Hamner v. Deputy Sec'y of the Florida Dep't of Corr.
| Decision Date | 25 August 2011 |
| Docket Number | D.C. Docket No. 9:10-cv-80756-KLR,No. 10-15838,10-15838 |
| Parties | JOHN DEAN HAMNER, Petitioner-Appellant, v. DEPUTY SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS, Richard D. Davison, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
Appeal from the United States District Court
for the Southern District of Florida
Before HULL, WILSON and BLACK, Circuit Judges.
John Dean Hamner appeals the denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Hamner was convicted of sexual battery, served his thirty-month sentence and is now on probation. After review, we affirm.
In 2003, Hamner was in West Palm Beach, Florida for a company sales event. That evening, Hamner and coworkers, including the victim, went out for dinner. During the car ride back to the hotel, the victim, who had been drinking, said she felt dizzy and slumped over. Hamner and the victim's boss, Mr. Mosby, helped the victim to her hotel room and left her in her bed, fully clothed. Shortly thereafter, Hamner returned alone to the victim's room. Hamner's and the victim's accounts of what happened next differ.
According to Hamner, he merely wanted to return the victim's hotel key and check on her. When Hamner entered the room, the victim seemed fine and made repeated sexual advances. She asked Hamner to have sex with her and begged him not to leave. Hamner eventually had sex with her.
The victim, on the other hand, said that she awoke to find she was naked and Hamner was on top of her. She told Hamner "no" and "stop" and tried to get away, before hitting her head and blacking out.
After Hamner left, the victim called her mother and said she was raped. The victim's mother called the hotel's front desk and asked the hotel manager to check on her daughter. Using an emergency key, the hotel manager entered the victim's room and found her naked and crying hysterically. The hotel manager called 911 and stayed with the victim until the police arrived. Both the hotel manager and the first responding police officer reported that the victim was intoxicated, slurring her words and going in and out of consciousness.
Following a 2005 trial in a Florida state court, Hamner was convicted of sexual battery without physical violence, in violation of Florida Statute § 794.011(5). Hamner was sentenced to thirty months' imprisonment followed by three years of sex offender probation.1
Hamner appealed his conviction and sentence. Among other things, Hamner challenged the state court's denial of his request to recross-examine the victim. The Florida Court of Appeals affirmed. See State v. Hamner, 942 So. 2d 433 (Fla. Dist. Ct. App. 2006). The state appellate court concluded (1) that the trial court did not err in denying Hamner an opportunity to conduct recross-examination and, (2) that, even assuming arguendo error occurred, any error was harmless given multiple witnesses testified the victim was slurring her speech that night. Id. at 436-37. The Florida Supreme Court denied Hamner's petition for discretionary review.
Hamner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that his trial counsel was ineffective and he was denied a fair trial due to cumulative error. The state habeas court denied most of Hamner's claims without a hearing. However, the state habeas court held an evidentiary hearing on whether Hamner's trial counsel was ineffective in failing to present medical evidence about the victim's mental and physical condition and reserved ruling on the cumulative error claim.
At the hearing, Hamner submitted the victim's hospital records and called the nurse at the hospital when the victim was admitted. The records and the nurse's testimony indicated that at the hospital the victim was agitated and screaming that she did not want anyone to touch her, that she was 16 and just about to turn 17 (although she was actually 27) and that she kept "seeing hisface."2 At the hearing, Hamner's trial counsel and the state prosecutor testified, among other things, that presenting evidence of the victim's mental state could have undermined Hamner's defense that the victim was lucid and able to consent during the sexual encounter. Hamner's trial counsel was concerned that if he relied too heavily on this evidence, the State might amend the information from a second degree felony to a first degree felony.
The state prosecutor stated that, although the evidence of the victim's mental state would have helped the state's case, she did not introduce it because she did not think she needed it. The state prosecutor stressed that Hamner's testimony as to what happened did not match the four different versions of events he offered during the investigation or the other evidence. Specifically, time-stamped data from the hotel's electronic door locks established that 26 minutes after Hamner and Mosby left the victim in her room, the hotel manager and the first responding officer found the victim incoherent, slurring her words and going in and out of consciousness. Yet, Hamner testified that the victim was lucid and actively soliciting sex from him when he reentered her room thirteen minutesearlier. The state prosecutor recalled jurors laughing at Hamner during her cross-examination, and described Hamner's testimony as "totally unbelievable."
The state habeas court concluded that: (1) Hamner did not meet "the Strickland standard for ineffective assistance of counsel"; and (2) since "the individual errors [were] without merit, the contention of cumulative error [was] similarly without merit." On appeal, the Florida District Court of Appeals affirmed. See Hamner v. State, 13 So. 3d 529 (Fla. Dist. Ct. App. 2009). Addressing Hamner's claim as to the omitted evidence of the victim's medical condition, the state appellate court concluded that, even if trial counsel's performance was deficient, "no reasonable probability exists that such performance ultimately prejudiced the defendant." Id. at 533. The state court explained that Hamner's own incredible testimony as to what happened "was his downfall" and the omitted evidence would not have changed the jury's verdict. Id. The Florida Supreme Court denied discretionary review.
Hamner filed this counseled § 2254 petition alleging ineffective assistance of trial counsel, denial of his Sixth Amendment right to fully cross-examine the victim and a denial of due process based on cumulative error. As to the ineffective assistance claims, Hamner alleged that his trial counsel: (1) failed to presentevidence relating to the victim's medical condition at the hospital; (2) failed to object to hearsay testimony from the victim's mother, the hotel manager and the responding police officer as to statements the victim made shortly after the incident; (3) failed to depose some state witnesses and to attend the deposition of one of Hamner's own witnesses and, thus, to prepare an effective examination or cross examination of these witnesses; and (4) failed to object to the district court's jury instructions as to involuntary intoxication.
The district court denied Hamner's § 2254 petition. Hamner filed a motion for a certificate of appealability ("COA") on his ineffective assistance claims, his Sixth Amendment Confrontation Clause claim, the cumulative error-due process claim and on whether the district court should have held an evidentiary hearing. The district court granted Hamner's motion for a COA.3
In considering a district court's denial of a § 2254 habeas petition, we review findings of fact for clear error and legal determinations de novo. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009), cert. denied, 130 S. Ct. 3399 (2010). Like the district court, we are also reviewing the state habeas court's decision. See Putman, 268 F.3d at 1240. Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a federal court may not grant habeas relief on a state prisoner's claim that was denied on the merits in state court unless the state court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "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).4
To prevail on a claim of ineffective assistance, the petitioner must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.2052, 2064 (1984). A court need not address both prongs of the inquiry if the petitioner makes an insufficient showing on one. Id. at 697, 104 S. Ct. at 2069.
To show deficient performance, the petitioner must demonstrate that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88, 104 S. Ct. at 2064. Strickland's performance prong requires deferential review, and the court, in assessing the reasonableness of counsel's performance, "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Reed v. Sec'y, Fla. Dep't of Corrs., 593 F.3d 1217, 1240 (11th Cir.), cert. denied, 131 S. Ct. 177 (2010) (quotation marks omitted).
With respect to the prejudice prong, the court asks whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. To establish prejudice, the petitioner has the burden to show more than that the error had "some conceivable effect on the outcome of the proceeding," Marquard v. Sec'y Dep't of...
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