Ferry v. Sec'y
| Decision Date | 18 July 2017 |
| Docket Number | Case No. 8:16-cv-2692-T-33JSS |
| Parties | BRIAN K. FERRY, SR., Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Brian K. Ferry, Sr., a Florida inmate, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) He challenges his convictions entered by the Circuit Court for the Sixth Judicial Circuit, in and for Pinellas County. The Court previously determined that Ferry's petition is not time-barred. (Doc. 19, p. 2.) Respondent filed a response. (Doc. 22.) Ferry filed a reply. (Doc. 24.) Upon consideration, the petition is denied.
PROCEDURAL HISTORY
Ferry was convicted after a jury trial of DUI manslaughter (count one), fleeing to elude a law enforcement officer with agency insignia and lights and sirens (count two), and driving while license permanently revoked (count three). (Doc. 11, Ex. 2.) He was sentenced to consecutive prison terms of fifteen years on count one and five years on counts two and three. (Doc. 11, Ex. 3.) Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). (Doc. 11, Ex. 5.) Given the opportunity to file a pro se brief, Ferry voluntarily withdrew his appeal. (Doc. 11, Exs. 6, 8, 9.) Ferry filed a petition for writ of habeas corpus under Florida Rule of Appellate Procedure 9.141. (Doc. 11, Ex. 10.) The state appellate court denied his petition. (Doc. 11, Ex. 11.)
Ferry next filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 11, Ex. 14, pp. 1-13.) The state court struck his motion with leave to amend. (Id., pp. 16-26.) Ferry filed an amended postconviction motion and a motion to supplement. (Id., pp. 33-63, 123-30.) The state court struck several claims in the amended motion, giving Ferry leave to amend, and reserved ruling on the remainder of his claims. (Id., pp. 140-45.) Ferry accordingly filed a second amended postconviction motion. (Doc. 11, Ex. 15, pp. 146-85.) The state court summarily denied all postconviction claims. (Doc. 11, Ex. 15, pp. 186-324; Ex. 17, pp. 472-640.) The state appellate court per curiam affirmed the denial of postconviction relief. (Doc. 11, Ex. 19.)
FACTS1
In the early morning hours of April 12, 2010, Clearwater Police Officer Kyle Resler received information that Ferry, who had an outstanding misdemeanor warrant for his arrest, was located inside a bar. Officer Resler watched the bar's parking lot from a position across the street. When he saw Ferry's truck leave, he attempted to conduct a traffic stop. The truck pulled over and stopped. As Officer Fontayne Egger also arrived on the scene and Officer Resler was preparing to exit his vehicle, the truck sped away. The officers followed. Officer Resler again attempted to pull the truck over. When the truck failed to pull over and accelerated instead, Officer Resler did not pursue it because doingso based on a misdemeanor warrant was against Police Department policy. However, Officer Egger maintained sight of the truck as it traveled north on Belcher Road.
Traffic on Belcher Road had a red light at the intersection with Drew Street, but the truck went through the red light into the intersection. At that moment, a taxi cab driven by Joshua Donahue entered the intersection headed eastbound on Drew Street. The vehicles collided and came to rest at the northeast corner of the intersection. The officers arrived at the intersection very shortly after the crash. Officer Resler pulled a man who he identified as Ferry from the driver's seat of the truck and had Ferry lie on the ground. Officer Resler observed signs that Ferry was impaired.
Two eyewitnesses at a nearby gas station testified about the crash and the events immediately following it. Charles Hopkins testified that he saw a person get out of the driver's side of the truck and lie down on the ground. John Hopkins testified that he saw a police officer pull a man out of the truck. Neither Charles Hopkins, John Hopkins, Officer Resler, or Officer Egger testified to seeing another individual in or around the truck or fleeing from the crash site.
Ferry was transported to a hospital, where his blood was drawn. Testing on the first blood sample showed that his blood alcohol content was between .171 and .174 grams per deciliter. Testing on a second sample collected later showed that his blood alcohol content was between .147 and .152 grams per deciliter. Dr. Michael Lawless, an emergency physician who treated Ferry, testified that Ferry's blood results indicated alcohol impairment. Officer Stephan Hole observed Ferry in the hospital and believed that Ferry appeared intoxicated. Donahue died as a result of injuries sustained in the crash.
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 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 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) (). Ferry bears the burden of overcoming by clear and convincing evidence a state court factual determination. 28 U.S.C. § 2254(e)(1).
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. The state appellate court rejected Ferry's habeas petition and affirmed the denial of postconviction relief without discussion. The court's decisions warrant deference under § 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). See also Richter, 562 U.S. at 99 ().
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficientperformance by counsel and resulting prejudice. Id. at 687. To show deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. A court must consider whether, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.
Ferry must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92. To show prejudice, a petitioner must...
To continue reading
Request your trial