Lewis v. Sec'y, Fla. Dep't of Corr., CASE NO: 8:10-CV-253-T-27TBM

• Decision Date: 28 January 2013
• Docket Number: CASE NO: 8:10-CV-253-T-27TBM
• Parties: ARLAIN LEWIS, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

ARLAIN LEWIS, Petitioner,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.

CASE NO: 8:10-CV-253-T-27TBM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: January 28, 2013

ORDER

Arlain Lewis ("Lewis"), a Florida prisoner, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1.) Lewis challenges his judgment of conviction and sentence arising out of the Twelfth Judicial Circuit Court in Sarasota County, Florida. Respondent filed a response to the petition along with the appendix record of Lewis' state court proceedings. (Dkts. 10 & 12.) Lewis failed to file a reply to the response and the time frame for doing so has now expired. (See Dkt. 3.) A review of the record demonstrates that the petition is due to be denied.

Procedural History

Lewis was found guilty after a jury trial of robbery with a deadly weapon as charged, but found not guilty of the charge of trespass on an occupied structure. (Dkt. 12, Ex. 1, Vol. I, pp. 54-55.)¹ He was adjudicated guilty and sentenced on September 30, 2004, to 15 years in prison. (Id. at 74-75.) Lewis pursued a direct appeal and, following briefing, the Second District Court of Appeal, on February 3, 2006, affirmed the judgments without written decision. (Exs. 2-4.) Lewisdid not file a motion for rehearing in the state appellate court, nor did he pursue certiorari review in the United States Supreme Court.

Lewis did file a pro se motion for post-conviction relief in the trial court dated March 1, 2007, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. (Ex. 6.) The court summarily denied one claim and, after a response from the state, denied the remaining claims. (Exs. 7-9.) Lewis appealed to the Second District and, on February 22, 2008, the appellate court per curiam affirmed without written decision. (Exs. 10-12.) The mandate issued on March 14, 2008. (Ex. 13.)

The AEDPA Standard of Review

Lewis timely filed the instant federal petition, pursuant to 28 U.S.C. § 2244(d), on January 21, 2010, raising three claims of ineffective assistance of counsel. His petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24,1996. See Lindh v. Murphy, 521 U.S. 320, 336, 138 L. Ed. 2d 481,17 S. Ct. 2059 (1997). Section 104 of the AEDPA amended 28 U.S.C. § 2254 by adding the following provision:

(d) 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.

Section 2254, as amended by the AEDPA, establishes a highly deferential standard for reviewing state court judgments. Parker v. Secretary, Dep't of Corr., 331 F.3d 764 (11th Cir. 2003) (citing Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002)).

Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This language requires an examination of the state court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time, i.e., the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398-1401 (2011). In addition, § 2254(e)(1) "provides for a highly deferential standard of review for factual determinations made by a state court." Robinson, 300 F.3d at 1342. The federal court will presume the correctness of state court findings of fact, unless the petitioner is able to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). When measured against the AEDPA standard, it is clear that Lewis' petition is due to be denied.

Standard of Review for Ineffective Assistance of Counsel Claims

Lewis claims that his trial counsel was incompetent and performed substantially below the standard guaranteed by the Sixth Amendment and that he was prejudiced as a result. Specifically, he argues that counsel failed to conduct an adequate pretrial investigation, misadvised him about testifying on his own behalf, and failed to make timely and adequate objections.

A petitioner claiming ineffective assistance of counsel must meet the two-part standard for counsel's performance established by Strickland v. Washington, 466 U.S. 668 (1984). To establish a prima facie claim of ineffective assistance of counsel, a petitioner must show that counsel'sperformance was deficient and that the deficient performance prejudiced the defense. Id. at 687. Deficient performance is performance which is objectively unreasonable under prevailing professional norms. Id. at 688. Sound tactical decisions within a range of reasonable professional competence are not vulnerable to collateral attack. See e.g., Weber v. Israel, 730 F.2d 499, 508 (7th Cir.) (finding that choosing a defense is a matter of trial strategy), cert. denied, 469 U.S. 850 (1984); United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980), cert. denied, 450 U.S. 934 (1981). Prejudice results when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are rare. Waters v. Lewis, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).

Merits

Ground One

Lewis argues that his trial counsel rendered ineffective assistance by failing to conduct an adequate pretrial investigation. Specifically, he faults his counsel for not interviewing and calling a witness, Kimberly Moore-Quick, to testify. According to Lewis, Moore-Quick heard Trevior Daniels threaten to kill Lewis in a heated argument on December 11, 2003. (See Dkt. 1, p. 7.) Lewis alleges that had she testified, counsel would have been able to demonstrate that Lewis committed the robbery as a result of the threat of Trevior Daniels. (See id.)

In summarily denying this claim, the trial court held that:

The Defendant claims he told counsel that he had committed the robbery due to coercion and duress because another person threatened to kill him due to a debt that he owed to that person. The Defendant claims that Kimberly Moore-Quickobserved the Defendant and Trevior "Tre" Daniels in a heated argument on December 11, 2003, and that Mr. Daniels threatened to kill the Defendant if he did not repay the money he owed him in thirty minutes. The Defendant then told the witness to drive him to the American Pantry Store and wait for him and once he obtained the money, to give that money to Mr. Daniels. The Defendant claims that the witness would have testified that she drove the Defendant to the store, he went into the store and then came out and they drove off. During the ride, the Defendant and Holly Rubenstein, another passenger in the car, got into an argument, the Defendant jumped out of the car and Ms. Rubenstein took a gun and shot at the Defendant. The Defendant claims Ms. Quick would have testified she had no prior knowledge of the robbery and that her testimony would have supported a coercion or duress defense.

The State Attorney responded, that based upon the Defendant's description of the proposed testimony from Ms. Quick, the legal standard for a duress defense would not have been established by the testimony, and therefore, the Defendant cannot show that he was prejudiced by counsel's alleged failure to present that testimony at trial.

The Defendant's Motion is denied. As stated by the Fifth District Court of Appeal, to be entitled to a jury instruction on duress or coercion, "there must be some evidence presented tending to show that the Defendant committed the crime against his will because of circumstances which either constituted a real, imminent and impending danger to himself... or from which circumstances shown in the evidence the defendant had a reasonable grounds to believe that such danger was real." Stevens v. State, 397 So. 2d 324, 325 (Fla. 5th DCA 1981). Further, "there must be no reasonable opportunity to escape the compulsion without committing the crime." Stevens, 397 So. 2d at 325. In the instant case, the Defendant's proposed testimony does not establish that the threat to him was real, imminent and impending, because the Defendant had time to leave the vehicle, go into a store and commit a robbery, when he could have easily fled or sought help from the police once he was out of the vehicle. Clearly, the Defendant could have avoided the danger without committing the robbery. Additionally, as pointed out by the State, the court's colloquy with the Defendant, after his attorney apparently conceded his guilt to lesser crimes in opening statement, although not conclusively refuting the Defendant's claim establishes that the Defendant agreed with counsel's trial strategy. (See attached Tr., 172-173).

(Ex. 9, pp. 1-4.)

The Court agrees with Respondent that Lewis has not overcome the presumption of correctness of the state court's findings by clear and convincing evidence. Likewise, Lewis fails toovercome the strong presumption that his counsel's decisions regarding potential defenses, including duress, in light of the state's evidence, was in the exercise of professional judgment. See Strickland, 466 U.S. at 690. "An ambiguous or silent record is not sufficient to disprove the strong and continuing...