McKiver v. Sec'y, Fla. Dep't of Corr., 18-14857

• Decision Date: 25 March 2021
• Docket Number: No. 18-14857,18-14857
• Parties: Luther MCKIVER, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

991 F.3d 1357

Luther MCKIVER, Petitioner-Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents-Appellees.

No. 18-14857

United States Court of Appeals, Eleventh Circuit.

March 25, 2021

Rachael Elizabeth Reese, O'Brien Hatfield Reese, PA, Tampa, FL, for Petitioner-Appellant.

Robin A. Compton, Attorney General's Office, Daytona Beach, FL, Pamela Jo Bondi, Attorney General's Office, Office of Statewide Prosecution, Tampa, FL, for Respondents-Appellees.

Before MARTIN, LUCK, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

After a Florida jury convicted Luther McKiver of trafficking oxycodone, a state postconviction court granted McKiver a new trial based on allegations that his trial counsel was ineffective. But McKiver's success was short-lived. The state appealed, and an appellate court reversed in a one-sentence order. Eventually, McKiver filed a federal habeas petition that argued his trial counsel was ineffective for failing to investigate and present (1) certain witnesses who would cast doubt on the state's case and (2) the criminal history of a key state witness. The district court denied McKiver's petition, and McKiver appealed.

McKiver's appeal requires us to answer two questions. First, we must determine whether the state appellate court unreasonably applied Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in rejecting the witness-testimony claim. Second, we must decide whether we may excuse McKiver's procedural default of his criminal-history claim under Martinez v. Ryan , 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). We conclude that the state appellate court did not unreasonably apply Strickland in rejecting the witness-testimony claim and that McKiver cannot surmount the procedural default of his criminal-history claim. Accordingly, after careful consideration and with the benefit of oral argument, we affirm the district court's denial of McKiver's petition.

I. BACKGROUND

The factual and procedural history of this case consists of four parts: McKiver's crime, his trial proceedings, his postconviction proceedings, and the parties’ subsequent appeals and petitions.

A. McKiver's Crime

One Friday in 2008, John Sneed filled three prescriptions for his back injury, including one for 120 oxycodone

pills. The next day, Sneed took six to eight of those pills. He went out of town for the rest of the weekend and left the pill bottle behind in his locked house. When he returned to his house on Sunday, he found that it had been broken into and that his prescriptions were missing. Sneed notified law enforcement of the break-in, and a detective was sent to investigate.

During the investigation, the detective interviewed Luther McKiver, who lived across the street from Sneed. McKiver initially denied breaking into Sneed's house, stealing the prescriptions, and using drugs, except "a little weed every now and then." He also said that he had been away from his house on Saturday and did not return until Sunday evening. He further alleged that the Sneeds were targeting him for being "the only dark-colored skin in the neighborhood." When questioned further about this statement, McKiver started becoming less coherent and possibly angry, and the detective ended the interview.

However, just fifteen minutes later, the detective conducted another interview with McKiver. In this second interview, McKiver confessed that he "lied on the first one because [he] was afraid" and admitted that he had broken into Sneed's house, had stolen the pills, and had a drug-use problem. He specifically admitted that he stole "prescription bottles full of medicine" and consumed the medicine in the bottles. The police never recovered any pill bottles or pills.

McKiver was eventually charged with burglary, grand theft, and trafficking oxycodone in an amount of 28 grams or more. He pleaded guilty to the burglary and grand theft charges but went to trial on the trafficking charge. Under Florida law at the time, unauthorized possession of 28 grams or more of oxycodone was the crime of trafficking and carried a mandatory 25-year term of imprisonment. FLA. STAT. §§ 893.03(2)(a) and 893.135(1)(c). Because McKiver admitted to stealing Sneed's oxycodone

pills, the only question at trial was whether there were 28 grams or more of oxycodone in the bottle. And because each pill in the bottle weighed 530 milligrams, the issue became whether McKiver stole 53 pills or more.

B. McKiver's Trial Proceedings

At some point, the parties became aware that Sneed might have a criminal history or may have engaged in criminal conduct, and the state moved the trial court to exclude any evidence of Sneed allegedly selling or trading narcotics as improper character evidence. After conferring with his client off the record, McKiver's trial counsel, Michael Lamberti, consented to the motion as long as the state was not allowed to introduce evidence that McKiver had taken Sneed's pills in the past. The court agreed and excluded that evidence. The court concluded the hearing by asking McKiver directly: "Are you satisfied with [Lamberti's] services thus far?" McKiver replied: "Yes, Your Honor." The court further asked: "Is there anything that he hasn't done that you have asked him to do?" McKiver answered: "No, Your Honor."

At trial, only four witnesses testified: Sneed, the pharmacist who had filled his prescription, the detective, and McKiver. Sneed and the detective testified to the facts described above, and recordings of McKiver's two interviews with the detective were played for the jury. The pharmacist testified that he had carefully counted and filled Sneed's bottle with 120 oxycodone pills two days before the break-in at Sneed's house. When McKiver testified, he "admit[ted] [his] guilt for breaking into the house" and taking Sneed's drugs. Although he recalled seeing pills in Sneed's oxycodone bottle, he could not remember how many he had taken because he was already "too high" at the time.

The jury convicted McKiver of trafficking oxycodone in an amount of 28 grams or more, and the judge sentenced him to a mandatory 25-year term of imprisonment. McKiver appealed his conviction and sentence, which the state appellate court affirmed.

C. McKiver's Postconviction Proceedings

McKiver filed a pro se state postconviction petition arguing that his trial counsel, Lamberti, was ineffective for several reasons. As relevant here, McKiver alleged that Lamberti disregarded his request to investigate and call four witnesses who would have testified that Sneed sold drugs, which in turn would cast doubt on whether Sneed's pill bottle was full when McKiver stole it. The state postconviction court appointed counsel for McKiver and ordered an evidentiary hearing. Almost immediately after being appointed, McKiver's postconviction counsel requested Sneed's criminal history. When the request was made, McKiver still had almost seven months to amend his petition.

At the hearing, three witnesses testified: Lamberti, McKiver, and the prosecutor. Only Lamberti's and McKiver's testimonies are relevant to this appeal.

To begin, Lamberti testified—and his contemporaneous notes confirmed—that McKiver had given him the names of only two witnesses, neither of which were mentioned in McKiver's petition. Lamberti explained that he decided not to investigate those witnesses because McKiver had admitted multiple times that Sneed's oxycodone bottle was "almost full when [McKiver] took" the pills. Indeed, he testified that McKiver told him in the off-the-record conversation at the motion-in-limine hearing that calling witnesses to testify about Sneed's drug-selling history "would be a waste of time" because he had "taken the whole, entire[,] ... just-about-full bottle of pills." Lamberti also testified that McKiver never told him that the proposed witnesses knew that Sneed had sold oxycodone

pills in the 48-hour period between the filling of the prescription and the break-in. Lamberti explained that the trial strategy—which McKiver accepted—was to argue that McKiver took only a small handful of pills before leaving Sneed's house and that someone else may have later entered the open house and taken the remaining pills.

Next, McKiver testified. First, McKiver testified that he had suggested seven witnesses to Lamberti and that he had told him that four of them would testify that Sneed had sold them oxycodone

pills within 48 hours of filling his prescription. But McKiver's petition mentioned only four witnesses—one of whom was Sneed's wife—and never mentioned anyone purchasing oxycodone within the relevant 48-hour timeframe. Second, McKiver answered a series of yes-or-no questions about whether his proposed witnesses would have been available and willing to testify at the time of his trial. He asserted that the witnesses were available and willing to testify that they had purchased pills from Sneed in the days leading up to the break-in. Third, McKiver testified that he had always told Lamberti that the bottle contained very few pills. He also testified that at least one of his suggested witnesses would have been able to tell the jury how many pills were in the bottle.

The postconviction court granted McKiver's petition. It noted that neither the pharmacist nor Sneed could "confirm the exact contents of the bottle." Accordingly, it concluded that "[t]he witnesses contemplated by Defendant would have challenged the testimony of State's witnesses and provided reasonable doubt as to the quantity for trafficking."

D. The Parties’ Subsequent Appeals and Petitions

The state appealed the postconviction court's order on the ground that it was not "supported by competent substantial evidence." The state appellate court reversed the postconviction court. In a brief order, it quoted from the standard for an ineffective assistance claim and wrote "We conclude that [McKiver] failed to meet his burden of establishing either prong under Strickland and...