Hayes v. Jones

• Decision Date: 04 September 2018
• Docket Number: Case No. 5:17cv057-MCR/CAS
• Parties: ORINTHID JABBAR HAYES, Petitioner, v. JULIE L. JONES, Respondent.
• Court: U.S. District Court — Northern District of Florida

ORINTHID JABBAR HAYES, Petitioner, v. JULIE L. JONES, Respondent.

Case No. 5:17cv057-MCR/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

September 4, 2018

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

On February 20, 2017, Petitioner Orinthid Jabbar Hayes, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, with attachments. ECF No. 1. On January 19, 2018, Respondent filed an answer and exhibits. ECF No. 18. Petitioner has not filed a reply, although given an opportunity to do so. See ECF No. 21.

The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons stated herein, the pleadings and attachments before the Court show Petitioner is not entitled to federal habeas relief, and this § 2254 petition should be denied.

Background and Procedural History

Petitioner Orinthid Jabbar Hayes was arrested and ultimately charged by amended information with three counts in Washington County Circuit Court case number 11-00037CF, in connection with events that took place on or about January 11, 2011: (1) home invasion robbery with a deadly weapon, contrary to section 812.135, Florida Statutes; (2) burglary with assault or battery, contrary to section 810.02(1) and (2)(a), Florida Statutes; and (3) grand theft, contrary to section 812.014(1) and (2)(c), Florida Statutes. Ex. A at 19.¹ Hayes proceeded to a jury trial on July 26, 2012. Exs. D-F. Hayes did not testify during the trial. Ex. F at 324-27. On July 27, 2012, the jury returned a verdict, finding him guilty as charged of home invasion robbery and specifically finding he did not carry a weapon. Id. at 410-11; Ex. A at 76-77. On September 13, 2012, the trial court judge adjudicated Hayes guilty and sentenced him to thirty (30) years in prison. Ex. A at 90-94.

Hayes appealed his judgment and sentence to the First District Court of Appeal (DCA), assigned case number 1D12-4901. Ex. A at 99; see Exs. G (Initial Brief), H (Answer Brief). On August 22, 2013, the First DCA per curiam affirmed the case with a written opinion. Ex. I; Hayes v. State, 118 So. 3d 1008 (Fla. 1st DCA 2013). The mandate issued September 9, 2013. Ex. I.

On October 17, 2013, Hayes filed a motion for post-conviction relief in the state trial court, pursuant to Florida Rule of Criminal Procedure 3.850. Ex. J (Case Abstract). He filed amended motions on February 27, 2014, id. at 1-15, and July 16, 2014, id. at 40-50. On December 3, 2014, the state post-conviction court rendered a non-final order denying in part the amended Rule 3.850 motion and directing the State to file a response. Id. at 51-57. After the State filed a response, Ex. L at 546-51, and Hayes filed a reply, id. at 559-69, the state court summarily denied post-conviction relief by order rendered June 4, 2015. Id. at 570-74 (exclusive of attachments). Hayes appealed to the First DCA and filed an initial brief, assigned case number 1D15-3058. Ex. N (Initial Brief). The State did not file an Answer Brief. See Ex. O. The First DCA per curiam affirmed the case without a written opinion on November 5, 2015. Ex. P; Hayes v. State, 178 So. 3d 400 (Fla. 1st DCA 2015) (table). The mandate issued December 1, 2015. Ex. P.

On April 28, 2016, Hayes filed a Motion to Correct Illegal Sentence, pursuant to Florida Rule of Criminal Procedure 3.800(a). Ex. Q. The state court denied the motion in an order rendered June 14, 2016. Ex. R. Hayes did not appeal the order.

On July 20, 2016, Hayes filed a Petition for Writ of Habeas Corpus in the First DCA, assigned case number 1D16-3347, alleging ineffective assistance of appellate counsel. Ex. S. The First DCA denied the petition as untimely on August 29, 2016. Ex. T.

As indicated above, Hayes filed a § 2254 petition in this Court on April 6, 2016. ECF No. 1. He raises ten (10) grounds, including seven (7) grounds alleging ineffective assistance of counsel (IAC):

(1) Trial Court Error - "Standard jury instruction that Petitioner 'must' be considered principal instead of 'may' as defined by statute violates Due Process Clause." Id. at 9.

(2) Trial Court Error - "Victim's testimony that Petitioner is former prisoner violates Due Process Clause." Id. at 11.

(3) Trial Court Error - "State's closing argument shifting burden of proof to the defense violates Due Process Clause." Id. at 13.

(4) IAC - Defense counsel "fail[ed] to [move to] dismiss charges where state lacked jurisdiction to try case." Id. at 15.

(5) IAC - Defense counsel "failed to [file] motion to suppress self-incriminating statements." Id. at 18.

(6) IAC - Defense counsel "fail[ed] to file motion to suppress suggestive photo lineup." Id. at 20.

(7) IAC - Defense counsel "fail[ed] to call witnesses for the defense." Id. at 22.

(8) IAC - Defense counsel "misadvis[ed] Petitioner not to testify." Id. at 24.

(9) IAC - Defense counsel "fail[ed] to call expert witness for defense." Id. at 27.

(10) IAC - Defense counsel "fail[ed] to properly challenge race-neutral juror strikes." Id. at 29.

Respondent filed an answer, with exhibits. ECF No. 18. Hayes has not filed a reply, although given the opportunity to do so. See ECF No. 21.

Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides, in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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). See, e.g., Cullen v. Pinholster, 563 U.S. 170, 180-83 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011). "This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Id.

For IAC claims, the U.S. Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffectiveness, a "defendant must show that counsel's performance fell below an objective standard of reasonableness." Id. at 688. To demonstrate prejudice, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. For this Court's purposes, importantly, "[t]he question 'is not whether a federal court believes the state court's determination' under the Strickland standard 'was incorrect but whether that determination was unreasonable - a substantially higher threshold.'" Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id. It is a "doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Id.

Ground 1: Trial Court Error - Jury Instruction

In his first ground, Petitioner Hayes essentially argues the trial court erred in overruling defense counsel's objection to the standard jury instruction for principals. That instruction directed the jury that the defendant "must" be considered a principal under the circumstances, whereas the statute directs the defendant "may" be so considered.

Petitioner presented this ground in state court as the first point in his direct appeal. Ex. G at i, 9-13. The First DCA affirmed and wrote a brief opinion "only to briefly address Appellant's novel challenge to the jury instruction on principals." Hayes v. State, 118 So. 3d 1008 (Fla. 1st DCA 2013). In pertinent part, the court found no error and the court's opinion provides:

The standard instruction reads:

If the defendant helped another person or persons [commit] [attempt to commit] a crime, the defendant is a principal and must be treated as if [he] [she] had done all the things the other person or persons did if:

1. the defendant had a conscious intent that the criminal act be done and

2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually [commit] [attempt to commit] the crime.

To be a principal, the defendant does not have to be present when the crime is [committed] [or]

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