Marshall v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 12 July 2016
• Docket Number: No. 13–13775,13–13775
• Citation: 828 F.3d 1277
• Parties: Johnny L. Marshall, Petitioner–Appellant, v. Secretary, Florida Department of Corrections, Attorney General, State of Florida, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

828 F.3d 1277

Johnny L. Marshall, Petitioner–Appellant

v.Secretary, Florida Department of Corrections, Attorney General, State of Florida, Respondents–Appellees.

No. 13–13775

United States Court of Appeals, Eleventh Circuit.

July 12, 2016

Anne Frances Borghetti, Law Offices of Anne Borghetti, Clearwater, FL, for Petitioner–Appellant.

Patricia Ann McCarthy, Attorney General's Office, Criminal Division, Tampa, FL, Pam Bondi, Attorney General's Office, Tallahassee, FL, for Respondents–Appellees.

Before TJOFLAT and ROSENBAUM, Circuit Judges, and RESTANI,^* Judge.

TJOFLAT, Circuit Judge:

Johnny Marshall appeals the District Court's denial of his petition for a writ of habeas corpus seeking to vacate, pursuant to 28 U.S.C. § 2254, his Florida conviction and sentence for armed robbery with a firearm. The issue before the District Court and now on appeal is whether the Florida courts unreasonably applied the Supreme Court's decision in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in concluding that Marshall's attorney did not render ineffective assistance of counsel by failing to move the trial court to suppress an eye-witness identification on the ground that it was obtained in violation of the Fourth Amendment.¹ The District Court concluded that the Florida courts' application of Strickland was not unreasonable. We agree and accordingly affirm.

I.

A.

On June 15, 1998, a Pizza Hut take-out and delivery facility on Overlook Drive in Winter Haven, Florida was robbed. Around 10:50 p.m., ten minutes before the Pizza Hut was set to close, a man walked inside, apparently to place an order for a large cheese pizza. Geraldine Jenkins, an employee of Pizza Hut, was the only person in the restaurant at the time and was occupied in the back of the building.² Jenkins eventually came out to greet the man and took his order. When Jenkins told the man the price for the pizza, he stared at her. Jenkins repeated the price, and in response, the man lifted up his shirt to display a gun placed inside the waistband of his pants. He asked her, “Do you know what this is?” Jenkins responded that she did. The man told Jenkins that he wanted money. Jenkins took money out of the cash register, counting it slowly so as to stall for time for the delivery driver to return from a delivery. The man told Jenkins that she did not need to count the money—that he would count it at home. Jenkins gave him the money, around $260, and he told her to turn around with her hands down and walk toward the back of the building as he exited. After he left, Jenkins pressed the alarm. She then tried to phone her manager with no luck. Reaching her assistant manager, she explained what had happened. She then called her husband, who called the police.

Deputy Thomas Van Sciver of the Polk County Sheriff's Office arrived soon thereafter and took a description of the perpetrator from Jenkins. Jenkins described the perpetrator as a black man, around the age of twenty-two, with a height of approximately 5'4?, weighing approximately 115 pounds, dark-skinned, brown-eyed, with black hair and wearing a maroon shirt, black pants, and a white hat. Deputy Van Sciver issued a “Be on the Lookout” warning (“BOLO”) with Jenkins's description of the man to the police officers in the area.

Around midnight, Deputy Darrell Horne, also of the Polk County Sheriff's Office, was dispatched to investigate a suspicious vehicle in an industrial park with closed warehouses and repair shops about a half of a mile from the Pizza Hut.³ Deputy Horne drove his squad car to investigate and found Marshall and Benjamin Ivey in a truck in front of a closed auto-repair shop. The truck had no license plates, but instead had a piece of cardboard in the window.⁴ Deputy Horne initiated a Terry stop. See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).⁵ Marshall—a thirty-two-year-old light-skinned black man, 5'8? in height, and weighing around 180 pounds—emerged from the driver's side of the vehicle. He was shirtless, wearing black shorts, sweating profusely, and appeared nervous. Ivey, also a black man wearing black shorts, exited the vehicle. Deputy Horne asked the two men what they were doing, and they explained that they had been changing a flat tire. Deputy Horne patted down the two men and did a cursory search of the truck for officer safety. Deputy Horne did not find any weapons on the two men or in the truck, but did find a purple t-shirt. Deputy Horne called the on-scene supervisor, Lieutenant Mike Bass, who was at the Pizza Hut, to inform him of his findings and Bass instructed Horne to bring the two men to the Pizza Hut for a possible identification.

Deputy Horne handcuffed Marshall and Ivey and put them in the backseat of his squad car. He drove them to the Pizza Hut, where the officers informed Jenkins that she should not assume that either of the men was suspected of the crime but that if she saw the perpetrator, she should identify him. At this point, between an hour and an hour and a half had passed from the time of the robbery. The two men remained in the backseat of the squad car while Jenkins looked at them through a rear-door window, Marshall having donned the purple t-shirt.⁶ Within two or three seconds, Jenkins identified Marshall as the perpetrator of the crime (the “Pizza Hut identification”), later stating that she had identified him by his eyes.⁷ Fingerprints were found at the scene of the crime, but none usable for comparison purposes were Marshall's or Ivey's.

Five months later, on November 18, 1998, Jenkins was shown a photo array containing Marshall's photo, wearing the same purple t-shirt that he was wearing on the night of the robbery. There was one other man in the photo array wearing a purple article of clothing—a purple warm-up shirt. Jenkins again identified Marshall as the perpetrator of the crime.

B.

On August 25, 1998, an amended information was filed in the Circuit Court of Polk County, Florida, charging Marshall with armed robbery. After James Mel McKinley of the Public Defender's Office was appointed to represent him, Marshall pled not guilty and, from August 23–25, 1999, stood trial before a jury. Jenkins testified for the State and again identified Marshall as the perpetrator of the crime. He was convicted, and the court sentenced him to life imprisonment as a prison-release reoffender.⁸ Marshall appealed his sentence to the Second District Court of Appeal of Florida (“DCA”).⁹ The court affirmed the conviction on September 15, 2000 as a summary disposition.¹⁰

C.

On October 25, 2002, Marshall, proceeding pro se, moved the Circuit Court to vacate his conviction under Rule 3.850.¹¹ His motion presented five grounds for relief, including the one before us here—that his attorney rendered ineffective assistance of counsel under Strickland in failing to file a pretrial motion to suppress the Pizza Hut identification on the theory that it was obtained in violation of the Fourth Amendment, i.e., an illegal stop, arrest, and detention.

After the court, acting sua sponte, appointed Byron Hileman to represent Marshall, it held an evidentiary hearing on October 12, 2007. Three witnesses testified at the hearing: Marshall, McKinley, and Ronald Toward, an expert in the field of criminal defense.

McKinley, Marshall's trial attorney, testified that, at that time of Marshall's trial, he had twenty-seven years of experience as a lawyer, the last fourteen of which he served as an Assistant Public Defender. He stated that he had considered whether Deputy Horne's stop of Marshall and Ivey in the industrial park and his transportation of the two men to the Pizza Hut was illegal under the Fourth Amendment but concluded that it was not. Marshall testified that McKinley had told him that “there was nothing to suppress.” Hileman, Marshall's collateral attorney, “candidly admitted ... that ... there were circumstances that ‘probably justified’ a Terry stop in this case, [and that he] would be focusing on whether [trial] counsel should have filed a motion to suppress based upon a claim that the Defendant's detention was illegally prolonged.” Toward opined as an expert that he would have moved to suppress the Pizza Hut identification pretrial for the same reason.

The Circuit Court denied Marshall's Rule 3.850 motion on January 2, 2008. “After reviewing the depositions of Deputy Van Sciver, Deputy Horne, Lieutenant Bass, and Ms. Jenkins, ... as well as the testimony and evidence adduced at the hearing regarding what defense trial counsel knew at the time,” the court, applying Strickland, concluded that Marshall had not established that McKinley's failure to file a motion to suppress was deficient performance resulting in “an error ‘so serious that he ... was not functioning as the counsel guaranteed by the Sixth Amendment.’ ” The court observed that it was “undisputed that counsel consciously reviewed the [suppression] issue[ ] and then made the tactical and strategic decisions not to pursue ... the motion to suppress.... ‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’ ” Turning to Strickland's required prejudice analysis, the court held that Marshall's claim failed to prove that “even if counsel had filed [a] motion to suppress, such a motion had a reasonable probability of success.”

Marshall appealed the Circuit Court's Strickland ruling to the DCA. Marshall argued that McKinley should have moved the court to suppress the Pizza Hut identification based solely on his half-hour detention following the Terry stop. The DCA affirmed the Circuit Court's ruling per curiam without a written opinion on September 18, 2009.

D.

On October 18, 2010, Marshall filed his § 2254 petition in the United States District Court for the Middle District of Florida, presenting the same ineffective-assistance claim he had presented to the DCA. Specifically, Marshall argued that McKinley should have...