Green v. Sec'y, Dep't of Corr.

• Decision Date: 14 March 2022
• Docket Number: No. 18-13524,18-13524
• Citation: 28 F.4th 1089
• Parties: Crosley Alexander GREEN, Petitioner-Appellee, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellants, Hardee Correctional Institution Warden, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

28 F.4th 1089

Crosley Alexander GREEN, Petitioner-Appellee,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellants,Hardee Correctional Institution Warden, Respondent.

No. 18-13524

United States Court of Appeals, Eleventh Circuit.

Filed: March 14, 2022

Keith J. Harrison, Vincent J. Galluzzo, Jeane A. Thomas, Crowell & Moring, LLP, Washington, DC, Mark Olive, Law Offices of Mark E. Olive, PA, Tallahassee, FL, Robert Thomas Rhoad, Law Office of Robert Thomas Rhoad, Washington, DC, for Petitioner-Appellee.

Kellie A. Nielan, Pam Bondi, Wesley Harold Heidt, Attorney General's Office, Daytona Beach, FL, for Respondent Attorney General, State of Florida.

Kellie A. Nielan, Pam Bondi, Attorney General's Office, Daytona Beach, FL, Wesley Harold Heidt, Office of the Attorney General, Tallahassee, FL, Lance Neff, Florida Department of Corrections, Office of General Counsel, Tallahassee, FL, for Respondent Secretary, Department of Corrections.

Before Jordan, Tjoflat, and Traxler,^* Circuit Judges.

Tjoflat, Circuit Judge:

The power of the federal courts to grant a writ of habeas corpus setting aside a state prisoner's conviction on a claim that his conviction was obtained in violation of the United States Constitution is strictly circumscribed. First, the prisoner must have exhausted his state remedies. 28 U.S.C. § 2254(b)(1)(A). He presented the claim to the state courts, and they denied it on the merits. Second, the federal court may not grant the writ on an exhausted claim unless it finds that the state courts' adjudication 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)(1), 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)(2). Additionally, factual findings made by state courts are presumed correct until rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Finally, the federal court may only consider the merits of an unexhausted claim if the prisoner establishes "cause and prejudice" for his failure to exhaust, Engle v. Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 1573, 71 L.Ed.2d 783 (1982), or that he is "actually innocent" of the crime for which he was convicted. Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2646-49, 91 L.Ed.2d 397 (1986).

In this case, Crosley Alexander Green, a state prisoner, petitioned the District Court for a writ of habeas corpus vacating his convictions for murder, armed robbery, and kidnapping with bodily injury. His petition presented nineteen constitutional claims. Most had not been exhausted. The Court granted the writ on an unexhausted claim and denied the writ on the rest. The State appeals the granting of the writ, and we reverse. The prisoner cross-appeals the Court's denial of the writ on six of the claims, and we affirm.

We begin by describing the circumstances that led to the prisoner's convictions. From there, we portray step by step the complex and confusing litigation history—initially in state court, and then in federal court—of the claims we decide in these appeals.

I.

A.¹

At approximately 10:00 p.m. on April 3, 1989, in the rural part of Brevard County, Florida, Charles "Chip" Flynn Jr., age twenty-one, went to visit his on-again, off-again girlfriend Kim Hallock, age nineteen. About an hour later after watching a movie, they decided to go for a drive in Flynn's pick-up truck. Around 11:25 p.m., the two ended up in a secluded area of Holder Park next to some sand dunes. Flynn parked his truck there, and he and Hallock smoked marijuana and discussed the nature of their relationship.

Hallock and Flynn had been seeing each other for about a year and a half. And while they had once gone steady, their relationship was now an open one. Not only was Flynn seeing Hallock, he was involved with other women as well, including a Patti Larney.

As Hallock and Flynn smoked and discussed their relationship, a sheriff's car drove by but continued on without stopping.² Almost immediately after the car passed, a black male approached Flynn's truck and warned Hallock and Flynn, both white, to watch out for police. The man then disappeared into the darkness.

A few minutes later, Flynn, barefoot, got out of the truck to relieve himself. He immediately found himself face to face with the same black male as before, who was now holding a handgun. Hallock heard Flynn say nervously, "Hold on. Wait a minute, man. Hold on. Put it down." At that point, she retrieved Flynn's handgun from the glove box beneath the dashboard and hid it under a pair of jeans lying next to her on the truck's seat. The man ordered Flynn to his knees and demanded at gunpoint that Hallock and Flynn give him any money they had. Hallock gave the man five dollars, but Flynn insisted that he had no money.

The man told Hallock to give him a shoelace from one of Flynn's shoes, which were on the floorboard on the driver's side of the truck, and then used the shoelace to tie Flynn's hands behind his back. While tying Flynn's hands, the man accidentally discharged his weapon, but no one was injured. At this point, the man noticed that Flynn had a wallet in his back pocket. He pulled it out, threw it to Hallock, and told her to count the money it contained. It amounted to $185.

The man ordered Hallock to start the truck and forced Flynn to get in and sit next to the passenger door. Then, he got in and positioned himself behind the steering wheel. Hallock sat between the man and Flynn. The man drove east on Parrish Road across U.S. 1 until he reached Hammock Road, all the while holding a gun to Hallock's side. At Hammock Road, the man turned left and drove north 200 to 300 yards before pulling into a remote orange grove adjacent to Indian River Lagoon³ and approximately 2.5 miles from Holder Park.

After coming to a stop in the orange grove, the man pulled Hallock out of the truck. Hallock broke free of the man's grip and tried to run away. While the man was regaining control of her, Flynn, with his hands still tied behind his back, grabbed the handgun Hallock had hidden beneath the pair of jeans and exited the truck on the passenger side. He fell to the ground in the process and attempted to shoot at the man. When the man turned his attention to Flynn, Hallock jumped in the truck and drove off. She heard gun shots as she fled.

Hallock headed south back down Hammock Road to Jay Jay Road and took Jay Jay Road west to U.S. 1. Once on U.S. 1, she headed south for about half a mile to LaGrange Road, at which point she turned right and proceeded to Flynn's best friend David Stroup's house trailer. In driving there, she chose not to stop at houses along the way, to proceed on to a hospital located nearby on U.S. 1, or to go to her parent's home.⁴ From Stroup's trailer, Hallock called 911 and reached the communications center at the Sheriff's Office.

B.

The communications center documented the 911 call at 1:11 a.m. on April 4, 1989. The caller identified herself as Kim Hallock. She stated that a black guy had pulled a gun on her and her boyfriend and "took us somewhere" in the woods "off of Jay Jay Road." She said this was "all I know ... but I know how to get there." The operator advised her to "just stay right there ... and we'll have a deputy come out and then he'll take you out to where ... this is at." At 1:12 a.m., Sergeant Diane Clarke and Deputy Mark Rixey, driving separate patrol cars, responded to the call.⁵ The communications center dispatcher initially sent them to the corner of Jay Jay Road and U.S. 1, but on arriving there, they saw nothing of significance. They requested further direction from the dispatcher, who sent them east on Jay Jay Road.

Deputy Wade Walker was dispatched to Hallock's location at the trailer park. He arrived at around 1:30 a.m. By that time, Hallock had called her mother, who told her not to leave until she got there. Walker advised Hallock to wait on her mother, delaying them about two minutes. In the meantime, Clarke and Rixey had been unable to find the orange grove and were requesting additional directions. Walker and Hallock met up with Clarke and Rixey and Hallock directed them to Flynn. Upon arriving at the orange grove, Clarke and Rixey parked their patrol cars and proceeded on foot. Walker stayed behind with Hallock.

At 1:42 a.m., Clarke and Rixey found Flynn lying face down, covered in blood, with his arms tied behind his back. His loaded .22-caliber revolver was a few feet away. After untying Flynn's hands, they repeatedly asked Flynn what had happened. His sole response was, "Get me out of here. I want to go home."

Clarke had the dispatcher send a rescue unit to the scene and with Rixey attempted to staunch the bleeding. But they were unable to locate its source, a single gunshot wound in the chest. They initiated a breathing exercise twice while awaiting the rescue unit's arrival. Unfortunately, by the time it arrived, at 1:57 a.m., Flynn had succumbed.⁶

Clarke and Rixey remained on site until Agent Debbie Demers,⁷ a criminalist, and Agent Scott Nyquist,⁸ a homicide investigator, arrived and assumed control of the crime scene. At no point before or after their arrival did Clarke or Rixey see or speak with Hallock, who stayed in Deputy Walker's patrol car with Walker a good distance from the spot where Flynn's body was found. Once Clarke and Rixey left the scene, neither had any further involvement in the homicide investigation.

Walker took Hallock to the North Precinct station of the Brevard County Sheriff's Office in Titusville for questioning. Agent Nyquist interviewed Hallock at around 4:45 a.m., and in a tape-recorded statement she related what had transpired while she was with Flynn. About two hours later, Sergeant Tom Fair,⁹ having obtained from the Homicide Unit a box of sixty to seventy mug shot photographs of...