MacKerley v. Secretary for Department of Corrections, No. 07-14146 (11th Cir. 7/3/2008), 07-14146.

• Decision Date: 03 July 2008
• Docket Number: No. 07-14146.,07-14146.
• Parties: ALAN MacKERLEY, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

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ALAN MacKERLEY, Petitioner-Appellant, v. SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 07-14146.

United States Court of Appeals, Eleventh Circuit.

July 3, 2008.

Appeal from the United States District Court for the Southern District of Florida; D. C. Docket No. 06-14229-CV-DLG.

Before TJOFLAT, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

Alan Mackerley ("Mackerley"), a counseled Florida state prisoner, appeals from the denial of his federal habeas petition filed pursuant to 28 U.S.C. § 2254. The district court issued a certificate of appealability for the following issue: whether trial counsel was constitutionally ineffective at Mackerley's pretrial suppression hearing by failing to argue that the state did not demonstrate that it satisfied the necessity requirement of the Florida wiretap statute, section 934.09(1)(c) of the Florida Statutes. Mackerley argues that because the state failed to meet the necessity requirement, the evidence derived from the wiretap should have been suppressed, which would have led to a different outcome in his trial. For the reasons explained below, we affirm the district court's denial of Mackerley's petition.

I. DISCUSSION

"Whether a criminal defendant has received effective assistance of counsel is a mixed question of fact and law." Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir. 2004). Accordingly, we review the district court's findings of historical facts underlying the ineffective assistance of counsel claim for clear error, and review de novo the court's determination of whether trial counsel's performance was constitutionally deficient. Id. Under 28 U.S.C. § 2254(d), we may not grant habeas relief when a state court has already adjudicated the claim on the merits, unless the state court's interpretation is contrary to or an unreasonable application of clearly established federal law, or involves an unreasonable determination of facts. 28 U.S.C. § 2254(d) (2006). However, when the state court has not ruled on the merits of the claim at issue, deference to the state court decision is not required. Davis v. Sec'y for the Dep't of Corrs., 341 F.3d 1310, 1313 (11th Cir. 2003) (holding that deference to the state court decision was not required because the court had not ruled on the merits of defendant's claim). Here, the state court did not address the merits of Mackerley's ineffective assistance of counsel claim, and it is not clear whether the court ruled on the merits of Mackerley's underlying lack of necessity claim.¹ Therefore, we review Mackerley's claim before this Court with no deference to the state court decisions. However, the outcome of Mackerley's appeal would be the same even if deference were required, because we find that Mackerley is not entitled to habeas relief.

To demonstrate ineffective assistance of counsel, the petitioner must show both that counsel's performance was objectively unreasonable and that counsel's deficient performance prejudiced the petitioner's case. Kimmelman v. Morrision, 477 U.S. 365, 375, 106 S. Ct. 2574, 2582-83 (1986). When deciding whether counsel's performance was deficient, courts operate under a strong presumption that counsel's conduct was reasonable and that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 2065-66 (1984). A court may find that counsel's performance was unreasonable only if the petitioner shows "that no competent counsel would have taken the action that his counsel took." Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000).

In this case, law enforcement placed a wiretap on Mackerley's phone, which led them to William Anderson ("Anderson"). Anderson was the state's key witness at trial. Before trial, Mackerley's counsel filed a motion to suppress the evidence obtained through the wiretap, including Anderson's testimony, on two grounds: lack of probable cause and failure to minimize the recorded conversations. At the hearing on the motion to suppress, the agent who submitted the wiretap affidavit testified that law enforcement would have found Anderson without the wiretap, using traditional investigative techniques. Mackerley argues that this statement demonstrates that the statutory requirement of necessity for a wiretap was not met.² Mackerley's counsel did not amend the motion to suppress or otherwise attempt to use the agent's testimony to exclude the wiretap evidence based on lack of necessity. Mackerley contends that the failure to attack the wiretap evidence on these grounds renders his counsel's performance constitutionally deficient.

We cannot agree. Florida courts have stated that the necessity requirement exists "to ensure that wiretap procedures are not routinely used as the initial step in a criminal investigation." See, e.g., Weedon v. State, 425 So. 2d 125, 127 (Fla. Dist. Ct. App. 1982). However, officers seeking a wiretap are not required to exhaust every other investigative technique before seeking wiretap authorization. Id. Rather, the officers must show that other techniques have been tried and failed or that such techniques have not been tried but are likely to fail. Daniels v. State, 381 So.2d 707, 711 (Fla. Dist. Ct. App. 19...