The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13705 JUNE 27, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-80651-CV-WJZ
MARK GAUTHIER,
Petitioner-Appellant,
versus
PAT MEKUSKER, Superintendent,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 27, 2006)
Before DUBINA, HULL and FAY, Circuit Judges.
PER CURIAM:
Mark Gauthier, a Florida prisoner, appeals pro se the district court’s order
denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254.
Because Gauthier filed his § 2254 petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“the AEDPA”), Pub.L.
No. 104-132, 110 Stat. 1214 (1996), the AEDPA’s provisions govern this appeal.
Gauthier argues that the district court erred in denying his claims of ineffective
assistance of trial counsel based his counsel’s (1) failure to move for the dismissal
of charges as barred by the applicable statute of limitations, and (2) failure to
challenge testimony by an investigating detective regarding statements made to
him by the victim. For the reasons set forth more fully below, we affirm.
Gauthier is serving a total sentence of life imprisonment for committing two
counts of capital sexual battery, in violation of Fla.Stat. § 794.011(2)(a) & (b)
(“Counts 1 & 2”), three counts of sexual activity with a child, in violation of
Fla.Stat. § 794.011(8)(b) (“Counts 3, 4 & 5”), and two counts of lewd assault, in
violation of Fla.Stat. § 800.04(4) (“Counts 6 & 7”). He filed a pro se § 2254
petition, asserting, among other claims, that his trial counsel provided ineffective
assistance by (1) failing to move for the dismissal of the lewd-assault charges in
Counts 6 & 7 as barred by the applicable statute of limitations (“Ground Two”);1
1
In Florida, any person who handles, fondles, or makes an assault upon any child under
the age of 16 years in a lewd, lascivious, or indecent manner is guilty of a felony of the second
2
and (2) failing to object to testimony by the investigating officer relating to a prior
statement given to him by the victim, which Gauthier contended constituted
inadmissible hearsay testimony (“Ground Four”).2
Identifying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), as the controlling caselaw in Gauthier’s § 2254 petition, the
state responded that relief was not warranted as to Gauthier’s claim of ineffective
assistance in Ground Two because, under Florida law, a variance between the dates
proved at trial and those alleged in the indictment may occur under circumstances
that existed in the instant case. The state also summarily asserted that (1) Gauthier
was arguing, essentially, that his guilty verdicts should be reversed because, on at
least one day in each of the applicable time periods, the victim was not under age
12 or 16, respectively, and, thus, did not fit under the statute which was charged;
(2) the record included testimony by the victim that the criminal acts occurred prior
to her birthday in each of the time periods alleged, and (3) Gauthier was not
prejudiced in preparing his defense. In addressing Gauthier’s claim of ineffective
assistance in Ground Four, the state contended that Gauthier, in effect, was
degree. See Fla.Stat. § 800.04(4). A prosecution for a second-degree felony must be
commenced, if at all, within three years after it is committed. See Fla.Stat. § 775.15(2)(b).
2
Because the district court’s denial of Gauthier’s other § 2254 claims are not included in
our certificate of appealability (“COA”), these denials are not reviewable on appeal. See Murray
v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998) (“appellate review is limited to the
issues specified in the COA”).
3
challenging an evidentiary ruling by the state court and that such a ruling is not
cognizable in a § 2254 petition.3
In filing this response, the state also submitted copies of records from
Gauthier’s state-court proceedings. Prior to Gauthier’s filing his § 2254 petition,
he was charged as outlined above and convicted as charged. The trial court
sentenced him to two terms of life imprisonment, with minimum mandatory terms
of 25 years’ imprisonment, on Counts 1 and 2; three terms of 22 years’
imprisonment on Counts 3, 4 & 5; and two terms of 15 years’ imprisonment on
Counts 6 & 7, with all terms to run concurrently. Gauthier’s convictions and
sentences were affirmed on direct appeal in a decision without a written opinion.
Gauthier subsequently filed a pro se amended petition for post-conviction relief,
pursuant to Fla.R.Crim.P. 3.850, alleging that he received ineffective assistance of
trial counsel, based on, among other things, the arguments at issue in this appeal.
The state trial court summarily denied Gauthier’s Rule 3.850 petition, and this
denial was affirmed on appeal in a per curiam decision without written opinion.
During Gauthier’s jury trial, the victim, who was Gauthier’s step-daughter,
testified that she was born on February 16, 1979, and that Gauthier touched her on
3
Alternatively, the state contended, without citing to support, that failing to object to
hearsay evidence “does not fall so far outside the range of professional norms as to constitute
ineffective assistance under Strickland.”
4
and in her vagina at the time that she lived in the City of Fort Lauderdale, which
was when she was four years’ old. The victim further testified that the assaults
continued while she attended the first grade, and continued even after she had
moved to Palm Beach County at the age of seven or eight and for many years
thereafter. On the other hand, the victim conceded during cross-examination that
she previously had testified during her deposition that no penetration occurred
before her puberty ended.
The state subsequently introduced, without objection, testimony from Eric
Coleman, a detective with the Palm Beach County Sheriff’s Office, that, among
other things, the victim told him during an unsworn statement, prior to her
deposition, that Gauthier both had inserted his fingers inside her vagina and
attempted to penetrate her vagina prior to puberty.4 In addition to this testimony,
the state introduced and played for the jury a tape-recorded controlled conversation
between Gauthier and the victim, which occurred prior to Gauthier’s arrest and
included statements by Gauthier implicating himself in at least some of the charged
offenses. Moreover, the state introduced a taped statement Gauthier gave to the
police, which also was played for the jury, and which included Gauthier’s
4
As Gauthier contends in his brief on appeal, during closing arguments, the state argued
as follows: “The victim has testified in this [c]ourt that this is what has occurred to her.
Detective Coleman has corroborated her statement that that is what was told to him.”
5
admission that at least some of the sexual acts started when the victim was between
the ages of four and six, when they were living in Fort Lauderdale.5
At the conclusion of the state’s case, Gauthier unsuccessfully moved for a
judgment of acquittal as to Counts 1 and 2, arguing, among other things, that,
although the victim testified at trial that the offenses charged in Counts 1 and 2
occurred prior to her reaching the age of 12, she testified during her earlier sworn
deposition that they occurred before she reached puberty.6 Gauthier contended
that, because there was no corroborating evidence relating to the age of the victim,
he was entitled to acquittal on those charges.
Gauthier’s sentencing transcript reflects that, in imposing a total sentence of
life imprisonment the trial court “vehemently disagreed” with the recommendation
in Gauthier’s presentence investigation report (“PSI”) that his sentences imposed
on Counts 3 through 7 run consecutive to his life sentences. The court also
confirmed that he had no discretion regarding the life sentences to be imposed on
the capital offenses in Counts 1 and 2, other than whether the sentences were to be
imposed concurrently or consecutively.
5
During his trial testimony, as part of cross-examination, Gauthier also conceded that
the victim had been under the age of 12 when the crimes commenced in Palm Beach County.
6
In Florida, the offense of sexual battery is a capital felony when (1) the defendant is 18
years of age or older, and (2) the victim is younger than age 12. See Fla.Stat. § 794.011(2)(a).
6
Following the state’s filing of its response to Gauthier’s § 2254 petition, the
magistrate judge entered an order to show cause, explaining that Gauthier’s
petition was not time-barred and that the court, therefore, would determine the
claims on the merits. The magistrate also noted that the state, in filing its response,
had “misperceived” Gauthier’s claim in Ground Two and that Gauthier was
contending that his trial counsel provided ineffective assistance by failing to
challenge the charges in Counts 6 and 7 as time-barred by the three-year statute of
limitations under Fla.Stat. § 775.15(2)(b). Noting that he could not determine from
the records submitted when the state began prosecuting Gauthier on these charges
and that the state had failed to submit a copy of the entire trial transcript, the
magistrate directed the state to further address the merits of Gauthier’s claim in
Ground Two, produce all relevant state court documents, and to produce the
missing portions of the trial transcript.
In complying with this show cause order, the state responded that the victim,
who was born on February 16, 1979, and was age 16 on February 16, 1995,
testified that she had moved from the home where she had resided with Gauthier
on July 24, 1998, and that she had not reported the incidents until “a couple months
after that.” The state also explained that Gauthier was arrested on September 10,
1998, and was not charged with Counts 6 and 7 until January 25, 1999. The state
7
asserted that, because Gauthier’s argument concerning the timely filing of Counts 6
and 7 related only to the lesser of the three sets of charges for which he was
convicted, his total concurrent sentence was not effected by these convictions and
any error, therefore, was harmless.
Gauthier replied that, irrespective of whether his total sentence would have
been affected by his convictions for Counts 6 and 7 of his second amended
indictment, his counsel’s ineffective assistance in not moving to dismiss these
counts resulted in the state using them to “prove up” Counts 1 and 2. Gauthier
further contended, without citing to the record, that evidence relating to Counts 6
and 7 “was introduced at trial so excessively until it became a feature of the trial
with no probative reason other than to show bad character and propensity.”
The magistrate subsequently entered a report, recommending that the court
deny Gauthier’s § 2254 petition on the merits. The magistrate explained that, to
the extent Gauthier was contending in Ground Two that his trial counsel provided
ineffective assistance by not challenging
the time-barred offenses in Counts 6 and 7, the record reflected that these offenses
were time-barred. The magistrate also noted, however, that it was unclear from the
record whether counsel’s act of not moving for this dismissal was deficient
because, although a defendant may strategically decide to waive his right to avoid
8
prosecution on time-barred offenses, and although Gauthier’s counsel potentially
was seeking to avoid conviction on the capital sexual abuse charges by not seeking
the dismissal of these lesser included lewd-conduct offenses,7 the state had failed to
identify evidence in the record reflecting that Gauthier had made such a waiver.
The magistrate, nevertheless, found that Gauthier had failed to establish
constitutional ineffective assistance of counsel because he had not shown that he
was prejudiced by this conduct. In discussing this finding, the magistrate
explained that, even if Gauthier’s counsel had successfully asserted a defense
based on this statute of limitations, the jury still would have heard and weighed the
same evidence in connection with the other timely charged offenses. The
magistrate also discussed that, because Gauthier’s sentences were concurrent, his
total sentence would remain the same even if his convictions in Counts 6 and 7
were set aside. The magistrate determined that no significant likelihood that
Gauthier would suffer “adverse collateral consequences” existed because:
“[a]ny argument that these convictions might in some way increase
the amount of time Gauthier [had to] serve in prison before he [could]
be paroled and/or might affect his future eligibility for release on
parole and/or might affect sentences for later crimes committed at the
earliest [19] years from now would be unavailing as doubtful and
speculative, at best.
7
The magistrate specifically noted that “[i]t is possible that defense counsel chose, as a
matter of strategy, to waive the limitation defense in order to provide the jury with the
opportunity to find Gauthier guilty of the least serious of all possible charged crimes.”
9
Moreover, the magistrate noted that, given the serious nature of Gauthier’s other
convictions, it was not likely that the parole board would reach a different decision
in the absence of the lewd-conduct offenses in Counts 6 and 7.
In addressing Gauthier’s arguments in Ground Four that his trial counsel
failed to challenge inadmissible hearsay testimony offered at trial by Detective
Coleman, and that this testimony was impermissibly offered to corroborate the
victim’s trial testimony, the magistrate discussed that, even if the victim’s prior
consistent statements were offered to prove their truth, and this testimony was
improperly admitted hearsay, Gauthier had failed to show that his counsel’s failure
to object to the introduction of this evidence had prejudiced him, in light of
Gauthier’s own tape-recorded admissions, as well as his admissions during trial
that he rubbed the victim and performed oral sex on her.8 Moreover, the magistrate
noted that (1) the victim had testified about all of the charged acts during the trial,
and (2) Gauthier had the opportunity during trial to cross-examine the victim. The
magistrate concluded, therefore, that Gauthier’s counsel did not provide
8
The magistrate initially discussed that the Supreme Court, subsequent to Gauthier’s
trial, had concluded in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158
L.Ed.2d 177 (2004), that, absent other grounds for admissibility, the Sixth Amendment’s
Confrontation Clause categorically bars the admission of testimonial hearsay evidence unless the
declarant is unavailable and the accused has had a prior opportunity to cross-examine the
declarant. The magistrate, however, concluded that Crawford was not applicable retroactively
on collateral review.
10
constitutionally ineffective assistance of counsel by failing to object to the
introduction of this evidence.
Gauthier objected to the magistrate’s report, arguing that his counsel’s
failure to object to the time-barred offenses in Counts 6 and 7 was not arguably
sound trial strategy because his counsel could have, alternatively, relied on the
lesser included offenses in Counts 3, 4 and 5. Gauthier contended that, had his
counsel informed him that these offenses were time-barred, he would not have
agreed to waive his right to have them dismissed, and that the record does not
reflect that any waiver occurred. Gauthier also argued that: (1) he was prejudiced
by his counsel’s failure to move for this dismissal because the introduction of
evidence relating solely to these offenses resulted in the jury hearing cumulative
and corroborative evidence of bad acts; and (2) the magistrate should not have
determined that his arguments relating to parole were “speculative.”
Additionally, Gauthier challenged the magistrate’s finding that his
arguments in Ground Four were without merit, arguing that (1) he had not admitted
to any of the elements at issue in Counts 1 and 2, and (2) the state’s evidence
concerning these counts consisted solely of the victim’s “inconsistent testimony.”
Gauthier contended that he, instead, consistently asserted that digital and penal
penetration never occurred prior to the victim’s 12th birthday. Gauthier also
11
argued that Detective Coleman’s testimony relating to the victim’s earlier
statement concerning these exact elements, were offered for the truth of the matter
asserted, and improperly were offered to corroborate her trial testimony. The
district court, after conducting an independent review, summarily adopted the
magistrate’s recommendation and denied Gauthier’s § 2254 petition with
prejudice.
As a preliminary matter, “in reviewing a district court’s grant or denial of a
habeas petition, we review the district court’s findings of fact for clear error, and
review[s] de novo both questions of law and mixed questions of law and fact.”
Peoples v. Campbell, 377 F.3d 1208, 1224 (11th Cir. 2004), cert. denied, 125 S.Ct.
2963 (2005). 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.”
Parker v. Sec’y for Dep’t of Corrs., 331 F.3d 764, 768 (11th Cir. 2003) (quotation
and internal marks omitted). Under the AEDPA, a federal court generally may not
grant habeas relief unless the state court’s decision either was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “was based on an
12
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1) & (2).9
An unreasonable application of clearly established federal law under
2254(d)—the prong at issue here—is one in which the “state court identifies the
correct governing legal rule from [the Supreme] Court’s cases but unreasonably
applies it to the facts of the [petitioner’s] case,” or “either unreasonably extends a
legal principle from [the Supreme Court’s] precedent to a new context where it
should not apply or unreasonably refuses to extent that principle to a new context
where it should apply.” Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495,
1520, 146 L.Ed.2d 389 (2000). This standard requires the application of federal
law “to be not only erroneous, but objectively unreasonable.” Yarborough v.
Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003). Furthermore, to be
entitled to deferential review under § 2254(d), “it is not necessary for the state
court to explain its decision”; thus, even a summary rejection of a federal claim,
such as here, qualifies as an adjudication entitled to deference. See Herring v.
Sec’y, Dep’t of Corrs., 397 F.3d 1338, 1347 (11th Cir.), cert. denied, 126 S.Ct. 171
(2005); see also Callahan v. Campbell, 427 F.3d 897, 937 n.28 (11th Cir. 2005)
9
Applying this same deferential treatment, the AEDPA also provides that “a
determination of a factual issue made by a State court shall be presumed to be correct,” and the
petitioner “shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” See 28 U.S.C. § 2254(e)(1).
13
(reiterating that we review the state court’s decision, but not necessarily its
rationale), petition for cert. filed, (U.S. April 13, 2006) (No. 05-10404).
Under Strickland—the clearly established law both parties agree govern the
two issues in the instant appeal—a successful petitioner must show that
(1) counsel’s performance was deficient, and (2) this deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To
establish ineffectiveness, a “defendant must show that counsel’s representations
fell below an objective standard of reasonableness.” Id. In judging the
reasonableness of counsel’s challenged conduct, the reviewing court must examine
the facts of the particular case, view these facts as of the time of counsel’s conduct,
and determine whether acts or omissions the defendant has challenged “were
outside the wide range of professionally competent assistance.” Id. at 690, 104
S.Ct. at 2066. “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in exercise of reasonable professional
judgment.” Id. Thus, judicial scrutiny of counsel’s performance must be “highly
deferential.” Id. at 689, 104 S.Ct. at 2065 (quotation omitted).
To satisfy the prejudice prong, the petitioner must show that there is a
“reasonable probability” that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different. Id. at 694, 110 S.Ct. at 2068. In
14
determining whether such a “reasonable probability” exists the Supreme Court
explained in Strickland that “[i]t is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding.” Id. at 693,
104 S.Ct. at 2067. Instead, “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068.
Furthermore, because both prongs of Strickland must be met, once a court decides
that one of the requisite showings has not been made, it need not decide the other
prong. Id. at 697, 104 S.Ct. at 2069; see also Waters v. Thomas, 46 F.3d 1506,
1510 (11th Cir 1995) (explaining that we may decline to address whether counsel’s
performance was unreasonable when the prejudice prong cannot be satisfied).
Gauthier first argues on appeal that the district court erred in denying his
claim that his counsel provided ineffective assistance of counsel by failing to move
for the dismissal as time-barred of his charges in Counts 6 and 7 because, if this
omission had constituted trial strategy, (1) his counsel, instead, could have relied
on the lesser included offenses in Counts 3, 4 and 5, and (2) the record should
contain a waiver of Gauthier’s rights under the applicable statute of limitations.
Gauthier also contends that the court erred in determining that he was not
prejudiced because unidentified evidence relating to Counts 6 and 7 would not
have been relevant to the remaining offenses. Moreover, Gauthier argues that the
15
court erred in determining that no prejudice occurred, based on its finding that
there was no significant likelihood of “collateral consequences,” because his
convictions for Counts 6 and 7 will effect his “presumptive date” for parole, as
well as the likelihood of him receiving parole when eligible.
As discussed above, a prosecution for a second-degree felony must be
commenced, if at all, within three years after it is committed. See Fla.Stat.
§ 775.15(2)(b). However, the version of Fla.Stat. § 775.15(7), which was in effect
at the time Gauthier committed the instant offenses, provided that, if the victim of a
violation of this offense was under the age of 16, the applicable period of
limitations, if any, did not begin to run until the victim had reached the age of 16,
or the violation was reported to a law enforcement agency or other governmental
agency, whichever occurred earlier. See Fla.Stat. § 775.15(7) (1985).
The offenses charged in Counts 6 and 7, which were second-degree felonies,
occurred no later than February 16, 1995. See Fla.Stat. § 800.04(1) (identifying
offenses as second-degree felonies). Gauthier was not arrested until September 10,
1998, and he was not charged with these offenses until January 25, 1999. Thus,
the state did not timely commence its prosecution against Gauthier within three
years of his committing the offenses charged in Counts 6 and 7. See Fla.Stat.
§ 775.15(2)(b). Moreover, even after applying the tolling provision in the
16
applicable version of § 775.15(7), the victim turned 16 on February 16, 1995, and
the state, thus, only had until February 16, 1998 to commence prosecution on these
offenses. Thus, the charges against Gauthier in Counts 6 and 7, which were filed
on January 25, 1999, were time-barred.
In determining whether Gauthier’s trial counsel provided ineffective
assistance of counsel by not moving to dismiss these charges, the right not to be
convicted of an offense for which prosecution is barred by a limiting statute is
substantive and fundamental in Florida. See Tucker v. State, 417 So.2d 1006,
1013 (Fla. Dist. Ct. App. 1982). As a matter of trial strategy, a defendant may
waive his right to assert a statute of limitations. See id. (explaining that a
defendant who believes that a statute of limitations will not work to his advantage
is permitted to waive it either pretrial or before the jury retires).10 However, for
such a waiver to be valid, this waiver must meet the same strict standards that
courts have applied in determine whether there has been an effective waiver as to
other fundamental rights, that is, the waiver must be “express and certain.” See id.
10
We have explained that there is a strong presumption that counsel’s performance was
reasonable and adequate, with great deference being shown to choices dictated by reasonable
trial strategy. See Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994). Indeed, a successful
petitioner must show that “no competent counsel would have taken the action that his counsel
did take.” See Callahan, 427 F.3d at 933 (quotation omitted).
17
Here, the state has not cited to evidence in the record reflecting that Gauthier
expressly waived his rights relating to the statute of limitations in § 775.15(2)(b).
Nevertheless, we need not determine whether counsel’s conduct of not
moving for a dismissal as time-barred constituted constitutionally deficient
performance under the first prong of Strickland, because Gauthier failed to show
that he was prejudiced. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; Waters,
46 F.3d at 1510. Gauthier contended that he was prejudiced by his counsel’s
failure to move for a dismissal of the charges in Counts 6 and 7 because the jury,
otherwise, would not have heard evidence relating to these lewd-assault charges.
Gauthier, however, failed to identify what evidence, if any, would not have
been admissible if these charges had been dismissed prior to the commencement of
his trial. Indeed, the victim testified at trial that she had been touched on and in her
vagina at the time that she lived in the City of Fort Lauderdale, which was when
she was age four, and that the assaults continued while she attended the first grade,
and continued even after she had moved to Palm Beach County at the age of seven
or eight and for many years thereafter. Moreover, Gauthier failed to explain how
“there is a reasonable probability that the outcome of the proceeding would have
been different” absent evidence relating to his “handl[ing], fondl[ing], or mak[ing]
an assault upon any child under the age of 16 years in a lewd, lascivious, or
18
indecent manner,” see Fla.Stat. § 800.04(4), when he also was charged with, and
convicted of, the capital felony of sexual battery on a victim who was younger than
age 12, see Fla.Stat. § 794.011(2)(a).
Furthermore, to the extent Gauthier is contending that he suffered “collateral
damages” based on his parole eligibility the Florida legislature, in 1978, adopted
the Objective Parole Guidelines Act, which revised the method utilized by the
Florida Parole and Probation Commissions in making parole decisions, including
establishing a structured parole review process based on objective criteria and
requiring that an inmate be interviewed within a specified time period depending
on the length of his sentence and other factors. See Fla.Stat. § 947.16.
Nevertheless, under Fla.Stat. § 947.18, which was enacted in 1941 and became a
part of the Objective Parole Guidelines in 1978:
No person shall be placed on parole until and unless the commission
finds that there is a reasonable probability that, if the person is placed
on parole, he or she will live and conduct himself or herself as a
respectable and law-abiding person and that the person’s release will
be compatible with his or her own welfare and the welfare of society.
See Fla.Stat. § 947.18. Indeed, in addressing an argument that the Commission
abused its discretion in declining to authorize a recommended effective parole
release date, the Florida Supreme Court in Florida Parole and Probation
Commission v. Paige, 462 So.2d 817 (Fla. 1985), concluded that the Commission
19
did not abuse its discretion in relying on information that was previously
considered, or available for consideration, in setting the inmate’s presumptive
parole release date. See id. at 820.
Because the Commission here also will have the ultimate discretion in
deciding whether to authorize a parole release date, regardless of when Gauthier’s
presumptive release date is set, any argument that he was prejudiced by the
inclusion of the charges in Counts 6 and 7 in determining this release date is
merely speculative. Gauthier, therefore, failed to show that “there is a reasonable
probability that the outcome of the proceeding would have been different.” See
Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Thus, the state trial court did not
unreasonably apply the prejudice prong of Strickland as to Gauthier’s argument in
Ground Two, and the district court did not err in denying this § 2254 claim.
Gauthier also argues on appeal that the district court erred in denying his
claim that his counsel provided constitutionally ineffective assistance by failing to
object to Detective Coleman’s testimony regarding statements made to him by the
victim because this evidence constituted impermissible consistent and
corroborating hearsay testimony. Gauthier contends that he was prejudiced by this
conduct because, although he confessed to some acts prior to, and during, his trial,
he never conceded the element of penetration. Additionally, Gauthier asserts that
20
this testimony was (1) particularly prejudicial because it came from a law
enforcement officer, and (2) not admissible to rebut charges of recent fabrication or
improper influence or motive.
Under Florida law, a prior consistent statement generally is not admissible to
bolster a witness’s testimony unless, like any other hearsay statement, it qualifies
under a hearsay exception. Harris v. State, 843 So.2d 856, 861 (Fla. 2003).
However, a prior consistent statement may be admitted as non-hearsay evidence if:
(1) the person who made the prior consistent statement testifies at trial and is
subject to cross-examination concerning that statement; and (2) the statement is
offered to rebut an express or implied charge of improper influence, motive, or
recent fabrication. Id. at 861-62 (citing Fla.Stat. § 90.801(2)(b)). Thus, in Harris,
when the person who made the prior consistent statement testified at trial and was
subject to cross-examination, she admitted during cross-examination that she was
motivated to testify against the defendant, in part, because she desired a favorable
sentence, and her prior consistent statement was made before she was arrested, the
Florida Supreme Court concluded that her prior consistent statement was admitted
properly as non-hearsay evidence. See id. at 862.
Furthermore, under Fed.R.Evid. 801(d)(1)(B), which is substantially the
same as § 90.801(2)(b), a prior consistent statement is not hearsay if (1) the
21
declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and (2) the statement is consistent with the declarant’s
testimony and is offered to rebut an express or implied charge against the declarant
of recent fabrication or improper influence or motive. See Fed.R.Evid.
801(d)(1)(B); see also Monday v. State, 792 So.2d 1278, 1281 (Fla. Dist. Ct. App.
2001) (noting that the provisions in § 90.801(2)(b) and § 801(d)(1)(B) are
“substantially the same”). The Supreme Court in Tome v. United States, 513 U.S.
150, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995), explained that “[t]he [Federal Rules
of Evidence] do not accord this weighty, non-hearsay status to all prior consistent
statement,” and that “[p]rior consistent statement may not be admitted to counter
all forms of impeachment or to bolster the witness merely because she has been
discredited.” Id. at 157, 115 S.Ct. at 701. We also have explained that “prior
consistent statements are treated as admissible non-hearsay only if they are offered
to rebut a specific allegation of recent fabrication, not to rehabilitate credibility that
has been generally called into question.” United States v. Drury, 396 F.3d 1303,
1316 (11th Cir.), cert. denied, 126 S.Ct. 336 (2005) (emphasis in original).11
11
The Supreme Court also explained in Tome that, to be admissible under Rule
801(d)(1)(B), prior consistent statements must have been made before the alleged influence or
motive to fabricate arose. See Tome, 513 U.S. at 157-58, 115 S.Ct. at 701. We, however, have
concluded that, whether a witness had a motive to fabricate when prior consistent statements
were made “is plainly a question of fact to be resolved by the trial court based precisely on the
particular circumstances of an individual case.” See United States v. Prieto, 232 F.3d 816, 821-
22 (11th Cir. 2000) (declining to adopt a bright-line rule that motive to fabricate necessarily and
22
In United States v. Ettinger, 344 F.3d 1149 (11th Cir. 2003), we examined a
defendant’s challenge to the district court’s introduction, pursuant to Rule
801(d)(1)(B), of testimony from a law enforcement officer relating to a prior
statement he gave to an agent with the Federal Bureau of Investigations (“FBI”).
See id. at 1160. We discussed that the officer’s statement, as contained in the FBI
report, was consistent with the agent’s testimony during trial. See id. at 1160-61.
We also explained that, during cross-examination, the defendant had at least
implied that the officer had fabricated his testimony. See id. at 1161. Thus, we
concluded that the challenged evidence was properly admitted to rebut an implied
charge of recent fabrication under Rule 801(d)(1)(B). See id.
Similarly, in the instant case, the victim testified during Gauthier’s trial that
Gauthier had touched her on and in her vagina when she was four years’ old.
Moreover, during cross-examination, Gauthier’s counsel, in eliciting the victim’s
concession that she had testified during her deposition that no penetration occurred
before her puberty ended, at least implied that she was fabricating this testimony.
Thus, the state’s subsequent introduction of Detective Coleman’s statement that the
victim, prior to giving her deposition, had given a statement consistent with her
trial testimony, that is, a statement that Gauthier both had inserted his fingers into
automatically attaches upon arrest).
23
her vagina and attempted to penetrate it prior to puberty, was admissible as non-
hearsay evidence under § 90.801(2)(b). See Monday, 792 So.2d at 1282
(concluding that the admissibility of a prior consistent statement to rehabilitate a
witness who has been impeached with a prior inconsistent statement is within the
discretion of the trial judge, and that the judge should determine if the statement
“has probative force bearing on credibility beyond merely showing repetition”).
Gauthier, thus, failed to show that his trial counsel’s lack of objections to
this consistent statement constituted deficient performance. See Sims v.
Singletary, 155 F.3d 1297, 1306-08 (11th Cir. 1998) (explaining that counsel
should not have been found ineffective for failing to object to testimony that was
admissible at the time of the petitioner’s trial). Furthermore, because the trial court
did not unreasonably apply the performance prong of Strickland, we need not
decide whether Gauthier was prejudiced by his counsel’s failure to object to this
evidence. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; see also Waters, 46
F.3d at 1510.12
12
To the extent the Supreme Court, subsequent to Gauthier’s trial, decided in Crawford
that, absent other grounds for admissibility, the Sixth Amendment’s Confrontation Clause
categorically bars the admission of testimonial hearsay evidence unless the declarant is
unavailable and the accused has had a prior opportunity to cross-examine the declarant, see
Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, Gauthier has abandoned any arguments relating to
this holding by not including them in his appellate brief, see United States v. Levy, 416 F.3d
1273, 1275-76 (11th Cir.) (reiterating our “prudential rule of declining to consider issues not
timely raised in a party’s initial brief”), cert. denied, 126 S.Ct. 643 (2005).
24
Accordingly, we conclude that the trial court did not unreasonably apply
Strickland in finding without merit Gauthier’s arguments in Grounds Two and
Four of his § 2254 petition, and that the district court, thus, did not err in denying
these claims. We, therefore, affirm.
AFFIRMED.
25