Tony Bruce v. Secretary,Florida Department of Corrections

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 7, 2011

No. 10-15038

Non-Argument Calendar JOHN LEY

CLERK

________________________

D.C. Docket No. 1:09-cv-20009-PAS

TONY BRUCE,

llllllllllllllllllllllllllllllllllllll Petitioner-Appellant,

versus

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

lllllllllllllllllllllllllllllllllllllllRespondent-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(December 7, 2011)

Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

Tony Bruce, a Florida prisoner, appeals pro se the denial of his petition for

a writ of habeas corpus. 28 U.S.C. § 2254. We issued a certificate of

appealability to address “[w]hether the district court erred in finding that Bruce’s

attorney did not provide ineffective assistance of counsel by failing to strike Juror

Lesleye Roberts.” Because it was not an unreasonable application of clearly

established federal law for the Florida courts to conclude that Bruce failed to

establish that his attorney acted deficiently, we affirm.

I. BACKGROUND

Bruce proceeded to trial on charges of first degree murder, attempted armed

robbery, unlawful possession of a firearm during a criminal offense, and two

counts of unlawful possession of a firearm by a convicted felon. During voir dire,

a prospective juror, Roberts, stated that she remembered the facts of Bruce’s case.

Roberts, who was a correctional officer, told the trial court that she had heard

about the case, but she did not recall any facts that suggested Bruce was guilty.

The trial court asked Roberts if she would be able to render a verdict based on the

evidence presented, and Roberts answered affirmatively.

Counsel questioned Roberts about Bruce. Roberts told a prosecutor that she

was an officer at the Stockade, a center used for training and storing equipment for

law enforcement and housing inmates in Dade County, Florida. Roberts stated

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that Bruce looked familiar, but Roberts could not identify how she recognized

Bruce. In response to questions by Bruce’s attorney, Roberts stated repeatedly

that Bruce’s face was “familiar.” Roberts also stated that she had “worked at

many facilities” within the Stockade and, although she might have seen Bruce, he

might also just “look[] like someone” at the center. When Bruce’s attorney asked

Roberts if she had seen Bruce’s prison card, Roberts responded negatively.

The trial court also questioned Roberts about Bruce. The trial court asked

Roberts if she could “decide [Bruce’s] case solely upon what [she] hear[d] in court

and be fair to [Bruce] and be fair to the State regardless of [her occupation],” even

if she “perhaps [had] recognized him at the [Stockade],” and Roberts responded,

“Of course.” On a second day of voir dire, Roberts told the trial court that her

profession as a corrections officer and her association with individuals in law

enforcement would not affect her fairness of judgment.

Counsel also questioned Roberts on the second day of voir dire. A

prosecutor asked Roberts if, given her profession, she could be fair, and she

responded affirmatively. The prosecutor and Bruce’s attorney each read a list of

their respective witnesses to determine if they had any affiliation with a

prospective juror and, when neither received any response, each attorney

questioned Roberts. The prosecutor asked Roberts if she recognized any of the

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correctional officers sitting in the courtroom, and Roberts stated that the officers

looked familiar, but she did not know them by name. Bruce’s counsel asked

Roberts if she recognized any of the defense witnesses, including “Julie Struve,”

and Roberts responded, “No, not by name.”

At the conclusion of voir dire, Roberts remained on the jury panel. Both the

prosecutor and Bruce’s attorney approved the panel, but the district court did not

administer an oath to the jury.

The next day, Roberts told the trial court that she knew Julian Struve, who

was a corrections officer at the Stockade. When questioned by the trial court,

Roberts stated that she did not “socialize” with Struve and that he was a “co-

worker” who “work[ed] in a different shift.” The trial court asked Roberts if she

would “treat [Struve’s] testimony any differently from anyone else’s,” and Roberts

responded “no.” Counsel did not question Roberts, and Bruce’s attorney did not

object to the decision to leave Roberts on the jury panel.

After the jury found Bruce guilty of first degree murder, attempted robbery

with a firearm, and possession of a firearm during a criminal offense, but before

the penalty phase of Bruce’s trial, the trial court held another hearing about

Roberts. The trial court began the hearing by announcing that Roberts had

reported making contact with Bruce at the Stockade after the jury returned its

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verdict. The prosecutor expressed doubt about whether Roberts could be fair and

asked the trial court to remove Roberts from the jury. When the trial court

questioned Roberts, she stated that she was not “able to continue” and could not

“serve as a juror.” Roberts commenced a narrative in which she insisted that she

should not have been “chosen” to sit on the jury because “[Bruce] looked familiar

to [her],” she worked where “the inmates [have] been housed since May of 2000,”

and Struve was “assigned at [Roberts’s] . . . facility.” Roberts vented about not

being informed that Roberts “reside[d] in the area adjacent to where [she]

work[ed], where he [had] a complete visual of [her] whereabouts, of [her] coming

and [her] going, and [her] interaction with other inmates.”

During the narrative, Roberts stated that, “[a]t [the] point [when she

identified Struve before trial],[she] put the connection together, that perhaps

[Bruce] was housed there,” but Roberts explained on further questioning that she

did not realize at the time of trial that Bruce was incarcerated at the Stockade.

Bruce’s attorney asked Roberts if she “believe[d] that there was a connection of

officer [Struve] to [Bruce’s] case,” and Roberts responded “no.” Roberts

explained that she knew Struve “was a witness,” but “for what purpose . . . [she]

[had] no idea.” When Roberts stated that she was “waiting for [Struve’s]

testimony to determine what his connection was to the case,” Bruce’s attorney

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remarked that Struve “didn’t testify in the guilt phase.” Bruce’s attorney asked

Roberts if she “believe[d] that [Bruce] was in fact an inmate at the [S]tockade,” to

which Roberts responded, “No, I did not.” Roberts explained that Bruce “looked

familiar,” but “[w]here [she] knew him from, [she] was not certain.”

The trial court next questioned Roberts about the timing of her interaction

with Bruce and what, if any, effect it had on the verdict. Roberts stated that she

first learned that Bruce was housed in the Stockade “on Saturday,” the day after

the jury found Bruce guilty. Roberts stated that, “[h]ad she known [Bruce] was

housed in the [S]tockade, [she] would not have felt comfortable serving as a

juror,” but Roberts acknowledged that she did not learn of Bruce’s location until

“after the verdict had already been given.”

Bruce’s counsel moved for a mistrial, which the trial court denied. The

prosecutor and Bruce agreed to excuse Roberts from the jury before the penalty

phase of Bruce’s trial. The trial court removed Roberts from the jury panel.

At the conclusion of the penalty phase, the jury recommended that Bruce

receive a sentence of imprisonment for life. The trial court sentenced Bruce to

imprisonment for life for committing first degree murder and to a consecutive term

of 30 years of imprisonment for his attempted robbery crime.

Bruce moved a Florida court for post-conviction relief on the ground that

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his trial attorney was ineffective for failing to remove Roberts from the jury

venire, but the state court denied Bruce’s motion. See Fla. R. Crim. P. 3.850. The

Florida court ruled that, based on Roberts’s responses during voir dire, including

her statement that “she could be fair, [Bruce’s] counsel was not ineffective in

failing to strike her.” A Florida appellate court affirmed without opinion.

Bruce filed a federal habeas petition and repeated his claim of ineffective

assistance of trial counsel, 28 U.S.C. § 2254, but the district court denied the writ.

The district court ruled “that the state courts did not make an unreasonable factual

finding or a decision contrary to federal principles in finding Bruce’s counsel was

not ineffective for failing to strike Roberts.”

II. STANDARD OF REVIEW

We review de novo the denial of a petition for a writ of habeas corpus.

Borden v. Allen, 646 F.3d 785, 808 (11th Cir. 2011). A petitioner is

entitled to a writ of habeas corpus if the state court reached a decision that was

“contrary to, or involved an unreasonable application of, clearly established

Federal law.” 28 U.S.C. § 2254(d)(1). A state court makes an “unreasonable

application” of clearly established federal law if the court “ ‘identifies the correct

governing legal principle from [the] decisions [of the Supreme Court] but

unreasonably applies that principle to the facts’ of petitioner’s case.” Wiggins v.

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Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534–35 (2003) (quoting Williams v.

Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000)). To prevail on an

argument involving an unreasonable application of federal law, a petitioner “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. ___, 131 S. Ct. 770, 786–87

(2011). Because the factual findings of the state court are “presumed to be

correct,” the petitioner bears “the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

III. DISCUSSION

Bruce must “[s]urmount[] [a particularly] high bar” to obtain a writ of

habeas corpus on his claim of ineffective assistance of counsel. Padilla v.

Kentucky, 559 U.S. ____, 130 S. Ct. 1473, 1485 (2010). Not only must Bruce

prove that his counsel committed an error and that error was “so serious as to

deprive [him] of a fair trial,” Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052, 2064 (1984), he also must overcome the “doubly deferential” standard

applied to the decisions of counsel in habeas corpus review. Knowles v.

Mirzayance, 556 U.S. 111, 129 S. Ct. 1411, 1420 (2009). Based on the deference

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given the decision of the state court to deny Bruce’s claim of ineffective

assistance, the district court was required to determine “not whether counsel’s

actions were reasonable[,]” but instead “whether there [was] any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Harrington,

131 S. Ct. at 788.

Bruce was entitled to a fair adjudication of his criminal charges by a “panel

of impartial, ‘indifferent’ jurors,” but that did not require that veniremembers “be

totally ignorant of the facts and issues involved,” Irvin v. Dowd, 366 U.S. 717,

722, 81 S. Ct. 1639, 1642 (1961), or “free of opinion towards crime,” United

States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983). The fairness of a trial is

doubtful only when a veniremember reveals that she “has such a fixed opinion,

based on [her] bias [or a presumed bias], that [she] ‘could not judge impartially the

guilt of the defendant.’ ” Depree v. Thomas, 946 F.2d 784, 788 (11th Cir. 1991)

(quoting Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 2891 (1984)). If

the veniremember confirms that she can be impartial under questioning designed

to “ ‘create[] a reasonable assurance that prejudice would be discovered if

present,’ ” United States v. Nell, 526 F.2d 1223, 1229 (11th Cir. 1976) (quoting

United States v. Dellinger, 472 F.2d 340, 367 (7th Cir. 1972)), she is qualified to

sit on the jury. “It is sufficient if the juror can lay aside [her] impression or

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opinion and render a verdict based on the evidence presented in court.” Irvin, 366

U.S. at 723, 81 S. Ct. at 1643.

In Depree, we affirmed the denial of habeas relief to a petitioner who

challenged the refusal of a Georgia court to remove two venirepersons who had

connections to law enforcement. 946 F.2d at 788–92. Because the question of

partiality is “ ‘plainly a question of historical fact’ ” and, based on the deference

accorded the findings of state courts in habeas proceedings, we reviewed the voir

dire that preceded Depree’s trial to determine if the record supported the finding of

the state court “ ‘that the jurors . . . would be impartial.’ ” Id. at 788 (quoting

Patton, 467 U.S. at 1036, 1038, 104 S. Ct. at 2891, 2892–93). That review

revealed that the venirepersons, despite their presumed biases, expressed that they

could decide Depree’s case impartially. Isaac Hodgkins admitted that he was

“afraid” that his past employment as a deputy sheriff would affect “the way [he]

would think,” but the state court reasonably found him qualified to serve as a juror

because he “continually asserted that he would be able to set aside his personal

feelings in evaluating Depree’s case.” Id. at 789–90. The state court also

reasonably determined that Sonya Reynolds was impartial. Although Reynolds

admitted that her relationship with family members who served on the Atlanta

police force “would have some influence over” her decisionmaking, she stated that

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she did not “have any doubt about being fair and impartial” and could set aside

any personal feelings to evaluate the evidence objectively. Id. at 791 n.14.

As in Depree, “ ‘there is fair support in the record for the . . . conclusion [of

the state court] that [Bruce’s attorney had good reason to conclude that Roberts] . .

. would be impartial.’ ” Id. at 788 (quoting Patton, 467 U.S. at 1038, 104 S. Ct. at

2892–93). Roberts was questioned for two days by the trial court and counsel

about her impartiality, and Roberts stated repeatedly that she could decide Bruce’s

case based on the evidence and that she could be fair to Bruce. None of Roberts’s

responses or actions suggest that her statements were deceitful, despite Bruce’s

assertions to the contrary. Roberts was forthcoming with information relevant to

her qualification as a juror, including her occupation and her familiarity with

defense witness Officer Stuve. When Roberts later interacted with Bruce at the

jail facility, Roberts continued to be candid with the trial court and explained that

she could no longer serve on the jury. Bruce argues that Roberts was biased and

that became “plain . . . when she recused herself from the panel after she reached a

jury verdict,” but the record provides no reason to believe that Roberts would have

been reticent about admitting any bias that existed before her encounter with

Bruce. “At most, the record establishes that [Roberts] might have brought a bias

to the courtroom door; it does not demonstrate that [Roberts] could not leave [her]

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bias outside that door” when she was seated for the guilt phase of Bruce’s trial.

Id. at 790.

The district court correctly denied Bruce habeas relief. The Florida court

reasonably determined that Bruce failed to establish that his counsel was

ineffective. Counsel’s performance is deficient only if it falls below the wide

range of competence under “prevailing professional norms” of attorneys in

criminal cases, Strickland, 466 U.S. at 688, 104 S. Ct. at 2065, and must be

evaluated in the light of the “the facts of the particular case, viewed as of the time

of counsel’s conduct,” id. at 690, 104 S. Ct. at 2066. Bruce alleged no facts to

establish that his attorney overlooked a meritorious challenge to Roberts.

“Strickland does not guarantee perfect representation, only a reasonably competent

attorney,” Harrington, 131 S. Ct. at 791 (internal quotation marks omitted), and

based on the information available to Bruce’s attorney at the time of trial, there

was no reason for him to question Roberts’s impartiality. See Depree, 946 F.2d at

788–92; see also United States v. Rhodes, 177 F.3d 963, 965–66 (11th Cir. 1999)

(affirming the denial of a new trial based on the perceived bias of a veniremember

who was the cousin of a witness for the government). The state court reasonably

concluded that Bruce’s attorney did not act deficiently.

IV. CONCLUSION

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The denial of Bruce’s petition for a writ of habeas corpus is AFFIRMED.

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MARTIN, Circuit Judge, specially concurring:

I concur only in the judgment affirming the District Court’s dismissal of Mr.

Bruce’s § 2254 petition.

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