Brown v. Sec'y
| Decision Date | 17 April 2015 |
| Docket Number | Case No. 8:13-cv-1757-T-33EAJ |
| Court | U.S. District Court — Middle District of Florida |
| Parties | FRAZIER T. BROWN, III, Petitioner, v. SECRETARY, DEP'T OF CORRECTIONS, Respondent. |
Petitioner Frazier T. Brown, III, an inmate in the Florida Department of Corrections proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). Brown challenges his convictions entered in 2005 in the Thirteenth Judicial Circuit, Hillsborough County, Florida. Upon review, the petition must be denied.
PROCEDURAL HISTORY
The State of Florida charged Brown with five counts of lewd or lascivious molestation (counts one, three, four, seven, and eight); three counts of lewd or lascivious conduct (solicitation) (counts two, five, and nine); and one count of showing obscene material to a minor (count six). (Ex. 1, pp. 83-87.) A jury convicted Brown as charged except on counts four and seven. On those counts, the jury convicted him of the lesser-included offense of unnatural and lascivious act. (Id., pp. 130-32.) The state trial court entered a judgment of acquittal on count six. (Ex. 1B, pp. 456-57.) Brown was sentenced to concurrent terms of fifteen years in prison on counts one, two, three, and five. (Ex. 1, pp. 157-162.) He was sentenced to a consecutive term of ten years in prison on count eight. (Id., pp. 163-64.)On count nine, Brown was sentenced to ten years of sex offender probation, to be served consecutive to the sentence imposed on count eight. (Id., pp. 165-66.) Brown was sentenced to time served on counts four and seven. (Id., p. 154.) The state district court of appeal per curiam affirmed Brown's judgment and sentence. (Ex. 5.) Brown filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Ex. 21, pp. 43-65.) The state postconviction court summarily denied several of Brown's claims and granted an evidentiary hearing on the remaining claims. (Id., pp. 15-22, 70-77.)1 After the evidentiary hearing, the state court entered a final order denying Brown's postconviction motion. (Ex. 21A, pp. 113-240.) Brown's motion for rehearing was denied. (Ex. 21A, pp. 243-48, 249-64.) The state district court of appeal per curiam affirmed the order denying Brown's postconviction claims. (Ex. 25.) His motion for rehearing and for a written opinion was denied. (Exs. 26, 27.)
Respondent does not contest the timeliness of Brown's federal habeas petition. Respondent filed a response (Doc. 14) and corrected response (Doc. 17) and Brown filed a reply (Doc. 22). Brown then filed a corrected reply (Doc. 24) and Respondent filed a sur-reply (Doc. 26).
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody"in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
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.
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaininghabeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (). 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, 529 U.S. at 412.
The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. In other words, "AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, ___U.S.___, 131 S. Ct. 1388, 1398 (2011) () (citations omitted).
In a per curiam decision without a written opinion, the state district court of appeal affirmed the denial of Brown's postconviction motion. The state appellate court's per curiam affirmance warrants deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v.Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 ().
Review of the state court decision is limited to the record that was before the state court.
We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court.
Pinholster, 131 S. Ct. at 1398. Brown bears the burden of overcoming by clear and convincing evidence a state court factual determination. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court's rejection of Brown's postconviction motion warrants deference in this case.
STANDARD FOR CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
All five of Brown's claims assert ineffective assistance of counsel, a difficult claim to sustain. "[T]he cases in which habeas petitioners can properly prevail on the ground ofineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984):
The law regarding ineffective assistance of counsel claims is well settled and well documented. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of counsel claims. According to Strickland, first, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious...
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