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Worthey v. State

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

September 18, 2019

DARRIUS L. WORTHEY, Petitioner,
v.
STATE OF FLORIDA, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE

         On or about November 2, 2018, Darrius L. Worthey filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. He subsequently filed an amended § 2254 petition. ECF No. 9; see ECF No. 19. On May 9, 2019, Respondent filed an answer, with exhibits. ECF No. 13. Petitioner has filed a reply. ECF No. 20.

         The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration, the undersigned has determined no evidentiary hearing is required for the disposition of this matter. See Rule 8(a), R. Gov. § 2254 Cases. The pleadings before the Court show the petition should be denied.

         Procedural Background

         Following a trial in case number 2011-CF-1464A, in the Second Judicial Circuit, Leon County, a jury convicted Petitioner Darrius L. Worthey of three counts, in connection with events that occurred May 7, 2011, at the Walker-Ford Community Center: (1) first degree murder (victim Maricus Deshazier), a capital felony in violation of section 782.04(1), Florida Statutes; (2) attempted second degree murder (victim Christopher Deshazier), a first degree felony in violation of section 782.04(3), Florida Statutes; and (3) attempted armed robbery with a firearm, a second degree felony in violation of section 812.132, Florida Statutes. Ex. C.[1] Worthey testified at the trial. Ex. B at 348-69. David Collins, assisted by his son Charles Collins, represented Worthey. See Ex. B. On December 20, 2012, the trial court adjudicated Worthey guilty and sentenced him to life in prison on Count 1, thirty (30) years in prison on Count 2 with a minimum mandatory term of twenty (20) years, and twenty-five (25) years in prison on Count 3, to run concurrently. Ex. C.

         Worthey appealed his judgment and sentence to the First District Court of Appeal (First DCA), assigned case number 1D13-0361. Ex. D. On December 5, 2013, the First DCA per curiam affirmed the case without a written opinion. Ex. D; Worthey v. State, 127 So.3d 508 (Fla. 1st DCA 2013) (table).

         On March 25, 2015, Worthey filed a pro se motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Ex. E at 4-42. He subsequently filed an amended Rule 3.850 motion, raising twelve (12) claims of ineffective assistance of counsel (IAC). Id. at 59-84. The State filed a response. Id. at 86-87. By order on June 8, 2016, the state post-conviction trial court set all claims for an evidentiary hearing. Id. at 88-94. By order on July 12, 2016, the court granted Worthey's motion for appointment of counsel. Id. at 94.

         The evidentiary hearing on the Rule 3.850 motion took place February 3, 2017. Ex. E at 110-205 (transcript). At the conclusion of the hearing, the court made findings on the record and denied relief. Id. at 197-203. In an order entered February 10, 2017, the court denied the Rule 3.850 motion “for the reasons stated on the record.” Id. at 103.

         Worthey, through counsel, appealed the denial of post-conviction relief to the First DCA and filed a brief in assigned case number 1D17-653. Ex. F. The State filed an answer brief, Ex. G, and Worthey filed a reply, Ex. H. On March 6, 2018, the First DCA affirmed the case without a written opinion. Ex. I; Worthey v. State, 242 So.3d 342 (Fla. 1st DCA 2018). The mandate issued March 27, 2018. Ex. I. Worthey sought discretionary review in the Florida Supreme Court, assigned case number SC18-672. Ex. J. On May 4, 2018, that court dismissed the case for lack of jurisdiction. Id.

         As indicated above, Worthey filed his § 2254 petition on or about November 2, 2018, ECF No. 1, and he subsequently filed an amended § 2254 petition, ECF No. 9. In the amended § 2254 petition, Worthey raises ten grounds, all claiming ineffective assistance of counsel (IAC):

(1) IAC - Failed to Conduct Adequate Pretrial Investigation and Conceded Worthey's Guilt at Trial: Worthey asserts he provided counsel “with viable information concerning his innocence and if that information was used or adequately investigated it would have concurred with Petitioner's theory of innocence, that he was never on the scene of the alleged offenses and was only testifying that he was on the scene because counsel ‘coerced' him into not only testifying which Petitioner never originally had any intentions of doing but also writing exactly what he was told to say in a letter so he'd remember exactly what to say.” ECF No. 9 at 10. Worthey indicates he was actually at the Pick-n-Pull “with two law-abiding citizens: K'yatta S. Livingston and Jacqueline Ash at the very exact time the crime was said to be committed.” Id.
(2) IAC - Failed to Impeach Detective's Testimony: Worthey asserts trial counsel did not properly impeach Detective James Besse's trial testimony on issue of misidentification. Id. at 12.
(3) IAC - Failed to Excuse Sleeping Juror: Worthey asserts trial counsel performed ineffectively by not excusing a sleeping juror after he told both his attorneys that “the African American juror with the dreads, sitting in the first row was ‘nodding' on and off, in and out of sleep.” Id. at 14.
(4) IAC - Failed to Present Available Evidence Supporting Worthey's Theory of Innocence: Worthey asserts he sent trial counsel a letter informing them of two alibi witnesses, Livingston and Ash, who would testify that he was at the Pick-and-Pull at the time the crime occurred at the community center. Id. at 16.
(5) IAC - Coerced Worthey to Change Story for Trial: Worthey asserts his counsel performed ineffectively by coercing him to change his story and testify at the trial that he was present at the crime scene. Id. at 19.
(6) IAC - Failed to Move for Judgment of Acquittal: Worthey asserts his trial counsel performed ineffectively by not moving for a judgment of acquittal (JOA) at the close of the evidence. Id. at 20. Worthey indicates that when the trial judge inquired about whether counsel would move for a JOA, counsel whispered to Worthey that “if the judge was asking him this at the current stage to which the trial phase was in at that time then it was a good chance that trial could be won and that he'd rather win the trial than take the ‘easy' way out by entering a JOA.” Id.
(7) IAC - Failed to Move to Suppress Out-of-Court Identification: Worthey asserts trial counsel performed ineffectively by not filing a motion to suppress the out-of-court identification by the victim, Christopher Deshaizer, who first identified Vishuntavious Sutton, a co-defendant, as the shooter and later “changed his story and claimed that Petitioner[] was actually the shooter.” Id. at 21-22. Worthey asserts the photo line-up from which Deshaizer identified him “was highly suggestive and did not portray how Petitioner looked at the time of the offense.” Id. at 22. Worthey asserts Detective Besse “took extreme measures to make sure [the] victim identified Petitioner in the photo line by using a dated picture of Petitioner from a year before's arrest to make Petitioner fit the physical description that victim had voiced.” Id.
(8) IAC - Failed to Impeach Victim: Worthey asserts his trial counsel performed ineffectively by not impeaching the victim with his previous inconsistent statements regarding the shooter's identity. Id. at 23-24.
(9) IAC - Failed to Call or Use Expert to Challenge Testimony of State's Firearm Expert: Worthey asserts his trial counsel should have retained a firearms expert to challenge testimony regarding the type and accuracy of the firearms described at trial. Id. at 25.
(10) IAC - Failed to Object to Verdict on Basis of Insufficient Evidence: Worthey asserts counsel performed ineffectively by not challenging the verdict as contrary to the weight of the evidence and moving for a new trial. Id. at 26.

         Respondent has filed an answer and exhibits. ECF No. 13. Worthey has filed a reply. ECF No. 20.

         Analysis

         Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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; 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.

28 U.S.C. § 2254(d). See, e.g., Cullen v. Pinholster, 563 U.S. 170, 180-83 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011). “This is a ‘difficult to meet' and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'” Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Id.

         For claims of ineffective assistance of counsel (IAC), the United States Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffectiveness, a “defendant must show that counsel's performance fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. For this Court's purposes, importantly, “[t]he 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) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Id. It is a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id.

         Ground 1: IAC - Pretrial Investigation and Concession of Guilt &

         Ground 4: IAC - Evidence Supporting Theory of Innocence

         These two grounds are analyzed together as they involve similar claims. In his first ground, Petitioner Worthey argues his trial counsel did not do an adequate pretrial investigation although he had provided counsel with the names of two individuals, K'yatta Livingston and Jacqueline Ash, who would have testified that he was elsewhere, specifically at the Pick-n-Pull, at the time the crime occurred at the Walker-Ford Community Center. ECF No. 9 at 10. He further argues that counsel performed ineffectively by conceding guilt at trial, although he does not elaborate on this in his petition. See id. Respondent indicates Worthey exhausted this ground in state court by raising it as the first claim in his Rule 3.850 motion. ECF No. 13 at 28; see Ex. E at 47-50.

         At the conclusion of the evidentiary hearing, the post-conviction trial court judge made the following findings on the record in denying this claim:

Count 1 is an allegation of inadequate pretrial investigation and conceding guilt at trial.
I don't think the defense conceded guilt at all at trial, having read the entire transcript. The defense was that the co-defendant, Mr. Vishuntavious Sutton was the one that shot the victims and that the Defendant was not involved.
Mr. Collins [defense counsel] argued ably and was able to get some hearsay statement in that the State was strenuously objecting to at Pages 311 through 317. And those had to do with whether Chris Deshazier, the victim that lived, whether he made some statements right after the incident about whether it was Mr. Sutton that was the shooter. And he got those statements in through an officer that Mr. David Collins [defense counsel] called in his case in chief, one of four officers that he called in his case in chief.
Chuck Collins [defense counsel] testified that he did investigate the video at the Pick-n-Pull; that there was no video, and he also - Mr. Collins investigated the two alibi witnesses and determined that they couldn't offer any testimony that would support or corroborate the Defendant's alibi claims and his testimony was credible on that.

Ex. E at 197.

         Similarly, in his fourth ground, Petitioner Worthey argues his trial counsel provided ineffective assistance by not presenting available evidence supporting his theory of innocence. ECF No. 9 at 16. Worthey indicates he sent counsel a letter with information about two alibi witnesses, Livingston and Ash, who would testify he as at the Pick-and-Pull at the time the crime occurred at the community center. Id.

         Respondent indicates Worthey's claim here is similar to that raised in Ground 1. ECF No. 13 at 28. Respondent also indicates Worthey raised the ground as the fourth claim in his Rule 3.850 motion, id., see Ex. E at 47-50, and appealed the denial of the claim to the First DCA, see Ex. F at 32-38.

         At the conclusion of the evidentiary hearing, the post-conviction trial court judge made the following findings on the record in denying this claim:

Related to Count 4, failure to present evidence of the Defendant's theory of innocence, and this also mentions the alibi witnesses. Again, in the - and someone - the person who actually committed the crime, Vishuntavious Sutton, did testify at the trial; and Mr. David Collins questioned him about the shooting on Pages 157 through 160. And it was admitted in evidence that Sutton was about 5'8”, which was the height that Mr. Deshazier, I guess, identified the shooter as, or that was certainly the defense theory, that he was identified as the shooter and was approximately 5'8”, and evidence of that was admitted on Pages 376 and 348 of the transcript.
And then the Defendant himself testified that he was 6'2”, and Mr. Collins asked a couple of other witnesses about that, so that the Defendant's height definitely came into evidence.

Ex. E at 199-200.

         The state court record supports the determination by the post-conviction judge that defense counsel did not concede guilt at trial. See Ex. B. Further, the record supports the post-conviction judge's findings that defense counsel did not perform deficiently. In particular, as the court found, defense counsel presented argument, and testimony to support the argument, that Worthey's co-defendant, Vishuntavious Sutton, was the person who shot the victims and Worthey was not involved, discussed in the analysis of Grounds 2 and 8, infra. See Ex. B at 90-94, 225-27, 311-17, 348, 376, 391-98.

         As the court also found, defense counsel Chuck Collins testified that he tried to found out if the Pick-n-Pull had a surveillance video, but to his knowledge, “there was never any video from there.” Ex E at 155. Chuck Collins further testified that, after investigating the alibi witnesses referenced by Worthey, concluded those witnesses could not offer testimony that would support Worthey's alibi claim. Ex. E at 142-43, 155.

         The post-conviction judge properly found defense counsel credible. The state post-conviction trial court sits as the fact-finder and determines witness credibility in Rule 3.850 proceedings. See, e.g., Consalvo v. Sec'y for Dep't of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (“Determining the credibility of witnesses is the province and function of the state courts, not a federal court engaging in habeas review.”); Smith v. State, 697 So.2d 991, 992 (Fla. 4th DCA 1997); Fla. R. Crim. P. 3.850(d). “Federal habeas courts have ‘no license to redetermine credibility of witnesses whose demeanor was observed by the state court, but not by them.'” Consalvo, 664 F.3d at 845 (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).

         Based on the foregoing, Petitioner Worthey has not shown that the state court's rejection of these grounds involved an unreasonable application of clearly established federal law or that it was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1)-(2).

         Accordingly, these grounds should be denied.

         Ground 2: IAC - Failed to Impeach Detective's Testimony &

         Ground 8: IAC - Failed to Impeach Victim

         These grounds, both alleging defense counsel performed ineffectively in impeaching witnesses, are analyzed together. In his second ground, Petitioner Worthey argues his trial counsel provided ineffective assistance by not properly impeaching the trial testimony of Detective James Besse on the issue of misidentification. ECF No. 9 at 12. In particular, Worthey asserts:

Investigator Detective James Besse of the Tallahassee Police Department testified at Petitioner's trial and admitted under oath that he pointed to photograph #5 in a photo line up consisting of six different individuals and said to the victim, Christopher Deshaizer, that, “that him right isn't it. . . that the guy right there right?” Detective Besse also admitted that the original identification of the shooter strayed from 5”7 and 5”10 and that Vishuntavious Sutton (said co-defendant in case) was identified by Christopher Deshaizer, victim, in a sworn affidavit on the scene of crime not even a good hour later, by height, weight, skin complexion, hair style, clothing description and by name. He stated that through “investigation” Petitioner was developed as the shooter, when in fact a anonymous tip came in through crime stopper's tipline implementing that, they overheard petitioner telling someone he'd just killed someone. Trial counsel's failure to impeach Detective's testimony regarding speculative and lack-luster testimony denied Petitioner's right to have a fair and impartial trial.

Id.

         Respondent indicates Worthey exhausted this ground by raising it as the second claim in his Rule 3.850 motion and presenting it in the appeal from the denial of post-conviction relief. ECF No. 13 at 33; see Ex. E at 48-49, Ex. F at 33-40. The First DCA affirmed the case per curiam without a written opinion. Ex. I.

         The state post-conviction trial court denied the claim, on the record at the conclusion of the evidentiary hearing, making the following findings:

Related to Ground 2, failure to impeach the detective's testimony on misidentification, Mr. David Collins crossed Investigator Besse on Pages 222 to 228 of the transcript. He thoroughly crossed Investigator Besse on the inconsistencies in Mr. Chris Deshazier's statement and crossed Mr. Deshazier on Pages 90 through 92.
He called the four defense witnesses in addition to the Defendant and argued in closing that the - the victim, in fact, was identifying the other co-defendant, Mr. Sutton, and not the Defendant. The pages of that closing are 391 through 398 where Mr. David Collins talks about that. And the - the different physical descriptions were a big part of that also. Meaning the different heights that we've talked about today, and I'll get - I'll talk about that a little bit more in a moment.

Ex. E at 197-98.

         The state court record supports the post-conviction judge's findings. In particular, the trial transcript reflects, as the court found, Worthey's attorney cross-examined Sergeant James Besse, who worked as an Investigator in the Homicide/Violent Crimes Unit of the Tallahassee Police Department in May 2011. See Ex. B at 208-09. On direct, Besse testified that he understood Christopher Deshazier was in the vehicle when the shooting occurred and “he was grazed on his back with a bullet.” Id. at 210. Besse was “only on scene for 10 or 15 minutes” when he “was told by [his] supervisor” to transport Deshazier back to the police department to conduct an interview. Id. at 209-10. Deshazier provided Besse with the name of a suspect and Besse developed another suspect's name as well. Id. at 210-11. Deshazier provided Besse a description of the shooter before Besse developed Worthey's name. Id. at 217. Besse testified that Deshazier “described [the shooter's] hairstyle as unkempt, like it could have been put into twists, but it wasn't. . . . [and] described that the suspect was dark-complected and that he had tattoos that were kind of hard to see, but he believed they were flames, tattoos, on his arms.” Id. at 217. Besse prepared a photo lineup, which included a photo of Worthey as well as five other individuals and “[a]ll the individuals have similar characteristics, same sex, same race, and similar age groups.” Id. at 212. Besse presented the lineup to Deshazier and told him “the suspect may or may not be in the photo lineup” and that “[p]eople's hairstyle changes, facial hair changes, people gain and lose weight, and to concentrate on their facial structure.” Id. Besse testified he puts the line up down in front of the witness and has the witness look at it; Besse removes his hands from the lineup when he shows it to a witness. Id. at 212-13. Besse testified that Deshazier picked out Number 5, which depicted Worthey, and Deshazier “stated that he was the one that was in the vehicle and had shot the victim in his face and shot Mr. Deshazier.” Id. at 213. Besse instructed Deshazier to sign and date the picture. Id.

         On cross, David Collins questioned Besse about a sworn statement taken by Officer Derrick Kidd from Deshazier at the crime scene, before Besse interviewed Deshazier and conducted the photo lineup. Id. at 222-24. Besse reviewed the statement while on the stand. Id. at 224-25. Collins then questioned Besse further:

Q Now, you know what that statement says, don't you?
A Yes, sir.
Q It's an identification, isn't it, by Chris Deshazier of who the shooter was, isn't it?
A I don't know if I read that. He mentions a name in there.
Q Go ahead. This is the statement of identification of who the shooter was. There's a name and there's a physical description. And if I'm wrong, tell me.
A All it says is “he, ” sir. It doesn't verify who that is.
Q It says more than that, doesn't it?
A Well, in the identification of when he says who pulls a gun on him, he says “he.” It doesn't give a name.
Q Right. But if you read it in total context, it tells you who it was, doesn't it?
A It could be interpreted that way, yes.
Q It could be interpreted that way?
A I mean, if he specifically would have said who shot, then the name should be there. All it says is “he.” Q Well, whose name did he put in there? Who did he say just got out of prison two weeks before?
A He called him V.
Q V?
A Uh-huh.
Q Right. And that's who he described as the shooter, isn't it?
A No, sir. He says “he” pulled. It doesn't say V.
Q Who does he say got out of prison two weeks beforehand? Who's ...

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