O'Leary v. Sec'y, Case No: 2:12-cv-599-FtM-2 9CM

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Docket NumberCase No: 2:12-cv-599-FtM-2 9CM
Decision Date27 April 2015

PATRICK E. O'LEARY, Petitioner,

Case No: 2:12-cv-599-FtM-2 9CM


April 27, 2015


This matter comes before the Court upon a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Patrick E. O'Leary ("Petitioner") who is presently confined at the Avon Park Correctional Institution in Avon Park, Florida (Doc. 1, filed November 2, 2012). Petitioner, proceeding pro se, attacks the convictions and sentences entered by the Twentieth Judicial Circuit Court in Lee County, Florida for sexual activity with a child, promoting a sexual performance by a child, and battery. Id. Respondent filed a response to the petition (Doc. 19). Petitioner filed a reply (Doc. 13).

Petitioner raises thirty-six claims in his petition. Upon due consideration of the pleadings and the state court record, the Court concludes that each claim must be denied. Because the Court may resolve the Petition on the basis of the record, an evidentiary

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hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

I. Background and Procedural History

On April 7, 2004, Petitioner was charged by amended information with sexual activity with a child, in violation of Florida Statute § 794.011(8)(b) (counts one and two); promoting a sexual performance by a child in violation of Florida Statute § 827.071(3) (counts three and four); violation of an injunction against domestic violence in violation of Florida Statute § 741.31(4) (count five); and lewd or lascivious molestation in violation of Florida Statute § 800.04(5)(c)(2) (count six) (Ex. 1).1

Petitioner filed a pre-trial motion to suppress two videotapes showing him engaging in sexual activity with one of the victims (Ex. 2). The motion alleged that the tapes had been illegally seized by private citizens at the direction of law enforcement officers. Id. After holding an evidentiary hearing on the motion (Ex. 3), the trial court concluded that the facts

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demonstrated that law enforcement had not been involved with the retrieval of the videotapes from Petitioner's home, and the motion to suppress was denied (Ex. 3 at 254).

Petitioner filed a second pre-trial motion asking the trial court to appoint an expert to ensure that the videotapes had not been tampered with (Ex. 4). The motion was denied (Ex. 5).

Petitioner filed a third pre-trial motion seeking to strike the state's motion to introduce evidence of prior bad acts (Ex. 6). The motion argued that the proposed evidence of collateral crims was dissimilar. Id. Petitioner also urged that the state had delayed filing the motion to introduce the evidence until the eve of trial, leaving defense counsel inadequate time to object. Id. The motion was heard by the trial court and denied (Ex. 7).

After a jury trial, Petitioner was found guilty on counts one and two with a specific finding of sexual penetration as to count one, but not count two (T. at 618). Petitioner was found guilty of counts three and four, not guilty of count five, and guilty of the lesser included charge of battery on count six. Id. at 618-19. Petitioner was sentenced to a total of twenty-one years in prison which was below the statutory maximum of ninety years (Ex. 9 at 419-22). Petitioner's convictions and sentence were per curiam affirmed by Florida's Second District Court of Appeal (Ex. 11).

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On April 11, 2008, Petitioner filed a state habeas petition alleging ineffective assistance of appellate counsel (Ex. 13). The petition was denied (Ex. 14).

On September 29, 2009, Petitioner filed a motion pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion"). Petitioner followed his Rule 3.850 motion with two amended motions for post-conviction relief (Ex. 17; Ex. 19). The motions were denied on July 13, 2011 (Ex. 20). The post-conviction court specifically concluded that Petitioner's amended motion for post-conviction relief was untimely and procedurally barred (Ex. 20 at 2). Florida's Second District Court of Appeal per curiam affirmed. O'Leary v. State, 98 So. 3d 577 (Fla. 2d DCA 2012).

The instant petition was filed on October 31, 2012 (Doc. 1).

II. Governing Legal Principles

A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

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:

(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.

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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). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

"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 issued 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)). That said, the Supreme Court has also explained that "the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since 'a general standard' from [the Supreme Court's] cases can supply such law." Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State courts "must reasonably apply the rules 'squarely established' by [the Supreme] Court's holdings to the facts of

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each case. White, 134 S. Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).

Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 29 U.S.C. § 2254(d)(1). 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 petitioner must show that the

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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 (2011)). Moreover, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Knowles, 556 U.S. at 122.

Finally, 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); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) ("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") (dictum); Burt v. Titlow, 134 S. Ct. 10, 15-16 (2013) (same).

B. Standard for Ineffective Assistance of Counsel

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

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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...

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