McCullen v. Sec'y, Dep't of Corr.
| Decision Date | 12 July 2019 |
| Docket Number | Case No. 8:16-cv-2092-T-02JSS |
| Parties | WILLARD MCCULLEN, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Willard McCullen, a Florida prisoner, timely filed a counseled petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging his Hillsborough County conviction, along with a supporting memorandum of law (Dkt. 2). The Court ordered Respondent Secretary, Department of Corrections, to show cause why the relief sought in the petition should not be granted. (Dkt. 3). Respondent filed a response and the state court record. (Dkts. 7, 9). Mr. McCullen filed a reply. (Dkt. 14). Upon consideration, the petition will be denied.
Mr. McCullen was convicted after a jury trial of second degree murder with a firearm. (Dkt. 9, Ex. 1, Vol. 1, p. 87). The state trial court sentenced him to 35 years in prison, followed by five years of probation. (Id., p. 100). The sentence included a 25-year mandatory minimum term. (Id., p. 101). The state appellate court per curiam affirmed the conviction and sentence. (Dkt. 9, Ex. 4). Mr. McCullen filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, and an amended motion. (Dkt. 9, Ex. 5; Dkt. 9, Ex. 6, pp. 42-70). The state court summarily denied all but one claim. (Dkt. 9, Ex. 6, pp. 109-14). After conducting an evidentiary hearing on the remaining claim, the state court entered a final order denying postconviction relief. (Id., pp. 214-41). The state appellate court per curiam affirmed. (Dkt. 9, Ex. 9).
A federal habeas petitioner must exhaust his claims by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (). The exhaustion requirement is satisfied if the petitioner fairly presents his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). The doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
In Ground One, Mr. McCullen argues that the trial court erred in allowing prosecution witness Tiffany Lively to testify about a letter that Mr. McCullen purportedly wrote to the victim. In Ground Two, he claims that the trial court erred when it did not allow Melody McCullen to testify about the victim's reputation for violence. Mr. McCullen alleges violations of his right to a fair trial under the Sixth Amendment and his right to due process under the Fourteenth Amendment.
When Mr. McCullen raised these issues on appeal, he presented them solely in terms of statelaw. (Dkt. 9, Ex. 2, pp. 3-8). He did not allege any federal constitutional violations or cite any federal authority. (Id.). Because Mr. McCullen failed to notify the state appellate court that he was presenting federal claims, he did not satisfy the exhaustion requirement. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (); Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 457 (11th Cir. 2015) ().
State procedural rules do not provide for second appeals. See Fla. R. App. P. 9.140(b)(3) (). Since Mr. McCullen therefore cannot return to state court to exhaust the federal claims, they are procedurally defaulted. See Smith, 256 F.3d at 1138. Mr. McCullen has not argued or established that either the cause and prejudice or the fundamental miscarriage of justice exception applies to excuse the default. Consequently, Grounds One and Two are barred from federal habeas review.
In Ground Five, Mr. McCullen claims that trial counsel was ineffective in not calling Sheila Parsons at trial. In Ground Six, Mr. McCullen argues that trial counsel was ineffective in not calling his minor son at trial. In Ground Seven, Mr. McCullen contends that he is entitled to relief based on the cumulative effect of trial counsel's alleged errors.
Mr. McCullen raised these claims in his amended postconviction motion. (Dkt. 9, Ex. 6, pp. 66-69). Respondent contends that these claims are unexhausted because Mr. McCullen did not raise them on collateral appeal. See Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) ();1 see also Boerckel, 526 U.S. at 845 ().
Mr. McCullen did not identify or discuss any of these claims in his collateral appellate brief. (Dkt. 9, Ex. 7, pp. 3-9). Mr. McCullen asserts in his reply, however, that he properly exhausted the claims because he was not required to brief them. Florida Rule of Appellate Procedure 9.141(b)(3) applied to Mr. McCullen's collateral appeal. This rule provides that when a postconviction motion has been resolved after an evidentiary hearing was held on one or more claims, an initial brief "shall be served within 30 days of service of the record or its index." Fla. R. App. P. 9.141(b)(3)(C). Mr. McCullen argues that because the rule "does not specifically state that the claims summarily denied and not addressed at the evidentiary hearing require briefing[,]" this Court should conclude that he exhausted his claims. (Dkt. 14, p. 3).
The Second District Court of Appeal ("Second DCA"), which heard Mr. McCullen's appeal, has addressed the application of this rule. The Second DCA explained that between December 2000 and October 2010, its internal policy required briefing only for grounds that were denied after an evidentiary hearing. Cunningham v. State, 131 So.3d 793, 794 (Fla. 2d DCA 2012). A merits review of any summarily denied grounds was conducted automatically regardless of whether such grounds were briefed. Id. But the Second DCA abandoned this policy as of October 2010 and, when considering an appeal under rule 9.141(b)(3), "no longer conducts an independent review" ofsummarily denied claims that were not briefed. Id. at 794-95. Therefore, when at least one postconviction claim was resolved after an evidentiary hearing, an appellant must brief all claims he wishes the Second DCA to review, including those claims summarily denied without a hearing. This new policy was in place when Mr. McCullen filed his appellate brief.2
Therefore, Mr. McCullen failed to exhaust these claims because he did not brief them on collateral appeal. See Coolen v. State, 696 So.2d 738, 742 n.2 (Fla. 1997) . Mr. McCullen cannot return to state court to present the claims because state procedural rules do not provide for second collateral appeals. See Fla. R. Crim. P. 3.850(k) (). Accordingly, these claims are procedurally defaulted. See Smith, 256 F.3d at 1138.
Mr. McCullen states in his federal habeas petition that his postconviction appellate counsel did not raise these claims, that he does not know why counsel failed to do so, and that he asked counsel to raise all cognizable claims on appeal. (Dkt. 1, pp. 15, 17, 19). The Court interprets these statements as an argument that Mr. McCullen's postconviction appellate counsel was ineffective in not raising the claims, and that this ineffective assistance is cause to excuse the default. Ineffective assistance can constitute cause only when an attorney's error "amounted to a deprivation of the constitutional right to counsel." Rivera v. Sec'y, Dep't of Corr., 737 Fed. App'x 946, 954 (11th Cir.2018). But "[t]here is no federal constitutional right to an attorney in postconviction proceedings." Id. at 955. Accordingly, "ineffective assistance of postconviction counsel does not typically provide a basis for setting aside procedural default, and even less so in the case of appellate postconviction counsel." Id. Therefore, Mr. McCullen cannot establish the cause and prejudice exception by claiming that his postconviction appellate counsel was ineffective in not raising the claims. Mr. McCullen has not asserted another basis to establish the cause and prejudice exception. Nor has he argued or established that he meets the fundamental miscarriage of justice exception. Accordingly, Grounds Five, Six, and Seven are procedurally defaulted and are barred from federal habeas review.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody "in...
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