Bester v. Warden, Attorney General of Ala.

• Decision Date: 02 September 2016
• Docket Number: No. 13–15779,13–15779
• Citation: 836 F.3d 1331
• Parties: Durrell Bester, Petitioner–Appellant, v. Warden, Attorney General of the State of Alabama, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

836 F.3d 1331

Durrell Bester, Petitioner–Appellant,

v.Warden, Attorney General of the State of Alabama, Respondents–Appellees.

No. 13–15779

United States Court of Appeals, Eleventh Circuit.

Date Filed: September 2, 2016

Samika Nicole Boyd, Bondurant Mixson & Elmore, LLP, Atlanta, GA, for Petitioner–Appellant.

Robin Denise Scales, Andrew Lynn Brasher, Luther J. Strange, III, Alabama Attorney General's Office, Montgomery, AL, for Respondents–Appellees.

Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH,^* District Judge.

ED CARNES

, Chief Judge:

Durrell Bester appeals the district court's denial of his 28 U.S.C. § 2254

petition, which challenged his Alabama convictions for trafficking in cocaine, failure to affix a tax stamp, and possession of drug paraphernalia. Bester contends that his trial counsel rendered ineffective assistance by failing to request that the jury be given a no-adverse-inference jury instruction, which would have told the jurors that they could not infer from his failure to testify that he was guilty.

I.

On May 24, 2009, Sergeant Hattie French and Deputy Jude Washington of the Jefferson County Sheriff's Office were conducting surveillance on Bester's home in preparation for the execution of a search warrant when they saw two men park a blue pickup truck in front of the house. After one of the men got Bester from the house, he and Bester began throwing bags and luggage into the back of the truck. Once the truck was loaded, Bester, carrying a white bag, got in the front and the three men drove away. Sergeant French and Deputy Washington notified some other officers and then followed the truck to an apartment complex where Deputy Mark Eaton met up with them.

At the apartment complex Bester and one of the other men got out of the truck. Each was carrying a white bag. Bester's bag was small and looked like a plastic grocery bag, while the other man's was larger and looked like a garbage bag. They entered an apartment, which belonged to Bester's mother. The men stayed in the apartment for a few minutes before leaving without the bags and driving away in the same truck.

Sergeant French and Deputy Washington stayed at the apartment complex while Deputy Eaton and some other officers followed the truck. The officers at the apartment complex obtained from Bester's mother written consent to search her apartment. She took them into a bedroom and told them that Bester had put his bag in a corner behind a stereo. She also gave them a handwritten statement that read: “I saw my son come home with bags + left + two white gu[y]s were with him + he left come in [sic] with the white bag behind the [boom]box.”¹

Inside the small white grocery bag that they found behind the boombox, the officers found digital scales and two smaller bags, one containing 43.5 grams of powder cocaine and one containing 26.1 grams of crack cocaine. The officers also found in the bedroom marijuana and the large white garbage bag, which itself contained scales, baggies, and a glass Pyrex cup with residue in it.

In the meantime, some officers had pulled over the truck Bester and his two companions were in. Deputy Eaton conducted a dog sniff with his K–9 partner, Pepsi, who indicated the presence of drugs in a black suitcase in the bed of the truck. When Deputy Eaton searched the suitcase, he found “pieces of torn off Brillo pad, syringes, an ash tray, a pill splitter and a push rod that was burnt on the end,” which is “typical of use in a crack pipe.” Bester later admitted to Deputy Eaton that the suitcase was his. After conducting the car stop, Deputy Eaton went back to Bester's house and executed the search warrant. There, he found small bags containing what appeared to be cocaine residue and a set of digital scales.

Throughout Bester's trial for trafficking in cocaine, failure to affix a tax stamp, and possession of drug paraphernalia, the court permitted members of the jury to ask the witnesses questions. While Deputy Eaton was on the stand, several jurors asked him about the suitcase and the small white grocery bag. The trial court permitted Deputy Eaton to explain to the jury that he did not have the suitcase fingerprinted because Bester admitted that it was his, but the court refused to let Deputy Eaton answer questions from the jury about the small white grocery bag. Jurors were allowed to ask Sergeant French questions about who had carried which bag into Bester's mother's apartment. Her answers incriminated Bester.

Bester did not testify in his own defense at trial. His attorney did not ask the trial court to give the jury a no-adverse-inference instruction. While the trial court in opening and closing instructions did instruct the jury that it had to presume Bester's innocence, that the State had the burden of proving his guilt beyond a reasonable doubt, and that Bester did not have to present any witnesses in his own defense, it did not give a no-adverse inference instruction. The jury found Bester guilty of all three charges, and the trial court sentenced him to life imprisonment without the possibility of parole for the drug-trafficking offense, 15 years imprisonment for the failure-to-affix-a-tax-stamp offense, and 12 months in jail for the drug-paraphernalia offense.

II.

In 2010 Bester filed a pro se Alabama Rule of Criminal Procedure 32 petition for post-conviction relief alleging, among other claims, that his trial counsel was ineffective for failing to request a no-adverse-inference instruction. Bester obtained habeas counsel, who represented him at an evidentiary hearing in state court. After the evidentiary hearing the state habeas trial court denied Bester's Rule 32 petition, stating:

[I]t is alleged that trial counsel failed to request or object to the Court not giving a jury instruction on the Petitioner's failure to testify. There was no request made to the Court to give the instruction regarding a Defendant who does not testify during his trial and therefore the Court did not have an opportunity to rule on that issue. Therefore, the Court finds that [this] issue is without merit....

Bester, still represented by habeas counsel, appealed the state habeas trial court's denial of his Rule 32 petition. But habeas counsel abandoned Bester's no-adverse-inference-instruction claim, prompting Bester to file a pro se brief raising that claim. The Alabama Court of Criminal Appeals permitted Bester's habeas counsel to withdraw and allowed Bester to proceed pro se, but it refused to consider his pro se brief. In its order affirming the state habeas trial court's denial of his Rule 32 petition, the Alabama Court of Criminal Appeals considered only the claims that Bester's attorney had raised in the brief he filed before being dismissed as counsel. Bester applied for rehearing, arguing that the appellate court had not addressed his claim that trial counsel was ineffective for failing to request the no-adverse-inference instruction, but the court denied his application. The Alabama Supreme Court denied Bester's petition for certiorari, in which he had again argued that the Alabama Court of Criminal Appeals failed to address his no-adverse-inference-instruction claim.

III.

In 2012 Bester filed pro se in federal district court a § 2254

petition for writ of habeas corpus. He claimed, among other things, that his trial counsel had rendered ineffective assistance by failing to request a no-adverse-inference instruction and that failure had prejudiced him because “it is more likely than not that the jury assigned culpability to him by assuming ... from his failure to testify that petitioner had something to hide, and/or otherwise that he was guilty.” A magistrate judge, while acknowledging that ineffective assistance of counsel claim, apparently conflated it with a separate claim that trial counsel had not permitted Bester to testify. Without holding an evidentiary hearing, the magistrate judge recommended denying both claims because:

The [state habeas] trial court heard the petitioner's claim that he wanted to testify but was not allowed to, and his attorney's testimony that he advised the petitioner not to testify, even though he had a right to testify, and that the petitioner chose to accept the attorney's advice. Under questioning, the petitioner admitted that his attorney advised him not to testify and that he thought his attorney was acting in his best interest. The record developed at the trial court's Rule 32 hearing does not demonstrate that the court made any unreasonable determination of any facts in light of the evidence presented. Neither has petitioner demonstrated that the trial court failed to follow any clearly established federal law with respect to his right to testify.

Despite Bester's objection that the magistrate judge's report and recommendation did not address his claim that trial counsel was ineffective for failing to request a no-adverse-inference instruction, the district court adopted the report, agreed with the recommendation, and denied Bester's § 2254

petition. This Court granted Bester a certificate of appealability on the following issue:

Whether [Bester's] trial counsel rendered ineffective assistance of counsel by failing to request a no-adverse-inference jury instruction regarding petitioner's right not to testify. See Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981)

.

IV.

We review de novo a district court's denial of a § 2254

petition. Ferguson v. Sec'y, Fla. Dep't of Corr., 716 F.3d 1315, 1330 (11th Cir. 2013). Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court cannot grant habeas relief on a claim adjudicated on the merits in state court unless the state court's decision (1) “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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State...