Horsley v. Sec'y, Case No. 8:14-cv-930-T-36AAS

• Decision Date: 23 January 2017
• Docket Number: Case No. 8:14-cv-930-T-36AAS
• Parties: MICHAEL E. HORSLEY, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

MICHAEL E. HORSLEY, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:14-cv-930-T-36AAS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

January 23, 2017

ORDER

Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. Section 2254. (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondent to show cause why the relief sought in the petition should not be granted. (Doc. No. 4). Thereafter, Respondent filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts. (Doc. No. 5). Petitioner filed a reply to the response. (Doc. No. 7).

Petitioner alleges five claims for relief in his habeas petition:

1. the state trial court violated his due process rights by denying his motion for judgment of acquittal, because the State failed to prove that he possessed the drugs;

2. the state trial court violated his due process rights by denying his motion for judgment of acquittal, because the State failed to prove that he intended to sell the heroin;

3. his right to due process was violated by a vindictive sentence;

4. trial counsel rendered ineffective assistance in failing to file a motion to arrest the judgment on the ground that the verdict was inconsistent; and

5. trial counsel was ineffective in failing to assert that his convictions for both possession of cocaine and attempted possession of heroin with intent to sell, manufacture, or deliver constituted a double jeopardy violation.

I. PROCEDURAL HISTORY

The State charged Petitioner by Information with possession of heroin with intent to sell, manufacture, or deliver, and possession of cocaine (Ex. A1).¹ A jury found him guilty of possession of cocaine and the lesser included offense of attempted possession of heroin with intent to sell, manufacture, or deliver (Ex. A2). He was sentenced to consecutive terms of 5 years in prison for these offenses (Ex. A3). He filed a direct appeal with the Florida Second District Court of Appeal, which affirmed per curiam without a written opinion (Ex. B3).

Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, asserting four claims of ineffective assistance of trial counsel (Ex. C1). The motion was summarily denied (Ex. C2). The state appellate court affirmed the denial per curiam without a written opinion (Ex. C5).

Petitioner filed a state petition for a writ of habeas corpus alleging ineffective assistance of appellate counsel (Ex. D1). The petition was denied by the Florida Second District Court of Appeal (Ex. D2).

Petitioner then filed a second Rule 3.850 motion asserting two new claims of ineffective assistance of trial counsel (Ex. E1). The motion was dismissed as an impermissible successive Rule 3.850 motion (Ex. E2). The state appellate court affirmed the dismissal without a written opinion (Ex. E4).

Finally, Petitioner filed a petition for a writ of habeas corpus in the state circuit court,alleging that the trial court: (1) applied an incorrect standard when ruling on his motion for judgment of acquittal, and (2) erred by making an upward departure at sentencing without stating the reason for the departure (Ex. F1). The first claim was dismissed, and the second claim denied (Ex. F2). The state appellate court affirmed without a written opinion. See Horsley v. State, 156 So. 3d 1090 (Fla. 2d DCA 2014) [table].

Petitioner filed his petition in this Court asserting the five above mentioned grounds for relief (Doc. No. 1).

II. GOVERNING LEGAL PRINCIPLES

Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to "prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA

Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.² Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11thCir. 1994).

C. Exhaustion of State Remedies and Procedural Default

Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. See § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). A state prisoner "'must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845.)

To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See ...