Berry v. State, Case No. 6:09-cv-1891-Orl-31KRS
| Decision Date | 13 July 2011 |
| Docket Number | Case No. 6:09-cv-1891-Orl-31KRS |
| Court | U.S. District Court — Middle District of Florida |
| Parties | DANIEL L. BERRY, Petitioner, v. STATE OF FLORIDA, et al., Respondents. |
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted. Thereafter, Respondents filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. No. 10). Petitioner was provided an opportunity to file a reply to the response but did not do so.
Petitioner alleges five claims for relief in his habeas petition: three claims that trial counsel rendered ineffective assistance by (1) improperly advising him not to testify (claim one), (2) failing to call a witness to testify (claim two), and (3) failing to argue that his convictions for aggravated battery on a law enforcement officer and leaving the scene of an accident with injury violated his right against double jeopardy (claim three), and twoclaims that he was denied his right to conflict free counsel (claims four and five). For the following reasons, the petition is denied.
Petitioner was charged by information with aggravated battery on a law enforcement officer (count one), fleeing or attempting to elude (count two), driving with a cancelled, suspended, or revoked license (count three), and leaving the scene of an accident with injuries (count four). Petitioner entered a plea of no contest to all counts but subsequently moved to withdraw his plea, and the motion was granted. Prior to trial, Petitioner pled no contest to count three. A jury trial was conducted on the remaining counts, and Petitioner was found guilty as charged of counts one, two, and four. The state court sentenced Petitioner to eight-year terms of imprisonment for counts one and two and to five-year terms of imprisonment for counts three and four, with all sentences to run concurrent. Petitioner appealed, and the Fifth District Court of Appeal of Florida affirmed per curiam.
Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The state court denied four of Petitioner's claims and conducted an evidentiary hearing on the remaining claim, after which the court denied the claim. Petitioner appealed, and the Fifth District Court of Appeal of Florida affirmed per curiam.
Petitioner filed a state petition for writ of habeas corpus, alleging ineffective assistance of appellate counsel. The Fifth District Court of Appeal of Florida summarily denied the petition.
Petitioner filed a second Rule 3.850 motion, which was denied as successive. Petitioner appealed, and the Fifth District Court of Appeal of Florida affirmed per curiam.
Pursuant to the AEDPA, federal 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).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materiallyindistinguishable 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 [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.
Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.
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 presented in 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. See Parker, 244 F.3d at 835-36; 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 for determining 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.1 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 actualineffectiveness 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).
Petitioner asserts that trial counsel rendered ineffective assistance by improperly advising him regarding whether or not he should testify. Petitioner does not allege in his habeas petition what advice counsel provided in relation to Petitioner testifying that was incorrect. In the state court, however, Petitioner argued that counsel erroneously advised him that if he testified, the prosecutor would be able to question him about the specificnature of his prior felony convictions. Thus, the Court will consider the claim as it was raised in the state court.
Petitioner raised this claim in his Rule 3.850 motion, and the state court denied relief after an evidentiary hearing. (App. VI at 45-47.) The state court noted the contradiction in Petitioner and defense counsel's testimony concerning the advice given by counsel as to Petitioner's decision to testify at trial. Id. Petitioner testified that defense counsel told him not to testify and that the prosecutor would be allowed to question him about the nature of his prior convictions if he took the stand, regardless of how he testified. Id. In contrast, defense counsel testified that he advised Petitioner that he should testify, despite his prior convictions, and that the prosecutor could ask Petitioner the number of prior convictions he had, and if he gave the wrong number, then the prosecutor could ask him about the specific nature of his prior convictions. Id. at 46-47. The state court determined that defense counsel was more credible and concluded that counsel properly advised Petitioner about the admissibility of his prior convictions and did not advise Petitioner not to testify. Id.
"A criminal defendant has a fundamental constitutional right to testify on his own behalf at trial, a right that cannot be waived by defense counsel." Franklin v. United States, 227 F. App'x 856, 859 (11th Cir. 2007) (citing United States v. Teague, 953 F.2d 1525, 1532 (11th Cir. 1992)). Claims that a defense counsel's conduct led to a violation of the defendant's right to testify are properly raised as claims of ineffective assistance of counsel. Id. (citing Teague, 953 F.2d at 1534).
At the evidentiary hearing, defense counsel testified that he advised Petitioner that the prosecutor could ask him about the number of prior convictions he had if he testified. (App. VI at 18.) Counsel also said he reviewed Petitioner's convictions with him. Id. at 27. Defense counsel stated that his practice was...
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