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Hester v. Secretary, Florida Department of Corrections

United States District Court, M.D. Florida, Jacksonville Division

December 5, 2019





         Through a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1), Petitioner, Shuron Antwoune Hester, challenges his state court (Duval County) conviction for one count of sexual battery, one count of lewd or lascivious molestation, and two counts of child abuse. Respondents, in response, filed an Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 31).[1] Petitioner opted to file a Reply to the State's Response to the Petition for Writ of Habeas Corpus (Reply) (Doc. 32).


         Petitioner has the burden to establish a need for an evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need), cert. denied, 565 U.S. 1120 (2012). In this case, the pertinent facts are fully developed in this record or the record otherwise precludes habeas relief;[2] therefore, the Court can "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). Petitioner has not met his burden as the record refutes the asserted factual allegations or otherwise precludes habeas relief. Thus, the Court finds Petitioner is not entitled to an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

         III. PETITION

         The Petition presents eleven grounds for habeas relief; however, Petitioner abandoned ground eleven. See Notice of Abandonment of Claim (Doc. 6). The remaining ten grounds before the Court are: (1) the trial court erred in allowing testimony regarding allegations that related to separate child abuse charges against Petitioner; (2) the ineffective assistance of counsel for failure to object to defects in count 3 of the information; (3) the ineffective assistance of counsel for failure to conduct a meaningful voir dire by failing to question the prospective jurors as to their state of mind if Petitioner did not testify or present a defense; (4) the ineffective assistance of counsel for failure to object to numerous improper closing remarks; (5) the denial of due process because the evidence was legally insufficient to sustain his convictions for sexual battery and lewd and lascivious molestation; (6) the ineffective assistance of counsel for failure to request a jury instruction as to the permissive lesser included offenses for lewd and lascivious molestation; (7) the ineffective assistance of counsel for failure to impeach the victim with prior inconsistent statements; (8) the ineffective assistance of counsel for failure to impeach Detective Maynard's testimony; (9) the ineffective assistance of counsel for failure to investigate, consult, and obtain an expert witness to refute Ms. Green's testimony; and (10) the ineffective assistance of counsel for failure to videotape the deposition of the victim, A.B.[3]


         The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254. This statute "imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases." Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam). The AEDPA statute: "respects the authority and ability of state courts and their dedication to the protection of constitutional rights." Id. Therefore, "[u]nder AEDPA, error is not enough; even clear error is not enough." Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir.) (citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)), cert. denied, 2019 WL 5150550 (2019).

         Applying the statute as amended by AEDPA, federal courts may not grant habeas relief unless one of the claims: "(1)'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) '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)." Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).

         Thus, in order to obtain habeas relief, the state court decision must unquestionably conflict with Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). If some fair-minded jurists could agree with the lower court's decision, habeas relief must be denied. Meders, 911 F.3d at 1351. As noted in Richter, unless the petitioner shows the state court's ruling was so lacking in justification that there was error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement, there is no entitlement to habeas relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

         In undertaking its review, this Court is not obliged "to flyspeck the state court order or grade it." Meders, 911 F.3d at 1349. Indeed, specificity and thoroughness of the state court decision is not required; even if the state court fails to provide rationale or reasoning, AEDPA deference is due "absent a conspicuous misapplication of Supreme Court precedent." Id. at 1350 (citation and quotation marks omitted).

         Of importance, a state court's finding of fact, whether a state trial court or appellate court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). But, this presumption of correctness applies only to findings of fact, not mixed determinations of law and fact. Brannan v. GDCP Warden, 541 Fed.Appx. 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the distinction between a pure question of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).

         Where there has been one reasoned state court judgment rejecting a federal claim followed by an unexplained order upholding that judgement, federal habeas courts employ a "look through" presumption: "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).

         Once a claim is adjudicated in state court and a prisoner seeks relief in the federal court system, AEDPA's formidable barrier to habeas relief comes into play, and it is very difficult for a petitioner to prevail under this stringent standard. As such, state-court judgments will not easily be set aside once the Court employs this highly deferential standard that is intentionally difficult to meet. See Richter, 562 U.S. at 102. Although AEDPA does not impose a complete bar to issuing a writ, it severely limits those occasions to those "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts" with Supreme Court precedent. Id. In sum, application of the standard set forth in 28 U.S.C. § 2254(d) ensures that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, and not a mechanism for ordinary error correction. Richter, 562 U.S. at 102-103 (citation and quotation marks omitted).

         V. IN CUSTODY

         Petitioner does not satisfy the “in custody” requirement of 28 U.S.C. § 2254(a) as to the two child abuse counts (state Nos. 2012-CF-5805 & 2012-CF-5806). Response at 10-11. The trial court sentenced Petitioner to concurrent sentences of 468 days and credited him with 468 days of time incarcerated for these convictions. Ex. K. Therefore, Petitioner's sentences for child abuse expired at inception.

         Petitioner does meet the “in custody” requirement as to the sexual battery and lewd and lascivious molestations counts. The trial court granted a motion for judgment of acquittal as to an additional count of sexual battery, charged in count 2 of the information. Thus, the only convictions open to collateral attack in this federal habeas proceeding are counts one (sexual battery) and count three (lewd and lascivious molestation, which became count two at trial).


         In ground one Petitioner claims the trial court erred in allowing testimony regarding allegations that related to separate child abuse charges. Petition at 4. Respondents assert Petitioner never exhausted a claim of constitutional dimension with respect to ground one and Petitioner does not present a claim of constitutional dimension in this Petition. Respondents submit that Petitioner raises a claim of trial court error, a state law claim, by asserting: “[t]he trial court erred in allowing testimony that the Petitioner had previously physically abused A.B. the victim in this case, by hitting her with his hand or with an electrical type cord.” Petition at 4.

         Petitioner raised this same contention on direct appeal. Ex. F at 18-25. He argued the evidence was improperly admitted and should have been excluded. Id. at 24.

         In addressing the question of exhaustion, this Court must ask whether the claim was raised in the state court proceedings and whether the state court was alerted to the federal nature of the claim:

Before seeking § 2254 habeas relief in federal court, a petitioner must exhaust all state court remedies available for challenging his conviction. See 28 U.S.C. § 2254(b), (c). For a federal claim to be exhausted, the petitioner must have "fairly presented [it] to the state courts." McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). The Supreme Court has suggested that a litigant could do so by including in his claim before the state appellate court "the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.'" Baldwin v. Reese, 541 U.S. 27, 32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). The Court's guidance in Baldwin "must be applied with common sense and in light of the purpose underlying the exhaustion requirement"-namely, giving the state courts "a meaningful opportunity" to address the federal claim. McNair, 416 F.3d at 1302. Thus, a petitioner could not satisfy the exhaustion requirement merely by presenting the state court with "all the facts necessary to support the claim," or by making a "somewhat similar state law claim." Kelley, 377 F.3d at 1343-44. Rather, he must make his claims in a manner that provides the state courts with "the opportunity to apply controlling legal principles to the facts bearing upon (his) [federal] constitutional claim." Id. at 1344 (quotation omitted).

Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351-52 (11th Cir. 2012), cert. denied, 568 U.S. 1104 (2013).

         In his direct appeal, Petitioner failed to reference the federal source of law or any case deciding the claim on federal grounds, and he did not label the claim as federal. Thus, Petitioner never gave the state courts a meaningful opportunity to address a constitutional claim.

         After a thorough review of the record before the Court, the Court concludes Petitioner failed to exhaust a constitutional claim in the state courts with respect to ground one. It is clear from state law that any future attempts at exhaustion would be futile. To the extent Petitioner is attempting to raise a constitutional claim at this juncture, the claim is unexhausted and procedurally defaulted.

         Petitioner has failed to show cause and prejudice or that a fundamental miscarriage of justice will result if the Court does not reach the merits of ground one. Consequently, ground one is due to be denied.

         Grounds two, three, five, and eight are also procedurally defaulted. Although Petitioner presented these grounds in his Rule 3.850 post-conviction motion, after denial of post-conviction relief, he did not include these grounds in his Amended Initial Brief of Appellant. Ex. Q. As noted by Respondents, “[a]lthough Petitioner appealed following the circuit court's denial of post-conviction relief after an evidentiary hearing on other grounds, he did not present its summary denial of [these] claims of ineffective assistance of counsel” within his brief on appeal. Response at 28, 37-38, 53, 73. As such, Respondents assert Petitioner has failed to exhaust grounds two, three, five, and eight, and as a result, these grounds are procedurally barred in federal habeas.

         The First District Court of Appeal (1st DCA), in 2018, explained:

Before 2014, Rule 9.141(b)(2) was entitled “Summary Grant or Denial of Motion Without Evidentiary Hearing.” Fla. R. App. P. 9.141(b)(2) (2013). This rule set forth special appellate rules, which provided for a limited record and limited briefing, and applied whenever the trial court denied the motion without any evidentiary hearing. If the trial court held an evidentiary hearing, this rule did not apply, even if the defendant was appealing the denial of a claim for which the court did not hold an evidentiary hearing. See Williams v. State, 24 So.3d 1252, 1252 n.1 (Fla. 1st DCA 2009). Instead, Rule 9.141(b)(3) (entitled “Grant or Denial of Motion after Evidentiary Hearing”), which contains essentially routine appellate rules regarding the record and briefing, applied to appeals of such mixed petitions. Id.
This rule was made even clearer in 2014, when the Supreme Court amended the title of Rule 9.141(b)(2) to read “Summary Grant or Denial of All Claims Raised in a Motion Without Evidentiary Hearing.” Fla. R. App. P. 9.141(b)(2) (2014) (emphasis supplied). See In re Amendments to Fla. Rules of Appellate Procedure, 183 So.3d 245, 255 (Fla. 2014). It is now beyond dispute that Rule 9.141(b)(2) applies only when the trial court holds no evidentiary hearing at all.

Cuomo v. State, 257 So.3d 584, 586 (Fla. 1st DCA 2018) (emphasis added) (footnote omitted).

         Upon review, effective January 1, 2015, the 2014 changes to the rule made it abundantly clear that if an evidentiary hearing is held on one or more claims, briefs must be filed. Rule 9.141(b)(3), Fla. R. App. P. In Florida, the issue must not only be raised in the appeal brief, it must contain argument or be deemed abandoned. Atwater v. Crosby, 451 F.3d 799, 810 (11th Cir. 2006), cert. denied, 549 U.S. 1124 (2007); Marshall v. State, 854 So.2d 1235, 1252 (Fla. 2003) (per curiam) (citing Shere v. State, 742 So.2d 215, 218 n.6 (Fla. 1999) (per curiam)); Carroll v. State, 815 So.2d 601, 609 n.7 (Fla. 2002).

         Furthermore, a petitioner must exhaust state court remedies prior to presenting a claim to this Court:

An applicant's federal writ of habeas corpus will not be granted unless the applicant exhausted his state court remedies. 28 U.S.C. § 2254(b), (c). A claim must be presented to the highest court of the state to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Richardson v. Procunier, 762 F.2d 429, 430(5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). In a Florida non-capital case, this means the applicant must have presented his claims in a district court of appeal. Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995). The claims must be presented in State court in a procedurally correct manner. Id. Moreover, the habeas applicant must have presented the State courts with the same federal constitutional claim that is being asserted in the habeas petition. "It is not sufficient merely that the federal habeas petitioner has been through the state courts ... nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state law claim was made." Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317 (11th Cir. 2004) (citing Picard v. Connor, 404 U.S. 270, 275-76 (1971)); Anderson v. Harless, 459 U.S. 4, 6 (1982). A petitioner is required to present his claims to the state courts such that the courts have the "opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim." Picard v. Connor, 404 U.S. 270, 275-77 (1971). To satisfy this requirement, "[a] petitioner must alert state courts to any federal claims to allow the state courts an opportunity to review and correct the claimed violations of his federal rights." Jimenez v. Fla. Dep't of Corr., 481 F.3d 1337 (11th Cir. 2007) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995).) "Thus, to exhaust state remedies fully the petitioner must make the state court aware that the claims asserted present federal constitutional issues." Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).

Aguilera v. Jones, No. 15-CV-20406, 2016 WL 791506, at *7 (S.D. Fla. Jan. 13, 2016), report and recommendation adopted by 2016 WL 932808 (S.D. Fla. Mar. 10, 2016).

         By failing to present grounds two, three, five, and eight in his appeal brief and include argument, Petitioner abandoned these grounds. As such, he did not properly exhaust these claims in state court. See Atwater, 451 F.3d at 810 (finding failure to meet the exhaustion requirement would result in the claims being procedurally barred, resulting in a procedural default for federal habeas purposes).

         In his Reply, Petitioner does not attempt to show cause and prejudice or that a fundamental miscarriage of justice will result if grounds two, three, five, and eight are not addressed on the merits. Due to Petitioner's abandonment of the claims in the state court, the Court finds these claims unexhausted and procedurally defaulted. Thus, Petitioner is procedurally barred from ...

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