds One, Two, and Three was not based upon an unreasonable determination of the facts in light of the evidence presented at the evidentiary hearing, nor was the adjudication contrary to or an unreasonable application of clearly established federal law (id. at 20-30, 33-39, 40-44).

         With respect to Ground Four, Respondent contends the United States Supreme Court has not held that distinct constitutional claims may be cumulated to grant federal habeas relief (ECF No. 13 at 45). Respondent further contends that even if Petitioner's “cumulative effect” claim is cognizable, he is not entitled to relief, because the state court's rejection of the claim was not contrary to or an unreasonable application of clearly established federal law (id. at 45-48).

         1. Clearly Established Federal Law

         The standard for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To obtain relief under Strickland, Petitioner must show (1) deficient performance by counsel and (2) a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 687-88. If Petitioner fails to make a showing as to either performance or prejudice, he is not entitled to relief. Id. at 697.

         The focus of inquiry under the performance prong of Strickland is whether counsel's assistance was reasonable considering all the circumstances and under prevailing professional norms. Strickland, 466 U.S. at 688-89, 691. “The petitioner's burden to prove, by a preponderance of the evidence, that counsel's performance was unreasonable is a heavy one.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc)). “Judicial scrutiny of counsel's performance must be highly deferential, ” and courts should make every effort to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 689. “[T]here are no ‘absolute rules' dictating what reasonable performance is . . . .” Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005) (quoting Chandler, 218 F.3d at 1317). Indeed, “‘[a]bsolute rules would interfere with counsel's independence-which is also constitutionally protected-and would restrict the wide latitude counsel have in making tactical decisions.'” Id. (quoting Putman v. Head, 268 F.3d 1223, 1244 (11th Cir. 2001)). Counsel's performance is deficient only if it is “outside the wide range of professional competence.” Jones, 436 F.3d at 1293 (citing Strickland, 466 U.S. at 690); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) (emphasizing that petitioner was “not entitled to error-free representation”).

         There are “countless ways to provide effective assistance in any given case.” Strickland, 466 U.S. at 691. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id. at 689. Rare are the situations in which the “wide latitude counsel must have in making tactical decisions” will be limited to any one technique or approach. Id. “Counsel was entitled to formulate a strategy that was reasonable at the time . . . .” Richter, 562 U.S. at 107 (citations omitted); Ward v. Hall, 592 F.3d 1144, 1164 (11th Cir. 2010) (“[C]ounsel cannot be adjudged incompetent for performing in a particular way in a case, as long as the approach taken might be considered sound trial strategy.”). “Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

         The Eleventh Circuit has explained trial counsel's responsibilities regarding a client's right to testify as follows:

In Teague, we specifically delineated the duties of a trial counsel with respect to a defendant's right to testify. Counsel must advise the defendant (1) of his right to testify or not testify; (2) of the strategic implications of each choice; and (3) that it is ultimately for the defendant himself to decide whether to testify. Id. at 1533.

McGriff v. Dept. of Corr., 338 F.3d 1231, 1237 (11th Cir. 2003) (citing United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992)). “[I]f defense counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify.” Teague, 953 F.2d at 1533.

         With respect to the prejudice prong of the Strickland standard, Petitioner's burden of demonstrating prejudice is high. See Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). To establish prejudice, Petitioner must show “that every fair-minded jurist would conclude ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” Jones v. GDCP Warden, 753 F.3d 1171, 1184 (11th Cir. 2014) (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence in the outcome, ” not that counsel's conduct more likely than not altered the outcome of the proceeding. Id. (citation omitted). And Petitioner must show that the likelihood of a different result is substantial, not just conceivable. Williamson v. Fla. Dep't of Corr., 805 F.3d 1009, 1016 (11th Cir. 2015) (citing Richter, 562 U.S. at 112). “When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. The prejudice assessment does “not depend on the idiosyncracies [sic] of the particular decisionmaker, ” as the court should presume that the judge or jury acted according to law. Id. at 695.

         Finally, when a district court considers a habeas petition, the state court's findings of historical facts in the course of evaluating an ineffectiveness claim are subject to the presumption of correctness, while the performance and prejudice components are mixed questions of law and fact. Strickland, 466 U.S. at 698; Collier v. Turpin, 177 F.3d 1184, 1197 (11th Cir. 1999). “Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Richter, 131 S.Ct. at 788. As the Richter Court explained:

The standards created by Strickland and § 2254(d) are both “highly deferential, ” and when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Id. (citations omitted).

         2. Federal Review of State Court Decision

         Petitioner presented all four of these claims in his Rule 3.850 motion (Ex. K at 13-26). The parties presented evidence during the evidentiary hearing in the circuit court, including the testimony of three witnesses, Petitioner, Margaret Brown-Bryant (Petitioner's sister), and Attorney John Eagen (Petitioner's trial counsel) (Ex. K at 48-108). The circuit court also took judicial notice of the trial record, including the trial transcript (id. at 47, 68).

         Margaret Brown-Bryant testified she is Petitioner's sister (Ex. K at 79). She testified that in early May of 2012, she brought their mother from Donalsonville, Georgia, to Petitioner's home, so he could care for her (id. at 80-81). Ms. Bryant testified she brought her mother's clothing and medications (id. at 81). Bryant testified she also brought her own medication, specifically, hydrocodone, but she did so accidentally (id. at 81-82). Ms. Bryant testified, “It was in a bag, and I didn't know it” (id. at 81). Ms. Bryant testified the hydrocodone was in a prescription pill bottle (id. at 83-84, 87). Bryant testified that after she put everything in Petitioner's house, Petitioner said he could not take care of their mother, so she hastily left with her mother and “everything” (id. at 82). Ms. Bryant later testified she left some of her things and some of her mother's things behind at Petitioner's house (id. at 94).

         Ms. Bryant testified that on the day Petitioner was arrested in May of 2012, she learned that he was charged with possession of her prescription pills (Ex. K at 90). When asked how many times she met with Attorney Eagen, Ms. Bryant responded:

A. If I seen [sic] him, twice. That was the only time. I spoke to Ms. Marilee [sic], his legal assistant.
Q. Okay. Did you talk to him about the facts of the case?
A. I met with him downstairs once, and I asked him. I said, what's going on? We are working on it. But I told Ms. Marilee everything. She was the one taking the money and everything.
Q. Okay. So you would, of course, not know whether or not Mr. Eagen's assistant told him anything.
A. I wouldn't.

         (Ex. K at 83-84). Ms. Bryant testified she was present at trial (id. at 84). She stated she would have testified that the pills were hers (id.).

         On cross-examination, Ms. Bryant testified she would have been able to obtain a copy of her prescription, but “Nobody asked for it” (Ex. K at 91, 92). She testified:

Q [by counsel for the State]. And you didn't bother getting that, knowing that your older brother is facing a minimum mandatory prison sentence of 15 years for being in possession of your pills?
A. Can I speak now?
Q. No. You can answer my question.
A. Okay. I didn't even know anything about mandatory. No, ma'am, I didn't. My mom was still with me and still ill. So, no, ma'am. I didn't know he was facing no [sic] 15 years. I didn't.

         (Ex. K at 91).

         Upon inquiry by the court, Ms. Bryant testified she left 15 pills, at the most, at Petitioner's house (Ex. K at 95). She testified none of ...


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