Osterhoudt v. Secretary, Department of Corrections(Hernando County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALAN OSTERHOUDT,

Applicant,

v. CASE NO. 8:18-cv-2438-SDM-TGW

SECRETARY, Department of Corrections,

Respondent.

____________________________________/

ORDER

Osterhoudt, through retained counsel, applies (Doc. 1) under 28 U.S.C. § 2254

for the writ of habeas corpus and challenges his conviction for manslaughter, for

which Osterhoudt is imprisoned for thirty years. Numerous exhibits (“Respondent’s

Exhibit”) support the response. (Doc. 5) The application alleges a single ground,

which the respondent correctly argues lacks merit.

I. BACKGROUND1

On February 25, 2012, Osterhoudt and his wife drank alcoholic beverages

throughout the day and began arguing in the afternoon. Later that evening a friend

of the Osterhoudts called their residence and spoke with Osterhoudt and his wife,

both of whom the friend believed were “fine,” that is, the Osterboudts were no

1 This summary of the facts derives from Osterhoudt’s brief on direct appeal.

longer arguing. Osterhoudt testified that after talking with the friend, he gave the

telephone to his wife and went into his separate bedroom. Osterhoudt claimed that

he “dozed-off” while watching television and was awakened by his dog barking and,

after checking on the dog, he heard a “bump” or “thump” in his adjoining bathroom.

Because he was concerned there was an intruder, Osterhoudt retrieved his gun and

went into the bathroom and, as he entered, he was “startled” and discharged the gun.

At that point he realized that the person who startled him was his wife, that she was

struck by the bullet, and that she was on the floor no longer breathing.

Osterhoudt called the emergency line for the Hernando County Sheriff’s

Office and reported that he had just shot his wife inside their residence. One deputy

sheriff arrived at the residence, placed Osterhoudt in handcuffs, and removed

Osterhoudt from the residence. A second deputy found the victim lying on the

bathroom floor. The second deputy also saw a revolver in the bedroom. Paramedics

arrived and pronounced the victim dead, and later the medical examiner determined

that the victim died from a gunshot wound to the head. Lastly, foreign DNA was

recovered from beneath the victim’s fingernails but a forensics specialist was unable

to match the DNA to Osterhoudt.

Osterhoudt was charged with murder in the second degree but a jury found

him guilty of the lesser-included offense of manslaughter. The pending application

asserts a single ground –– the trial court erred in denying both Osterhoudt’s

motion for mistrial and his motion for a new trial based on a detective’s answer

on cross-examination that, under Osterhoudt’s interpretation, was a comment on

Osterhoudt’s right to remain silent. The respondent admits both that the application

is timely and that the ground is fully exhausted. (Doc. 5 at 5 and 10)

II. STANDARD OF REVIEW

The 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:

An 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; 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.

Williams v. Taylor, 529 U.S. 362, 412–13 (2000), explains 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.

“The 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, 693 (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,

562 U.S. 86, 103 (2011). See White v. Woodall, 572 U.S. 415, 427 (2014) (“The critical

point is that relief is available under § 2254(d)(1)’s unreasonable-application clause if,

and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement’ on the question . . . .”) (citing

Richter); Woods v. Donald, 575 U.S. 312, 316 (2015) (“And an ‘unreasonable

application of ’ those holdings must be objectively unreasonable, not merely wrong;

even clear error will not suffice.”) (citing Woodall, 572 U.S. at 419). 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 v.

Taylor, 529 U.S. at 412.

The 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.” Bell v. Cone, 535 U.S. at 694.

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’ . . . .”) (citations omitted).

When the last state court to decide a federal claim explains its decision in a

reasoned opinion, a federal habeas court reviews the specific reasons as stated in the

opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.

1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons

given by the state court and defers to those reasons if they are reasonable.”). When

the relevant state-court decision is not accompanied with reasons for the decision,

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, 138 S. Ct. at 1192.

Osterhoudt’s conviction and sentence were summarily affirmed on direct

appeal.2 As Pinholster explains, 563 U.S. at 181–82, review of the state court decision

is limited to the state court record:

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.

Osterhoudt bears the burden of overcoming by clear and convincing evidence a state

court’s fact 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). Osterhoudt’s federal application

presents the same ground that he raised on direct appeal.

III. MERITS

Osterhoudt’s application alleges no claim of ineffective assistance of counsel.

The only claim alleged is that the trial court erred in denying both a motion for

2 The Fifth District Court of Appeal summarily affirmed the conviction and sentence as

without merit but issued a written opinion affirming the trial court’s imposing several fines.

(Respondent’s Exhibit M) The Florida Supreme Court reversed and ordered the trial court to follow

proper procedure before imposing a fine. (Respondent’s Exhibit Y)

mistrial and a motion for new trial, each based on a detective’s answer

on cross-examination that, under Osterhoudt’s interpretation, was a comment on

Osterhoudt’s right to remain silent. The district court summarily denied

Osterhoudt’s claim as “without merit” (Respondent’s Exhibit M at 1) and Florida’s

supreme court “declined to address” the issue. (Respondent’s Exhibit Y at 1 n.1)

Consequently, the last state court to address the merits of the issue was the trial

court, which orally denied both motions. As Wilson, 138 S. Ct. at 1192, instructs,

this court must “look through” the unexplained appellate court decisions to review

the trial court’s “reasoning” for denying the motions.

Osterhoudt alleges that the state violated his right to remain silent when on

cross-examination Detective Jill Morrell testified as follows about the investigation of

the shooting (Respondent’s Exhibit B at 748–49):

Q. The purpose of them going in the house is to determine –– to

clear the house, make sure it’s safe and check on anyone to see

if they’re alive or dead, or give any medical aid, right?

A. Correct.

Q. Okay. They had done that part?

A. Yes.

Q. And then they’re instructed to immediately leave that house

and sit and wait for you to get a search warrant?

A. They already had the information from the 911 tape and

having –– going through the house and searching it, the drawer

in the master bedroom was open and the firearm was in plain

sight where he said he had left it.

Q. So, pretty much the 911 tape dictated what charges would

occur later on?

A. Obviously, we would have liked to have gotten a statement,

but at that point we had not been able to get a statement from

Alan so we had to go (indiscernible).

Defense counsel moved for a mistrial, interpreting the last statement as a comment

on Osterhoudt’s right to remain silent. The trial judge denied Osterhoudt’s motion

for a mistrial with the following reasoning (Respondent’s Exhibit B at 756–57):

The issue is the question and answer that was given and the

extent to which the Defendant’s Constitutional right to remain

silent has been injected into the trial as an issue. Okay. I think

counsel would concede . . . that the response was limited and it

was in response to the question. It was not unresponsive, it was

responsive to the question. The detective indicated that they

would have liked to have gotten a statement but at that point

they were not able to. She clearly said at that point. It doesn’t

suggest that he never gave a statement or refused to give a

statement.

You have gone to great lengths pointing out that she was at the

house and he was someplace else, there’s nothing from which

the jury could come to any reasonable conclusion that your

client had an opportunity to give a statement and refused.

That’s what the Constitution protects and that has not been

impinged at this point. There may be a hint, but there is

certainly nothing from which the jury could draw the

reasonable conclusion that he invoked his right to remain silent.

Before closing arguments the following morning, the trial judge denied Osterhoudt’s

renewed motion for a mistrial with the following reasoning (Respondent’s Exhibit B

at 1003–04):

[A]ny possible prejudicial effect on the defendant has been

ameliorated by the fact that the defendant took the stand and

testified. He was cross-examined by the State based on the

comments he made on the 911 call, there was no reference or

suggestion to any failure to make any other statement. I paid

careful attention to that.

Frankly, I might have reconsidered my ruling had there been

any question in that direction in terms of his encounter with

Detective Williamson, which is presumably where the

invocation occurred, but I . . . will hold to my earlier finding

that I do not believe that the question and the answer by

Detective Morrell in any way clearly referenced an invocation

of any Constitutional right.

She . . . qualified her statement in time based on the . . . point

of the question that was being asked, because the suggestion

was clearly being made that she caused the defendant to be

arrested simply because there was information on a 911 call and

presumably a fatality and a gun was discovered. And in

attempting to explain her position, which she said . . . would

have liked to have a statement at that point, and that was [the]

end of it. There was no further discussion of it, there was no

overt or clear indication that the defendant was given another

opportunity to make a statement and invoked his constitutional

right not to do so.

At sentencing, Osterhoudt moved for a new trial partly based on the above

testimony by Detective Morrell. The trial judge denied the motion with the

following reasoning (Respondent’s Exhibit E at 1153–55):

[A]s I found at the time that the detective made the comment,

there was nothing else from which the jury could place her

comment into context. Her response to a series of questions

from you I found to be responsive because the tone and point of

the questions that were being asked of Detective Morrell was

that she was going to arrest Mr. Osterhoudt simply based on

what she saw at the scene and a 911 tape. And in direct

response to that line of questions and that challenge –– and it

was a challenge, I think the record would fairly reflect that you

were challenging her judgment in that regard –– she said

though I would have liked to have had his statement.

Now, the jury was aware at that point that another officer had

been assigned to take his statement. There was no suggestion to

the jury ever made that Mr. Osterhoudt declined to make a

statement to that officer. And it was entirely possible, in fact,

just as likely possible that the jury could conclude from what

they heard at that point is that the detective hadn’t spoken to

her co-worker yet. Because you . . . quickly pointed out she was

going to get a warrant even while he was being assigned to go

talk to your client.

There was no further mention of your client’s encounter or

conversation with the other detective assigned to speak to him,

other than a bleak reference that Detective Williamson was

assigned that task. There was no discussion, no testimony about

what occurred. In fact, there was no reference to it at all.

During the cross-examination of your client, the only questions

I heard relative to any statements he made were statements he

made to the 911 operator. In the State’s closing argument, the

only comments or arguments that were made were relevant to

what he told the 911 operator. No further suggestion or . . .

intimation was made to the jury at all about anything that went

on during his attempt at an interview by Detective Williamson.

My ruling will remain the same. In that regard, the motion is

denied.

The above portions from the state court record show that the trial judge both

afforded Osterhoudt a full opportunity to argue his motions for a mistrial and for a

new trial and thoroughly explained his reasoning for denying the motions. The trial

judge was in the best position to determine whether the jurors were possibly

negatively influenced by Detective Morrell’s testimony, which, as Arizona v.

Washington, 434 U.S. 497, 515–16 (1978), explains, is why a federal court should

defer to a state trial judge:

Defense counsel aired improper and highly prejudicial evidence

before the jury, the possible impact of which the trial judge was

in the best position to assess. The trial judge did not act

precipitately in response to the prosecutor’s request for a

mistrial. On the contrary, evincing a concern for the possible

double jeopardy consequences of an erroneous ruling, he gave

both defense counsel and the prosecutor full opportunity to

explain their positions on the propriety of a mistrial. We are

therefore persuaded by the record that the trial judge acted

responsibly and deliberately and accorded careful consideration

to respondent’s interest in having the trial concluded in a single

proceeding. [The trial judge] exercised “sound discretion” in

handling the sensitive problem of possible juror bias created by

the improper comment of defense counsel . . . .

See also Gavin v. Comm’r, Alabama Dep’t of Corr., 40 F.4th 1247, 1263 (11th Cir. 2022)

(“[A] prisoner must show that the state court’s ruling ‘was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.’”) (quoting Harrington, 562 U.S. at 103).

Osterhoudt is entitled to no relief because the trial judge’s reasoning was most

assuredly not unreasonable. See Wilson, 138 S. Ct. at 1192 (“[W]hen the last state

court to decide a prisoner’s federal claim explains its decision on the merits in a

reasoned opinion . . . a federal habeas court simply reviews the specific reasons given

by the state court and defers to those reasons if they are reasonable.”); Brown v.

Davenport, 142 S. Ct. 1510, 1530 (2022) (“[T]his Court has repeatedly explained that,

when it comes to AEDPA, ‘the more general the [federal] rule[,] . . . the more leeway

[state] courts have in reaching outcomes in case-by-case determinations’ before their

decisions can be fairly labeled unreasonable.”) (quoting Renico, 559 U.S. at 776)

(internal brackets original). Consequently, Osterhoudt fails to meet his burden of

showing that the state court decision is either (1) contrary to or an unreasonable

application of controlling constitutional law or (2) based on an unreasonable

determination of fact.

Lastly, Osterhoudt contends (Doc. 1 at 16–17) that, in determining whether

Detective Morrell’s testimony violated his right to remain silent, the applicable

standard is whether “[a]ny comment that is ‘fairly susceptible’ to interpretation as a

comment on the defendant’s right to remain silent will be treated as such.” Mack v.

State, 58 So. 3d 354, 356 (1st DCA 2011). In his reply (Doc. 9 at 2 n.1) Osterhoudt

further argues the “fairly susceptible” standard as discussed in Parker v. State, 124 So.

3d 1023, 1025 (2nd DCA 2013). However, the “fairly susceptible” standard is

inapplicable in this federal action because a federal court does not enforce state law.

Mack is based on the “very liberal rule” adopted in Florida under the due process

clause of the Florida Constitution, Article I, Section 9, as Mack itself states, and the

sentence immediately preceding Osterhoudt’s quotation of Parker (which sentence

Osterhoudt omitted) qualifies the “fairly susceptible” standard as based on “[t]he due

process clause of the Florida Constitution . . . .” See Pinkney v. Sec’y, Dep’t of Corr.,

876 F.3d 1290, 1299 (11th Cir. 2017) (“[I]t is not a federal court’s role to examine the

propriety of a state court’s determination of state law.”); Mullaney v. Wilbur, 421 U.S.

684, 691 (1975) (“[S]tate courts are the ultimate expositors of state law” and federal

courts must abide by their rulings on matters of state law). Moreover, both the

district court and the supreme court rejected Osterhoudt’s claim as meritless and

unworthy of discussion.

IV. CONCLUSION

Osterhoudt fails to meet his burden to show that the state court’s decision was

either an unreasonable application of controlling Supreme Court precedent or an

unreasonable determination of fact. As Burt v. Titlow, 571 U.S. 12, 19–20 (2013),

states:

Recognizing the duty and ability of our state-court colleagues to

adjudicate claims of constitutional wrong, AEDPA erects a

formidable barrier to federal habeas relief for prisoners whose

claims have been adjudicated in state court. AEDPA requires

“a state prisoner [to] 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 . . . beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 562 U.S.

[86, 103] (2011). “If this standard is difficult to meet” — and it

is — “that is because it was meant to be.” Id., at [102]. We will

not lightly conclude that a State’s criminal justice system has

experienced the “extreme malfunctio[n]” for which federal

habeas relief is the remedy. Id., at [103] (internal quotation

marks omitted).

Osterhoudt’s application for the writ of habeas corpus (Doc. 1) is DENIED.

The clerk must enter a judgment against Osterhoudt and CLOSE this case.

DENIAL OF BOTH

A CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Osterhoudt 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 application. 28 U.S.C. § 2253(c)(1). Rather, a district court

must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” To

merit a COA, Osterhoudt 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, 478 (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 grounds or the procedural

issues, Osterhoudt is entitled to neither a COA nor leave to appeal in forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma pauperis 1s

DENIED. Osterhoudt must obtain permission from the circuit court to appeal in

forma pauperis.

ORDERED in Tampa, Florida, on November 30, 2022.

STEVEN D. MERRYDAY

UNITED STATES DISTRICT JUDGE

-14-