Ballard v. Mcneil

• Decision Date: 25 March 2011
• Docket Number: Case No. 4:08–cv–347–SPM/EMT.
• Citation: 785 F.Supp.2d 1299
• Parties: Roshuan BALLARD, Petitioner,v.Walter A. McNEIL, Respondent.
• Court: U.S. District Court — Northern District of Florida

785 F.Supp.2d 1299

Roshuan BALLARD, Petitioner,

v.Walter A. McNEIL, Respondent.

Case No. 4:08–cv–347–SPM/EMT.

United States District Court, N.D. Florida,Tallahassee Division.

March 25, 2011.

Roshuan Ballard, Crawfordville, FL, pro se.Thomas David Winokur, Attorney General, Tallahassee, FL, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

STEPHAN P. MICKLE, Chief Judge.

THIS CAUSE comes before the Court for consideration of the Magistrate Judge's Report and Recommendation (doc. 39). Petitioner has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). Petitioner filed objections (doc. 41). Pursuant to Title 28, United States Code, Section 636(b)(1), I have conducted a de novo review of the sections of the report to which objections have been made. I find that the Report and Recommendation is correct and should be adopted.

Petitioner brought this habeas corpus petition challenging his conviction of one count of aggravated child abuse related to the choking of his daughter. Several of the Petitioner's asserted grounds for habeas corpus relief were not properly raised before the state courts, and are therefore procedurally defaulted. Moreover, as to those ineffective assistance of counsel claims remaining for consideration, Petitioner has not met the legal standard for constitutional ineffective assistance of counsel claims, as he cannot demonstrate a reasonable probability that but for his counsels' alleged errors the outcome of his underlying case would have been different. Lastly, Petitioner has not shown that he was denied the right to a fair trial.

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

1. The Magistrate Judge's Report and Recommendation (doc. 39) is adopted and incorporated by reference into this order.

2. The Second Amended Petition for Writ of Habeas Corpus (doc. 13) is denied.

3. A certificate of appealability is denied.

REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, United States Magistrate Judge.

This cause is before the court on Petitioner's second amended petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (Doc. 13). Respondent filed an answer and relevant portions of the state court record (Doc. 28). Petitioner filed a reply (Doc. 31).

The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(b). After careful consideration of all issues raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant aspects of the procedural background of this case are established by the state court record ( see Doc. 28, Exhibits).¹ Petitioner was charged in the Circuit Court for Leon County, Florida, with one count of aggravated child abuse by malicious punishment based upon his choking his eight-year-old daughter (Ex. A at 1). Following a jury trial, Petitioner was convicted as charged ( id. at 62). Petitioner was adjudicated guilty and sentenced on November 3, 2003, to twenty (20) years of imprisonment ( id. at 69–77). Petitioner, through counsel, appealed the judgment to the Florida First District Court of Appeal (“First DCA”). The First DCA reversed the conviction and sentence and remanded the case for a new trial (Ex. B). Ballard v. State, 899 So.2d 1186 (Fla. 1st DCA 2005).

Petitioner was retried on July 19, 2005, and again convicted as charged (Ex. A at 118, Ex. C). The trial court again imposed a sentence of twenty (20) years of imprisonment (Ex. C at 239, Ex. K at 33–40). Petitioner appealed the judgment to the First DCA. On November 2, 2006, the appellate court affirmed the judgment of conviction per curiam without written opinion, with the mandate issuing December 22, 2006 (Exs. G, J). Ballard v. State, 944 So.2d 349 (Fla. 1st DCA 2006) (Table). Petitioner did not seek further review by the Florida Supreme Court or the United States Supreme Court.

On January 11, 2007, Petitioner filed a motion to correct illegal sentence, pursuant to Rule 3.800(b) of the Florida Rules of Criminal Procedure (Ex. K at 1–7). The trial court denied the motion on March 26, 2007 ( id. at 22–23).

On August 2, 2007, Petitioner filed a motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex. K at 53–97). On August 31, 2007, the trial court denied the motion without an evidentiary hearing ( id. at 279–86). Petitioner appealed the decision to the First DCA. The appellate court affirmed per curiam without written opinion on March 31, 2008, with the mandate issuing June 3, 2008 (Exs. M, N). Ballard v. State, 982 So.2d 686 (Fla. 1st DCA 2008) (Table).

On May 27, 2008, Petitioner filed a petition for writ of habeas corpus in the First DCA (Ex. O). The First DCA issued an order treating the petition as a petition alleging ineffective assistance of appellate counsel (Ex. P). The court denied the petition on the merits on June 19, 2008 (Ex. Q). Ballard v. State, 991 So.2d 899 (Fla. First DCA 2008).

Petitioner filed the instant habeas action on July 30, 2008 (Doc. 1). Respondent concedes that the petition is timely (Doc. 28 at 4).

II. STANDARD OF REVIEW

Section 2254(a) of Title 28 provides that “a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court” upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104–132, § 104, 110 Stat. 1214, 1218–19. In relevant part, section 2254(d) now provides:

(d) 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.

28 U.S.C.A. § 2254 (2002).

The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).² The appropriate test was described by Justice O'Connor as follows:

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.Id., 529 U.S. at 412–13, 120 S.Ct. 1495 (O'Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 2119–20, 147 L.Ed.2d 125 (2000). In employing this test, the Supreme Court has instructed that on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the “clearly established Federal law,” namely, “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The law is “clearly established” if Supreme Court precedent at the time “would have compelled a particular result in the case.” Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir.1998), overruled on other grounds by Parker v. Head, 244 F.3d 831, 835 (11th Cir.2001).

Next, the court must determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because “ ‘the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or because ‘the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’ ” Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 405–06, 120 S.Ct. 1495). The Supreme Court has clarified that “[a]voiding these pitfalls does not require citation to our cases—indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365, 154 L.Ed.2d 263 (2002) (quoting Williams, 529 U.S. at...