Ingram v. Sec'y

• Decision Date: 01 June 2018
• Docket Number: No. 16-16745,16-16745
• Parties: LAWRENCE ANDREW INGRAM, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

LAWRENCE ANDREW INGRAM, Petitioner-Appellant,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees.

No. 16-16745

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

June 1, 2018

DO NOT PUBLISH

Non-Argument Calendar

D.C. Docket No. 5:13-cv-00199-WTH-PRL

Appeal from the United States District Court for the Middle District of Florida

Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:

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Lawrence Andrew Ingram, a Florida prisoner proceeding pro se, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We granted a certificate of appealability on whether Ingram's trial counsel was constitutionally ineffective for failing to move for a new trial based on the state trial court's erroneous ruling that evidence excluded under Richardson v. State, 246 So. 2d 777 (Fla. 1971), could be admitted for impeachment purposes if Ingram testified. After careful review, we affirm.

I.

A. TRIAL PROCEEDINGS

Ingram was accused of long-term sexual abuse by his daughter in 2004. Shortly before trial, the government disclosed that law enforcement found evidence on Ingram's computer showing visits to websites featuring incestuous sexual relationships. Ingram's trial counsel moved to exclude this evidence under Richardson, arguing it was substantial evidence and its late disclosure was extremely prejudicial to the defense because it would take an expert witness's help to prepare to rebut it. The state trial court granted the motion, noting it had taken a forensic computer analyst to compile the evidence for the government; the evidence was relevant and "materially injurious" to Ingram; and there was no opportunity before trial for defense counsel to review the evidence. However, the court also stated that if Ingram got on the stand and said "he's never looked at

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pornography," he would open the door to this evidence. His counsel said, "I agree," and did not object to the ruling.

At trial, both Ingram's daughter and son testified he had sexually abused them. On June 10, 2005, before the defense began presenting its case, Ingram, his counsel, and the court had an extended discussion about Ingram's decision on whether to testify. Ingram acknowledged he understood it was ultimately his decision to testify or not. His counsel explained why he advised Ingram against testifying. Counsel said he thought the computer evidence was "potentially devastating." Although counsel did not think Ingram's general testimony denying he had sexually abused his daughter would open the door to the computer evidence, counsel was concerned that simply taking the stand would open Ingram up to credibility attacks, including questions related to viewing pornography. The court agreed: "[I]f [Ingram] chooses to be a witness, . . . I can picture the question, [y]ou deny having sex with your children, but you like to watch web sites, don't you, or, you like to watch movies about that, don't you?" The court said if Ingram answered no, then the computer evidence would be in. Ingram and his counsel both indicated they understood. Ingram then told the court he would not testify because he knew it would lead to the admission of the computer evidence.

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The jury convicted Ingram of sexually abusing his daughter, but not his son. A Florida Appeals Court summarily affirmed. Ingram v. State, 939 So. 2d 113 (Fla. 5th DCA 2006) (table decision).

B. POST-CONVICTION PROCEEDINGS

1. State Court

Ingram sought post-conviction relief under Florida Rule of Criminal Procedure 3.850. In part, he alleged ineffective assistance of counsel based on his lawyer's (1) failure to object to the state trial court's erroneous ruling that the computer evidence could be used to impeach Ingram's credibility, (2) failure to move for a new trial based on the erroneous ruling because it prevented Ingram from testifying, and (3) incorrect advice to Ingram on the night of June 9, 2005 that the Richardson ruling was preserved for appeal regardless of whether he testified the next day. The state habeas court held an evidentiary hearing in 2011.

At the hearing, Ingram's trial counsel said he talked to Ingram about testifying many times before trial. Counsel believed that, in general, a defendant's testimony is important in a child abuse case if the defendant can explain why a child might fabricate an allegation. Counsel said the main reason Ingram didn't testify was because it would lead to the admission of the computer evidence.

Counsel also said he knew the state trial court's Richardson ruling was wrong and Ingram couldn't legally be impeached by the computer evidence if he

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took the stand.¹ He explained that he deliberately did not point out the error because he believed the judge would have continued the trial to allow the defense time to prepare a rebuttal to the computer evidence and then allowed that evidence to come in not just for impeachment purposes, but also in the government's case-in-chief. Counsel had experience with judges doing this before: "cure the Richardson hearing problem by doing a recess, having me take the deposition, and then change his mind and let [the challenged evidence] in." And because counsel believed the computer evidence to be "devastating," he did not want it "com[ing] in in any shape or fashion."

Ingram's trial counsel agreed that the trial court's erroneous Richardson ruling could have been raised in a motion for new trial and that there was no reason not to include it because "at that point, [Ingram's] convicted." He further explained the failure to file the motion for new trial resulted from a procedural error in his office, for which he took responsibility. Counsel also agreed that Ingram could not have knowingly waived his right to testify without being told that the state trial court's Richardson ruling was erroneous. Counsel could not recall whether he told Ingram the Richardson ruling was erroneous or his concern that the judge would respond by continuing the trial and allowing the government to bring in the computer evidence in its case-in-chief.

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Ingram also testified at the evidentiary hearing. Ingram said his testimony at trial would have (1) denied the allegations; (2) expanded on his alibi defense for one instance of sexual abuse; (3) described the "dynamics" of his household, including his relationship with his daughter and possible reasons she might have had to fabricate the charges; (4) explained the context for statements he made after his arrest; (5) rebutted or explained the contents of his daughter's journal; and (6) generally "explain[ed] the whole family picture of how we got before the Court that day." Ingram then gave this testimony in detail. He also said that on the night of June 9, 2005, he and his trial counsel discussed whether the Richardson ruling was preserved for appeal in the context of whether he should testify.

The state habeas court denied post-conviction relief. In relevant part, the court determined Ingram's trial counsel's performance was not deficient...