United States District Court, N.D. Florida, Gainesville Division
ORDER AND REPORT AND RECOMMENDATION
THAI CANNON UNITED STATES MAGISTRATE JUDGE.
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.
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.
is no argument by the State that the petition in untimely or
that Mathis has failed to exhaust his state remedies.
was convicted of the following offenses:
Count I: Possession of a firearm by a violent career
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. His other sentences run
concurrently with his life sentence. At issue in this habeas
petition is his judgment of conviction and sentence for Count
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.
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.
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.
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
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. 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.
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.
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).
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.
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.
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.
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.
Post-Judgment Motions and Appeals
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. Id.
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. ECF Doc. 21-10 at 18.
Federal review of state court decision
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.,
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).
Ground One: The state court's denial of the motion to
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.”).
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.
filed a motion to suppress, ECF Doc. 21-1 at 156, and was
granted an evidentiary hearing. Id. at
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.
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 ...