Love v. Sec'y, Case No. 2:11-cv-546-FtM-29CM

• Decision Date: 22 May 2014
• Docket Number: Case No. 2:11-cv-546-FtM-29CM
• Parties: GRADY CLIFFORD LOVE, Petitioner, v. SECRETARY, DOC; FLORIDA ATTORNEY GENERAL, Respondents.
• Court: U.S. District Court — Middle District of Florida

GRADY CLIFFORD LOVE, Petitioner, v. SECRETARY, DOC; FLORIDA ATTORNEY GENERAL, Respondents.

Case No. 2:11-cv-546-FtM-29CM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

Dated: May 22, 2014

OPINION AND ORDER

I. Status

Petitioner Grady Clifford Love (hereinafter "Petitioner," "Love," or "Defendant") initiated this action pro se by filing a Petition for Writ of Habeas Corpus (Doc. #1, Petition) pursuant to 28 U.S.C. § 2254 challenging his judgment and conviction on August 11, 2011, in the Twentieth Judicial Circuit Court, Lee County, Florida (case no. 04-001346CFB).¹ Petitioner argues that an oral jury instruction amounted to fundamental error because it used the phrase "and/or" between his name and his co-defendant's name, thereby requiring reversal of his conviction.² See Petition.

Respondent filed a Response in opposition to the Petition (Doc. 7, Response), arguing that the Petition fails to state a claim for relief that trial counsel rendered ineffective assistance for failing to object to the jury instructions, and attached supporting exhibits (Doc. #8-1, Exhs. 1-24), consisting of the pertinent trial records, postconviction pleadings, and the record on direct appeal. Petitioner filed a Reply (Doc. #10, Reply), clarifying that the Petition only raises a claim of trial court error related to the prejudicial oral, jury instructions, which was compounded by the fact that defense counsel did not object to the oral instruction. See Reply at 2. Consequently, the Court construes the instant Petition as raising two grounds for relief: (1) that the trial court committed fundamental error with the use of the conjunction and/or between the co-defendants' names; and (2) that trial counsel rendered ineffective assistance for failing to contemporaneously object to the trial court's oral pronouncement of this jury instruction. Clibsy v. Jones, 960 F.2d 925, 936 (11th Cir. 1992) (en banc). This matter is ripe for review.

II. Procedural History

A. Indictment and Trial

On July 2, 2004, the State of Florida charged Petitioner and a co-defendant, Robert Earl Davis, in a two count indictment with attempted first degree murder in violation of Florida Statute §782.04(1); § 777.04; § 777.01; § 775.087(2) (Count 1)³; and, shooting into a dwelling or a building in violation of Florida Statute § 790.19; § 777.011 (Count 2).⁴ Exh. 1.

Petitioner and the co-defendant's joint trial occurred on September 12-14, 2006. See Exh. 2 at 159; Exh. 3. The pertinent facts adduced at trial are as follows:

During the evening at Club Neptune, a fistfight broke out between Mr. Love and a another patron, Robert Chapman. The victim, Jarvis Martin, testified that he intervened in the fight to stop it. At the conclusion of the fight, Mr. Love left the club with Mr. Davis. Jarvis Martin testified that both Davis and Love yelled at him saying they were going to shoot him. A few minutes later, the two men came back in with guns in their hands. Another unidentified man had a gun. One club employee testified that the bouncers also had firearms.

Multiple witnesses testified that Davis began shooting. Jarvis Martin was hit three times. Six other people were also hit. Both .40 and .357 caliber casings were recovered.

Only one witness, a club bouncer, testified that Mr. Love also was shooting. Another saw Mr. Love with a gun in his hand, but never saw him shoot. Martin testified that he did not see Mr. Love fire any shots.

A club patron testified that Davis had a gun, believed to be a.357, when he came to the patron's car immediately after the shooting. Davis said, "I don't know if I killed somebody" and "I don't want to go to jail."

An FDLE analyst examined a hat that was found at the scene. She testified that although the hat was worn by multiple people, one major contributor of DNA in the hat was Davis.

Neither defendant testified or put on any evidence.

See Exh. 6 (direct appeal brief); Exh. 7 (noting that facts set forth in direct appeal brief were "substantially correct"); Exh. 15 (State's response to Rule 3.850 motion).

The jury found Petitioner guilty of attempted manslaughter (a lesser included offense of Count 1) and acquitted him on Count 2.⁵ See Exh. 4 at 23. In accordance with the jury verdict, Petitioner was sentenced to a 30 year minimum mandatory sentence due to his habitual offender status.⁶ Exh. 4 at 127-134. It is noteworthy for purposes of this case that Petitioner's co-defendant was found guilty of attempted second degree murder and shooting into a dwelling or a building.

B. Direct Appeal

Petitioner, through counsel, pursued a direct appeal. Exh. 3. Petitioner argued that: (1) use of "and/or" in the jury instructions was fundamental error, requiring a new trial; (2) judgment and sentence on count two must be vacated as Mr. Love was acquitted on that count; and, (3) certain court costs must be stricken. Exh. 6. Relevant to this Petition, Petitioner argued that "[i]t is a fundamental component of the due process clauses of both the Florida and Federal Constitutions that the jury be completely and accurately instructed on each element of a criminal offense, and that the element must be proved beyond a reasonable doubt." Exh. 6 at 6. Petitioner asserted that the use of "and/or" between the defendants' names constituted fundamental error because it could have misled the jury. Id. at 7.

In response, the State argued that the issue was not preserved for appellate review because Petitioner was "actively involved" in formulating the jury instructions and "no objection was made to the instructions as given." Exh. 7 at 3 (citing Florida's contemporaneous objection rule). Addressing the merits of the claim, the State asserted that there was no dispute that Petitioner and his co-defendant acted together in the charged offenses and the jury was instructed under the "theory of principals" that Petitioner and his co-defendant were equally culpable for the acts of the other. Id. at 4. Additionally, the State asserted that the jury was clearly notconfused by the jury instructions because it convicted the two defendants of different crimes (as previously stated Petitioner of attempted voluntary manslaughter and the co-defendant of attempted second degree murder). Id. at 5-6. Finally, noting that the facts of the instant case were similar to the Garzon⁷ case that was pending review before the Florida Supreme Court, the State requested that the appellate court hold the case in abeyance until the Florida Supreme Court issued its opinion. Id.

On September 12, 2008, the appellate court issued a decision finding, inter alia, no fundamental error in the jury instructions, thereby affirming Petitioner's conviction of attempted voluntary manslaughter. Exh. 9 at 2 (citing Garzon v. State, 939 So. 2d 1038 (Fla. 2008)). Petitioner's motion for rehearing was denied. Exhs. 10-11.

C. Rule 3.850 Motion

Petitioner then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Exh. 13. Petitioner argued that defense counsel rendered deficient performance by failing to "contemporaneously and/or properly object" "to the trial court's irrefutably erroneous [jury] instruction." Id. at 1.

Pursuant to the postconviction court's order, Exh. 14, the State filed a response to the motion, Exh. 15, raising an argument that theineffective assistance of counsel claim was procedurally barred and also addressing the merits of the claim.⁸

The postconviction court entered an order denying Petitioner relief. See Exh. 16. Petitioner pursued an appeal of the postconviction court's order, Exh. 18, but the appellate court per curiam affirmed the postconviction court's order, Exh. 19. Petitioner's motion for rehearing was denied. Exh. 21.

D. State Petition for Writ of Habeas Corpus

Petitioner, proceeding pro se, then filed a state petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. Exh. 22. Petitioner argued that appellate counsel rendered ineffective assistance by failing to raise on direct appeal trial court error for denying trial counsel's motion for a judgment of acquittal on count 1. Id. In response, the State argued the petition was untimely under Florida law. Exh. 23. The appellate court dismissed the state petition as untimely. Exh. 24.

III. Applicable § 2254 Law

A. Deferential Review Required By AEDPA

Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S. 782, 792 (2001). Consequently, post-AEDPA law governs this action. Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S. 782, 792 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).

Under the deferential review standard, 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). Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398 (2011). "This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt." Id. (internal quotations and citations omitted). See also Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 786 (2011) (pointing out that "if [§ 2254(d)'s] standard is difficult to meet, that is because it was meant to be."); White v. Woodall, 134 S. Ct. 1697, 1702 (2014).

Both the Eleventh Circuit and the Supreme Court broadly interpret what is meant by an "adjudication on the...