Dailey v. Sec'y, Florida Dep't of Corr., Case No. 8:07-cv-1897-T-27MAP

• Decision Date: 29 March 2012
• Docket Number: Case No. 8:07-cv-1897-T-27MAP
• 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: March 29, 2012

ORDER

Before the Court is Petitioner's Motion To Vacate To Allow Amendment And Motion To Alter Or Amend (Dkt. 40). The motion is GRANTED in part but otherwise denied.

I. Motion To Vacate To Allow Amendment

Petitioner asserts that when the his federal habeas petition was denied, the Court incorrectly found that Ground Three of the petition did not raise an ineffective assistance of counsel claim. Petitioner moves to vacate the judgment to allow him to amend his petition to clarify that Ground Three does raise a claim that his state court trial counsel was ineffective in failing to object to the prosecutor's: 1) misstatement regarding the presumption of innocence; 2) improper vouching for state witnesses; and 3) false argument regarding when Oza Shaw used the telephone on May 5, 1985.

Petitioner did not fairly present an ineffective assistance of counsel claim in Ground Three of his petition (Dkt. 1 at 37-46). Rather, Ground Three asserts a substantive claim that several instances of prosecutorial misconduct deprived Petitioner a fair trial (Id.).

The title of Ground Three is:

THE LOWER COURT ERRED IN DENYING MR. DAILEY'S POSTCONVICTION CLAIM THAT HE WAS DENIED HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL, IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS, DUE TO PROSECUTORIAL MISCONDUCT, WHICH RENDERED THE OUTCOME OF HIS TRIAL UNRELIABLE. THE STATE ENCOURAGED AND PRESENTED MISLEADING EVIDENCE AND ARGUMENT TO THE JURY.

(Dkt. 1 at 37). After identifying several instances of alleged improper prosecutorial argument, Petitioner did assert, in a single line, that "[c]ounsel's failure to protect his client from several of these instances of prosecutorial misconduct, by failing to timely object, was ineffective assistance of counsel." (Id. at 43). Petitioner did not, however, include a separate ineffective assistance of counsel analysis in his argument supporting Ground Three, either in his petition, memorandum of law, or reply (see Dkts. 1, 17, 36). In contrast, in his state Rule 3.850 motion, Petitioner presented an ineffective assistance claim in a separate ground from his substantive claim of prosecutorial misconduct. In that pleading, he clearly presented a claim that counsel was ineffective in failing to object to prosecutorial misconduct (Respondent's Ex. D-l at record pages 21-22, 70-90).

Petitioner's fleeting reference to ineffective assistance of counsel in Ground Three of his federal petition did not fairly present a claim of ineffective assistance of counsel independent of his substantive prosecutorial misconduct claim. Notwithstanding, in its September 30,2008 Order, this Court construed Ground Three as asserting a claim of ineffective assistance of counsel, and directed Respondent to address the claim that counsel was ineffective in failing to object to the alleged prosecutorial misconduct (Dkt. 27 at 13-15, 17; Dkt. 27 at 17)¹ .

A district court is to address and resolve all claims raised in a petition. Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992); Williams v. Florida Dept. of Corrections, 391 Fed.Appx. 806, 810 (11th Cir. 2010). Accordingly, Petitioner's discrete allegation of ineffective assistance of counsel will be addressed on the merits. For the reasons that follow, however, there is no merit in the claim.

First, Petitioner fails to articulate any argument in support of this ineffective assistance of counsel claim (See Dkts. 1,17, 36). Unsupported allegations cannot support a claim of ineffective assistance of counsel. See Tejada v. Dugger, 941 F.2d 1551,1559 (11th Cir. 1991). Cf. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (issue waived on appeal where party failed to include substantive argument); Sepulveda v. U.S. Att 'y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) ("When an appellant fails to offer argument on an issue, that issue is abandoned.").

Second, the respective state courts' findings that Petitioner's ineffective of counsel claim was without merit are not objectively unreasonable. "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); accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). And those findings are presumptively correct. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to findings of fact, not to mixed determinations of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert, denied, 534 U.S. 1046 (2001).

In addressing this claim of ineffective assistance of counsel in the Rule 3.850 proceedings, the state trial court found:

Next, Mr. Dailey alleges that his counsel was ineffective for failing to object to the prosecutor's closing argument wherein the prosecutor intentionally commented on and misstated the presumption of innocence afforded to him by the U.S. Constitution when she stated:

Ms. Andrews: Remember, as Mr. Denhardt asked you to remember, the presumption of innocence. The presumption of innocence that all citizens are afforded under the Constitution of the United States. All criminals are afforded, all murderers are afforded. It's gone right now. It's gone. It no longer applies. The shield has to be removed.

(See Jury Trial Transcript, Vol. 6, p. 686, attached) (emphasis added). Mr. Dailey contends this comment made by the prosecutor was a patently improper comment on the constitutional presumption of innocence by implying to the jury they must presume Mr. Dailey to be guilty merely because the State had charged him with murder. Since his trial counsel failed to object to this statement, Mr. Dailey argues, his counsel was constitutionally ineffective and Mr. Dailey was deprived of his constitutional right to effective assistance of counsel and a fair trial.

Mr. Dailey failed to present any evidence on this ground at the evidentiary hearings held in this matter. (See Evidentiary Hearing Transcripts, dated March 19, 2003, November 7, 2003, December 11, 2003, June 29, 2004, and November 5, 2004, attached). The question of when to object is a strategic decision that is within the discretion of the attorney, and should not normally be questioned by a court if the attorney's actions could be considered reasonably competent counsel. Peterka v. State, 890 So. 2d 219, 233 (Fla. 1999). Furthermore, Mr. Dailey has mischaracterized the prosecutor's statements as an improper comment on his constitutional right to the presumption of innocence. In fact, these comments appear to be nothing more than an attempt to argue the State had met its evidentiary burden. Ruiz v. State, 743 So.2d 1, 4 (Fla. 1999) (The assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence, quoting United States v. Morris, 568 F. 2d 396, 401 (5th Cir. 1978)). Therefore, the prosecutor's statements were not prejudicial, and Mr. Dailey has not established ineffective assistance of counsel. As such, no relief is warranted on this ground.

(Respondent's Ex. D2/142-43).

Next, Mr. Dailey alleges counsel was ineffective for failing to object to the prosecutor's guilt phase closing argument wherein the prosecutor engaged in improper bolstering of the testimony of the witnesses Messrs, Skalnik, Leitner, and DeJesus when she stated:

Ms. Andrews: Skalnik is a thief. We admitted that as I have already said. But I want you to remember what Detective Halliday said about the other information that he has gotten from this man. It has proven to be reliable. He has told him where critical evidence in another murder case was evidence that they didn't know existed because the Defendants had told them they had thrown away the ski mask until Skalnik told them exactly where it was based on a conversation he had. A weapon that was thrown away in another murder case. And that Detective Halliday, after having conversations with Skalnik and knowing him for years, considers him to be reliable enough to bring him to the State Attorneys' Office with the information he has provided.

You heard Detective Halliday's experience and what unit he is with and the types of crimes that he investigates. If these men are cons, they would not con Detective Halliday.

(See Jury Trial Transcript, Vol. 6, p. 707, attached) (emphasis added). Mr. Dailey contends that this argument by the prosecutor was an improper attempt to bolster the testimony of Paul Skalnik, James Leitner, and Pablo DeJesus, which the prosecutor knew to be not credible. Mr. Dailey argues that in making such an argument, the prosecutor was attempting to insulate this suspect testimony by cloaking it with Det. Halliday's seal of approval. Since his trial counsel failed to object to this argument, Mr. Dailey argues, he was deprived of his right to effective assistance of counsel and his right to a fair trial.

The prosecutor plays a special role in our criminal justice system, and as a result, any statements of personal belief by the prosecutor as to the reliability of any particular witnesses or evidence could unfairly prejudice the defendant. Myers v. State, 788 So. 2d 1112, 114 (Fla. 2d DC A 2001). Improper bolstering of witness testimony occurs when the prosecutor attempts to improve the witness' credibility by putting the weight of government behind the witness' testimony. Hutchinson v. State, 882 So. 2d 943, 953 (Fl

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