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Ragland v. Secretary, Doc

United States District Court, M.D. Florida, Fort Myers Division

September 23, 2019

TERRY RAGLAND, Petitioner,
v.
SECRETARY, DOC, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner Terry Ragland’s Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. #1) filed on June 13, 2016. The Respondent Secretary of the Department of Corrections (DOC) filed her Response (Doc. #10) on December 23, 2016. Petitioner filed his Reply (Doc. #16) on March 10, 2017. The Petition is briefed and ripe for the Court’s review. For the reasons set forth below the Court denies the Petition.

         I.

         Petitioner was charged with second-degree murder with a firearm (Count I), attempted home invasion robbery with a firearm causing death or great bodily harm (Count II), and first-degree burglary while armed (Count III). (Ex. 1, Vol. 1 at 20-22). Petitioner was noticed as a habitual felony offender (Ex. 1, Vol. I at 31). On February 8, 2012, the jury returned a verdict of guilty on all three counts. (Ex. 1, Vol. VII at 162-163). The burglary count was vacated on double jeopardy grounds. Petitioner was sentenced on April 11, 2012, to life in prison on the second-degree murder Count I, to run concurrently with the thirty-year prison sentence entered on the attempted home invasion robbery Count II. Petitioner was designated as a habitual felony offender (Ex. 1, Vol. VIII 8 at 355-362; Vol. IX at 418-428).

         Petitioner appealed his conviction and sentences to the Second District Court of Appeal. (Ex. 2). The Second District Court of Appeal affirmed per curium. Ragland v. State, 121 So.3d 47 (Fla. 2d DCA 2013) (Table).

         On June 11, 2014, Petitioner filed a Rule 3.850 post-conviction motion raising nine claims of ineffective assistance of counsel. On September 8, 2015, the Post-Conviction Court denied Petitioner’s Rule 3.850 Motion. Petitioner then appealed to the Second District Court of Appeal which affirmed per curium and mandate issued on April 28, 2016. Ragland v. State, 189 So.3d 71 (Fla. 2d DCA 2016) (Table);(Ex. 10). Petitioner now files the instant Petition. Respondent concedes the Petition is timely filed in this Court but argues Grounds Ten and Eleven are unexhausted and procedurally barred.

         II.

         a. The Antiterrorism Effective Death Penalty Act (AEDPA)

         Under the AEDPA, federal habeas relief may not be granted regarding 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; 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). This standard is both mandatory and difficult to meet. White v. Woodall, 572 U.S. 415, 419 (2014). A state court’s summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).

         “Clearly established federal law” consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. White, 572 U.S. 419; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is “contrary to” clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

         A state court decision involves an “unreasonable application” of the Supreme Court’s precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner’s case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply”, Id. at 531 (quoting Williams, 529 U.S. at 406). The unreasonable application inquiry “requires the state court decision to be more than incorrect or erroneous, ” rather, it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155. Petitioner must show that the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.” White, 572 U.S. at 419 (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)).

         Finally, the Supreme Court has stated that “a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding[.]” Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (dictum). When reviewing a claim under § 2254(d), a federal court must remember that any “determination of a factual issue made by a State court shall be presumed to be correct [, ]” and the petitioner bears “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see, e.g., Burt v. Titlow, 571 U.S. 12, 15-16 (2013); Miller–El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court’s factual finding and, when guided by AEDPA, “conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence”).

         b. Standard for Ineffective Assistance of Counsel

         In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel’s performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a “doubly deferential” standard of review that gives both the state court and the petitioner’s attorney the benefit of the doubt. Burt, 571 U.S. at 13 (citing Cullen v. Pinholster, 563 U.S. 170, 189 (2011)).

         The focus of inquiry under Strickland’s performance prong is “reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that “counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Indeed, the petitioner bears the heavy burden to “prove, by a preponderance of the evidence, that counsel’s performance was unreasonable[.]” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must “judge the reasonableness of counsel’s conduct on the facts of the particular case, viewed as of the time of counsel’s conduct, ” applying a “highly deferential” level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).

         As to the prejudice prong of the Strickland standard, Petitioner’s burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice “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, 466 U.S. at 687. That is, “[t]he 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.

         c. Exhaustion and Procedural Default

         The AEDPA precludes federal courts, absent exceptional circumstances, from granting habeas relief unless a petitioner has exhausted all means of available relief under state law. 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 upon and correct alleged violations of its prisoners’ federal rights[.]” Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)). The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). In addition, a federal habeas court is precluded from considering claims that are not exhausted but would clearly be barred if returned to state court. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed to exhaust state remedies and the state court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, there is a procedural default for federal habeas purposes regardless of the decision of the last state court to which the petitioner actually presented his claims). Finally, a federal court must dismiss those claims or portions of claims that have been denied on adequate and independent procedural grounds under state law. Coleman, 501 U.S. at 750. If a petitioner attempts to raise a claim in a manner not permitted by state procedural rules, he is barred from pursuing the same claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).

         Procedural default will be excused only in two narrow circumstances. First, a petitioner may obtain federal review of a procedurally defaulted claim if he can show both “cause” for the default and actual “prejudice” resulting from the default. “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). To establish prejudice, a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).

         The second exception, known as the fundamental miscarriage of justice, only occurs in an extraordinary case, where a “constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Murray v. Carrier, 477 U.S. 478, 479-80 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). 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. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, “[t]o be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324.

         III.

         Petitioner brings eleven grounds for relief.

         Ground One

         Petitioner alleges Trial Counsel was ineffective for making deliberate or misleading remarks during his opening statement regarding what the evidence would establish. Trial Counsel stated:

The State will be presenting several witnesses. Pay attention to what they don’t have. I expect the State’s evidence is not going to show that Mr. Ragland was involved in this crime. There is not any physical evidence. I don’t think you’ll hear any physical evidence of him being there, ” and “You are not going to hear any evidence of him being there. Their cases [sic] is going to come down to one young man named Zach.

(Doc. #1 at 4; Ex. 9, Vol. III at 258-59). Petitioner claims the trial evidence refuted Trial Counsel’s opening especially the testimony of Zach Holmes which placed him at the scene. (Doc. #1 at 4). Respondent counters that Trial Counsel’s opening statement did not mislead the jury so there is no prejudice under Strickland.

         Petitioner filed a Rule 3.850 motion which the Post-Conviction Court denied, finding:

In the first allegation, Defendant alleges that counsel was ineffective for making misleading comments during opening statement concerning the evidence. Specifically, Defendant alleges that counsel made misrepresentations to the jury when he said that the jury would not hear about any physical evidence showing that Defendant was involved in the crime, except for the testimony of one witness, named Zachary Holmes. See Defendant’s motion p. 4. However, Defendant submits that besides Holmes’ testimony, the State also presented the testimony of Jamie Thorpe, Michael Holmes, Ralph Goodwin, and Detective Christy Ellis, who all presented incriminating testimony against Defendant. Defendant concludes that counsel’s misleading opening remarks, that Defendant was not at the scene of the crime, likely led the jury to believe counsel was purposely deceiving them in light of [the] fact that counsel provided no other defense than denial.
As the State points out, and a review of defense counsel’s opening statement reveals, counsel was not “purposely deceiving” the jury. See Court Exhibit C, Defense’s Opening Argument Pp. Vol. II, pp. 258-259 of the trial transcript, attached hereto. In the usual manner, counsel presented an overview of the defense’s version of the case to the jury. Furthermore, counsel did not misstate the fact that there was no physical evidence introduced by the State that put Defendant at the scene of the crime. The victim’s girlfriend only identified the codefendant as one of the perpetrators not Defendant. Because counsel’s opening statement was, in fact, a true representation of the evidence or lack of evidence against Defendant, Defendant’s allegation that counsel purposely misled the jury is without merit and conclusively refuted by the record.

(Ex. 9, Vol. I at 653-54). The Second District Court of Appeal affirmed per curium.

         Eliminating Trial Counsel’s opening statement would not have changed the outcome of the trial because the evidence mentioned in the opening statement was accurately presented. Accordingly, Trial Counsel’s opening statement did not rise to the level of ineffective assistance because there was neither deficient performance nor prejudice under Strickland.

         Ground Two

         Petitioner alleges Trial Counsel rendered ineffective assistance of counsel by failing to request a special jury instruction under the independent act doctrine. Petitioner argues the evidence supports an independent act jury instruction because the murder of the victim was outside the original design of the planned robbery. Respondent replies that Petitioner admitted to the common plan to commit an armed robbery, of which he was a willing participant and that the evidence refuted Petitioner’s claim he did not know that a firearm would be used.

         Under Florida law, the independent act doctrine applies “when one co-felon, who previously participated in a common plan, does not participate in acts committed by his co-felon, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’” Ray v. State, 755 So.2d 604, 609 (Fla. 2000) (quoting Ward v. State, 568 So.2d 452, 453 (Fla. 3d DCA 1990)). Under these limited circumstances, “a defendant whose co-felon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act.” Id.

         Petitioner filed a Rule 3.850 motion which the Post-Conviction Court denied, finding:

In the second allegation, Defendant alleges that counsel was ineffective for failing to request a special jury instruction based on the independent act doctrine embodied in the standard jury instructions on principals and independent acts where evidence existed to support the instruction. Specifically, Defendant alleges that counsel should have advised or consulted Defendant concerning this defense and failing to request the instruction, Therefore, Defendant maintains that counsel was ineffective for falling to pursue an independent act theory, which also impacted Defendant’s decision not to testify. Defendant further alleges that had counsel pursued this defense, he would have testified in order to show that his co-felon acted outside the original plan or collaboration, which was to take drugs or money with non-deadly force.
In regard to the second allegation, as the State points out, Defendant was not entitled to an independent act instruction, therefore, he cannot show prejudice. Where a defendant was a willing participant in the underlying felony and the murder is a result of forces they set in motion, no independent act instruction is appropriate. Ray v. State, 775 So.2d 604, 609 (Fla. 2000). In fact, even Defendant admits that the State could have refuted the independent act theory because “Jamie Thorpe testified that the assailants both bad guns upon entering and pistol-whipped Eric....” See Defendant’s motion p. 10.
Moreover, nor did Defendant abandon the robbery upon seeing his co-felon holding a gun. Trial testimony shows that during the entire episode Defendant continued as an active participant in the robbery and resulting murder. Based on the foregoing, counsel could not have been ineffective for failing to request an inappropriate instruction.

(Ex. 9, Vol. I at 654-55). The Second District Court of Appeal affirmed per curium.

         Petitioner’s claim is not supported by the evidence from the record. Trial witness Zachary Holmes was in the vehicle with the Petitioner and his Co-Defendant as they drove to the victim’s residence on the night of the murder. (Ex. 9, Vol. III at 391). Holmes told Cape Coral Police that Petitioner and his Co-Defendant said they were going to commit a robbery and offered him money to guide him to the victim’s residence. (Ex. 9, Vol. III at 404-05).

         Jamie Thorpe, an eyewitness to the robbery who was present during the murder, testified that she and the victim were at home after 2:00 a.m. when two men dressed in black wearing masks entered their home through the front door. Thorpe testified:

Q. “then what happened”
A. “I saw two men in black covered from head to toe.”
Q. “Did they say anything?”
A. “Where’s the money? Where’s the bag of drugs? ...

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