McHenry v. Sec'y, Dep't of Corr.
| Decision Date | 06 August 2013 |
| Docket Number | CASE NO: 8:13-CV-517-T-30TGW |
| Parties | WILLIAM JAMES McHENRY, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE comes before the Court upon Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Dkt. #1) filed on February 25, 2013. The Government filed a Response (Dkt. #6) on April 29, 2013. Petitioner filed a Reply (Dkt. #16) on August 1, 2013. Upon review, the Court concludes that the petition should be denied.
PETITIONER, William James McHenry (hereinafter referred to as "McHenry" or "Petitioner") was indicted for murder in the first degree on December 17, 2003. (Exhibit 1, Record on Appeal, pp. 9-10.) A jury convicted Petitioner on September 14, 2006. (Exhibit 1, Record on Appeal, pp. 391.) The Sixth Judicial Circuit, Pinellas County,Florida, sentenced McHenry to life in prison on September 18, 2006. (Exhibit 1, Record on Appeal, pp. 526-28.)
McHenry filed an appeal on September 20, 2007. After relinquishing jurisdiction for the Circuit Court to have an inspection of the contents of a computer relating to a discovery issue, and after the Circuit Court held an in camera inspection hearing finding no discovery violations, the appellate court affirmed per curiam. McHenry v. State, 11 So. 3d 950 (Fla. 2d DCA 2008) (table). On December 22, 2008, McHenry filed a motion for rehearing and rehearing en banc. On February 24, 2009, the appellate court denied both motions.
On March 31, 2009, McHenry a petition alleging ineffective assistance of appellate counsel. The appellate court denied that petition on April 15, 2009.
On April 22, 2009, McHenry filed a petition for writ of certiorari in the United States Supreme Court. It was denied on June 8, 2009.
On July 13, 2009, McHenry filed a motion to correct illegal sentence with the Circuit Court. The motion was denied on August 27, 2009. McHenry appealed. The appellate court affirmed on March 3, 2010. McHenry v. State, 31 So. 3d 183 (Fla. 2d DCA 2010). McHenry filed a motion for rehearing. It was denied on April 1, 2010.
On February 18, 2011, McHenry filed a motion for post-conviction relief. The post-conviction court struck part of the motion and denied part. The post-conviction court granted McHenry thirty days to amend several of his claims if he wished to pursue them.
On May 23, 2011, McHenry filed an amended motion for post-conviction relief. On June 14, 2011, the post-conviction court denied the motion in part and required the state to respond to the remainder. After the state's response, the post-conviction court denied all remaining grounds on November 21, 2011. McHenry filed a motion for rehearing and that motion was denied on January 6, 2012.
McHenry appealed. The post-conviction court's denial was affirmed per curiam. McHenry v. State, 106 So. 3d 939 (Fla. 2d DCA 2013) (table). On February 15, 2013, the mandate issued.
Petitioner filed this Petition for Writ of Habeas Corpus on February 25, 2013, claiming counsel was ineffective because he:
1. did not move to dismiss indictment because grand jurors were unqualified;
2. did not object to felony murder jury instructions with an indictment charging premeditated murder;
3. (a) did not object to discovery violation and move for a Richardson hearing,
(b) committed Brady violation by suppressing evidence, and
(c) committed Giglio violation by misrepresenting facts to the court;
4. did not move to disqualify judge for approving in camera hearing;
5. did not retain independent forensic expert to rebut state medical examiner's testimony;
6. improperly defined "sexual battery" in justifiable use of deadly force jury instructions; and 7. did not move for a new trial alleging the (a) verdict was contrary to the law or weight of evidence; (b) jury instructions were improper, and (c) prosecutor committed misconduct.
The State stipulates this petition is timely. (Dkt. #6.)
Petitions for Writ of Habeas Corpus allow state prisoners to challenge their convictions for violating federal law. See 28. U.S.C. §2254(a). Petitioners must first exhaust available state court remedies or show they are unavailable or ineffective. See 28 U.S.C. §2254(b)(1). This Court, however, is not an appellate body. It must defer to the state court's ruling and findings of fact. See Bell v. Cone, 543 U.S. 447, 455 (2005); see also Bell v. Cone, 535 U.S. 685, 693 (2002); Fugate v. Head, 261 F.3d 1206, 1214 (11th Cir. 2001). And it can only vacate judgments:
28 U.S.C. §2254(d)(1)-(2).
State courts contravene "clearly established [f]ederal law" by (1) applying a different rule than the Supreme Court, or (2) deciding a materially indistinguishable case differently than the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-06 (2000); see also Price v. Vincent, 538 U.S. 634, 640 (2003); Early v. Packer, 537 U.S. 3, 7-8 (2002).They unreasonably apply federal law by: (1) identifying Court precedent but unreasonably applying it, or (2) unreasonably extending or failing to extend Court precedent. Diaz v. Secretary for the Dept. of Corrections, 402 F.3d 1136, 1141 (11th Cir. 2005) (citing Williams, supra at 405-08). The standard is objective reasonableness, not accuracy. Brown v. Payton 544 U.S. 133, 141 (2005); see Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam); Williams, supra at 405 ( )
This Court must also presume the state court's findings of fact are correct. 28 U.S.C. §2254(e)(1); Henderson v. Haley, 353 F.3d 880, 890-91 (11th Cir. 2003) Petitioner may rebut them only with clear and convincing evidence. Id.
Petitioner alleges ineffective assistance of counsel. Dkt. CV-1. The Constitution's Due Process Clause and the Sixth Amendment guarantee defendants effective assistance of competent counsel during criminal trials. Strickland v. Washington, 466 U.S. 668, 685 (1984); See Lafler v. Cooper, 132 S.Ct. 1376 (2012) (citing Missouri v. Frye, 132 S.Ct. 1399 (2012); Padilla v. Kentucky, 130 S.Ct. 1473, 1486 (2010); Hill v. Lockhart, 106 S.Ct. 366, 366 (1985).
The Court in Strickland v. Washington established the requirements for ineffective assistance of counsel claims. 466 U.S. 668, 687-89 (1984). The defendant must make two showings. First, he must demonstrate counsel's performance was "deficient." Strickland, 466 U.S. at 687. This means counsel's representation "fell below an objectivestandard of reasonableness." Id. at 688 () Second, defendant must demonstrate counsel's performance prejudiced his defense. Id. at 687. This means proving the outcome would have been different but for counsel's unprofessional errors. Id. at 694.
Petitioner's motion also alleges Brady and Giglio violations. Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963). Defendants making Brady claim must show: (1) the evidence is exculpatory or impeaching; (2) the State willfully or inadvertently suppressed it; and (3) that prejudiced him. Reed v. State, 875 So. 2d 415, 430 (Fla. 2004) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). The evidence must be material to show prejudice. Strickler, 527 U.S. at 282. Material evidence has a reasonable probability of changing the outcome. Way v. State 760 So. 2d 903, 913 (Fla. 2000) (citing United States v. Bagley, 473 U.S. 667, 682 (1985). And a "reasonable probability" is a likelihood "sufficient to undermine confidence in the outcome" Way, 760 So. 2d at 913.
Defendants making a Giglio claim must show: (1) the State's testimony was false; (2) the State knew it was false; and (3) it was material. Ponticelli v. State, 941 So. 2d 1073, 1088 (Fla. 2006); see Giglio v. United States, 405 U.S. 150, 153-54 (1972); see also Suggs v. State, 923 So. 2d 419, 426 (Fla. 2005). The State, however, must show the testimony was immaterial after Defendant shows the State knew it was false. Guzman v. State, 868 So. 2d 498, at 507 (Fla. 2003). Immaterial testimony is "harmless beyond areasonable doubt." Id. at 506. This means there is no reasonable probability it furthered the conviction. State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986).
Petitioner raises seven claims of ineffective assistance of counsel.
Petitioner alleges counsel should have moved to dismiss the indictment. He claims the grand jurors were unqualified. The state post-conviction court held the claim facially insufficient because it did not explain why they were unqualified. Nor did it claim a motion would have changed the verdict. The court gave Petitioner thirty days to correct the pleading. It struck the claim when he did not.
Vague, conclusory statements do not warrant post-conviction relief. Petitioner needed to (1) explain why the grand jurors were unqualified and (2) give supporting evidence. He did neither.
In his reply brief, Petitioner attempts to buttress his argument by stating:
In the case at bar, trial counsel rendered himself to be ineffective against substantive due process of law and procedural right to have the grand jury panel members selected in accordance and adherence to the United States constitution. The unconstitutionally vague nature of Florida Statute Section 40.022(4), that allows for "other identifying...
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