Boone v. Sec'y, Case No. 3:14-cv-1099-J-39JRK

• Decision Date: 23 February 2017
• Docket Number: Case No. 3:14-cv-1099-J-39JRK
• Court: U.S. District Court — Middle District of Florida
• Parties: HAROLD RAY BOONE, Petitioner, v. SECRETARY, DOC, et al., Respondents.

HAROLD RAY BOONE, Petitioner, v. SECRETARY, DOC, et al., Respondents.

Case No. 3:14-cv-1099-J-39JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

February 23, 2017

ORDER

I. INTRODUCTION

Petitioner Harold Ray Boone challenges a 2004 Suwannee County conviction for: count one, lewd/lascivious conduct on a child (solicitation) (victim A.H.); count two, attempted lewd/lascivious exhibition in presence of a child (victim B.B.); count three, capital sexual battery on a child under 12 years of age (victim B.B.); count four, capital sexual battery on a child under 12 years of age (victim B.B.); count five, lewd/lascivious molestation of a child under 12 years of age (victim B.B.); count six, lewd/lascivious conduct on a child (solicitation) (victim A.S. and/or A.H.); count seven, sexual performance by a child (victim A.H. or A.S.); count eight, capital sexual battery on a child under 12 years of age (victim A.H.); count nine, capital sexual battery on a child under 12 years of age (victim A.S.); count ten, capital sexual battery on a child under 12 years of age (victim A.S.); count eleven, capital sexual battery on a child under 12 years of age (victim C.B.); count twelve, capital sexual battery on a child under 12 years of age (victim C.B.); count thirteen, capital sexual battery on a child under 12 years of age (victim C.B.); and count fourteen, possession of child pornography. See Second Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 10).

Petitioner raises six grounds of ineffective assistance of counsel. This Court must be mindful that in order to prevail on this Sixth Amendment claim, Petitioner must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 688 (1984), requiring that he show both deficient performance (counsel's representation fell below an objective standard of reasonableness) and prejudice (there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different).

Respondents filed an Answer in Response to Order to Show Cause and Petition for Writ of Habeas Corpus (Response) (Doc. 19). In support of their Response, they submitted Exhibits (Doc. 22).¹ Petitioner filed a Reply to Respondents' Answer to Petition for Writ of Habeas Corpus (Reply) (Doc. 21). See Order (Doc. 12).

II. CLAIMS OF PETITION

Petitioner raises six grounds in his Petition: (1) ineffective assistance of counsel for failure to move to dismiss counts one, two, five, and six of the information for failure to charge criminal offenses at the time that they allegedly occurred, resulting in illegal sentences; (2) ineffective assistance of counsel for failure to object to the jury instruction for count fourteen, possession of child pornography (possession of a motion picture(s) and/or photographs); (3) ineffective assistance of counsel for failure to object to a discovery violation; (4) ineffective assistance of counsel for failure to move to dismiss count 6 or count 7 on double jeopardy grounds, resulting in illegal sentences for these two counts; (5) ineffective assistance of counsel for failure to move for a judgment of acquittal for count three; and (6) ineffective assistance of counsel for failure to request a limiting instruction at the time Williams Rule evidence was admitted at trial.

Respondents urge this Court to deny the Petition. Response at 10-31. The Court will address these grounds, See Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992), but no evidentiary proceedings are required in this Court.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a state prisoner's federal petition for habeascorpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), petition for cert. filed, - U.S. - (U.S. Oct. 14, 2016) (No. 16-6444). "'The purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.'" Id. (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).

Under AEDPA, when a state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). A state court's factual findings are presumed correct unless rebutted by clear and convincing evidence.[²] Id. § 2254(e)(1); Ferrell v. Hall, 640 F.3d 1199, 1223 (11th Cir. 2011).

..."It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." [Harrington v. Richter, 562 U.S. 86, 101 (2011)] (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Supreme Court has repeatedly instructed lower federal courts that an unreasonable application of law requires more than mere error or even clear error. See,e.g., Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003); Lockyer, 538 U.S. at 75 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."); Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.").

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013), cert. denied, 135 S.Ct. 67 (2014).

In applying AEDPA deference, the first step is to identify the last state court decision that evaluated the claim on its merits. See Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc), petition for cert. filed, - U.S. - (U.S. Nov. 10, 2016) (No. 16-6855); Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). Regardless of whether the last state court provided a reasoned opinion, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99; see also Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013).

Where the last adjudication on the merits is "'unaccompanied by an explanation,' a petitioner's burden under section 2254(d) is to 'show [ ] there was no reasonable basis for the state court to deny relief.'" Wilson, 834 F.3d at 1235 (quoting Richter, 562 U.S. at 98). "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court'sdecision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court." Richter, 562 U.S. at 102; see also Wilson, 834 F.3d at 1235; Marshall, 828 F.3d at 1285. To determine which theories could have supported the state appellate court's decision, the federal habeas court may look to a state trial court's previous opinion as one example of a reasonable application of law or determination of fact; however, the federal habeas court is not limited to assessing the reasoning of the lower court. Wilson, 834 F.3d at 1239. As such,

even when the opinion of a lower state court contains flawed reasoning, [AEDPA] requires that [the federal court] give the last state court to adjudicate the prisoner's claim on the merits "the benefit of the doubt," Renico [v. Lett, 449 U.S. 766, 733 (2010)] (quoting [Woodford v. Visciotti, 537 U.S. 19, 24 (2002)] ), and presume that it "follow[ed] the law," [Woods v. Donald, --- U.S. ----, 135 U.S. 1372, 1376 (2015)] (quoting Visciotti, 537 U.S. at 24).

Wilson at 1238; see also Williams, 133 S.Ct. at 1101 (Scalia, J., concurring).

IV. PROCEDURAL HISTORY

Respondents provide a brief procedural history in their Response. Response at 1-3. Petitioner accepts this procedural history as accurately presented. Reply at 1.

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Ground One

In his first ground, Petitioner claims ineffective assistance of counsel for failure to move to dismiss counts one, two, five, and six of the information for failure to charge criminal offenses at the time that they allegedly occurred, resulting in illegal sentences. Petition at 5. Petitioner exhausted this ground by raising it in ground two of his Second Amended Rule 3.850 motion. Ex. P at 6-8. The trial court denied relief, id. at 158-61, and the First District Court of Appeal per curiam affirmed. Ex. S.

Of import, the state circuit court recognized the applicable two-pronged standard as set forth in Strickland as a preface to addressing the multiple claims of ineffective assistance of counsel. Ex. P at 157. In this particular claim of ineffective assistance of counsel, Petitioner asserted that the conduct charged in counts one, two, five, and six may not have been criminal offenses because the jury did not specifically find that Petitioner committed the offenses after October 1, 1999, when the law was amended. Id. at 158. The court found that all of the counts were criminal offenses prior to October 1, 1999, and all were second degree felonies prior to October 1, 1999.³ Id. at 158-61.

In reviewing each count, the circuit court concluded Petitioner failed to meet the prejudice prong of Strickland. With respect to count one, the court decided there was no prejudice, because even if counsel had successfully moved to dismiss count one, the state would have re-charged the same conduct under a different provision. Ex. P at 159. "[A]ccordingly, there could have been no prejudice from Counsel's alleged ineffectiveness, as the...