Barriner v. Sec'y, Dep't of Corr.
| Decision Date | 29 July 2013 |
| Docket Number | Case No. 6:11-cv-1080-36GJK |
| Parties | CEDRICK S. BARRINER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et. al, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Cedrick S. Barriner ("Petitioner") initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1, filed June 29, 2011). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought should not be granted. Thereafter, Respondents filed a timely response to the petition in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. 8, filed October 20, 2011). Petitioner filed a reply to the response (Doc. 11, filed November 17, 2011).
Petitioner raises four claims in his petition. He alleges that counsel was ineffective for: (1) agreeing with the trial court that no Florida Statute encompasses both assault and trespass; (2) failing to timely file a facially sufficient motion to interview a juror; (3) failing to request an "independent act" jury instruction; and (4) advising Petitioner to plead guilty to the second count of his indictment.
Upon due consideration of the petition, the response, the reply, and the state court record, this Court concludes, for the reasons set forth below, that the petition should be granted as to Claim One and denied as to Claims Two, Three, and Four.
On April 9, 2010, Petitioner was charged by second amended information with armed burglaryof an occupied dwelling with an assault in violation of Florida Statute §§ 810.07, 810.02(1)(b), and 810.02(2)(a) (count one) and with possession of ammunition by a convicted felon in violation of Florida Statute §§ 790.23(1) and 729.23(3) (count two) (App. A at 77).1 After a jury trial on count one, Petitioner was found guilty of the lesser included offense of burglary of an unoccupied dwelling. Id. at 116. On June 9, 2010, Petitioner entered an open plea to the court on count two (App. A at 242-244; App. C at 4). The trial court found Petitioner to be a habitual felony offender (App. A at 248). He was sentenced to twenty years in prison on count one and a concurrent twenty years in prison on count two (App. A at 262-264; App. C at 290-291). Florida's Fifth District Court of Appeal per curiam affirmed on December 7, 2010 (App. F); Barriner v. State, 50 So. 3d 615 (Fla. 5th DCA 2010).
Petitioner filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief ("Rule 3.850 motion") on December 19, 2010 (App. J). The motion raised the same four claims as the instant petition. The trial court denied the motion in a written order, and Florida's Fifth District Court of Appeal per curiam affirmed (App. N, O); Barriner v. State, 64 So. 3d 690 (Fla. 5th DCA 2011).
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), 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. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) ().
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). 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. 362, 412 (2000).
The United States Supreme Court has clarified the meaning of "contrary to" and "unreasonable application" as used in 28 U.S.C. § 2254(d)(1):
[Section] 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meanings. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002).
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presentedin the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test to determine whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense. Id. at 687-88.
A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. Thus, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989). As observed by the Eleventh Circuit Court of Appeals:
The test [for ineffective assistance of counsel] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
As to the prejudice prong of the Strickland test, the Supreme Court has cautioned that "'[i]t isnot enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.'" Strickland, 466 U.S. at 693. However, the Court has also clarified that a petitioner need not demonstrate it 'more likely than not, or prove by a preponderance of evidence,' that counsel's errors affected the outcome. Strickland, 466 U.S. at 693-94. Instead, Id. at 694. The prejudice assessment does "not depend on the idiosyncracies of the particular decision maker," as the court should presume that the judge or jury acted according to law. Strickland, 466 U.S. at 694-95. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695.
Petitioner alleges that trial counsel was ineffective for failing to adequately investigate case law pertaining to a jury question (Doc. 1 at 6). Specifically, Petitioner argues that counsel should have objected when the trial court told the jury, in response to a direct question, that no Florida statute encompasses both an assault and a trespass. Id. Although Petitioner does not argue that such a statute exists, he contends that "he was entitled to have the jury instructed that it was allowed to [choose] more than one lesser included offense listed on the verdict form, consistent with his theory of defense that he had committed the crime[s] of assault and trespass, but not burglary." (Doc. 1-1 at 2). Petitioner asserts that the trial court's negative answer to the jury's question denied it the right to consider the two lesser included offenses of assault and...
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