Brown v. Sec'y, Dep't of Corr.

• Decision Date: 27 March 2020
• Docket Number: CASE NO. 5:19-cv-109-Oc-02PRL
• Parties: SAMUEL RALPHEAL BROWN, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.
• Court: U.S. District Court — Middle District of Florida

SAMUEL RALPHEAL BROWN, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONSand FLORIDA ATTORNEY GENERAL, Respondents.

CASE NO. 5:19-cv-109-Oc-02PRL

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

March 27, 2020

ORDER

Petitioner, a prisoner serving a state sentence, brings this habeas corpus petition pursuant to 28 U.S.C. § 2254. Dkt. 1. Respondents filed a timely response, Dkt. 14, and the time for Petitioner to file a reply has elapsed. The Court finds no need for a hearing and denies the petition.

In September 2015, Petitioner was convicted by a jury of attempted second degree murder, attempted felony murder, and attempted burglary. The evidence showed that Petitioner and his brother burgled a house, and returned the next day with others to steal two gun safes they had spied there. Upon returning to the house, armed, the men participated in a botched home invasion where Petitioner was shot while exchanging gunfire with the victim. Trial evidence included the victim and three codefendants all testifying against Petitioner and inculpating him unequivocally. Additionally, his DNA was found on a gun stolen in the first burglary and used in the second. Before heading out to the second robbery, Petitioner texted his paramour that he was "about to hit a lick" that morning.¹

Petitioner was sentenced to life imprisonment as a prison releasee reoffender. Dkt. 15-1, Exh. A, Vol. II at pp. 178-289, 395-399.² On October 28, 2016, Petitioner's judgment and sentence for attempted felony murder and attempted burglary was affirmed, and his conviction and sentence for attempted second degree murder was set aside because it violated double jeopardy principles. Exh. D; see also Brown v. State, 204 So.3d 546 (Fla. 5th DCA 2016). Petitioner's amended sentence upon remand was life. Dkt. 15-16 at 90.

On January 18, 2018, Petitioner, through counsel, filed a Rule 3.850 motion to vacate or set aside convictions and sentences. Exh. F at pp. 1-71. On April 19, 2018, the trial court denied all relief. Exh. F at pp. 595-909. On January 22, 2019, the district court of appeal per curiam affirmed the denial. Exh. I; see also Brown v. State, 263 So.3d 46 (Fla. 5th DCA 2019).

On August 7, 2018, Petitioner filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel in the Florida Fifth DistrictCourt of Appeal, pursuant to Fla. R. App. P. 9.141(d). Exh. K; Dkt. 15-16 at 145. On November 20, 2018, the petition was denied. Exh. N.

The Respondents state that the instant petition is timely, and the Court agrees.

Petitioner's case is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, §104, 110 Stat. 1214, 1218-19. Concerning the AEDPA the Eleventh Circuit Court of Appeals noted:

With respect to claims adjudicated on the merits, § 2254(d)(1) restricts the issuance of habeas relief to those cases resulting in a decision that was contrary to, or involving an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. Section 2254(d)(2) provides for habeas relief where the state court determination "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

The AEDPA also mandates deference to state court factual determinations. Under § 2254(e)(1), a state court's determination of a factual issue is presumed correct. One seeking habeas relief must rebut this presumption by clear and convincing evidence. § 2254(e)(1).

Valle v. Sec'y for the Dep't of Corrs., 459 F.3d 1206, 1211 (11th Cir. 2006).

The instant petition contains claims of ineffective assistance of counsel. Ineffective assistance of counsel claims are governed by the two-part performance-and-prejudice standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Clark v. Crosby, 335 F.3d 1303, 1310 (11th Cir. 2003).

The Supreme Court teaches:

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and 2254(d) are both "highly deferential," id., at 689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is "doubly" so, Knowles, 556 U.S., at 123, 129 S. Ct. at 1420. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at 123, 129 S. Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington v. Richter, 562 U.S. 86, 105 (2011). With that background, the Court turns to the grounds set forth in the petition.

GROUND ONE

In Ground One, Petitioner argues that his trial counsel was ineffective for failing to object and move for a mistrial when the trial judge asked a witness a question. This issue was properly exhausted via the Rule 3.850 motion for postconviction relief. Trial Judge Stancil inquired of the codefendant, Cornelius Lewis, whether Lewis was the "ringleader." Judge Stancil's question was posed during the following examination of Lewis by the prosecutor:

STATE: And who was doing what in the Yukon? Who was seated where?

LEWIS: I was in the driver seat. I can't remember who was in the passenger - well, I was in the driver [seat]. Darrell was in the passenger [seat]. And Caleb [Petitioner's brother] was in the back.

STATE: Eventually was somebody else driving the car?

LEWIS: Yes.

STATE: Who?

LEWIS: Caleb.

STATE: When did that switch happen?

LEWIS: At the store.

. . . .

STATE: Okay. How did it come to be that Sam [Petitioner] was in the car?

LEWIS: We drove down a road and we seen (sic) him walking and we picked him up.

STATE: And what happened when you all picked him up?

LEWIS: We went to the store, the BP - for gas.

STATE: Did you see if he had anything with him when he got in the car?

LEWIS: No sir. I didn't pay attention.

STATE: Where did he get in?

LEWIS: The back, behind the driver.

STATE: Do you guys talk between the time he gets in the car and you guys get to where you're going in the Belleview area?

LEWIS: Yes, sir.

STATE: Okay. What do you talk about? Who says what?

LEWIS: We basically - it was referred to something about, you know, the safe and what we were going to do.

STATE: Who was talking?

LEWIS: I was talking.

COURT: Were you the ringleader, so to speak?

LEWIS: Am I - was I the ringleader?

COURT: Yeah.

LEWIS: No, sir.

COURT: Who did you consider your leader?

DEFENSE COUNSEL (COUNSEL): Objection, argumentative.

COURT: I'm not going to - going to sustain your objection to my question.

STATE: Who was the ringleader, Mr. Lewis?

LEWIS: Sam.

COUNSEL: Objection.

COURT: Overruled.

Tr. 877-879.

The Petitioner complains Judge Stancil departed from his role as a neutral arbiter and took the side of the State when the court inquired as to the identity of the ringleader. He argues that although counsel objected to the court's inquiry as being 'argumentative,' counsel erred when counsel failed to pose a proper objection to the court inserting itself into the prosecutor's examination, failed to request a curative instruction, and failed to move for a mistrial.

The Petitioner argues he was prejudiced by the court's inquiry, and counsel's failure to pose a proper objection, because the court's inquiry could reasonably be interpreted to favor the State and the response the court elicited assisted the State of Florida in directly contradicting Petitioner's theory of the case. Citing Dolan v. State, 187 So. 3d 262, 266 (Fla. 2d DCA 2016), the Petitioner urges the court essentially "introduced its own evidence against [Petitioner], thereby departing from its required position of neutrality." The Petitioner asserts that when the court "revealed that Cornelius Lewis considered Sam Brown the 'ringleader,' the State capitalized on the error two more times before the jury" to assist the State in introducing hearsay testimony and to assist the State in closing argument. The Petitioner argues there is a reasonable probability the outcome of the trial would have been different but for counsel's failure to pose a proper objection and move for a mistrial.

A trial judge is permitted, generally, to ask questions of witnesses and may even comment on the evidence. See United States v. Block, 755 F.2d 770, 775 (11th Cir. 1985) (holding no error: trial judge asked 45 questions). This single incident, comprised of two questions, is entirely innocuous and far from a federal constitutional violation. This is especially so given the particular facts of Petitioner's trial.

Defense counsel ably sought to rebut the witness's statement that Petitioner was the ringleader and suggested instead it was Petitioner's brother Caleb. This included the following examination:

DEFENSE COUNSEL (COUNSEL): You knew what was going on once you got up to Ocala. By then, you knew what was going on through Caleb, is that correct?

LEWIS: Yes.

. . . .

COUNSEL: Okay. Now, let's go back again and talk about something. You were asked by [the prosecutor] for some reason who was the ringleader of this, okay. And who did you say?

LEWIS: Sam.

COUNSEL: Well, why would Sam be the ringleader?

LEWIS: I mean, Caleb is his brother, right?

COUNSEL: Last I checked, yeah.

LEWIS: Huh?

COUNSEL: So why Sam? Is it because he's sitting here and you' re sitting there that he's now the ringleader?

LEWIS: No.

COUNSEL: Well, you know what a ringleader is, don't you? What's a ringleader?

LEWIS: Shot caller.

. . . .COUNSEL: Okay. So - but meanwhile nobody called any shots. You just drove, how many miles from your house up here to Ocala, approximately? Marion - Marion Oaks-

LEWIS: Probably ten. I don't know.

. . . .

COUNSEL: All

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