Flowers v. Sec'y, Dep't of Corr., Case No. 3:16-cv-539-J-39JRK

• Decision Date: 09 August 2019
• Docket Number: Case No. 3:16-cv-539-J-39JRK
• Parties: MICHAEL L. FLOWERS, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

MICHAEL L. FLOWERS, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:16-cv-539-J-39JRK

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

August 9, 2019

ORDER

I. INTRODUCTION

Petitioner Michael L. Flowers, an inmate of the Florida penal system proceeding pro se, challenges his state court (Duval County) conviction for two counts of aggravated battery through a Second Amended Petition for writ of habeas corpus (Petition) (Doc. 13) pursuant to 28 U.S.C. § 2254. He is serving a term of life imprisonment on count one and a concurrent term of twenty years in prison on count two. Petition at 1. Respondents filed an Answer to Petition for Writ of Habeas Corpus (Response) (Doc. 32).¹ Thereafter, Petitioner filed a Reply to Respondents' Answer toPetitioner's Petition for Writ of Habeas Corpus (Reply) (Doc. 37). The Petition is timely filed. See Response at 16-19.

II. EVIDENTIARY HEARING

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). As the record refutes the asserted factual allegations or otherwise precludes habeas relief, the Court finds Petitioner is not entitled to an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Petitioner has not met his burden of demonstrating a need for an evidentiary hearing. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011) (opining a petitioner bears the burden of establishing the need for an evidentiary hearing with more than speculative and inconcrete claims of need), cert. denied, 565 U.S. 1120 (2012).

III. CLAIMS OF PETITION

In his Petition, Petitioner raises fourteen grounds seeking post conviction relief. He primarily raises claims of ineffective assistance of trial counsel, but also raises two claims of ineffective assistance of appellate counsel. The fourteen grounds are: (1) the ineffective assistance of trial counsel by opening the door to prejudicial evidence of Petitioner's post-arrest silenceand post-Miranda invocation of right to counsel; (2) the ineffective assistance of trial counsel for failure to adequately prepare for the state's impeachment of Shantell Smith regarding delay in coming forward with alibi information; (3) the ineffective assistance of trial counsel for failure to object to the prosecutor's closing argument with regard to excessive comments on Petitioner's post-arrest silence and post-Miranda invocation of right to counsel; (4) the ineffective assistance of trial counsel for failure to object to the trial court's handling of a jury question and refusal to read-back Jerry Strickland's testimony; (5) the ineffective assistance of appellate counsel for failure to raise on appeal the trial court's error in denying the motion to dismiss information; (6) the ineffective assistance of appellate counsel for failure to timely raise a sentencing issue on appeal; (7) the ineffective assistance of trial counsel for failure to call Sgt. Butler as a defense witness; (8) the ineffective assistance of counsel for failure to request a cautionary instruction on reliability of identification; (9) the ineffective assistance of counsel for failure to file a motion to suppress Petitioner's identification based on an impermissibly suggestive photo line-up; (10) the ineffective assistance of counsel for failure to investigate and introduce reverse Williams' rule evidence; (11) the ineffective assistance of counsel for failure to object to prosecutorial misconduct during closing argument; (12) theineffective assistance of trial counsel for failure to obtain Petitioner's phone records and present the records at trial to support the alibi defense; (13) the ineffective assistance of counsel for failure to object to a sleeping juror, Ms. Batton; and (14) the cumulative effect of trial counsel's errors rendered counsel's assistance ineffective and deprived Petitioner of a fair trial. In each ground, Petitioner claims deprivations of his Sixth and Fourteenth Amendment rights.

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. This statute "imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases." Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam). The AEDPA statute: "respects the authority and ability of state courts and their dedication to the protection of constitutional rights." Id. Therefore, "[u]nder AEDPA, error is not enough; even clear error is not enough." Meders v. Warden, Ga. Diagnostic Prison, 911 F.3d 1335, 1349 (11th Cir. 2019) (citing Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)).

Applying the statute as amended by AEDPA, federal courts may not grant habeas relief unless one of the claims: "(1)'was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the UnitedStates,' or (2) '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)." Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1300-1301 (11th Cir. 2019).

Thus, in order to obtain habeas relief, the state court decision must unquestionably conflict with Supreme Court precedent. Harrington v. Richter, 562 U.S. 86, 102 (2011). If some fair-minded jurists could agree with the lower court's decision, habeas relief must be denied. Meders, 911 F.3d at 1351. As noted in Richter, unless the petitioner shows the state court's ruling was so lacking in justification that there was error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement, there is no entitlement to habeas relief. Burt v. Titlow, 571 U.S. 12, 19-20 (2013).

In undertaking its review, this Court is not obliged "to flyspeck the state court order or grade it." Meders, 911 F.3d at 1349. Indeed, specificity and thoroughness of the state court decision is not required; even if the state court fails to provide rationale or reasoning, AEDPA deference is due "absent a conspicuous misapplication of Supreme Court precedent." Id. at 1350 (citation and quotation marks omitted).

Of importance, a state court's finding of fact, whether a state trial court or appellate court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). But, this presumptionof correctness applies only to findings of fact, not mixed determinations of law and fact. Brannan v. GDCP Warden, 541 F. App'x 901, 903-904 (11th Cir. 2013) (per curiam) (recognizing the distinction between a pure question of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).

Where there has been one reasoned state court judgment rejecting a federal claim followed by an unexplained order upholding that judgement, federal habeas courts employ a "look through" presumption: "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).

Once a claim is adjudicated in state court and a prisoner seeks relief in the federal court system, AEDPA's formidable barrier to habeas relief comes into play, and it is very difficult for a petitioner to prevail under this stringent standard. As such, state-court judgments will not easily be set aside once the Court employs this highly deferential standard that is intentionally difficult to meet. See Richter, 562 U.S. at 102. Although AEDPA does not impose a complete bar to issuing a writ, it severely limits those occasions to those "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts" with Supreme Court precedent. Id. In sum, application of the standard set forth in 28 U.S.C. § 2254(d)ensures that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, and not a mechanism for ordinary error correction. Richter, 562 U.S. at 102-103 (citation and quotation marks omitted).

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner raises numerous claims of ineffective assistance of counsel. 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 probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different). See Brewster v. Hetzel, 913 F.3d 1042, 1051-52 (11th Cir. 2019) (reviewing court may begin with either component).

In order to obtain habeas relief, a counsel's errors must be so great that they actually adversely effect the defense. In order to satisfy this prejudice prong, the reasonable probability of a different result must be "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

The standard created by Strickland is a highly deferential standard, requiring a most deferential review of counsel's decisions. Richter, 562 U.S. at 105. Not only is there the "Strickland mandated one layer of deference to the decisions of trial counsel[,]" there is the added layer of deference required byAEDPA: the one to a state court's decision. Nance, 922 F.3d at 1303. Thus,

Given the double deference due, it is a "rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a

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