DAILEY v. Sec'y, Case No. 8:07-CV-1897-T-27MAP

• Decision Date: 01 April 2011
• Docket Number: Case No. 8:07-CV-1897-T-27MAP
• Citation: Dailey v. Sec'y, Florida Dep't of Corr., Case No. 8:07-CV-1897-T-27MAP (M.D. Fla. Apr 01, 2011)
• Parties: JAMES M. DAILEY, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

JAMES M. DAILEY, Petitioner,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:07-CV-1897-T-27MAP

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

Dated: April 1, 2011

ORDER

THIS CAUSE IS before the Court on Petitioner James Dailey's ("Petitioner" or "Dailey") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). Petitioner is a Florida prisoner under sentence of death. He filed a memorandum in support of the petition (Dkt. 17), Respondent filed a response in opposition to the petition (Dkt. 31), and Petitioner filed a reply (Dkt. 36).¹ Upon consideration of each of Petitioner's claims, the Court has determined that none has merit and that Petitioner's request for federal habeas relief (Dkt. 1) is DENIED.

BACKGROUND

Petitioner was convicted in 1987 of first-degree murder. He was sentenced to death. On November 14, 1991, Petitioner's conviction was affirmed, but his sentence was reversed by the Florida Supreme Court and remanded for resentencing. See Dailey v. State, 594 So.2d 254 (Fla. 1991). Petitioner was resentenced to death. The Florida Supreme Court affirmed on May 25, 1995. See Dailey v. State, 659 So.2d 246 (Fla. 1995). The United States Supreme Court denied certiorari on January 22, 1996. See Dailey v. Florida, 516 U.S. 1095 (1996) [table].

Petitioner initiated state court post-conviction proceedings in April 1997. In August 2002, the state trial court denied his post-conviction motion after conducting an evidentiary hearing. On May 31, 2007, the Florida Supreme Court affirmed the denial of the post-conviction motion and denied his state petition for writ of habeas corpus. See Dailey v. State, 965 So.2d 38 (Fla. 2007).

Petitioner filed the instant federal habeas petition on October 18, 2007.

FACTS²

On May 5, 1985, fourteen year-old Shelly Boggio, her twin sister Stacey, and Stephanie Forsythe were hitchhiking near St. Petersburg when they were picked up by James Dailey, Jack Pearcy and Dwaine Shaw. The group went to a bar and then to Pearcy's house, where they met Gayle Bailey, Pearcy's girlfriend. Stacey and Stephanie returned home. Shelly, Bailey, Pearcy, and Dailey went to another bar and then returned to Pearcy's house about midnight. They all entered the house. Bailey went to the bathroom. When she came out of the bathroom, Shelly, Dailey, and Pearcy were gone. Shaw was at the house. Bailey did not look in Dailey's bedroom to see if he was there. Their car was gone. Bailey remained awake. Dailey and Pearcy returned to the house without Shelly several hours later at about 2:00 or 3:00 a.m. Dailey was wearing only a pair of wet pants and was carrying a bundle. The next morning, Dailey, Shaw, and Pearcy visited a self-service laundry, then told Gayle to pack because they were leaving for Miami. Bailey asked what was going on but noone explained to her why they were leaving for Miami. Shelly's nude body was found that morning floating in the water near Indian Rocks Beach. She had been stabbed, strangled and drowned. Dailey and Pearcy were charged with her death.

Pearcy was convicted of first-degree murder and sentenced to life imprisonment. At Dailey's subsequent trial, three inmates from the county jail testified that Dailey had admitted the killing to them individually. Two of the inmates also testified that Dailey had devised a plan whereby he would confess when Pearcy's case came up for appeal if Pearcy in turn would promise not to testify against him at his own trial. Pearcy refused to testify at Dailey's trial. Dailey presented no evidence during the guilt phase. The jury found him guilty of first-degree murder and unanimously recommended death.

At sentencing, Dailey requested the death penalty and the court complied, finding five aggravating and no mitigating circumstances. The Florida Supreme Court affirmed the conviction but reversed and remanded for resentencing. On remand, the trial judge resentenced Dailey to death after finding three aggravating and numerous mitigating circumstances.

STANDARDS OF REVIEW

Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003); Maharaj v. Sec'y of Dept. of Corrections, 304 F.3d 1345, 1346 (11th Cir. 2002). The ultimate issue with respect to each claim is whether the Florida Supreme Court's resolution of the claim 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). Williams v. Taylor, 529 U.S. 362 (2000); Robinson v. Moore, 300 F.3d 1320 (11th Cir. 2002); Van Poyck v. Florida Department of Corrections, 290 F.3d 1318 (11th Cir. 2002). It is not enough that the state court "got it wrong." Petitioner must show that the result of the state court's decision was objectively unreasonable. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, supra).

In the event constitutional error is found in a habeas proceeding, the relevant harmless error standard is set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993). The test is "less onerous" then the harmless error standard enunciated in Chapman v. California, 386 U.S. (1967). "The test is whether the error had substantial and injurious effect or influence in determining the jury's verdict. Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in 'actual prejudice.'" Brecht, 507 U.S. at 637.

Here, although Petitioner has not proven any constitutional errors in his underlying conviction and sentence, any arguable error was harmless based on the facts and the record. An evidentiary hearing is not required because none of Petitioner's claims turn on any unresolved issues of fact. All involve issues of law argued on the basis of the existing record.³

Ineffective Assistance of Counsel Standard

To prevail on a claim of ineffective assistance of trial or appellate counsel, Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires him to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. If a claim fails to satisfy the prejudice component, the court need not make a ruling on the performance component.

Procedural default

A § 2254 application cannot be granted unless a petitioner "has exhausted the remedies available in the courts of the State; . . ." 28 U.S.C. 2254(b)(1)(A); Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also, Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003)("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.")(quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364 (1995)("[E]xhaustion of state remedies requires that the state prisoner 'fairly present' federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]'") (citation omitted).

Under the procedural default doctrine, "if the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). "The doctrine of procedural default was developed as a means of ensuring that federal habeas petitioners first seek relief in accordance with established state procedures." Henderson, 353 F.3d at 891 (quoting Judd v. Haley, 250 F.3d at 1313).

Pre-AEDPA decisions from the Supreme Court establish the framework governing procedural default in federal habeas cases. A procedural default will only be excused in two narrow circumstances. First, a petitioner may obtain federal habeas review of a procedurally defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting from the default. "Cause" ordinarily requires petitioner to demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court. Henderson, 353 F.3d at 892; Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).

To show "prejudice," a petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his factual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). The petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson, 353 F.3d at 892.

Second, a petitioner may obtain federal habeas review of a procedurally defaulted claim without a showing of cause or prejudice if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Henderson, 353 F.3d at 892. This exception is available only "in an extraordinary case, where a constitutional violation has resulted...