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Grant v. Secretary, Department of Corrections

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

August 7, 2019

ULYSSES A. GRANT, Petitioner,



         Ulysses 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.


         Mr. 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).

         Grounds 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.


         I. Procedurally Defaulted Claims

         Exhaustion of State Court Remedies; Procedural Default

         A 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. 2001).

         II. Merits Review

         Standard of Review Under AEDPA

         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, 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.

         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 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).

         A. Ground One

         Mr. 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).

         On 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).

         Mr. 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.

         In his 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)).

         This 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.

         Alternately, the Evidence Was Sufficient

         As an 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, 348-49).

         The 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).

         B. Ground Two

         The 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).

         During 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).

         On 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.

         The 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.

         The 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. 1994)).

         However, 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))).

         Therefore, "[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).

         Here, 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 effect.

         Accordingly, 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.[1]

         C. Ground Three

         Mr. 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 ...

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