Clavelle v. Sec'y, Case No. 3:16-cv-781-J-39PDB

• Decision Date: 01 May 2018
• Docket Number: Case No. 3:16-cv-781-J-39PDB
• Parties: ALVIN O. CLAVELLE, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

ALVIN O. CLAVELLE, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:16-cv-781-J-39PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

May 1, 2018

ORDER

I. INTRODUCTION

Petitioner Alvin O. Clavelle, in his Petition Under 28 U.S.C. § 2254 by a Person in Custody Pursuant to a State Court Judgment (Petition) (Doc. 1), challenges a 2010 Duval County conviction for armed robbery and possession of a firearm by convicted felon. He raises eighteen grounds in the Petition. Respondents filed an Answer in Response to Order to Show Cause (Response) (Doc. 18).¹ Petitioner filed a Reply to Answer in Response to Order to Show Cause (Doc. 22). See Order (Doc. 9).

II. CLAIMS OF PETITION

Eighteen grounds are presented in the Petition for habeas corpus relief: (1) the trial court erred by allowing the state to shift the burden of proof during redirect examination of witness Brock and rebuttal closing argument; (2) the ineffective assistance of appellate counsel for failure to raise the issue that essential elements of the charges were omitted in the charging document; (3) the ineffective assistance of counsel for failure to move for a judgment of acquittal, argue the weight of the evidence in a motion for new trial, or object to the state's case being founded on improper stacking of inferences; (4) the ineffective assistance of counsel by leading Petitioner not to testify; (5) the ineffective assistance of counsel for presenting a fraudulent reason to obtain a continuance, denying Petitioner his right to a speedy trial and allowing the state to build its case; (6) the ineffective assistance of counsel for failure to rely on established law to seek to suppress Petitioner's statement or to seek redaction of Detective Gagnon's hearsay statements; (7) the ineffective assistance of counsel for failure to object to the admission of a photograph, move for a mistrial, or seek a curative instruction concerning a photograph of Petitioner taken at the time of a prior arrest and viewed by the jury; (8) the ineffective assistance of counsel for failure to object to the prosecutor's comment on Petitioner's silence; (9) the ineffective assistance of counsel forfailure to object to the charging document going back to the jury room as it contained the possession of a firearm by a convicted felon count; (10) the ineffective assistance of counsel for failure to present evidence of the temperature on the date of Petitioner's arrest; (11) the ineffective assistance of counsel for failure to investigate and/or call an expert in handwriting analysis; (12) the ineffective assistance of counsel for failure to elicit from Gwendolyn Taylor that Petitioner never referred to her as "Wifey," nor did he refer to himself as "Daddy"; (13) the ineffective assistance of counsel for failure to object to co-defendant Reginald Wescott's testimony that he was testifying because he was taking responsibility for his actions; (14) the ineffective assistance of counsel for failure to request a mere presence at the scene instruction; (15) the ineffective assistance of counsel for failure to move to suppress evidence seized during the arrest; (16) the ineffective assistance of counsel for failure to object to the amended information based on its omission of essential elements of the crimes; (17) the ineffective assistance of counsel based on the cumulative errors of counsel; and (18) the state appellate court erred in refusing to correct the trial court's error in denying Petitioner's Rule 3.850 motion.

III. EVIDENTIARY HEARING

A district court is not required to hold an evidentiary hearing if the record refutes the asserted factual allegations orotherwise precludes habeas relief. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). It is Petitioner's burden to establish the need for a federal evidentiary hearing, and he has not met the burden. Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011), cert. denied, 565 U.S. 1120 (2012). The pertinent facts are fully developed in this record or the record otherwise precludes habeas relief. Therefore, the Court is able to "adequately assess [Petitioner's] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).

The Court will review the eighteen grounds raised in the Petition, see Long v. United States, 626 F.3d 1167, 1169 (11th Cir. 2010) ("The district court must resolve all claims for relief raised on collateral review, regardless of whether relief is granted or denied.") (citing Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) and Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009)), and consider Petitioner's request for collateral relief.

IV. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). "AEDPA limits the scope of federalhabeas review of state court judgments[.]" Pittman v. Sec'y, Fla. Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017). This narrow scope of review under AEDPA provides for habeas relief only if there are extreme malfunctions, certainly not to be used as a means to correct state court errors. Ledford, 818 F.3d at 642 (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

Federal courts may grant habeas relief if:

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," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

A state court's decision rises to the level of an unreasonable application of federal law only where the ruling is "objectively unreasonable, not merely wrong; even clear error will not suffice." Virginia v. LeBlanc, 582 U.S. ----, ----, 137 S.Ct. 1726, 1728, 198 L.Ed.2d 186 (2017) (per curiam) (quoting Woods v. Donald, 575 U.S. ----, ----, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam)). This standard is "meant to be" a difficult one to meet. Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

Rimmer v. Sec'y, Fla. Dep't of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017), petition for cert. docketed by (U.S. Mar. 9, 2018) (No. 17-8046).

"We also must presume that 'a determination of a factual issue made by a State court [is[ correct,' and the petitioner 'ha[s] the burden of rebutting the presumption of correctness by clear andconvincing evidence.' 28 U.S.C. § 2254(e)(1)." Morrow v. Warden, 886 F.3d 1138, 1147 (11th Cir. 2018). Additionally, "[t]his presumption of correctness applies equally to factual determinations made by the state trial and appellate courts." Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).

Recently, in Wilson v. Sellers, No. 16-6855, 2018 WL 1800370, at *5 (U.S. April 17, 2018), 584 U.S. ---- (2018), the Supreme Court concluded there is a "look through" presumption in federal habeas law, as silence implies consent. See Kernan v. Hinojosa, 136 S.Ct. 1603, 1605 (2016) (per curiam). This presumption is employed when a higher state court provides no reason for its decision; however, it is just a presumption, not an absolute rule. Wilson, 2018 WL 1800370, at *7. "Where there are convincing grounds to believe the silent court had a different basis for its decision than the analysis followed by the previous court, the federal habeas court is free, as we have said, to find to the contrary." Id. at *8.

Thus, with the Supreme Court's guidance, this Court must undertake the following review. If the last state court to decide a prisoner's federal claim provides an explanation for its merits-based decision in a reasoned opinion, "a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable." Id. at *2. But,if the relevant state-court decision on the merits is not accompanied by a reasoned opinion, for example the decision simply states affirmed or denied, a federal court "should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale." Id. at *3. At this stage, the federal court presumes the unexplained decision adopted the same reasoning as the lower court. Id. The presumption is not irrebutable, as strong evidence may refute it. Hinojosa, 136 S.Ct. at 1606. The state can rebut the presumption by showing the higher state court relied or most likely relied on different grounds than the lower state court, "such as alternative grounds for affirmance that were briefed or argued to the state supreme court or obvious in the record it reviewed." Wilson, 2018 WL 1800370, at *3.

Although the § 2254(d) standard is difficult to meet, the standard is meant to be difficult. Rimmer, 876 F.3d at 1053 (opining that to reach the level of an unreasonable application of federal law, the ruling must be objectively unreasonable, not merely wrong or even clear error). This Court recognizes, applying the AEDPA standard, state court decisions must be given the benefit of the doubt. Trepal v. Sec'y, Fla. Dep't of Corr., 684 F.3d 1088, 1107 (11th Cir. 2012) (quotation and citations omitted), cert. denied, 568 U.S. 1237 (2013).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

In order to prevail on his Sixth Amendment claims, 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...