The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
EUGENE REED,
Petitioner,
v. Case No. 5:17-cv-0259-Oc-02PRL
SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
__________________________________/
ORDER
On June 9, 2017, Petitioner Eugene Reed filed his Petition under 28 U.S.C. §
2254 for writ of habeas corpus by a person in state custody. Dkt. 1. He seeks relief
from an April 7, 2011, state court conviction. Id. at 1. Respondent filed a response.
Dkt. 8. While the initial Petition was under consideration by this Court, Petitioner
filed an Amended Petition, which the Court later accepted. Dkts. 21 & 30.
Respondent filed a separate response to the Amended Petition. Dkt. 31. The Court
finds that a hearing is unnecessary and denies the Amended Petition.
Factual Background
The charge involved Petitioner and others committing an armed home
invasion robbery in 2008, while wearing masks. Dkt. 9-1 at 49–51. The female
victim and her male co-resident victim testified at trial. Dkt. 9-2 at 187 & 221. The
female stated a masked, heavyset perpetrator, older than the other invaders and
wearing green Dickie shorts, dragged her by her hair from the kitchen to the
bathroom where he penetrated her mouth and anus with a revolver barrel, also
pressing it into her crotch area. Id. at 191–95. The perpetrator did this both inside
and outside the house, with force, until the victim, stripped naked by the
perpetrator, soiled herself. Id. at 194–96, 203. A second home invader, Jonathan
Starks, then forced her to perform oral sex on him until he ejaculated into her
mouth. Id. The evidence was that Petitioner then jostled the victim around to force
her to spit out the semen on the ground and not retain the evidence in her mouth.
See Dkt. 9-1 at 49–51
At trial, Petitioner was identified as the heavyset perpetrator in the green
Dickie shorts by the following: Ethan Hatchett, a fellow participant in the subject
home invasion, testified that the group including an armed Petitioner went to the
robbery in Petitioner’s red Durango and a second car. Dkt. 9-3 at 27, 30. Petitioner
wore green shorts, Hatchett testified, and assaulted the female. Id. at 28, 30, 35.
Petitioner took the female outside. Id. at 38–40. Co-invader Starks testified that
Petitioner was wearing green Dickies and a ski mask. Id. at 120. Starks further
testified that Petitioner took the victim outside, slammed her to the ground, and
defiled her with the pistol. Id. at 124–25. Petitioner then cheered Starks on while
Starks sodomized the victim. Dkt. 9-2 at 205. Codefendant Curtis Duncan testified
that he drove with K.C. Starks, Jonathan Starks, Ethan Hatchett, Christopher
Choung, and Petitioner on the night of the home invasion, but he did not go into
the home.1 Id. at 342–44. Tire tracks from the scene matched the Red Durango,
titled in Petitioner’s sister’s name. Dkt. 9-3 at 275, 399–400. Photos of Petitioner at
the time showed him to match the perpetrator’s physical description as to body size
and hair style. Dkt. 9-2 at 255–56 (State’s Exhibit 16). Shoe prints in the mud
leaving the scene were similar to shoes of Petitioner. Dkt. 9-3 at 268–69.
Procedural Background
On April 7, 2011, Petitioner was convicted by a jury of burglary while
armed and sexual battery with a deadly weapon; and, on June 17, 2011, Petitioner
was sentenced to life imprisonment. Dkt. 8 at 2. Petitioner directly appealed his
conviction to the state appellate court. The state appellate court affirmed his
conviction and sentence, per curiam on January 2, 2013. Id.
On September 9, 2013, Petitioner filed a Rule 3.850 motion for
postconviction relief. Dkt. 9-3 at 876. On May 2, 2014, the trial court summarily
denied grounds one, seven, eight, nine, twelve, thirteen, fourteen, fifteen,
seventeen, and nineteen; and, the trial dismissed grounds eleven and sixteen with
leave to amend. Dkt. 9-4 at 181–96. On October 16, 2015, the trial court, after
1 Four listed State witnesses to Petitioner’s trial (Jonathan Starks, Ethan Hatchett, Curtis Duncan,
and Christopher Choung) were involved in an earlier home invasion not involving Petitioner.
Dkt. 9-1 at 180. Testimony about the earlier home invasion was limited. See discussion infra.
conducting an evidentiary hearing, denied grounds two, three, four, five, six, ten,
and eighteen. Dkt. 9-5 at 182–90. On February 7, 2017, the state appellate court
affirmed the denial per curiam. Dkt. 9-5 at 317; see also Reed v. State, 229 So. 3d
1249 (Fla. 5th DCA 2017). On June 9, 2017, Petitioner filed the instant federal
Petition for writ of habeas corpus. Dkt. 1.
On May 7, 2018, Petitioner filed a second Rule 3.850 motion for
postconviction relief in state court. Dkt. 32-1 at 6–20. On June 6, 2018, the trial
court dismissed the second Rule 3.850 motion as successive. Id. at 26–30. This was
affirmed on December 4, 2018. Reed v. State, 263 So. 3d 785 (Fla. 5th DCA 2018).
On June 7, 2019, in this federal matter Petitioner filed an Amended Petition which
included claims from the second Rule 3.850 motion. Dkt. 21. The Court allowed
the Amended Petition and granted Respondent leave to file an additional response.
Dkts. 29 & 30.
Standards of Review
This petition is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Wilcox v. Fla. Dep’t of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998). AEDPA “establishes a highly deferential standard for reviewing state
court judgments.” Parker v. Sec’y for Dep’t of Corr., 331 F.3d 764, 768 (11th Cir.
2003). This type of review does not allow relief of a state court conviction on a
claim
that was adjudicated on the merits in the State court proceedings’ unless
the state court’s decision was ‘(1) . . . contrary to, or involved an
unreasonable application of, clearly established Federal law as
determined by the Supreme Court of the United States; or (2) . . . based
on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.’
Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016)
(quoting 28 U.S.C. § 2254(d)).
“Clearly established Federal law” means holdings of the U.S. Supreme
Court “as of the time of the relevant state-court decision.” Id. at 1288–89.
“Contrary to” requires a state court conclusion “opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a case differently
than [the Supreme Court] has on a set of materially indistinguishable facts.” Id. at
1289 (citations omitted) (alterations in original). The “unreasonable application”
clause applies only “if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. (citation omitted) (alterations in
original).
However, a state court’s factual determination “is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the
first instance.” Id. (citation omitted). AEDPA “requires federal habeas courts to
presume the correctness of state court’s factual findings unless applicants rebut this
presumption with ‘clear and convincing evidence.’” Id. (citation omitted). This is a
“demanding but not insatiable standard, requiring proof that a claim is highly
probable.” Id. (citation and internal quotation marks omitted). Further, this
standard applies even if the state court does not provide the reasoning behind its
decision because “the summary nature of a state court’s decision does not lessen
the deference that it is due.” Wright v. Sec’y for Dep’t of Corr., 278 F.3d 1245,
1254 (11th Cir. 2002).
Counsel is ineffective under the Sixth Amendment if “(1) counsel’s
performance was deficient; and (2) the deficient performance prejudiced the
defense such that petitioner was deprived of a fair trial.” Dill v. Allen, 488 F.3d
1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). But in the habeas context, “[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) (citation and internal
quotation marks omitted). “If there is ‘any reasonable argument that counsel
satisfied Strickland’s deferential standard,’ then a federal court may not disturb a
state-court decision denying the claim.” Hittson v. GDCP Warden, 759 F.3d 1210,
1248 (11th Cir. 2014) (citation omitted).
Discussion
A. Timeliness
Federal habeas petitions are subject to a one-year statute of limitation. 28
U.S.C. § 2244(d)(1) (2018). It begins running on “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review.” Id. at 2244(d)(1)(A). The clock stops running for the “time
during which a properly filed application for State post-conviction . . . judgment or
claim is pending[.]” Id. § 2244(d)(2).
Petitioner was sentenced on June 17, 2011. Dkt. 9-2 at 122–23. On January
2, 2013, Petitioner’s judgment and sentence were affirmed per curiam. Dkt. 9-3 at
841. The mandate was issued on February 21, 2013. Id. at 852. On September 9,
2013, Petitioner filed a Rule 3.850 motion for postconviction relief. Id. at 876.
On May 2, 2014, the trial court summarily denied grounds one, seven, eight,
nine, twelve, thirteen, fourteen, fifteen, seventeen, and nineteen; and, the trial
dismissed grounds eleven and sixteen with leave to amend. Dkt. 9-4 at 181–96. On
October 16, 2015, the trial court, after conducting an evidentiary hearing, denied
grounds two, three, four, five, six, ten, and eighteen. Dkt. 9-5 at 182–90. On
February 7, 2017, the state appellate court per curiam affirmed the denial. Dkt. 9-5
at 317; see also Reed v. State, 229 So. 3d 1249 (Fla. 5th DCA 2017). The mandate
was issued on May 8, 2017. Dkt. 9-5 at 329. Accordingly, this initial petition is
well within the one-year requirement and is timely.
B. Merits
Petitioner raises twelve grounds for relief in his Amended Petition. Dkt. 21.
The Respondent rebuts each of these grounds as either unmeritorious or
unexhausted. Dkts. 8 & 31. The Court will address each ground in turn. To the
extent any of these grounds include sufficiency issues, the Petitioner testified, and
the jury chose to disbelieve his testimony. Dkt. 9-3 at 537. This would appear to
resolve any sufficiency issues.
1. Ground One
In Ground One, Petitioner argues the trial court erred in excluding the
testimony of three police officers about the arrest of Germaine Little in violation of
his Fifth, Sixth and Fourteenth Amendment rights. Dkt. 21 at 3. Petitioner alleges
that Germain Little had been arrest on the day of the crime with a black mask and
that police initially thought he might be a suspect. The trial court determined
evidence about Mr. Little was irrelevant because he did not match the description
given by the victim of her attacker. Based on the record before the Court, this
decision was not unreasonable.
While a criminal defendant has a right to present a complete defense, a trial
court may exclude evidence proffered by a defendant to prove that someone else
committed the crime when it is not sufficiently connected to the crime. King v.
State, 89 So. 3d 209, 223–24 (Fla. 2012) (quoting Holmes v. South Carolina, 547
U.S. 319, 326–27 (2006)). Mr. Little was described as having a slight build with
short hair, while the victim described the assailant as large and with braids, which
matched the Petitioner’s description. Dkt. 8 at 6–7.
In his reply brief, Petitioner asserts that the victim did not initially say her
assailant was big. Dkt. 16 at 2. But this is contradicted by his counsel’s questioning
of the victim in which counsel asks the victim if she initially told law enforcement
her assailant was five-ten or five-eleven and heavier, either 230 or 250 pounds.
Trial Transcript at 53.2 Thus, it was not unreasonable for the trial court to exclude
evidence relating to Mr. Little because he did not match the description the victim
gave of her assailant. As a result, Ground One does not present a claim where
federal habeas relief is appropriate.
2. Ground Two
In Ground Two, Petitioner appears to be making several different arguments
about both prosecution and defense witnesses. Ground Two is labeled as “it was
error to deny petitioner’s motion for mistrial after the court and the prosecutor
threatened a defense witness with a revocation of his plea agreement, prosecution
2 The trial transcript can be found at Dkt. 9 Exhibit A. For clarity throughout this Order the Court
will refer to all references to the trial transcripts as T.T. at xx.
for perjury and imposition of a life sentence unless he chose to give testimony
favorable to the prosecution[.]” Dkt. 21 at 4. But the supporting facts—in both the
initial Petition and the Amended Petition—involve allegations of the trial court
refusing to allow Petitioner’s counsel to impeach three prosecution witnesses with
their plea agreements and lies to officers. Dkts. 1 at 7–8 & 21 at 4.
To the extent Ground Two is an argument about Petitioner’s counsel being
unable to impeach the prosecution’s witnesses with their plea agreements and prior
lies to officer, it must be denied. The issue of what the Petitioner’s counsel could
cross on was discussed at length during the trial. T.T. at 121–27, 191–216, 308–32.
Contrary to the Petitioner’s assertions, his counsel was able to ask the
prosecution’s witnesses—Petitioner’s codefendants—about their plea agreements
and their previous lies about their involvement in the burglary. T.T. at 216–19.
Petitioner’s counsel was only prevented from asking about lies involving a second
burglary in which Petitioner was not charged with nor alleged to have been
involved.3 The trial judge determined this was irrelevant as a collateral matter.
Petitioner was able to elicit from a witness, Curtis Duncan, that he had initially lied
about his involvement in the robbery but later changed his testimony to get a plea
deal for a ten-year sentence rather than face two life sentences. Ethan Hatchett also
3 An earlier home invasion burglary happened at a different house prior to the burglary involving
Petitioner. While many of Petitioner’s codefendants participated in both crimes, it is undisputed
Petitioner only participated in the later one.
testified that he initially denied any involvement when questioned by law
enforcement but later received a plea agreement and was sentenced to twenty-five
years in prison and a lifetime of probation. T.T. at 333–36. Jonathan Starks
testified that because he was subpoenaed and not testifying as part of a guilty plea,
nothing he said could be used against him in a later prosecution for these events,
but he could still be prosecuted by different prosecutors. T.T. at 367–68. Mr.
Starks admitted he was involved in the events and that he had originally said he
was not involved and that he had been covering for his uncle K.C. Starks. T.T. at
395 & 400. This evidence provided ample basis for the jury to determine the
witnesses’ bias when weighing their credibility. Thus, the trial judge’s ruling
preventing further cross examination on the first burglary was not unreasonable
and Petitioner cannot prove he was prejudiced.
Alternatively, Petitioner argues in the heading of Ground Two and in his
reply brief that the trial court improperly refused to grant a mistrial after both the
prosecutor and the judge made references to a possible perjury charge or a
revocation of the plea agreement when a defense witness testified differently at
trial than he had testified previously about the event.
The Court has reviewed the trial transcripts. The exchanges at issue can be
summarized as follows: Codefendant Choung had pled guilty to the home invasion.
T.T. at 702. At Choung’s sentencing he implicated Petitioner in this crime. T.T. at
718–20. But during Petitioner’s jury trial, Choung said Petitioner was not involved.
T.T. at 717–17. Outside the presence of the jury, the judge informed Christopher
Choung that part of his sentence included testifying truthfully at Petitioner’s jury
trial and that if he does not “testify truthfully in this proceeding, I’m thinking that
we might be able to go back and resentence you, and you will be facing life.” T.T.
at 727. After the jury was called back in the prosecutor asked “if we were to play
that audio [from Choung’s sentencing] for the jury and you, in fact, did say what
this transcript says, that [Petitioner] was there, would that be the truth or a lie?”
T.T. at 729. The witness answered, “It would be a lie because I don’t recall saying .
. . [Petitioner] was there.” T.T. at 729. The prosecutor then asked, “so if you did lie
under oath about [Petitioner’s] presence, it would have been at the time you were
being sentenced and looking out for yourself in front of Judge Stancil?” T.T. at
729. To which the witness answered “yes, sir.” T.T. at 729. The prosecutor then
commented “Okay. Just want to make sure I have the date for the perjury charge
right.” T.T. at 729. To which the defense attorney objected and moved for a
mistrial at sidebar. T.T. at 729–30. The Court’s response to these motions beyond
denying them is not in the transcript.
After concluding the sidebar, the Judge said to the jury “Whether or not
subsequent proceedings take place is irrelevant to these proceedings here.” T.T. at
733. Immediately on redirect, Petitioner’s counsel asked the witness “as you are
sitting here today, do you have any reason to be untruthful to this jury?” T.T. at
735. The witness responded “no, sir.” Id. The final question by Petitioner’s counsel
was “have you told the jury the truth?” Id. The transcript says there was no audible
response from the witness, but after that defense counsel said “all right. Thank you,
sir.” Id.
First, Petitioner alleges there was a violation when the trial judge referred to
resentencing the witness. Importantly this comment was made outside the presence
of the jury and did not cause the witness to change his exculpatory testimony. In
Webb v. Texas, the Supreme Court found that the judge had used “unnecessarily
strong terms” which could exert influence on the defense witness and cause him to
refuse to testify. 409 U.S. 95, 97–98 (1972). In Muhammad v. State, the Florida
Supreme Court distinguished between cases where the judge advises a witness
about the consequences of failing to testify and cases where the judge pressures a
witness to testify consistently with their prior statements. 782 So. 2d 343, 357 (Fla.
2001), holding modified on other grounds by Marquardt v. State, 156 So. 3d 464
(Fla. 2015). Mr. Choung did not change his trial testimony after the judge’s
statements. Instead, he testified consistently that Petitioner did not participate in
the burglary. Thus, the trial judge’s statements did not prejudice Petitioner.
Finally, Petitioner alleges the trial court should have granted a mistrial
because of the prosecutor’s comment about having the date right for the perjury
charge. Dkt. 16 at 4. The trial judge instructed the jury the comment was irrelevant.
T.T. at 733. In the Petitioner’s direct appeal, he cited Davis v. State to support his
argument. 334 So. 2d 823 (Fla. 1st DCA 1976). In Davis, the prosecutor met with
the witness the morning before her testimony and upon finding out that she was
going to refuse to testify and say that she saw nothing, threatened her with a
perjury charge and 15 years in prison if she did not tell the truth—clearly implying
that the truth was her prior statement against the defendant. Id. at 826. The court
found that this threat of prosecution constituted “undue pressure” and was cause
for a new trial. Id. The facts here do not suggest the undue pressure that was in
Davis.
Importantly, it was Mr. Choung, not the prosecutor, who when faced with
his inconsistent statements stated that his prior, non-trial testimony was a lie. The
prosecutor confirmed that Mr. Choung was referring to his statements at his
sentencing when he would have been “looking out for [himself]” that were the lie.
T.T. at 729. The comment about perjury was made after this, at the very end of the
prosecution’s cross examination and only after Mr. Choung said that his prior
sworn statement was a lie. It therefore could not cause undue pressure on Mr.
Choung to change his testimony and, in fact, did not cause him to change his
testimony at trial where he consistently testified that Petitioner was not a part of
the burglary. Petitioner’s attorney on redirect further established that Mr. Choung
was not lying and had no reason to lie at Petitioner’s trial. Id. at 734–35. The
implication from the prosecutor’s comment would be that Mr. Choung could be
charged with perjury for his prior testimony at sentencing, and not that his
testimony at Petitioner’s trial was a lie. Thus, Ground Two is denied.
3. Ground Three
In Ground Three, Petitioner argues that his counsel was ineffective for
failing to move to recuse the trial judge because the judge allegedly had a
relationship with the victim’s family. Dkt. 21 at 5. During the Rule 3.850 hearing
Petitioner’s attorney explained that he thought it would be in Petitioner’s best
interest to try the case in front of Judge Stancil because the judge would allow the
attorneys latitude in arguing their positions and that if Judge Stancil had known
individuals involved in the case he would have recused himself.4
Ineffective assistance of counsel claims are determined under Strickland
which requires proof of both deficient performance and consequent prejudice. 466
U.S. at 697. “[C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690. “[A] court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel’s challenged conduct on the facts of the
4 Judge Stancil notes in his order denying postconviction relief that he did not know the victim
and that, if he had, he would have recused himself.
particular case, viewed as of the time of counsel’s conduct.” Id. at 690.
Strickland cautions that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable
precisely to the extent that reasonable professional judgments support the
limitations on investigation.” Id. at 690–91. Petitioner cannot meet this burden by
merely alleging that the judge was biased and that his attorney was ineffective for
failing to move to recuse him. The record indicated that Petitioner’s attorney made
a strategic choice when recommending it was in Petitioner’s best interest to have
his case tried before Judge Stancil. Accordingly, Ground Three does not present an
issue appropriate for federal habeas relief.
4. Ground Four
In Ground Four, Petitioner argues his trial counsel was ineffective for failing
to depose Christopher Choung and detective Rhonda Stroup who allegedly could
have impeached prosecution witness and codefendant, Ethan Hatchett’s trial
testimony in which Mr. Hatchett allegedly said Mr. Hatchett did not know one Jon
Rappaport. Respondent argues this testimony does not undermine Mr. Hatchett’s
corroborated testimony that Petitioner was involved in the crime. Dkt. 8 at 17.
As a preliminary matter, it is not clear to the Court that there was anything to
impeach in Mr. Hatchett’s testimony. Mr. Hatchett did not deny knowing Mr.
Rappaport at trial. After a review of Mr. Hatchett’s trial testimony, the only time
he was asked about Mr. Rappaport was on a proffered cross-examination where he
said Mr. Rappaport was a friend from Leesburg who dropped him off at the prior
home invasion the Petitioner was not involved in. T.T. at 313.
However, even assuming there was an element of Mr. Hatchett’s testimony
that could have been impeached, Petitioner has failed to allege how impeaching
Mr. Hatchett’s mere knowledge of Jon Rappaport could change the outcome of his
trial or why the state court’s decision on this matter was contrary to or an
unreasonable application of clearly established federal law. The trial court
excluded testimony regarding Mr. Rappaport because, at most, he could only be
tangentially connected to the home invasion that did not involve Petitioner.
Therefore, it was not relevant to Petitioner’s trial.
Petitioner’s appears to be arguing that Mr. Rappaport was involved in the
home invasion which Petitioner was convicted for, and the prosecution’s witnesses
are covering for him and blaming the crime on Petitioner. But no evidence
supports this in the record. The testimony of Christopher Choung and detective
Rhonda Stroup, even if it were to impeach Mr. Hatchett, fails to demonstrate
deficient performance or prejudice.
Mr. Choung testified at trial that he did not know Jon Rappaport. T.T. at
708. When asked if Mr. Hatchett was going to implicate Petitioner wrongfully in
the burglary, Mr. Choung’s response was “um, not—all he said was he just didn’t
like him, and he feel like that [Petitioner] should get in trouble for it.” T.T. at 716.
Mr. Choung then testified that Petitioner was not part of the home invasion. Id. Mr.
Choung’s proffered testimony was “I guess Jon [Rappaport] was about to get in
trouble, and [Mr. Hatchett] felt like he wanted [Petitioner] to get in trouble.” T.T.
at 711. But the only statement Mr. Choung attributed to Mr. Hatchett was “I don’t
like that guy anyway[.]” Id. Thus, it was only Mr. Choung’s speculation about Jon
Rappaport—a man he did not know and who he did not say was involved in the
home invasion—which was excluded. But Mr. Choung testified that Mr. Hatchett
did not like Petitioner and that Petitioner was not at the home invasion. Thus,
Petitioner cannot prove he was prejudiced by excluding testimony about Jon
Rappaport.
Detective Rhonda Stroup proffered that she was not aware that Mr.
Rappaport was involved in either of the home invasions. T.T. at 694. And that she
believed Mr. Hatchett indicated in a prior statement to a different detective that Mr.
Rappaport dropped Mr. Hatchett off at the residence of the home invasion that
Petitioner was never linked to. T.T. at 694. The trial judge determined this was not
relevant because Petitioner was never accused of being involved with that home
invasion. T.T. at 697.
Petitioner is unable to show that he was prejudiced by excluding this
testimony because testimony was admitted that Mr. Hatchett did not like Petitioner
and Choung said Petitioner was not there. Petitioner was not prejudiced by the
exclusion of testimony about Mr. Rappaport because no one testified that Mr.
Rappaport was involved in the home invasion for which Petitioner was convicted.
Accordingly, Ground Four does not present an issue appropriate for federal habeas
relief.
5. Ground Five
In Ground Five, Petitioner alleges his counsel was ineffective for failing to
strike the entire venire panel when a statement of a potential juror allegedly tainted
the entire panel. Dkt. 21 at 6. The Court evaluates ineffective assistance of counsel
during jury selection in the same way as any other Strickland claim. Harvey v.
Warden, 629 F.3d 1228, 1243 (11th Cir. 2011). In a postconviction context,
Florida law “has an actual bias requirement.” Fennell v. Sec’y, Fla. Dep’t of Corr.,
582 F. App’x 828, 832 (11th Cir. 2014). The Petitioner must show the juror was
biased “and the evidence of bias must be plain on the face of the record.” Id.
(quoting Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007)). Petitioner cannot
meet this burden.
Petitioner alleges that during voir dire a juror asked “so, what we are here
for is to be a jury for a case of one bad guy versus another bad guy.” Dkt. 21 at 7.
Respondent argues that this question was never asked. Dkt. 8 at 18. The
postconviction court found that this statement was not in the record. Dkt. 9 Exhibit
H at 213–14. Petitioner did not identify where this statement was in the record. The
Court reviewed the transcripts from jury selection in their entirety and found no
such statement was made by either a potential juror or an actual juror.
The closest statement occurred when the prosecutor was asking jurors if they
would feel differently if drugs were the motive for the crime and they found out
one of the victims had drugs. Id. at 125. An unidentified juror asked “is your point
that the intent was to go after drugs and there is a—would it be like criminals
going after criminals? Is that what your point is?” Id. at 126. But when asked if
that affected how the juror would view the case, the juror responded, “I’m fine
with that.” Id. This line of questioning was not directed at the Petitioner’s bad
character but rather if jurors could overlook the fact that the male victim had illicit
drugs. As such, even if this was the statement Petitioner was referencing, he has
failed to prove that his attorney’s conduct fell below the objective standard or that
he was prejudiced, as there is no evidence this juror served on the jury or that they
were actually biased against the Petitioner.
Thus, Petitioner has failed to meet the Strickland standard because there is
no evidence that there was a biased juror to which counsel could have objected or
that a biased juror served on Petitioner’s jury. Therefore, Ground Four does not
present an issue appropriate for federal habeas relief.
6. Ground Six
In Ground Six Petitioner alleges his counsel was ineffective for failing to
object to improper statements made in the state’s closing argument regarding the
plea agreements his two codefendants received. Dkt. 21 at 7. Respondent argues
the deals were adequately represented to the jury, so Petitioner cannot establish
deficient performance or prejudice. Dkt. 8 at 21. The state court found the
prosecution did not mislead the jury regarding the plea agreements and that
Petitioner’s counsel’s performance was not deficient. Dkt. 9 Exhibit H at 211.
The record reflects the substance of each of the plea agreements. The record
also reflects what the two codefendants sentenced before Petitioner’s trial received.
Mr. Duncan testified that he was facing a life sentence but received ten years in
prison followed by ten years’ probation. T.T. at 216–18. Mr. Hatchett testified that
he received a twenty-five-year sentence followed by a lifetime of probation. T.T. at
273–74. Jonathan Starks, another of the codefendants, did not have a plea
agreement and his charges from the home invasion were still pending when he
testified at Petitioner’s trial. T.T. at 367–69.
Although the heading of Ground Six presents an issue of statements made
during the prosecution’s closing argument, Petitioner does not refer to any
improper statement made by the prosecution in their closing argument. Instead,
Petitioner appears to allege—without providing evidence—that there was a proffer
between codefendant Starks and a prior prosecutor on the case. Dkt. 21 at 8.
However, there is no evidence in the record of any plea agreement having been
offered to Mr. Starks. Further, Mr. Starks testimony at trial explained the benefit he
was getting by testifying, which was that his statements could not be used against
him and that those specific prosecutors could not prosecute him for this offense.
T.T. at 367–69.5 So, Petitioner cannot demonstrate deficient performance or
prejudice. Thus, Ground Six does not present an issue appropriate for federal
habeas relief.
7. Ground Seven
In Ground Seven, Petitioner alleges ineffective assistance of appellate
counsel for failing to raise the issue of the court improperly allowing in hearsay
over trial counsel’s objection. Respondent argues that the testimony in question
was not hearsay and therefore was properly admitted.
The alleged hearsay statements were about actions in a movie watched by
Mr. Hatchett, Mr. Duncan, Mr. Starks, and Petitioner before the home invasion.
T.T. at 297–99. In the movie the main character commits the same sexual battery
with a gun on a woman that Petitioner allegedly committed on the victim. T.T. at
299. The prosecution had Mr. Hatchett testify about this to explain where the
5 The prosecutors involved in Petitioner’s case could not personally prosecute Mr. Starks but
other prosecutors who were not involved could handle that prosecution. T.T. at 364–66.
Petitioner could have gotten the idea. T.T. at 297–307. Petitioner’s trial counsel
objected arguing the movie was hearsay. T.T. 300–01.
“This Court has limited authority, on habeas review, to reevaluate state court
evidentiary determinations.” Land v. Sec’y, Dep’t of Corr., No. 8:04-CV-2524-T-
27TGW, 2008 WL 816707, at *10 (M.D. Fla. Mar. 26, 2008). The Court grants
great deference to state evidentiary rulings and only grants relief when the
evidentiary ruling makes the proceeding fundamentally unfair thus depriving the
defendant of due process. Id.; Cruz v. Fla. Attorney Gen., No. 2:16-CV-49-FTM-
38CM, 2019 WL 1101620, at *6 (M.D. Fla. Mar. 7, 2019) (“Habeas relief is
warranted only when the error ‘so infused the trial with unfairness as to deny due
process of law.’”) (quoting Lisenba v. California, 314 U.S. 219, 228 (1941)). The
Eleventh Circuit “has established a well-documented resistance to granting relief
when a habeas petition alleges a federal claim based merely on a state evidentiary
ruling.” Shaw v. Boney, 695 F.2d 528, 530 (11th Cir. 1983) (citing Woods v.
Estelle, 547 F.2d 269, 271 (5th Cir.), cert. denied, 434 U.S. 902, (1977)). “For the
most part, evidentiary rulings simply do not raise questions of a constitutional
magnitude.” Keno v. Crosby, No. 803CV-1230-T-23TBM, 2006 WL 2711599, at
*8 (M.D. Fla. Sept. 21, 2006).
Petitioner has not established that this ruling made his proceeding
fundamentally unfair, thus depriving him of due process. The matter seems to have
been offered to show a state of mind. Even if the statement was improperly
admitted, it established that almost all the codefendants saw this movie at the same
time before the home invasion and sexual battery. This does not deny Petitioner
due process, so the Court will defer to the state court’s evidentiary ruling.
As the state court’s ruling provides no basis for federal habeas relief, there is
no basis for the Court to find appellate counsel was ineffective. Thus, Ground
Seven does not present an issue appropriate for federal habeas relief.
8. Ground Eight
In Ground Eight, Petitioner alleges that his appellate counsel was ineffective
for failing to raise a claim that the trial court erred by not granting a judgment of
acquittal. Dkt. 21 at 9. Petitioner alleges there was no physical evidence placing
him at the scene and that his codefendants testimony was not credible. Id. at 9–10.
Yet Petitioner testified and was disbelieved by the jury. The State argues that
Petitioner cannot meet the high AEDPA standard.
“Claims of ineffective assistance of appellate counsel are governed by the
same standards applied to trial counsel under Strickland.” Brooks v. Comm’r,
Alabama Dep’t of Corr., 719 F.3d 1292, 1300 (11th Cir. 2013) (quoting Philmore
v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per curiam)). A court must
review the merits of the omitted claim to determine prejudice. Dinkens v. Sec’y,
Dep’t of Corr., 556 F. App’x 811, 813 (11th Cir. 2014). “Counsel’s performance
will be deemed prejudicial if we find that ‘the neglected claim would have a
reasonable probability of success on appeal.’” Id. (quoting Heath v. Jones, 941
F.2d 1126, 1132 (11th Cir. 1991)). “In many (perhaps most) cases, counsel may err
without being deficient or may be deficient without causing prejudice.” Overstreet
v. Warden, 811 F.3d 1283, 1288 (11th Cir. 2016).
Trial counsel’s motion for acquittal was based on the lack of physical
evidence placing Petitioner on the scene, the fact that the victim did not identify
Petitioner as the perpetrator, and that the testimony of the codefendants was
unreliable. T.T. at 575–76. The judge denied the motion because the credibility of
the witnesses is decided by the jury. Id. at 576. Issues regarding the codefendants’
credibility and the limitations placed on the Petitioner’s ability to cross examine
them was part of Point I of Petitioner’s initial appeal. So while a reasonable
attorney may have chosen to argue that the trial court erred in not granting the
motion for acquittal, it was not unreasonable for appellate counsel to decide against
pursuing that credibility ground, in favor of focusing attention on other grounds.
Further, even if this was deficient performance, Petitioner has failed to prove
that he would have succeeded on appealing this ground. Many of the underlying
facts Petitioner argues to support this claim are the same arguments that were
unsuccessful in his initial appeal. Accordingly, Ground Eight does not present an
issue appropriate for federal habeas relief.
9. Ground Nine
In Ground Nine, Petitioner alleges that his appellate counsel was ineffective
for failing to raise a claim that the trial court erred by not allowing the defense to
present defense witnesses regarding the arrest of Germaine Little. Dkt. 21 at 10.
Respondent argues that this ground is meritless because Petitioner’s appellate
counsel made this argument on direct appeal. In reviewing the record, the Court
finds that Petitioner’s appellate counsel made this argument on appeal. Dkt. 9
Exhibit B at 14. Thus, Petitioner cannot prove deficient performance and this
ground must be denied.
10. Grounds Ten, Eleven, and Twelve
Grounds Ten, Eleven, and Twelve all involve allegations surrounding newly
discovered evidence. These claims were filed in a second state postconviction
proceeding and allowed as an amendment to the Petitioner’s original habeas
claims. In Ground Ten, Petitioner alleges that newly discovered evidence proves he
was deprived of the right to present his case, thus depriving him of a right to a fair
trial. Dkt. 21 at 11. Ground Eleven alleges the newly discovered evidence shows
the state knowingly used perjured testimony in violation of Giglio v. United States,
405 U.S. 150 (1732). Id. 12–13. Ground Twelve alleges that Petitioner was denied
effective assistance of counsel because of the failure to discover this evidence. Id.
at 14. The state postconviction court found that this evidence did not qualify as
newly discovered because the evidence could have been discovered before his first
Rule 3.850 motion. Dkt. 32-1 at 28. Additionally, the postconviction court found
that there was no reasonable probability that the evidence would have produced an
acquittal or a lesser sentence. Id. at 29.
Petitioner alleges that after his initial postconviction proceedings he received
via public records request the chain of custody inventory for a cigarette butt
admitted at his trial. Dkt. 21 at 11. Petitioner alleges that the chain of custody
inventory shows that prosecution witness, Nicole Lee, analyzed the cigarette butt
in June 2008 instead of September 2008 as she testified to at trial. Id. Respondent
argues that the state court rejected this claim because of a state procedural bar and
that Petitioner has not demonstrated cause for the default or actual prejudice as a
result. Dkt. 31 at 10.
When “a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas
review . . . is barred.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Here, the
state court found that this evidence did not qualify as newly discovered under
Florida law and that his state petition was successive. Thus, federal habeas review
of these claims is barred.
“A procedurally defaulted claim can support federal habeas relief in only
two narrow situations. First, the petitioner may demonstrate cause and prejudice.
Cause exists if there was ‘some objective factor external to the defense [that]
impeded counsel’s efforts to comply with the State's procedural rule.’” Mize v.
Hall, 532 F.3d 1184, 1190 (11th Cir. 2008) (quoting Murray v. Carrier, 477 U.S.
478, 488 (1986)). Petitioner presented no evidence of an external factor which
prevented him from complying with the procedural rule.
Second, a federal court can review a procedurally defaulted claim “if
enforcing the default would result in a fundamental miscarriage of justice. This
exception applies if the petitioner can show that, in light of new evidence, it is
probable that no reasonable juror would have convicted him.” Id. (citing Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Petitioner has not made such a showing. The
cigarette butt which Ms. Lee testified about did not contain Petitioner’s DNA, a
fact she testified to on both direct and cross examination at trial. T.T. at 260–62,
269–70. Thus, even assuming Petitioner is correct that the testing occurred in June
and the cigarette butt was related to the first home invasion, this does not establish
that no reasonable juror would have convicted him. At most the evidence would
have been excluded like the other evidence connected solely to the first home
invasion. As the cigarette butt did not contain Petitioner’s DNA it never connected
him to the crime of conviction, so its exclusion would not have changed the
outcome of the trial. Thus, Petitioner cannot establish a fundamental miscarriage of
justice. Accordingly, the procedural default cannot be excused and Grounds Ten,
Eleven, and Twelve must be denied.
Certificate of Appealability
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant,” and if a certificate is issued, “the
court must state the specific issue or issues that satisfy the showing required by 28
U.S.C. § 2253(c)(2).” Rule 11(a), Rules Governing Section 2254 Proceedings for
the United States District Courts; see Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To merit a COA, Petitioner must show that reasonable jurists would find
debatable both the merits of the underlying claims and the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir. 2001). Because he fails to
show that reasonable jurists would debate either the merits of the claims or the
procedural issues, Petitioner is not entitled to either a COA or leave to appeal in
forma pauperis.
Accordingly, a certificate of appealability is denied. Leave to appeal in
forma pauperis is denied. Petitioner must obtain permission from the circuit court
to appeal in forma pauperis.
Conclusion
The Court denies Petitioner’s Amended Petition with prejudice. Dkt. 21. The
Clerk is directed to enter judgment accordingly, terminate any pending motions,
and close the file.
DONE AND ORDERED at Tampa, Florida, on March 16, 2020.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
Petitioner, pro se