United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE
cause comes before the Court on Dontavious Sparrow's
petition for the writ of habeas corpus under 28 U.S.C. §
2254. (Doc. 1) Sparrow challenges his state convictions for
second-degree murder (one count) and attempted second-degree
murder (four counts). The Respondent concedes the
petition's timeliness. Upon consideration of the petition
(Doc. 1) and the response (Doc. 9),  and in accordance with the
Rules Governing Section 2254 Cases in the United States
District Courts, the petition will be
White, Kenny Baker, Anthony Pruitt, Eric Cooper, and Marquise
Pennywell drove to a Snax convenience store. When White
pulled into the parking lot he saw a person, later identified
as Dontavious Sparrow, walk towards his car. White swerved to
avoid hitting Sparrow.
and his friends exited the vehicle and were approached by
Sparrow who was angry because White almost ran over his foot
with the car. Sparrow continued yelling and arguing with the
group as Sparrow's friend, Hector Pena, approached. White
and his friends went inside the convenience store. When White
came back out of the store, he saw Pena and Sparrow drive
away in a dark SUV. Sparrow was driving and Pena was the
passenger. Sparrow circled the parking lot across the street
and then drove back toward the convenience store. As they
passed, Pena shot at White and the group. Marquise Pennywell
was shot and died from multiple gunshot wounds.
Baker, Cooper, and Pruitt each identified Pena from a police
photopack as the shooter. Witness Michelle Moody saw the SUV
in which Sparrow and Pena were riding and identified the
vehicle's owner, who was Sparrow's father, Joseph
Colon. The police located Pena and Sparrow at Colon's
house where Sparrow was hiding in the attic. Both Sparrow and
Pena were arrested and charged with second-degree murder for
the death of Pennywell and with four counts of attempted
second-degree murder of White, Baker, Pruitt, and Cooper. The
State successfully moved to consolidate the trials and Pena
and Sparrow were tried jointly. A jury convicted both Pena and
Sparrow of all five charges. Sparrow was sentenced to fifty
years imprisonment for the second-degree murder conviction
and to concurrent terms of fifteen years imprisonment for
each of the attempted murder convictions.
Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA") governs this proceeding. Wilcox v.
Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998), cert. denied, 531 U.S. 840 (2000).
Section 2254(d), which creates a highly deferential standard
for federal court review of a state court adjudication,
states in pertinent part:
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;
(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.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the
Supreme Court interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the
power of a federal habeas court to grant a state
prisoner's application for a writ of habeas corpus with
respect to claims adjudicated on the merits in state court.
Under § 2254(d)(1), the writ may issue only if one of
the following two conditions is satisfied - - the state-court
adjudication resulted in a decision that (1) "was
contrary to . . . clearly established Federal Law, as
determined by the Supreme Court of the United States" or
(2) "involved an unreasonable application of . . .
clearly established Federal law, as determined by the Supreme
Court of the United States." Under the "contrary
to" clause, a federal habeas court may grant the writ if
the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state
court decides a case differently than this 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 this Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.
focus . . . is on whether the state court's application
of clearly established federal law is objectively
unreasonable, . . . an unreasonable application is different
from an incorrect one." Bell v. Cone, 535 U.S.
685, 694 (2002). "As a condition for obtaining habeas
corpus from a federal court, a state prisoner must show that
the state court's ruling on the claim being presented in
federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement."
Harrington v. Richter, 526 U.S. 86, 103 (2011).
Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.
2001) ("It is the objective reasonableness, not the
correctness per se, of the state court decision that
we are to decide."). 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,
529 U.S. at 412.
purpose of federal review is not to re-try the state case.
"The [AEDPA] modified a federal habeas court's role
in reviewing state prisoner applications in order to prevent
federal habeas 'retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law." Cone, 535 U.S. at 693. A
federal court must afford due deference to a state
court's decision. "AEDPA prevents defendants - and
federal courts - from using federal habeas corpus review as a
vehicle to second-guess the reasonable decisions of state
courts." Renico v. Lett, 559 U.S. 766, 779
(2010). See also Cullen v. Pinholster, 563 U.S. 170,
181 (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' . . . .")
state appellate court affirmed Sparrow's convictions and
sentences in a per curiam decision without a written
opinion. (Respondent's Exhibit 9) In two per
curiam decisions without a written opinion the state
appellate court affirmed the denial of both of Sparrow's
Rule 3.850 motions. (Respondent's Exhibits 13 and 22) The
state appellate court's affirmances warrant deference
under Section 2254(d)(1) because "the summary nature of
a state court's decision does not lessen the deference
that it is due." Wright v. Moore, 278 F.3d
1245, 1254 (11th Cir.), reh'g and reh'g en banc
denied, 278 F.3d 1245 (2002), cert. denied sub nom
Wright v. Crosby, 538 U.S. 906 (2003). See also
Richter, 562 U.S. at 99 ("When a federal claim has
been presented to a state court and the state court has
denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the
of the state court decision is limited to the record that was
before the state court.
We now hold that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated
the claim on the merits. Section 2254(d)(1) refers, in the
past tense, to a state-court adjudication that "resulted
in" a decision that was contrary to, or
"involved" an unreasonable application of,
established law. This backward-looking language requires an
examination of the state-court decision at the time it was
made. It follows that the record under review is limited to
the record in existence at that same time, i.e., the record
before the state court.
Pinholster, 563 U.S. at 181-82. Sparrow bears the
burden of overcoming by clear and convincing evidence a state
court factual determination. "[A] determination of a
factual issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence." 28 U.S.C. § 2254(e)(1). This presumption
of correctness applies to a finding of fact but not to a
mixed determination of law and fact. Parker v. Head,
244 F.3d 831, 836 (11th Cir.), cert. denied, 534
U.S. 1046 (2001).
FOR INEFFECTIVE ASSISTANCE OF COUNSEL
claims ineffective assistance of counsel, a difficult claim
to sustain. "[T]he cases in which habeas petitioners can
properly prevail on the ground of ineffective assistance of
counsel are few and far between." Waters v.
Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en
banc) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). Sims v. Singletary, 155 F.3d
1297, 1305 (11th Cir. 1998), explains that Strickland v.
Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984), the Supreme Court set forth a two-part test for
analyzing ineffective assistance of counsel claims. According
to Strickland, 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 ...