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Mathis v. Inch

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

September 17, 2019

KEITH MATHIS, Petitioner,
v.
MARK S. INCH, [1] Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          HOPE THAI CANNON UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Petitioner Keith Mathis's first amended petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF Doc. 5. The matter was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After considering the first amended petition, the State's response (ECF Doc. 21), the record, and Mathis's reply (ECF Doc. 27), the undersigned recommends the first amended petition be DENIED without an evidentiary hearing.

         Mathis seeks habeas relief on the following nine (9) grounds: (1) the trial court violated Mathis's Fourth Amendment rights by denying his motion to suppress evidence obtained during a warrantless search; (2) the trial court violated Mathis's Fifth, Sixth and Fourteenth Amendment rights by allowing a witness to testify that Mathis stated he almost shot the victim; (3) the trial court violated Mathis's Fifth and Fourteenth Amendment rights by allowing the prosecutor to shift the burden of proof and enflame the jury during closing arguments; (4) the trial court violated Mathis's Fifth and Fourteenth Amendment rights by pressuring the jury to continue deliberations past the point of endurance; and (5) four claims of ineffective assistance of trial counsel -- (a) trial counsel failed to advise Mathis he faced a mandatory sentence of life imprisonment when considering a plea offer; (b) trial counsel failed to object to Mathis being called a “convicted felon”; (c) trial counsel failed to object to the trial court's misstatement that “Count I” had been stipulated to rather than “Element 1” of Count II; and (d) trial counsel failed to file a motion for a downward departure from the a life sentence. ECF Doc. 5.

         There is no argument by the State that the petition in untimely or that Mathis has failed to exhaust his state remedies.

         I. Factual Background

         Mathis was convicted of the following offenses:

Count I: Possession of a firearm by a violent career felon;
Count III: Trafficking hydrocodone;
Count IV: Drugs -- Possession of a Controlled Substance with Intent to Sell Cocaine;
Count V: Drugs -- Possession of a Controlled Substance with Intent to Sell Methamphetamine;
Count VI: Drugs -- Possession of Cannabis with Intent to Sell; and
Count VII: Possession of Drug Paraphernalia for Use

ECF Doc. 21 at 2-3. He is serving a life sentence under Fla. Stat. § 775.084 for Count I.[2] His other sentences run concurrently with his life sentence. At issue in this habeas petition is his judgment of conviction and sentence for Count I.[3]

         A. The Crimes

         The following summary provides the facts pertinent to the issues raised in the petition. Around 2:00 am on February 10, 2007, Deputies Michael Rowlands and Cory Hanson were dispatched to respond to a 911 call and arrived at a gas station to find Scott Baty sitting on the curb, bleeding profusely from a head wound. ECF Doc. 21-2 at 77; ECF Doc. 5 at 5. Baty told the deputies that, minutes earlier, he and his friend William Freeburn “went to an individual named Sweat's house and attempted to purchase illegal narcotics, trading videotapes for the narcotics, as opposed to currency. This infuriated Mr. Sweat, and Sweat struck him in the head with a rifle.” Id. at 77-78; ECF Doc. 5 at 5. Baty described Sweat as a “[b]lack male, middle aged.” Id. at 79.

         After Baty was transported by Alachua County Fire Rescue for medical treatment, the deputies interviewed Freeburn who provided a matching account of the night's events. Id. at 79-80. Freeburn took the officers to the residence where the incident had occurred. Id. at 81; ECF Doc. 5 at 5. Four or five uniformed officers, led by Rowlands, covertly gathered and parked a street over from the residence. Id. They approached the property stealthily because of their concern that an AK-47 was said to be on the premises. Id. 80-84, 119.

         Anethia Curtis, the legal tenant of the property and the girlfriend of Mathis, observed the officers as they approached the home. She called out to the officers, “who is that.” ECF Doc. 5 at 5. While Rowlands was standing about 20 yards from the home and holding his shotgun in a low and ready position (pointed down), he identified himself. ECF Doc. 5 at 5. Deputy Rowlands spoke with Curtis and informed her the officers were there to investigate an alleged aggravated battery, to search for a weapon and to search for someone named “Sweat.” Id. at 144. Curtis denied that anything had happened there that night, that a gun was present or that she knew anyone named “Sweat.” Id. at 87.

         Also, as Rowlands approached the house he noticed a black male, later identified as Bennie Hampton, who was working on some construction in the yard, ECF Doc. 21-2 at 88, and that there was a small shed or bungalow in the back yard. Id. Rowlands called Hampton over to him and asked him if he knew someone named “Sweat.” Id. Hampton answered he did not. Id. A few moments later, a white male named Brian White exited the shed, which was located fifteen feet from the residence in the backyard. Id. at 91. When asked if he knew someone named “Sweat, ” he said he did not. Id. A few moments later, another white male, Dell Bundy, walked out of the shed. Unlike the other two men, he whispered that “Sweat” was inside the shed. Id. Rowlands knocked on the side of the shed and called out the name “Sweat.” Id. at 92. After several seconds of sounds “like things were being moved” from inside the shed, Mathis emerged from the shed and was cuffed. Id. at 93, 171. Freeburn identified Mathis as the person who hit Baty with an AK-47. ECF Doc. 21-4 at 131-32, 156-57.

         Rowlands then sought to obtain Curtis's permission to search the home. After a thirty to forty-minute discussion, Curtis agreed to allow Rowlands to search the home so long as Rowlands left his rifle outside and she could accompany them.[4] Id. at 145; ECF 21-1 at 177. Rowlands and Hanson searched the residence for around ten minutes and, although they observed various pills and drug paraphernalia in plain view, they did not find an AK-47. Id. at 98-99.

         Rowland then asked for permission to search the shed. Whether Curtis gave that consent and whether she did so voluntarily is the crux of Mathis's first ground of relief. Because the circumstances of the consent are discussed further below in Section II.B., the undersigned does not address them here. Deputies found an AK-47 in the shed (along with various drugs and paraphernalia). ECF 21-2 at 111.

         B. The Trial

         Mathis went to trial on the two possession of a firearm charges (Count I and Count II). ECF Doc. 21-3 201-79 & ECF Doc. 21-4 at 1-280 (trial transcript). During the trial, the State's experts testified that DNA in the blood found on the AK-47 matched that of Baty's and that fingerprints recovered from the gun were inconclusive. ECF Doc. 21-3 at 261, 273; ECF Do. 21-4 at 13. In addition to the testimonies of deputies Rowland and Hanson, the State also presented testimony from Baty. Baty identified Mathis as the person who pointed the AK-47 at him and Freeburn and who hit him with the gun as he was trying to leave the premises on a bike (ECF Doc. 21-4 at 24-26, 50). The State also offered evidence from Bundy, who said that he saw Mathis return to the shed with the gun (ECF Doc. 21-4 at 96-97).

         Also, the State called Bryan White as a witness. White, who initially told officers he did not know anyone by the name of “Sweat” when they arrived at the premises, testified during the trial that (1) Mathis was “Sweat, ” (2) White went to the property to purchase crack cocaine and smoked it in the shed with Bundy; (3) he heard yelling outside that sounded like Mathis; (4) he saw Mathis looking through a window in the trailer yelling at two men; (5) Mathis pulled out an AK-47 and stuck the barrel out the window; (6) White heard a crack that sounded like Mathis had just “butt stroked the kid in the head with a weapon”; and -- over defense counsel's objection -- (7) that Mathis went into the shed and “said that the kid had disrespected him, and that he had almost shot him.” ECF Doc. 21-4 at 68-75. This last part of White's testimony is the crux of Mathis's second ground for relief.

         In support of the defense's position, the defense presented the testimony of Freeburn, whose testimony differed at trial from what he told deputies the night of the incident. In court, Freeburn wore sunglasses and testified he had a condition on the night in question that severely diminished his eyesight. Id. at 151. He claimed he only identified Mathis on the night in question because of the verbal description given him by Baty and his desire to do what Baty appeared to want him to do. Id. at 155-56. He claimed not to have seen Mathis himself. Id. at 155. He also reported that, a few days after the attack, Baty had approached him and told Freeburn that Freeburn had identified the wrong person. Id. at 156. The State brought out on cross-examination that Freeburn had signed a written statement written by Curtis and that Freeburn had never mentioned his poor eyesight before and had not worn glasses on previous trips to the state attorney's office. Id. at 176-77. Deputy Hanson was called as a rebuttal witness to refute Freeburn's testimony. Id. at 201-03. The final defense witness was Patrick Blake, who testified he was working on a deck in the yard that night and did not see a pair of men at the bathroom window at any point in the night. Id. at 189. He admitted on cross, however, that he might not have noticed everything that happened because he was focused on his work. Id. at 193.

         Mathis attacks the propriety of the State's closing arguments, certain jury instructions and the jury's deliberation in this petition. The details of those events are discussed further below in Section II.D.1-4.

         As stated above, the jury found Mathis guilty on Count I and Count II on April 22, 2008. ECF Doc. 21-1 at 148. Mathis then pleaded guilty to the remaining counts, III through VII, ECF Doc. 25-2 at 1, and was sentenced on all the counts on May 15, 2008. ECF Doc. 21-5 at 104.

         C. Post-Judgment Motions and Appeals

         Mathis filed a notice of appeal on May 27, 2008. ECF Doc. 21-2 at 9. On January 6, 2011, the First DCA vacated the felon-in-possession conviction in Count II, finding that it constituted double jeopardy in relation to the violent-career-criminal-in-possession conviction in Count I. ECF Doc. 21-7 at 2. The First DCA affirmed the conviction on Count I, however, with a written opinion specifically explaining the reason for affirming the denial of the motion to suppress.[5] Id.

         Mathis filed a motion for postconviction relief on November 23, 2011. ECF Doc. 21-7 at 67. On October 26, 2015, the state court held an evidentiary hearing on one ground only: whether Mathis' counsel was constitutionally ineffective by failing to advise him that he faced a mandatory life sentence if convicted, causing him to forego a 15-year plea deal. ECF Doc. 21-9 at 88. After the evidentiary hearing, the state court denied the motion for postconviction relief in its entirety on November 2, 2015. ECF Doc. 21-8 at 163. Mathis appealed that denial on November 13, 2015. ECF Doc. 21-9 at 78. The First DCA affirmed, per curiam and without written opinion, on November 1, 2016.[6] ECF Doc. 21-10 at 18.

         II. Legal Analysis

         A. Federal review of state court decision

         Under the standard of review for a § 2254 motion, this Court is precluded from granting a habeas petition on a claim that was adjudicated on the merits in state court unless the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court, ” or (2) “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 United States Supreme Court set forth the framework for a § 2254 review in Williams v. Taylor, 529 U.S. 362 (2000). See id., at 412-13 (O'Connor, J., concurring).

         Under the Williams framework, a federal court must first determine 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.” See Lockyer v. Andrade, 538 U.S. 63, 71-72 (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. See Thaler v. Haynes, 559 U.S. 43, 47 (2010). Once the governing legal principle is identified, the federal court must determine whether the state court's adjudication is “contrary to” the identified governing legal principle or the state court “unreasonably applie[d] that principle to the facts of the [] case.” See Williams, 529 U.S. at 412-13 (O'Connor, J., concurring).

         B. Ground One: The state court's denial of the motion to suppress

         Mathis contends the state court violated Mathis's Fourth Amendment rights by denying his motion to suppress evidence obtained during the warrantless search of the shed. Specifically, Mathis argues Curtis did not voluntarily give officers consent to search the shed. The Supreme Court has held that a federal court is precluded from conducting post-conviction review of a Fourth Amendment violation where the petitioner has had an opportunity for full and fair litigation of that claim in the state courts. Stone v. Powell, 428 U.S. 465, 494 (1976); see also Bradley v. Nagle, 212 F.3d 559, 564-65 (11th Cir. 2000) (“[S]o long as a defendant has had the opportunity to present his Fourth Amendment claims to the state trial and appellate courts, the objectives of the exclusionary rule have been satisfied.”). “‘[F]ull and fair consideration' in the context of the Fourth Amendment includes ‘at least one evidentiary hearing in a trial court and the availability of meaningful appellate review when there are facts in dispute, and full consideration by an appellate court when the facts are not in dispute.'” Bradley, 212 F.3d at 564-65 (quoting Caver v. Alabama, 577 F.2d 1188, 1191 (5th Cir. 1978)); see also Caver, 577 F.2d at 1192 (“If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.”).[7]

         Mathis argues in his reply brief that Stone is not dispositive and cites Delisle v. Rivers, 161 F.3d 370, 380-81 (6th Cir. 2011); ECF Doc. 27 at 2. Delisle, however, does not support Mathis's position. First, Delisle is not a Fourth Amendment case. Second, the argument in Delisle was whether Stone should be broadly extended to prevent habeas review on other issues raised in a direct appeal. The Sixth Circuit held that it should not be particularly as to due process challenges to the sufficiency of the evidence or the right to an impartial jury. The issue, therefore, continues to be whether Mathis had a full and fair opportunity to present his Fourth Amendment claim in the state courts, and the undersigned finds that he did.

         Mathis filed a motion to suppress, ECF Doc. 21-1 at 156, and was granted an evidentiary hearing. Id. at 176.[8] Curtis's testimony at the hearing differed markedly from that of the two deputies. Curtis was asked, “Did you ever give them consent to go into the bungalow?” and answered, “No, ma'am.” Id. at 171. When she was shown a written consent she had signed which gave consent to search the home and shed, she testified that she never read it, was not wearing her glasses that night, and only signed because the deputies had threatened that she “was going to go to jail for a long time because they found wads of rolled up money in aluminum foil in my freezer.” Id. at 175.

         Deputy Rowlands testified, however, that after he searched the home, he asked Curtis for permission to search the “shed.” After she corrected him by saying it was a “bungalow” and not a “shed, ” she then said, “go ahead.” Id. at 100. Deputy Hanson testified he saw and heard Ms. Curtis say ...


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