United States District Court, M.D. Florida, Tampa Division
ULYSSES A. GRANT, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
A. Grant, a Florida prisoner, timely filed a. pro se
petition for writ of habeas corpus under 28 U.S.C. §
2254 (Dkt. 1) challenging his Hillsborough County
convictions. The Court ordered Respondent Secretary,
Department of Corrections, to show cause why the relief
sought in the petition should not be granted. (Dkt. 7).
Respondent filed a response, along with the state court
record. (Dkts. 13, 15). Mr. Grant filed a reply. (Dkt. 18).
Upon consideration, the petition will be denied.
Grant was charged with three counts of delivery of cocaine to
a confidential informant within 1, 000 feet of a school.
(Dkt. 15, Ex. 32, Vol. 1, p. 12). Count one was severed from
counts two and three. Mr. Grant was convicted of count one
after a jury trial. (Id., p. 62). The trial court
sentenced him to six years in prison, followed by 10 years of
probation. (Id., p. 85). After another jury trial,
Mr. Grant was convicted of counts two and three. (Dkt. 15,
Ex. 33, Vol. 2, p. 141). He received sentences of six years
in prison, followed by 10 years of probation. (Id.).
The sentences for counts two and three were concurrent to
each other but consecutive to the sentence for count one.
(Id., pp. 143-44). The state appellate court per
curiam affirmed all three convictions and sentences.
(Dkt. 15, Exs. 5, 10). Mr. Grant filed a motion for
postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Dkt. 15, Ex. 12). The state court denied
relief following an evidentiary hearing. (Dkt. 15, Exs. 17,
18). The state appellate court per curiam affirmed.
(Dkt. 15, Ex. 22). Mr. Grant later filed a petition for writ
of habeas corpus in the Florida Supreme Court, which was
dismissed in part and denied in part. (Dkt. 15, Exs. 30, 31).
One, Two, Three, and Four of Mr. Grant's federal habeas
petition challenge his conviction for count one. Ground Five
of Mr. Grant's federal habeas petition appears to
challenge his convictions for all three counts.
Procedurally Defaulted Claims
of State Court Remedies; Procedural Default
federal habeas petitioner must exhaust his claims 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 exhaustion requirement 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). The doctrine of procedural default provides
that "[i]f 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.
of Review Under AEDPA
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, 413 (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.
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
state appellate court affirmed Mr. Grant's conviction and
sentence, as well as the denial of postconviction relief,
without discussion. Similarly, the Florida Supreme Court
denied in part Mr. Grant's petition for writ of habeas
corpus without explanation. 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). When a state appellate court issues a
silent affirmance, "the federal court should 'look
through' the unexplained decision to the last related
state-court decision that does provide a relevant
rationale" and "presume that the unexplained
decision adopted the same reasoning." Wilson v.
Sellers, 138 S.Ct. 1188, 1192 (2018).
Grant argues that the State's evidence was insufficient
to sustain his conviction, resulting in a federal due process
violation. However, as Respondent contends, Mr. Grant's
federal claim is unexhausted. On appeal, Mr. Grant presented
his claim as one of state law. (Dkt. 15, Ex. 2, pp. 10-13).
He did not cite any federal authority or raise any issues of
federal law. (Id.). A petitioner may be able to
exhaust a federal sufficiency of the evidence claim by
presenting an analogous state claim in state court if the
federal and state courts apply the same standard of review.
Mulnix v. Sec'y for Dep't of Corr., 254
Fed.Appx. 763 (11th Cir. 2007). The standard applied by a
federal habeas court is whether, considering the evidence in
the light most favorable to the prosecution, a rational trier
of fact could find proof of guilt beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
appeal, however, Mr. Grant asserted that Florida's
distinguishable and heightened standard for circumstantial
evidence cases applied. (Dkt. 15, Ex. 2, pp. 10-13). Under
this standard, "no matter how strongly the evidence may
suggest guilt, a conviction cannot be sustained unless the
evidence is inconsistent with any reasonable hypothesis of
innocence." Preston v. Sec'y, Fla. Dep't of
Corr., 785 F.3d 449, 460 (11th Cir. 2015) (quoting
Thorp v. State, 777 So.2d 385, 389 (Fla. 2000)).
Accordingly, Mr. Grant failed to exhaust his federal
sufficiency of the evidence claim. See Id. at 462
(holding that the petitioner did not exhaust a federal claim
when his appellate brief relied on Florida's
"unique" standard of review for circumstantial
evidence cases, cited exclusively to state decisions, and
presented substantive arguments based solely on Florida law).
Grant cannot return to state court to exhaust a federal
sufficiency of the evidence claim because state procedural
rules do not provide for second appeals. See Fla. R.
App. P. 9.140(b)(3) (stating that a notice of appeal must be
filed within 30 days of the rendition of the sentence).
Therefore, his sufficiency of the evidence claim is
procedurally defaulted. See Smith, 256 F.3d at 1138.
Mr. Grant does not argue or establish that the cause and
prejudice exception applies to excuse the default.
reply, Mr. Grant refers to "a miscarriage of
justice[.]" (Dkt. 18, p. 4). To the extent Mr. Grant
alleges that the fundamental miscarriage of justice exception
applies to excuse the default, his argument must fail. A
fundamental miscarriage of justice occurs in an extraordinary
case where a constitutional violation has probably resulted
in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 327 (1995);
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
2003). Mr. Grant's "claim of innocence is...
'not itself a constitutional claim, but instead a gateway
through which [he] must pass to have his otherwise barred
constitutional claim considered on the merits.'"
Schlup, 513 U.S. at 315 (quoting Herrera v.
Collins, 506 U.S. 390, 404 (1993)).
exception requires a petitioner's "actual"
innocence. Johnson v. Alabama, 256 F.3d 1156, 1171
(11th Cir 2001). Actual innocence "means factual
innocence, not mere legal insufficiency." Bousley v.
United States, 523 U.S. 614, 623 (1998). "To be
credible, ... a claim [of actual innocence] requires
petitioner to support his allegations of constitutional error
with new reliable evidence-whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence-that was not presented at
trial." Schlup, 513 U.S. at 324. Mr. Grant has
not offered any new, reliable evidence showing his actual
innocence and the trial record shows otherwise. Accordingly,
he has not established that the fundamental miscarriage of
justice exception applies to excuse the default of his
federal sufficiency of the evidence claim. As Mr. Grant has
not shown that the procedural default should be excused,
Ground One is barred from federal habeas review.
the Evidence Was Sufficient
alternate ruling, the Court has reviewed the trial record,
and there was indeed sufficient evidence on the count one
sale. So even if Ground One were not procedurally defaulted,
it fails on the merits. The informant testified to purchasing
the count one contraband directly from Mr. Grant. It was
shortly after 1:45 p.m. (Dkt. 15, Ex. 32, Vol. 3, p. 175) and
550 feet from an elementary school. (Id., p. 207).
Moreover, part of the sale (but not the precise transfer) was
viewed by officers. In turn, Mr. Grant testified at trial and
denied the count one sale. (Dkt. 15, Ex. 32, Vol. 4, pp. 346,
jury was simply entitled to disbelieve Mr. Grant's trial
testimony, which apparently the jury did. His denial of
"sufficiency" was squarely rejected by the jury and
the informant's version was credited. As Mr. Grant
testified at the post-trial hearing, "there is nothing
to say, nothing that I committed this crime besides her word
of mouth......She made up the whole thing." (Dkt. 15,
Ex. 17, p. 148). Mr. Grant's trial testimony may have
been less credible given his six prior felonies he informed
the jury about. (Dkt. 15, Ex. 32, Vol. 4, p. 344).
confidential informant was identified at trial as Sherry
Williams. She testified as to the direct purchase of
cocaine-from Mr. Grant's hand. Trial testimony from Ms.
Williams and law enforcement indicated that she had been
working as a confidential informant for the Tampa Police
Department for twenty years with a few short hiatuses. (Dkt.
15, Ex. 32, Vol. 3, pp. 172-74, 229-31, 233, 283).
the State's direct case and also on cross, the informant
testified that she had been convicted of five felonies or
crimes involving dishonesty. The officers testified that
street informants like Ms. Williams work for money or for
sentencing leniency, and in this case the officer testified
accurately that Ms. Williams was working for money. (Dkt. 15,
Ex. 32, Vol. 3, p. 173).
cross-examination, counsel wanted to ask Ms. Williams
"whether she's picked up a felony while working as a
confidential informant." (Id., p. 280). The
prosecutor objected to this question as irrelevant.
(Id., p. 281). After allowing counsel to proffer Ms.
Williams's testimony, the trial court sustained the
objection. (Id., p. 285). The proffer showed a drug
possession felony occurred in 2004 at which time the
informant testified she took a hiatus to resolve the matter.
(Id., pp. 282-85). Mr. Grant contends that the trial
court erred in limiting counsel's cross-examination of
Ms. Williams, resulting in violations of his rights to due
process and confrontation. The state appellate court rejected
Mr. Grant's claim without discussion when it per
curiam affirmed his conviction and sentence.
jury heard twice of the informant's five priors.
Presumably, the jury was capable of deducing that one or more
of these five priors was during the nearly 20 years the
informant was working for the police as a street buyer.
Confrontation Clause guarantees the right of a criminal
defendant "to be confronted with the witnesses against
him[.]" U.S. Const, amend. VI. "The main and
essential purpose" of confrontation is to allow for
cross-examination, which is "the principal means"
to challenge a witness's credibility. Davis v.
Alaska, 415 U.S. 308, 315-16 (1974) (citation omitted).
The right to cross-examination is "essential to due
process." Chambers v. Mississippi, 410 U.S.
284, 294 (1973). Further, "[t]he importance of full
cross-examination increases where the witness is the star
government witness or participated in the crimes for which
the defendant is being prosecuted." United States v.
Williams, 526 F.3d 1312, 1319 (11th Cir. 2008) (citing
United States v. Taylor, 17 F.3d 333, 340(1 lth Cir.
limits on cross-examination are permissible because "the
Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the
defense might wish." Delaware v. Fensterer, 474
U.S. 15, 20 (1985) (emphasis in original). Accordingly,
"once there is sufficient cross-examination to satisfy
the Sixth Amendment's Confrontation Clause, further
questioning is within the [trial] court's
discretion." Williams, 526 F.3d at 1319
(quoting Taylor, 17 F.3d at 340); see also
United States v. Jackson, 597 Fed.Appx. 1057, 1059 (11th
Cir. 2015) ("[S]o long as a defendant is able to elicit
sufficient information from which the factfinder can assess a
witness's possible motive or bias, the right of
confrontation is satisfied." (citing United States
v. Barrington, 648 F.3d 1178, 1188 (11th Cir. 2011))).
"[t]he test for the Confrontation Clause is whether a
reasonable jury would have received a significantly different
impression of the witness' credibility had counsel
pursued the proposed line of cross-examination."
Williams, 526 F.3d at 1319 (quoting United
States v. Garcia, 13 F.3d 1464, 1469 (11th Cir. 1994)).
No. Confrontation Clause violation occurs when "(1) the
jury, through the cross-examination permitted, was exposed to
facts sufficient for it to draw inferences relating to the
reliability of the witness; and (2) the cross-examination
conducted by defense counsel enabled him to make a record
from which he could argue why the witness might have been
biased." United States v. Calle, 822 F.2d 1016,
1020 (11th Cir. 1987).
counsel was able to develop sufficient facts from which the
jury could make inferences about Ms. Williams's
reliability from her five convictions and her present
monetary motivation from which he could argue that Ms.
Williams was not credible. Counsel elicited Ms.
Williams's testimony that she never signed a confidential
informant agreement with the Tampa Police Department, and
then impeached this testimony by producing the executed
agreement. (Dkt. 15, Ex. 32, Vol. 3, pp. 249-51; Vol. 4, pp.
332-34). Further, counsel impeached Ms. Williams's
testimony that she did not engage in illegal activity while
working as a confidential informant by addressing evidence of
her involvement in drug activity. (Dkt. 15, Ex. 32, Vol. 3,
pp. 250-51, 257). Counsel also brought out Ms. Williams's
prior inconsistent statements about the events leading up to
the offense. (Id., pp. 260-61, 279-80). Given her
five priors, the very limited restraint on cross caused by
the Court's ruling could not have had an appreciable
Mr. Grant has not shown any federal constitutional violation
resulting from the trial court's decision to prevent
counsel from cross-examining Ms. Williams about whether she
had "picked up" a felony while working as a
confidential informant. As Mr. Grant does not show that the
state appellate court's rejection of his claim was
contrary to or involved an unreasonable application of
clearly established federal law, he is not entitled to relief
on Ground Two.
Grant contends that the prosecutor improperly vouched for the
credibility of Officer Benjamin Brown and Officer Eric
Defelice during closing arguments. Assuming that Mr. Grant
has properly exhausted ...