Hicks v. Tucker
| Decision Date | 23 February 2015 |
| Docket Number | Case No: 2:12-cv-511-FtM-29CM |
| Parties | STERLING HICKS, Petitioner, v. KENNETH TUCKER, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court upon a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Sterling Hicks1 ("Petitioner") who is presently confined at the Calhoun Correctional Institution in Blountstown, Florida (Doc. 1, filed September 14, 2012). Petitioner, proceeding pro se, attacks the conviction and sentence entered by the Circuit Court of the Twentieth Judicial Circuit in Lee County, Florida for one count of engaging in sexual activity with a child in violation of Florida Statute § 794.011(8)(b). Id. Respondent filed a response to the petition, and Petitioner filed a reply and supplemental replies to the response (Doc. Nos. 6, 11, 16, 18).
Petitioner raises eleven claims in his petition. He asserts that: (1) the trial court erred by allowing the admission of prejudicial hearsay evidence at trial; (2) blood was drawn from Petitioner pursuant to an invalid warrant; (3) appellate counsel was ineffective for failing to object to an invalid information; (4) appellate counsel was ineffective for failing to argue that the jury was erroneously instructed; (5) trial counsel was ineffective for failing to request a hearing to challenge false statements made in a probable cause affidavit; (6) trial counsel was ineffective for failing to move for dismissal of the charges; (7) trial counsel was ineffective for conceding that Petitioner was the father of the victim's child; (8) trial counsel was ineffective for failing to voir dire a potential juror; (9) trial counsel was ineffective for failing to object to the state's improper appeal to the jury's sympathy during closing argument; (10) trial counsel was ineffective for failing to object to the admission into evidence of an oral swab taken from the infant of the victim; and (11) when considered in the aggregate, counsel's errors and omissions were sufficiently prejudicial to warrant habeas relief (Doc. 1 at 3-17).
Upon due consideration of the pleadings and the state court record, the Court concludes that the petition must be denied. Because the Court may resolve the Petition on the basis of therecord, an evidentiary hearing is not warranted. See Rule 8, Rules Governing Habeas Corpus Petitions under Section 2254.
On February 10-12, 2009, Petitioner was tried by a jury on one count of engaging in sexual activity with a child twelve years of age or older but less than eighteen years of age by a person in familial or custodial authority (Ex. 5).2 On February 13, 2009, the jury returned a verdict finding Petitioner guilty of engaging in sexual activity with a child (Ex. 6). Petitioner was sentenced to twenty-five years in prison to be followed by five years of sex offender probation (Ex. 8). Florida's Second District Court of Appeal per curiam affirmed Petitioner's convictions and sentences on November 19, 2010 (Ex. 11); Hicks v. State, 49 So. 3d 244 (Fla. 2d DCA 2010).
On January 25, 2011, Petitioner filed a state petition for writ of habeas corpus in which he raised claims of ineffective assistance of appellate counsel (Ex. 13). The petition was denied on March 15, 2011 (Ex. 14); Hicks v. State, 59 So. 3d 1143 (Fla. 2d DCA 2011).
On January 31, 2011, Petitioner filed a post-conviction motion pursuant to Rule 3.850 of the Florida Rules of CriminalProcedure ("Rule 3.850 motion") in which he raised seven claims of ineffective assistance of trial counsel (Ex. 16). The post-conviction court denied the claims (Ex. 18). Florida's Second District Court of Appeal per curiam affirmed (Ex. 22); Hicks v. State, 95 So. 3d 226 (Fla. 2d DCA 2012).
Petitioner signed the instant petition on September 11, 2012 (Doc. 1).
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The unreasonable application inquiry "requires the state court decision to be more than incorrect orerroneous," rather, it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155. Petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 786-787 (2011)).
Finally, the Supreme Court has stated that "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding[.]" Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (dictum). When reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see, e.g., Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013); Miller-El, 537 U.S. at 340 ().
In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a "doubly deferential" standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).
The focus of inquiry under Strickland's performance prong is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Indeed, the petitioner bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," applying a "highly deferential" level ofjudicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice "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, 466 U.S. at 687. That is, "[t]he 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." Strickland, 466 U.S. at 694.
The Eleventh Circuit has applied the Strickland test for ineffective assistance at trial to...
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