Applicant v. Sec'y

• Decision Date: 30 September 2016
• Docket Number: CASE NO. 8:12-cv-194-T-23AEP
• Parties: NEIL LENWOOD FERRELL Applicant, v. SECRETARY, Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

NEIL LENWOOD FERRELL Applicant, v. SECRETARY, Department of Corrections, Respondent.

CASE NO. 8:12-cv-194-T-23AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

September 30, 2016

ORDER

Neil Lenwood Ferrell applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state conviction for aggravated battery with a deadly weapon. Ferrell alleges two grounds of trial court error and twenty-four grounds of ineffective assistance of trial counsel.¹ Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 13)

FACTS²

Suzette Maldanado's car broke down. Robert Beck (the "victim") offered assistance. Ferrell approached the victim while he was helping Maldanado andbegan staring at the victim without speaking. The victim inquired if he could help Ferrell, who said nothing but continued to stare. When the victim again asked Ferrell if he could help him, Ferrell responded "there's a problem," pulled out a metal pipe, and attacked the victim. The victim tried to subdue Ferrell until the police arrived. During the ensuing scuffle Ferrell escaped the victim's grasp by spraying the victim in the face with pepper spray. Ferrell, wearing an orange safety vest, got on a white bicycle and fled. The victim suffered serious cuts to his head and ear. The police arrived and recovered the metal pipe. Both Maldanado and the victim described the suspect to Office Roy Paz. The police could not locate Ferrell.

One week after the attack the victim saw Ferrell on the street wearing an orange safety vest and riding a white bicycle. The victim flagged down a passing police officer and reported that Ferrell was his attacker. Officer David Torres approached Ferrell and arrested him. Maldanado later identified Ferrell in a photographic line-up.³ An information charges Ferrell with aggravated battery with a deadly weapon. A jury convicted Ferrell after he unsuccessfully pursued a misidentification defense at trial. He serves thirty years imprisonment as a habitual felony offender.

I. EXHAUSTION AND PROCEDURAL BAR

In his Rule 3.850 motion Ferrell presented thirty grounds for relief. (Respondent's Exhibit 6, Vols. IV, V) The state post-conviction court summarily denied fourteen of the grounds and granted Ferrell an evidentiary hearing on sixteen of the grounds. The state post-conviction court ultimately denied those sixteen grounds after the evidentiary hearing. (Respondent's Exhibit 6, Vols. I, II) Ferrell appealed the denial of seven of the thirty grounds — one of the summarily denied grounds and six of the grounds rejected after the evidentiary hearing. Ferrell asserts in the federal application the seven grounds he raised in the state post-conviction appeal and nineteen of the other grounds that he raised in the Rule 3.850 motion but did not appeal. The respondent correctly argues that the nineteen grounds that Ferrell did not appeal in the state court are unexhausted and procedurally defaulted, precluding federal review.⁴

Before a federal court can grant habeas relief, a federal habeas applicant must exhaust every available state court remedy for challenging his conviction, either on direct appeal or in a state post-conviction motion. 28 U.S.C. § 2254(b)(1)(A), (C)."[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." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted)). To exhaust a claim, an applicant must present the state court with the particular legal basis for relief in addition to the facts supporting the claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner 'fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement that an applicant exhaust each available state court remedy as a prerequisite to federal review is satisfied if the applicant "fairly presents" his claim in each appropriate state court, alerting that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). Ferrell, through counsel, filed in March, 2011 his appellate brief challenging the denial of his Rule 3.850 motion. The Florida Second District Court of Appeal subsequently issued Cunningham v. State, 131 So. 3d 793 (Fla. 2d DCA 2012), which explainsthat between December 2000 and September 2010 the policy for an appeal of the denial of a Rule 3.850 motion required briefing only for a ground that was denied after an evidentiary hearing but included a merits review of a summarily denied ground even if the ground was not briefed on appeal. Because he filed his appellate brief after September 2010, Ferrell was required to raise in the brief both the grounds summarily denied by the state post-conviction court and the grounds denied after the evidentiary hearing to obtain review of all of the grounds. Ferrell's failure to brief on collateral appeal some of the grounds denied in the Rule 3.850 motion — presented in the federal application as grounds one, two, three, six, ten, and thirteen through twenty-six — results in abandonment. Fla. R. App. P. 9.141(b)(3)(C). See also Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979)⁵ (stating that exhaustion of a claim raised in a Rule 3.850 motion includes an appeal from the denial of the motion); Cunningham, 131 So. 3d at 794 (explaining that an appeal of the denial of a Rule 3.850 motion requires briefing for a ground denied after an evidentiary hearing). Consequently, grounds one, two, three, six, ten, and thirteen through twenty-six of the federal application are each unexhausted and procedurally defaulted because Ferrell cannot return to state court to file a timely collateral appeal. Fla. R. Crim. P. 3.850(k).

"If the [applicant] has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, an applicant "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice, an applicant must demonstrate not only that an error at the trial created the possibility of prejudice but that the error worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimension. United States v. Frady, 456 U.S. 152 (1982). In other words, an applicant must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892.

Without showing cause and prejudice, an applicant may obtain federal habeas review of a procedurally defaulted claim only if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Murray v. Carrier, 477 U.S. 478, 495-96 (1986). A fundamental miscarriage of justice occurs if a constitutional violation has probably resulted in the conviction of someone who is "actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. To meet the "fundamental miscarriage of justice" exception, Ferrell must show constitutional error coupled with "new reliable evidence — whether . . .exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.

Ferrell fails to demonstrate cause and prejudice excusing the default of each unexhausted ground. Carrier, 477 U.S. at 495-96. Ferrell cannot meet the "fundamental miscarriage of justice" exception because he presents no "new reliable evidence" that he is actually innocent. Schlup, 513 U.S. at 327. Because Ferrell satisfies neither exception to procedural default, grounds one, two, three, six, ten, and thirteen through twenty-six of the federal application are procedurally barred.

II. MERITS

Ferrell's remaining grounds of ineffective assistance of trial counsel (grounds four, five, seven, eight, nine, eleven, and twelve) are exhausted and entitled to a review on the merits.⁶

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Fla. 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 highlydeferential 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.

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