Murray v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LOUIS ANTHONY MURRAY,

Petitioner,

v. Case No. 8:19-cv-2943-VMC-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________/

ORDER

Louis Anthony Murray, a Florida prisoner, timely filed a pro se amended

petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 10) and supporting

memorandum (Doc. 25). Respondent filed a response opposing the petition (Doc. 17)

and Murray filed a reply (Doc. 19). Upon consideration, the petition is DENIED.

Procedural History

A state court jury convicted Murray of robbery with a deadly weapon. (Doc.

17-13, Ex. 7.) He was sentenced to life in prison as a prison releasee reoffender. (Id.,

Ex. 9.) The state appellate court per curiam affirmed the conviction and sentence. (Id.,

Ex. 14.) Murray sought postconviction relief pursuant to Florida Rule of Criminal

Procedure 3.850. (Doc. 17-16, Ex. 24, doc. pp. 216-49.) The state court denied his

claims. (Doc. 17-15, Ex. 24, doc. pp. 2-12; Doc. 17-17, Ex. 28, pp. 23-33.) The state

appellate court per curiam affirmed the denial of relief. (Doc. 17-19, Ex. 34.)

FACTS1

On September 28, 2012, loss prevention officers Warren Brittingham and

Alfonso Anderson were working at a K-Mart in Tampa, Florida. While watching live

video from the store’s security cameras, they observed Murray and his co-defendant,

Shadaveya Jones, enter the store. Brittingham and Anderson watched Murray and

Jones place a clock and a 50-inch television in a shopping cart and leave through the

garden center without paying for the items. While Anderson followed their path

through the garden center, Brittingham exited through the main door and intercepted

Murray and Jones outside. Jones was pushing the cart, and Murray was pulling the

cart. Brittingham told them that they needed to come back inside. Jones looked at

Brittingham and smiled. Brittingham grabbed the cart and again told Murray and

Jones that they needed to come back in.

Murray punched Brittingham. Brittingham saw Murray pull the cart closer to

himself before throwing the punch and noticed that Murray kept his other hand on the

cart when he punched Brittingham. Brittingham and Murray engaged in a physical

struggle on the ground. After Brittingham and Murray were already on the ground,

Anderson arrived from the garden center. He saw Jones next to the shopping cart, a

few feet away from Brittingham and Murray. The cart was “a little off the sidewalk.”

(Doc. 17-6, Ex. 4, p. 259.) After he came outside, Anderson asked another employee

to take the shopping cart.

1 This factual summary is based on the trial transcript and appellate briefs.

Murray told Jones to go get the car and to run over the loss prevention officers.

Jones drove the car up and poured a drink over Murray and Brittingham as they

struggled on the ground. Jones tried to help Murray to climb into the car. Anderson

saw the blade of a box cutter in Murray’s hand. Anderson grabbed Murray’s wrist,

took the box cutter away from him, and threw it on the ground.

Terrence Laycook, an assistant manager, came outside behind Brittingham and

called 911 when Brittingham and Murray began struggling on the ground. When

Murray swung at Brittingham, Laycook observed the cart in the middle of the

driveway area outside the front door, about three or four feet away from Murray.

Another employee, Leonita Vander Galien, noticed the shopping cart in the driveway

and believed it to be about one and a half to two feet away from Brittingham and

Murray when they were on the ground. Police arrived a few minutes after Laycook

called 911.

Standards Of Review

The AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009).

Habeas relief can only be granted if a petitioner is in custody “in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section

2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated

on the merits in state court unless the state court’s adjudication:

(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.

A decision is “contrary to” clearly established federal law “if the state court

arrives at a 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.” Williams v. Taylor, 529 U.S. 362, 412-13

(2000). A decision is an “unreasonable application” of clearly established federal law

“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. at 413.

The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that

state-court convictions are given effect to the extent possible under law.” Bell v. Cone,

535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s

application of clearly established federal law is objectively unreasonable, and . . . an

unreasonable application is different from an incorrect one.” Id. at 694; see also

Harrington v. Richter, 562 U.S. 86, 103 (2011) (“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.”).

The state appellate court affirmed the denial of postconviction relief without

discussion. This decision warrants deference under § 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. 2002). When a state appellate court

issues a silent affirmance, “the federal court should ‘look through’ the unexplained

decision to the last related state-court decision that does provide a relevant rationale”

and “presume that the unexplained decision adopted the same reasoning.” Wilson v.

Sellers, 138 S.Ct. 1188, 1192 (2018).

Ineffective Assistance Of Counsel

Murray alleges ineffective assistance of trial counsel. Ineffective assistance of

counsel claims are analyzed under the test established in Strickland v. Washington, 466

U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and

resulting prejudice. Id. at 687. Deficient performance is established if, “in light of all

the circumstances, the identified acts or omissions [of counsel] were outside the wide

range of professionally competent assistance.” Id. at 690. However, “counsel is

strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id.

Murray must show that counsel’s alleged error prejudiced the defense because

“[a]n error by counsel, even if professionally unreasonable, does not warrant setting

aside the judgment of a criminal proceeding if the error had no effect on the judgment.”

Id. at 691. To demonstrate prejudice, Murray must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.

Obtaining relief on a claim of ineffective assistance of counsel is difficult on

federal habeas review because “[t]he standards created by Strickland and § 2254(d) are

both highly deferential, and when the two apply in tandem, review is doubly so.”

Richter, 562 U.S. at 105 (internal quotation marks and citations omitted); see also Burt

v. Titlow, 571 U.S. 12, 15 (2013) (stating that this doubly deferential standard of review

“gives both the state court and the defense attorney the benefit of the doubt”). “The

question [on federal habeas review of an ineffective assistance claim] ‘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)).

DISCUSSION

Ground One2

In Ground One, Murray contends that trial counsel was ineffective for

“abandon[ing] resisting a merchant as a lesser included offense.” (Doc. 10, p. 5.)

2 Respondent does not contest that Murray exhausted his claims in state court, as he must

prior to seeking relief under § 2254. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on

his claims before he presents those claims to a federal court in a habeas petition.”).

Murray was charged with robbery with a deadly weapon; resisting a merchant is a

permissive lesser-included offense of robbery. See Fla. Std. Jury Instr. (Crim.) 15.1.

Murray states that although counsel’s request for an instruction on resisting a

merchant was granted, counsel later decided to exclude the instruction. Murray

emphasizes that “his defense was that he was guilty of theft and resisting a merchant,

not robbery.” (Doc. 25, p. 10.) Murray asserts he would have been convicted of

resisting a merchant had the instruction been given.

The state court denied Murray’s claim. The state court summarized Murray’s

arguments and found:

After reviewing the allegations, the court file, and the record, the Court

finds Defendant’s allegations are facially sufficient. However, the Court

finds the jury found Defendant guilty of robbery (firearm or deadly

weapon) ($300 or more, but less than $20,000) as charged. The Court

finds because the jury found him guilty as charged, Defendant cannot

prove prejudice as a result of counsel’s alleged abandonment of the lesser

included instruction of resisting a merchant. See Sanders v. State, 946

So.2d 953, 960 (Fla. 2006) (stating “[t]he possibility of a jury pardon

cannot form the basis for a finding of prejudice.”). As such, no relief is

warranted upon claim one.

(Doc. 17-15, Ex. 24, doc pp. 6-7) (state court’s record citation omitted).

Murray does not show that the state court unreasonably applied Strickland’s

prejudice prong in denying this claim. Consistent with Florida’s standard jury

instructions, see Fla. Std. Jury Instr. (Crim.) 3.12, the jury was instructed that if “you

return a verdict of guilty, it should be for the highest offense which has been proven

beyond a reasonable doubt.” (Doc. 17-13, Ex. 6, Doc. p. 15.) The jury is presumed to

have complied with this instruction. See Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir.

2001) (“We have stated in numerous cases . . . that jurors are presumed to follow the

court’s instructions.”); Raulerson v. Wainwright, 753 F.2d 869, 876 (11th Cir. 1985)

(“Jurors are presumed to follow the law as they are instructed.”). By convicting

Murray as charged, the jury believed that the State presented sufficient evidence to

establish every element of the charged offense beyond a reasonable doubt. The jury

would not have been permitted to find Murray guilty of a lesser offense.

In Sanders, which the state postconviction court cited, the Florida Supreme

Court held that under Strickland, “a defendant cannot, as a matter of law, demonstrate

prejudice by relying on the possibility of a jury pardon” through conviction of a lesser

offense when the jury has convicted the defendant of the greater offense. Sanders, 946

So.2d at 956. Further, “[a]n assessment of the likelihood of a result more favorable to

the defendant must exclude the possibility of arbitrariness, whimsy, caprice,

‘nullification,’ and the like. . . . The assessment of prejudice should proceed on the

assumption that the decisionmaker is reasonably, conscientiously, and impartially

applying the standards that govern the decision.” Strickland, 466 U.S. at 695.

Murray has not shown that the rejection of an ineffective assistance of counsel

claim based on Sanders involves an unreasonable application of Strickland. See Santiago

v. Sec’y, Fla. Dep’t of Corr., 472 F. App’x 888, 888-89 (11th Cir. 2012) (holding that the

state court did not unreasonably apply Strickland when it denied a claim of ineffective

assistance under Sanders as “the jury would not have been permitted to convict

Santiago of the lesser included offenses because it had concluded that the evidence

established that he was guilty of the greater offenses”).

In his memorandum, Murray asserts that the state court erroneously analyzed

Strickland’s prejudice prong by addressing the possibility of a jury pardon. He contends

that he never raised the issue of a jury pardon in state court, and also “abandons and

waives” any jury pardon argument raised in his amended § 2254 petition. (Doc. 25, p.

14.) Murray argues that the analysis should focus on his contention that counsel

abandoned an instruction on his defense at trial, which was that he only committed

the lesser-included offense of resisting a merchant.

Regardless of how the prejudice issue is framed—whether in terms of a possible

jury pardon or providing an instruction on Murray’s defense—his argument centers

on the effect of not instructing the jury on resisting a merchant as a lesser-included

offense of robbery, which the state court addressed. Murray does not establish a

reasonable probability that the jury would have ignored its finding that the State

proved the charged offense and disregarded the law as set out by the state trial court

to convict him of resisting a merchant had an instruction on that lesser-included

offense been provided. Murray does not establish that the state court unreasonably

applied Strickland or unreasonably determined the facts in denying his claim. Murray

is not entitled to relief on Ground One.

Ground Two

Murray argues that counsel was ineffective for not requesting a special jury

instruction on the defense of abandonment of the property. He contends that “[n]o one

testified that [he] tried to maintain or regain possession of the property after using

force.” (Doc. 10, p. 22.) Murray argues that a special instruction was needed because

“the standard instruction did not adequately explain a defense on abandonment.” (Id.)

The Eleventh Circuit Court of Appeals has summarized Florida’s robbery

statute:

“Robbery” is defined as the taking of property with the intent to either

permanently or temporarily de[p]rive the owner of the property when “in

the course of the taking there is the use of force, violence, assault, or

putting in fear.” Fla. Stat. § 812.13(1). “An act shall be deemed ‘in the

course of the taking’ if it occurs either prior to, contemporaneous with,

or subsequent to the taking of the property and if it and the act of taking

constitute a continuous series of acts o[r] events.” Id. § 812.13(3)(a),

(3)(b).

Palmer v. Sec’y, Dep’t of Corr., 785 F. App’x 640, 644 (11th Cir. 2019).

In denying Murray’s ineffective assistance claim, the state court thoroughly

reviewed the parties’ pleadings and found:

After reviewing the allegations, the State’s response, Defendant’s reply,

the court file, and the record, the Court finds the State’s response

persuasive. The Court finds “[t]he standard jury instruction is presumed

correct and generally is preferred over a special instruction.” Alvarez [v.

State], 890 So.2d [389,] 396 [(Fla. 1st DCA 2004)]. The Court finds the

standard jury instructions as given were sufficient to cover the facts of

this case. The Court finds to be entitled to a special instruction, a

defendant must establish (1) that “the special instruction was supported

by the evidence,” (2) that “the standard instruction did not adequately

cover the theory of defense,” and (3) that “the special instruction was a

correct statement of the law and not misleading or confusing.” See

Stephens v. State, 787 So.2d 747, 756 (Fla. 2001).

The Court finds all the evidence presented at trial supported the

conclusion that when Defendant was confronted by loss prevention

officers, Defendant did not abandon the shopping cart and chose to fight.

The Court finds counsel cannot be deemed ineffective for failing to

request a special jury instruction on abandonment that was not supported

by the evidence presented at trial. Consequently, the Court finds

Defendant cannot prove that his counsel acted deficiently or any resulting

prejudice as a result of counsel’s failure to properly request a special jury

instruction and even if counsel had made the alleged request, the Court

would have denied the request because the standard jury instructions as

given were sufficient to cover the facts of the case. As such, no relief is

warranted upon claim two.

(Doc. 17-17, Ex. 28, doc. pp. 30-31) (state court’s record citations omitted).

Murray does not show that the state court unreasonably denied his claim. State

law controls the applicability of jury instructions. “Questions of state law rarely raise

issues of federal constitutional significance, because a state’s interpretation of its own

laws provides no basis for federal habeas corpus relief, since no question of a

constitutional nature is involved.” Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir.

1991) (citation omitted); see also Brown v. Warden, 562 F. App’x 779, 781 (11th Cir.

2014) (“Whether defense counsel erred by not requesting a specific jury instruction

depends on the state law that governed the defendant’s trial. . . . Pursuant to Florida

law, defense counsel is not ineffective for failing to request a jury instruction that is not

warranted by the evidence.”).

Because Murray’s ineffective assistance of counsel claim is based on an

underlying question of state law, this Court must defer to the state court’s resolution

of the state law issue when reviewing the state court’s ruling on of the Strickland claim.

The state court noted that under Stephens, 787 So.2d 747, a defendant must make

certain showings to obtain a special jury instruction—in particular, a defendant must

show that the special instruction was supported by the evidence and that the standard

instruction was inadequate. The state court found that Murray did not satisfy Stephens’s

requirements because the evidence did not support a special instruction and because

the standard instruction was adequate, and that as a consequence, a request for a

special instruction on abandonment would have been rejected as a matter of Florida

law.

Murray argues in his memorandum that the state court’s ruling was based on

the unreasonable factual determination that “all the evidence presented at trial

supported the conclusion that when Defendant was confronted by loss prevention

officers, Defendant did not abandon the shopping cart and chose to fight.” (Doc. 17-

17, Ex. 28, doc. p. 31.) Murray contends that there was conflicting evidence as to

whether he abandoned the shopping cart. In particular, he points to evidence that

Jones was pushing the cart and pushed it into the parking lot, that Jones’s “trying to

help get [him] into the car is consistent with trying to escape,” that he did not possess

the stolen property “during and after the scuffle,” and that the shopping cart was

“probably 3 or 4 feet away” from him. (Doc. 25, pp. 6, 20.)

The Eleventh Circuit has discussed the availability of an abandonment defense

in Florida when a defendant is charged with robbery:

Florida courts have recognized that providing the jury with an instruction

on abandonment is appropriate in robbery cases when supported by the

evidence. [Peterson v. State, 24 So.3d 686, 690 (Fla. 2d DCA 2009)]. . . .

Put simply, a defendant is not guilty of robbery if he abandoned the stolen

property before using force to flee. See Rockmore v. State, 140 So.3d 979,

982-83 (Fla. 2014). Accordingly, Florida courts have recognized that a

special instruction on abandonment is appropriate in a robbery case only

if there is some evidence that the defendant “abandoned the property and

thus broke the chain between the taking and the use of force.” Id. at 984.

There must be “evidence that it was the thief who abandoned the

property and thus broke the chain.” Id. However, if the “theft and

threatened use of force constituted a continuous series of acts or events

under Florida’s robbery statute” as a matter of fact, the abandonment

defense does not apply as a matter of law. Id.

Palmer, 785 F. App’x at 644 (footnotes omitted).

Murray fails to establish that evidence indicating he did not retain direct control

over the property because Jones pushed the shopping cart towards the parking lot or

because the cart was several feet away from him is sufficient to demonstrate that he

abandoned the property by “breaking the chain” between the taking and the use of

force. Nor does Murray establish that Jones’s attempting to help him get into the car

amounts to his abandonment of the property. Accordingly, Murray does not show that

the state court’s decision was “based on” an unreasonable determination of fact based

on the evidence in the state court proceeding, as he must before obtaining relief under

§ 2254(d)(2). Nor does he establish that the state court unreasonably applied Strickland

in denying his claim. Murray is not entitled to relief on Ground Two.

Grounds Three and Four

Murray has abandoned Grounds Three and Four. Murray’s supporting

memorandum of law, filed subsequent to the response and reply, states, “Based upon

a review of the facts, law and the Respondent’s response, petitioner waives and

abandons Ground[s] 3 and 4 in petitioner’s 2254 petition. Therefore, petitioner’s

petition is only alleging two grounds of ineffective assistance, which are the two

grounds argued above (Ground[s] 1 and 2).” (Doc. 25, p. 24.) Accordingly, the Court

will not address Grounds Three and Four.

It is therefore ORDERED that Murray’s amended petition (Doc. 10) is

DENIED. The CLERK is directed to enter judgment against Murray and to CLOSE

this case.

Certificate Of Appealability

And Leave To Appeal In Forma Pauperis Denied

It is further ORDERED that Murray is not entitled to a certificate of

appealability (“COA”). A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1).

Rather, a COA must first issue. Jd. “A [COA] may issue . . . only if the applicant has

made a substantial showing of the denial of a constitutional right.” Jd. at § 2253(c)(2).

To obtain a certificate of appealability, Murray must show that reasonable jurists

would find debatable both (1) the merits of the underlying claims and (2) the

procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 484 (2000). Murray has not made the requisite showing. Finally, because

Murray is not entitled to a COA, he is not entitled to appeal in forma pauperis.

ORDERED in Tampa, Florida, on November 1, 2022.

Liage dcealy oR,

UNITED STATES DISTRICT JUDGE

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