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West v. Secretary of Florida Department of Corrections

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

August 8, 2019




         I. Status

         Petitioner, an inmate of the Florida penal system, initiated this action by filing a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (Doc. 1) (Petition). He challenges his 2010 state court (Duval County, Florida) judgment of conviction for burglary while wearing a hood or mask. He was sentenced to thirty years in prison as a habitual felony offender. Respondents filed a Response to Petition for Writ of Habeas Corpus (Doc. 9) (Response) with Exhibits (Docs. 9-1 to 9-5) (Ex.). Petitioner filed a Reply (Doc. 14). The case is ripe for review.[1]

         II. Governing Legal Principles

         A. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

         The first task of the federal habeas court is to identify the last state court decision, if any, that adjudicated the petitioner's claims on the merits. See Marshall v. Sec'y Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need not issue an opinion explaining its rationale in order for the state court's decision to qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state court's adjudication on the merits is unaccompanied by an explanation,

the federal court should “look through” the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning. But the State may rebut the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision, such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed.

Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         When a state court has adjudicated a petitioner's claims on the merits, a federal court cannot grant habeas relief unless the state court's adjudication of the claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “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)(1), (2). A state court's factual findings are “presumed to be correct” unless rebutted “by clear and convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for evaluating state court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted). “It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. [at 102] (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12');">540 U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness.”); Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations modified).

         B. Exhaustion and Procedural Default

         There are prerequisites to federal habeas review. Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all state court remedies that are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust state remedies, the petitioner must “fairly present[]” every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust a claim, “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel applies to the state collateral review process as well as the direct appeal process”).

         In addressing exhaustion, the United States Supreme Court explained:

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the “‘opportunity to pass upon and correct alleged violations of its prisoners' federal rights.'” Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). To provide the State with the necessary “opportunity, ” the prisoner must “fairly present” his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Duncan, supra, at 365-366, 115 S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

         A state prisoner's failure to properly exhaust available state remedies results in a procedural default which raises a potential bar to federal habeas review. The United States Supreme Court has explained the doctrine of procedural default as follows:

Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism. These rules include the doctrine of procedural default, under which a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule. See, e.g., Coleman, [2] supra, at 747-748, 111 S.Ct. 2546; Sykes, [3] supra, at 84-85, 97 S.Ct. 2497. A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed. See, e.g., Walker v. Martin, 562 U.S. __, __, 131 S.Ct. 1120, 1127-1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. __, __, 130 S.Ct. 612, 617-618, 175 L.Ed.2d 417 (2009). The doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law. See Coleman, 501 U.S., at 750, 111 S.Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be excused under certain circumstances. Notwithstanding that a claim has been procedurally defaulted, a federal court may still consider the claim if a state habeas petitioner can show either (1) cause for and actual prejudice from the default; or (2) a fundamental miscarriage of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for a petitioner to establish cause and prejudice,

the procedural default “must result from some objective factor external to the defense that prevented [him] from raising the claim and which cannot be fairly attributable to his own conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992) (quoting Carrier, 477 U.S. at 488, 106 S.Ct. 2639).[4] Under the prejudice prong, [a petitioner] must show that “the errors at trial actually and substantially disadvantaged his defense so that he was denied fundamental fairness.” Id. at 1261 (quoting Carrier, 477 U.S. at 494, 106 S.Ct. 2639).

Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).

         In the absence of a showing of cause and prejudice, a petitioner may receive consideration on the merits of a procedurally defaulted claim if the petitioner can establish that a fundamental miscarriage of justice, the continued incarceration of one who is actually innocent, otherwise would result. The Eleventh Circuit has explained:

[I]f a petitioner cannot show cause and prejudice, there remains yet another avenue for him to receive consideration on the merits of his procedurally defaulted claim. “[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Carrier, 477 U.S. at 496, 106 S.Ct. at 2649. “This exception is exceedingly narrow in scope, ” however, and requires proof of actual innocence, not just legal innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).

Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more likely than not that no reasonable juror would have convicted him' of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,' a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases, allegations of actual innocence are ultimately summarily rejected. Schlup, 513 U.S. at 324.

         C. Ineffective Assistance of Counsel

         “The Sixth Amendment guarantees criminal defendants the effective assistance of counsel. That right is denied when a defense attorney's performance falls below an objective standard of reasonableness and thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, a person must show that: (1) counsel's performance was outside the wide range of reasonable, professional assistance; and (2) counsel's deficient performance prejudiced the challenger in that there is a reasonable probability that the outcome of the proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S. at 687.

         Notably, there is no “iron-clad rule requiring a court to tackle one prong of the Strickland test before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part Strickland test must be satisfied to show a Sixth Amendment violation, “a court need not address the performance prong if the petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” 466 U.S. at 697.

         “The question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). “If there is ‘any reasonable argument that counsel satisfied Strickland's deferential standard,' then a federal court may not disturb a state-court decision denying the claim.” Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (quoting Richter, 562 U.S. at 105). As such, “[s]urmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a ‘strong presumption' that counsel's representation was ‘within the wide range of reasonable professional assistance.'” Daniel v. Comm'r, Ala. Dep't of Corr., 822 F.3d 1248, 1262 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is combined with § 2254(d), the result is double deference to the state court ruling on counsel's performance.” Id. (citing Richter, 562 U.S. at 105); see also Marshall, 828 F.3d at 1285 (“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” (quotations and citation omitted)).

         III. Analysis

         On September 25, 2009, the State of Florida charged Petitioner by information with burglary (structure/conveyance), a third-degree felony. Ex. A at 16. On December 22, 2009, the state filed an amended information charging Petitioner with burglary while wearing a hood or mask, a second-degree felony. Id. at 26. Petitioner was represented at trial by Todd Niemczyk, Esquire and Senovia Lance, Esquire. At the conclusion of the trial, the jury found Petitioner guilty as charged. See id. at 57. He challenges his judgment of conviction on the following fifteen grounds.[5]

         Ground One

         Petitioner argues that his trial counsel was ineffective for failing to object or move to exclude any evidence pertaining to his identification. Doc. 1 at 3-11. In support of this ground, he attacks the testimony of Mike Zager, the owner of the store that was burglarized, asserting that Mr. Zager's identification of him was unreliable; he argues that counsel was ineffective for failing to call Detective Fusco; and he claims that the photospread was suggestive and counsel was ineffective for failing to object to it. See i d . at 5-9. Petitioner also asserts that the trial court erred in allowing the photospread into evidence without a proper predicate. Id. at 8-9. He acknowledges that he did not exhaust these claims in state court, but he argues that Martinez v. Ryan, 566 U.S. 1 (2012), excuses the procedural bar and permits this Court to hear the claims on the merits.

         “In Martinez, the U.S. Supreme Court enunciated a narrow exception to the general rule that the lack of an attorney or attorney error in state post-conviction proceedings does not establish cause to excuse the procedural default of a substantive claim.” Lambrix v. Sec'y, Fla. Dep't of Corr., 851 F.3d 1158, 1164 (11th Cir.), cert. denied, 138 S.Ct. 217 (2017). Under this exception, not only must Petitioner demonstrate that the trial court failed to appoint counsel or his counsel was ineffective in the initial collateral proceedings, but he must also demonstrate that the underlying ineffective assistance of trial counsel claim that he seeks to raise is a “substantial” one, meaning that the claim must have “some merit.” Martinez, 566 U.S. at 14; see also Luciano v. Sec'y, Dep't of Corr., 701 Fed.Appx. 792, 793 (11th Cir. 2017); Sullivan v. Sec'y, Fla. Dep't of Corr., 837 F.3d 1195, 1201 (11th Cir. 2016). Conversely, his claim is “insubstantial” if “it does not have any merit or . . . is wholly without factual support.” Martinez, 566 U.S. at 16. For the reasons that follow, the Court finds that Petitioner cannot demonstrate that his underlying ineffective assistance of counsel claims are substantial under Martinez.

         Prior to trial, Petitioner's counsel filed motions in limine to exclude any testimony regarding an anonymous tip implicating Petitioner in the burglary and the introduction of a surveillance tape showing Petitioner in the subject store the day before the burglary. Ex. A at 35-36, 38-39. The trial court granted in part the motion regarding the anonymous tip but denied the motion regarding the surveillance video. Id. at 34, 37; see Ex. B at 6-11.

         At trial, Mr. Zager testified that he reviewed the video of the burglary, and he realized that one of the individuals in the video had been in his store earlier.

Q And after watching that video was there anything that struck you about the people that came into the store?
A Yes, not when I originally watched it but before the detective came, when I was making the copy for it I realized that the individual that was behind the counter . . . was in earlier that day, had the same exact shorts, same exact shirt, same exact tennis shoes, tattoos on the arms, just never bothered to change clothes . . . .
Q And this individual had his face covered in the video that we saw?
A Correct.
Q But could you tell if he had the similar or same build?
A Same build, same clothes, same shorts, same shoes.
Q So that prompted you then to look at your video from earlier that day?
A It did. I went back because I remembered seeing that individual and I went back and watched earlier in the afternoon.
Q Well, let's talk about earlier that afternoon. That would have been the day before?
A Day before, correct.
Q So July 8th, around what time were you able to figure out from the video did that person that you saw on this video of the burglary come into your store?
A It was probably somewhere between 12:30 and 1:00 o'clock, somewhere in that ball park.
Q . . . Do you remember when they entered how many people came in?
A Three.
Q And can you describe for me what they did when they came in, what you remember?
A They came in looking for television sets. Two of them walked over to the television area, were asking questions in regards to TVs and what we carry and what our prices are. And one of them walked over to the other sides of the building by the counter or toward that other room that you see over there.
Q When you say counter, is that the register area?
A The register area, correct.
Q What was the man that walked over to the register area wearing?
A Black shirt, black shorts with the design on the side, white tennis shoes with the black stripe on the back.
Q And you had interaction with all three of these men, right?
A Correct.
Q You got to talk to them, see their faces, they asked you questions?
A Yes.
Q . . . After viewing that video of your interaction earlier in the day and the video of the burglary, did you alert the detectives as to your suspicion about the person that was dressed in the black shirt and the black shorts?
A Yes, when the detective came for the video, I showed her, not only gave her the DVD, I also showed her the video and showed her the tape from earlier in the afternoon and said that the individual that broke into our building never even changed clothes, they wore the same shorts, the same shirt, paused it where he was behind the counter where you could see the tattoos on his arm, also when he was walking in front of the counter earlier in the day similar tattoos on the arm that were there, same outfit.
Q Let's talk about those tattoos because you mentioned you also noticed tattoos. What body part did you notice was tattooed that stuck out in your mind from your interaction?
A The left arm cause that was the side as he walked in front of the counter, probably the one, I mean, he has on both arms but in the video what I noticed was the ones on the left arms cause he's got a full sleeve, and on the one when you're walking in front of the counter you can see those same tattoos.
Q Okay. So when you saw the video of the burglary which is a still shot depicted in . . . State's 18, you right away remembered those tattoos were similar to what you had seen during your interaction in the store?
A The first thing I noticed was the same shorts, the same shirt, and the same shoes. Then I noticed the arm on one of the pictures that you have there as he was coming across, and then I went back and looked at the other video to confirm and the same tattoos.

Ex. B at 41-44, 50-51, 54-55.

         On cross-examination, Petitioner's counsel elicited testimony from Mr. Zager that the shorts and shoes worn by Petitioner when he was legally in the store the day before the burglary were removable, [6] and that he's not the only African American male in Jacksonville with the same build as the burglar.[7] Id. at 63-64. Counsel also elicited testimony that the videos were too blurry to specifically recognize the tattoos.[8] Id. at 64. In closing argument, Petitioner's counsel discussed the unreliability of the identification and the lack of evidence proving beyond a reasonable doubt that Petitioner committed the burglary, and he urged the jury to closely review all of the evidence. See id. at 130-41.

         Upon review, this Court finds that Petitioner has failed to show his counsel was deficient in the manner suggested. Petitioner is simply unhappy with how the jury weighed the evidence. Because Petitioner cannot show his counsel was ineffective, this claim lacks merit, and thus it is not a “substantial” claim warranting application of the Martinez exception. Petitioner has not otherwise shown both cause for and actual prejudice from the default. Nor has he shown that he is entitled to the fundamental miscarriage of justice exception. Accordingly, Petitioner is not entitled to federal habeas relief on this claim.

         To the extent Petitioner also argues his counsel was ineffective for failing to call Detective Fusco as a witness, his claim is not substantial. Petitioner argues that Detective Fusco was “solely responsible for implicating the [P]etitioner as the burglar, and providing the tip that included the [P]etitioner's photo being included in a photo spread.” Doc. 1 at 8. Petitioner's assertions are not supported by the record. In response to an intelligence bulletin which included photos of the suspects from the surveillance video, Petitioner was identified through an anonymous tip. As a result, his photograph was included in a photospread, and he was identified by Mr. Zager. Moreover, “‘[w]hich witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.'” Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 647 (11th Cir. 2016) (quoting Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995)). Counsel could have reasonably determined that calling Detective Fusco as a witness would have been more harmful to Petitioner's case, given that Detective Fusco could have testified that she personally interviewed Petitioner, he admitted to being in the store the day before the burglary, and his tattoos matched those of the suspect on the surveillance video. Considering the record on the whole, the Court finds that Petitioner has failed to show his counsel was deficient for not calling Detective Fusco as a witness, and therefore, this claim has no merit; thus, Martinez does not apply. Petitioner has not otherwise shown cause and prejudice to excuse his default, nor is he entitled to the fundamental miscarriage of justice exception. Petitioner is not entitled to federal habeas relief on this claim.

         Insofar as Petitioner argues that his counsel was ineffective for failing to object to the photospread as being unduly suggestive, such claim is also insubstantial and procedurally barred. An out-of-court identification is subject to exclusion if the identification procedure was unduly suggestive such that it created a substantial risk of misidentification. See Neil v. Biggers, 409 U.S. 188, 199 (1972). In determining whether an identification violates due process, a court undertakes a two-part analysis. “First, [the court] must determine whether the original identification procedure was unduly suggestive . . . . If [the court] conclude[s] that the identification procedure was suggestive, [the court] must then consider whether, under the totality of the circumstances, the identification was nonetheless reliable.” Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988) (citing Biggers, 409 U.S. at 199).

         In Biggers, the Supreme Court identified five factors to be considered in determining whether the identification was reliable. They are: the witness's opportunity to view the suspect at the time of the crime, the witness's degree of attention, the accuracy of the description of the suspect, the level of certainty of the identification, and the length of time between the crime and the identification. See Biggers, 409 U.S. at 199. In Manson v. Brathwaite, 432 U.S. 98, 116 (1977), the United States Supreme Court stated that absent “a very substantial likelihood of irreparable misidentification, ” the identification of a suspect by a witness is evidence for the jury to weigh.

         At trial, Mr. Zager testified that during the investigation, a detective showed him a photospread. He then described that interaction.

Q The detective that came, what did they do, what did they show you?
A It was a detective I hadn't met before, it was not the detective that was originally came on the case. He showed and said I have some photos, I want to know if you can - - if you see anybody that you recognize.
Q And did he allow you to look through the photos? Describe for the jury how they were shown to you.
A He put the photos down and laid them out on the counter.
Q Did that detective do anything to indicate which photo you should choose?
A No.
Q Did he do anything to suggest which photo was relevant?
A No.
Q Were you able to identify the person that you had interacted with that day prior to the burglary?
A Yes.
Q Is this the photospread that you were shown by the detective?
A Yes.
Q And did you pick out from those photos a ...

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