United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
a Florida prisoner, initiated this action by filing a
petition for a writ of habeas corpus under 28 U.S.C. §
2254 (“petition”) (Doc. 1). Respondent filed a
response in opposition to the petition (Doc. 15), to which
Petitioner replied (Doc. 73). Upon consideration, the
petition will be denied.
was convicted of attempted first-degree murder and aggravated
battery involving great bodily harm (Respondent's Ex. 1,
record pp. 14-15). He was sentenced to life in prison on the
attempted murder conviction and 30 years on the aggravated
battery conviction (Id., record pp. 19-24). The
convictions and sentences were affirmed on appeal
(Respondent's Ex. 4).
filed a motion for post-conviction relief under Rule 3.850,
Fla. R. Crim. P., alleging ineffective assistance of trial
counsel, which he subsequently amended (Respondent's Ex.
6). Claim four of the motion was denied, and an evidentiary
hearing was scheduled on the remaining grounds
(Respondent's Ex. 7). The remaining grounds were denied
after the evidentiary hearing (Respondent's Ex. 8). The
denial of the motion was affirmed on appeal (Respondent's
filed a motion under Rule 3.800(a), Fla.R.Crim.P., in which
he argued that his sentence was illegal (Respondent's Ex.
17). The motion was denied (Respondent's Ex. 18), and the
denial was affirmed on appeal (Respondent's Ex. 19).
filed his federal habeas petition in which he raises eight
grounds for relief (Doc. 1).
GOVERNING LEGAL PRINCIPLES
Petitioner filed his petition after April 24, 1996, this case
is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Penry v. Johnson, 532 U.S.
782, 792 (2001); Henderson v. Campbell, 353 F.3d
880, 889-90 (11th Cir. 2003). The AEDPA “establishes a
more deferential standard of review of state habeas
judgments, ” Fugate v. Head, 261 F.3d 1206,
1215 (11th Cir. 2001), in order 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);
see also Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (recognizing that the federal habeas court's
evaluation of state-court rulings is highly deferential and
that state-court decisions must be given the benefit of the
Standard of Review Under the AEDPA
to the AEDPA, habeas relief may not be granted with respect
to a claim adjudicated on the merits in state court 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;
(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). The phrase “clearly
established Federal law, ” encompasses only the
holdings of the United States Supreme Court “as of the
time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412
2254(d)(1) provides two separate bases for reviewing state
court decisions; the ‘contrary to' and
‘unreasonable application' clauses articulate
independent considerations a federal court must
consider.” Maharaj v. Secretary for Dep't. of
Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning
of the clauses was discussed by the Eleventh Circuit Court of
Appeals in Parker v. Head, 244 F.3d 831, 835 (11th
Under the “contrary to” clause, a federal court
may grant the writ if the state court arrives at a conclusion
opposite to that reached by [the United States Supreme Court]
on a question of law or if the state court decides a case
differently than [the United States Supreme 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 [the United States
Supreme Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.
federal court concludes that the state court applied federal
law incorrectly, habeas relief is appropriate only if that
application was “objectively unreasonable.”
under § 2254(d)(2), a federal court may grant a writ of
habeas corpus if the state court's decision “was
based on an unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.” A determination of a factual issue made by
a state court, however, shall be presumed correct, and the
habeas petitioner shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.
See Parker, 244 F.3d at 835-36; 28 U.S.C. §
Standard for Ineffective Assistance of Counsel
United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), established a two-part
test for determining whether a convicted person is entitled
to relief on the ground that his counsel rendered ineffective
assistance: (1) whether counsel's performance was
deficient and “fell below an objective standard of
reasonableness”; and (2) whether the deficient
performance prejudiced the defense. Id. at 687-88. A
court must adhere to a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance. Id. at 689-90. “Thus,
a court deciding an actual ineffectiveness claim must judge
the reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct.” Id. at 690; Gates
v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
observed by the Eleventh Circuit Court of Appeals, the test
for ineffective assistance of counsel:
has nothing to do with what the best lawyers would have done.
Nor is the test even what most good lawyers would have done.
We ask only whether some reasonable lawyer at the trial could
have acted, in the circumstances, as defense counsel acted at
trial. Courts also should at the start presume effectiveness
and should always avoid second guessing with the benefit of
hindsight. Strickland encourages reviewing courts to
allow lawyers broad discretion to represent their clients by
pursuing their own strategy. We are not interested in grading
lawyers' performances; we are interested in whether the
adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th
Cir. 1992) (citation omitted). Under those rules and
presumptions, “the cases in which habeas petitioners
can properly prevail on the ground of ineffective assistance
of counsel are few and far between.” Rogers v.
Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Exhaustion of State Remedies and Procedural Default
a district court can grant habeas relief to a state prisoner
under § 2254, the petitioner must exhaust all state
court remedies that are available for challenging his
conviction, either on direct appeal or in a state
post-conviction motion. See § 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.”). A
state prisoner “‘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,' including review by the
state's court of last resort, even if review in that
court is discretionary.” Pruitt v. Jones, 348
F.3d 1355, 1358-59 (11th Cir. 2003) (quoting
O'Sullivan, 526 U.S. at 845.)
exhaust a claim, a petitioner must make the state court aware
of both the legal and factual bases for his claim. See
Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the
state prisoner ‘fairly presen[t] federal claims to the
state courts in order to give the State the opportunity to
pass on and correct alleged violations of its' prisoners
federal rights.'”) (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995)). A federal habeas
petitioner “shall not be deemed to have exhausted the
remedies available in the courts of the State. . .if he has
the right under the law of the State to raise, by any
available procedure, the question presented.”
Pruitt, 348 F.3d at 1358. The prohibition against
raising an unexhausted claim in federal court extends to both
the broad legal theory of relief and the specific factual
contention that supports relief. Kelley v. Sec'y,
Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir.
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. 28
U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S.
270, 275-76 (1971). A petitioner may raise a federal claim in
state court “by citing in conjunction with the claim
the federal source of law on which he relies or a case
deciding such claim on federal grounds, or simply by labeling
the claim ‘federal.'” Baldwin v.
Reese, 541 U.S. 27, 32 (2004).
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). To establish cause for a
procedural default, a petitioner “must demonstrate that
some objective factor external to the defense impeded the
effort to raise the claim properly in state court.”
Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.
1999). See also Murray v. Carrier, 477 U.S. 478
(1986). To show prejudice, a petitioner must demonstrate not
only that the errors at his trial created the possibility of
prejudice but that they worked to his actual and substantial
disadvantage and infected the entire trial with error of
constitutional dimensions. United States v. Frady,
456 U.S. 152 (1982). The petitioner must show at least a
reasonable probability of a different outcome. Crawford
v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
a petitioner may obtain federal habeas review of a
procedurally defaulted claim if review is necessary to
correct a fundamental miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Carrier,
477 U.S. at 495-96. 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). “‘[A]ctual innocence' means
factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998).
To meet this standard, a petitioner must show a reasonable
likelihood of acquittal absent the constitutional error.
Schlup, 513 U.S. at 327.
One: PROSECUTOR KNOWINGLY UTILIZED PERJURED
contends that he was denied due process when the prosecutor
knowingly presented false testimony. Specifically, he alleges
that the prosecutor knew Officer McCoy's testimony that
Maria Miller had identified Petitioner from a “photopak
lineup” as the person who shot the victim was false. He
appears to further allege that Officer McCoy falsely
testified that Miller identified Petitioner as the shooter
when she was brought to see him “in person.” This
claim fails because Officer McCoy did not testify that Miller
identified Petitioner as the shooter (Respondent's Ex. 8,
Vol. III, transcript pages 261-69). Although Officer McCoy
testified that Octavia Williams identified Petitioner from
the photopak (id., transcript pp. 263-64, 266), she
testified that Miller did not identify Petitioner from the
photopak because she could not be “100 percent”
certain it was Petitioner, since Petitioner is smaller than
he appeared in his photograph in the photopak (Id.,
transcript pp. 266-68). And although Officer McCoy testified
that she had an officer bring Petitioner to Miller to show
him to her in person, she did not state that Miller
identified Petitioner as the shooter at that time
(Id., transcript p. 269).
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763,
31 L.Ed.2d 104 (1972), the Supreme Court held that when the
prosecution solicits or fails to correct known false
evidence, due process requires a new trial where ‘the
false testimony could in any reasonable likelihood have
affected the judgment of the jury.'” Trepal v.
Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1107
(11th Cir. 2012) (quoting Giglio, 405 U.S. at 154).
Because Petitioner has failed to demonstrate that Officer
McCoy gave false testimony, his Giglio claim fails.
See, e.g., Jones v. Hetzel, 2017 WL 4618157, at *2
(S.D. Ala. Oct. 16, 2017), certificate of appealability
denied, 2018 WL 2246586 (11th Cir. Mar. 14, 2018)
(“Because a Giglio violation requires proof
that the prosecution presented false testimony, and because
the Rule 32 judge properly found Booker did not offer false
testimony, the petitioner's only claim fails as a matter
of law.”). Accordingly, Ground One warrants no relief.
Two: INEFFECTIVE ASSISTANCE OF COUNSEL
FAILURE TO DISCLOSE SWORN WRITTEN STATEMENT PRIOR TO TRIAL
COMMITTING DISCOVERY VIOLATION
contends that defense counsel was ineffective in failing to
notify the trial court that the prosecutor failed to disclose
“Markese White's sworn written affidavit
statement” during discovery after counsel had requested
it. He further alleges that counsel “misled” him
when he stated that Officer Spatola's police report was
White's sworn written statement. Petitioner further
contends that he was denied due process during the state
post-conviction evidentiary hearing when the post-conviction
court used a police report rather than White's written
statement to deny this claim.
ineffective assistance of counsel claim was raised in Ground
Seven of his Rule 3.850 motion (Respondent's Ex. 6,
record pp. 200-02). In denying the claim, the state
post-conviction court stated:
In claim seven, Defendant alleges ineffective assistance of
counsel for failing to inform Defendant of a discovery
violation. Specifically, Defendant alleges that the State and
counsel led him to believe that Markese White's initial
statement to police officers was the same as the sworn
written statement Mr. White made later in the day. Defendant
alleges that the State failed to provide him a copy of the
written statement and that counsel failed to obtain a copy of
the written statement. At the evidentiary hearing, Defendant
identified the statement as the one made to Officer Spatola
on September 3, 2009. (See Transcript, Aug. 13,
2013, p. 56).
Mr. James testified at the evidentiary hearing that the sworn
statement was part of the police report and that the police
report was provided to Defendant. (See Transcript,
Aug. 13. 2013, p. 97, 99). Mr. James testified the letter
written to Defendant indicating that he did not provide the
sworn statement was done in error. (See Transcript,
Aug. 13, 2013, p. 98; Exhibit 12, attached).
The Court finds that the record supports Mr. James'
testimony. The statement made by Markese White to Officer
Spatola was entered into evidence as Exhibit 10.
(See Exhibit, 10, attached). The statement is page
40 of a Tampa police department report. Paragraph 8 of the
State's Notice of Discovery indicates the report was
provided as part of discovery. (See Notice of
Discovery, attached). Thus, there was no discovery violation
and counsel's performance was not deficient for failing
to inform Defendant of such a violation. Accordingly,
Defendant is not entitled to relief on claim seven.
(Respondent's Ex. 8, Vol. I, pp. 9-10) (emphasis in
appears to complain that counsel was deficient in failing to
alert the trial court that the State never provided the
defense with the hand written statement White gave to law
enforcement on September 3, 2009 (see Doc. 1-2,
docket p. 39). The statement, according to Petitioner, is not
the same statement that White gave to Officer Spatola earlier
that night which was documented in Officer Spatola's
police report (see Respondent's Ex. 8, record p.
has failed to demonstrate that counsel was deficient in
failing to notify the trial court that the State failed to
provide White's written statement because he has not
shown that counsel was aware of the written statement at the
time of Petitioner's trial in February 2010. It is
apparent from defense counsel's testimony during the
evidentiary hearing on Petitioner's Rule 3.850 motion
that counsel believed White's statement was part of the
police report, and the police report had been provided to
Petitioner (Id., record pp. 453-56). Counsel's
February 14, 2011 letter to Petitioner indicates that
White's written statement “was never provided by
the State during the discovery process.” (Id.,
record p. 548). P e titioner himself testified that he did
not receive White's written statement until two years
later when he wrote the State Attorney's Office and
received the statement in response (Id., record p.
415). Defense counsel was not ineffective in failing to
notify the trial court regarding a discovery violation of
which he was not aware.
Petitioner could somehow show that counsel was deficient, he
has failed to allege, let alone demonstrate, prejudice.
White's written statement provides:
We [were] in the alley of the apartments of Jackson Heights
playing dice [when] the older man that go by the name of
baldy came up in at first he look around for like a minute
then he pulled out a gun and shot at Leslie and he chase
Leslie and shot several more times and I ran away. I ran into
the apartments, ran to the outside and I found Leslie in an
alley behind a gate.
(Doc. 1-2, docket p. 39). The statement was not favorable to
Petitioner, since it identified Petitioner, who was known as
“Baldy, ” as the person who shot the victim. And
it was consistent with the recorded statement White gave to
Officer Torres in which White indicated, in pertinent part,
that he was playing dice with others behind the apartments
when Petitioner approached the group, pulled a gun out and
pointed it at them, and fired shots at and chased after the
victim (Respondent's Ex. 6, record p. 139).
of evidence by the prosecution denies a defendant due process
only if the evidence is favorable to the defense and
material, i.e., there is a reasonable probability
that if the evidence was disclosed, the result of the trial
would have been different. See Stephens v. Hall, 407
F.3d 1195, 1203 (11th Cir.2005) (discussing Brady v.
Maryland, 373 U.S. 83 (1963) and United States v.
Bagley, 473 U.S. 667, 678 (1985), other citations
omitted). White's written statement was neither favorable
to the defense nor material. Accordingly, Petitioner cannot
demonstrate that he was prejudiced by counsel's failure
to notify the trial court that the State failed to disclose
White's written statement.
state courts' denial of this claim was not contrary to
Strickland, and was not based on an unreasonable
determination of the facts. Accordingly, Petitioner is not
entitled to federal habeas relief on Ground Two.
to the extent Petitioner contends that he was denied due
process during the evidentiary hearing on his Rule 3.850
post-conviction motion, the claim is not cognizable under
§ 2254 because a defect in a collateral proceeding,
rather than the conviction or sentence, is unrelated to the
cause of detention and does not state a claim for habeas
corpus relief. See Quince v. Crosby, 360 F.3d 1259,
1261-62 (11th Cir.2004) (“while habeas relief is
available to address defects in a criminal defendant's
conviction and sentence, an alleged defect in a collateral
proceeding does not state a basis for habeas relief.”);
Spradley v. Dugger, 825 F.2d 1566, 1568 (11th
Cir.1987) (petitioner's § 2254 claim that the state
trial court violated his due process rights because it failed
to conduct an evidentiary hearing and did not attach to its
opinion denying relief those portions of the record on which
it relied went to issues unrelated to the cause of
petitioner's detention and did not state a basis for
habeas relief). Accordingly, this claim warrants no relief.
Three: WHETHER THE STATE FAILED TO PRESENT SUFFICIENT
EVIDENCE IDENTIFYING THE APPELLANT AS THE
contends that his federal due process and equal protection
rights were violated because there was insufficient evidence
identifying him as the perpetrator of the crimes for which he
was convicted. Respondent argues that this claim is
unexhausted because Petitioner did not raise it as a federal
claim on direct appeal. Respondent is correct that Petitioner