Melvin v. Sec'y

• Decision Date: 24 October 2016
• Docket Number: CASE NO. 8:13-cv-1201-T-23AEP
• Parties: DEMARLIS MELVIN Petitioner, v. SECRETARY, Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

DEMARLIS MELVIN Petitioner,
v.
SECRETARY, Department of Corrections, Respondent.

CASE NO. 8:13-cv-1201-T-23AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

October 24, 2016

ORDER

Demarlis Melvin applies for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 13) and challenges the validity of his state convictions for first-degree murder and attempted first-degree murder. Melvin alleges one ground of trial court error and six grounds of ineffective assistance of trial counsel. Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 9)

FACTS¹

As Phillip Peterson and Michael Smith walked to a local convenience store, Melvin and three other people approached in an automobile. As the automobile passed, Melvin and Peterson began to argue. The automobile continued down the

Page 2

street but circled back. Melvin and Peterson again exchanged insults. Peterson threw a drink at the automobile, which stopped. Melvin and another passenger got out and challenged Peterson to a fight. When Peterson ran toward him, Melvin and the other passenger returned to the vehicle and rode away. A few minutes later, Melvin returned with a gun and shot at Peterson and Smith. A bullet went through Peterson's hat but he was not injured. Another bullet struck Michael Smith in the head and killed him.

The police arrested Melvin after witnesses identified him in a photographic line-up. An indictment charges Melvin with first-degree murder and attempted first-degree murder. After examination by four mental health experts Melvin was deemed incompetent to stand trial and sent to the Florida State Hospital for treatment. Melvin was ultimately restored to competency. A jury convicted Melvin of both charges, and he serves life imprisonment.

I. EXHAUSTION AND PROCEDURAL BAR

Ground One

Melvin contends that, because the prosecutor failed to produce sufficient evidence of premeditation, the trial judge erred by denying Melvin's motion for a judgment of acquittal. When he presented this ground to the state court on direct appeal, Melvin argued a violation of only state law and did not alert the state court to a federal constitutional violation. Even generously interpreting Melvin's federal application to include a federal due process claim based on the insufficiency of the evidence, the application fails because the federal claim is unexhausted.

Page 3

Before a federal court can grant habeas relief, an applicant must exhaust either on direct appeal or in a state post-conviction motion every available state court remedy for challenging his conviction. 28 U.S.C. § 2254(b)(1)(A), (C). "[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted)). To exhaust a claim, an applicant must present the state court with both the particular legal basis for relief and the facts supporting the claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner 'fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement that an applicant exhaust each available state court remedy as a prerequisite to federal review is satisfied if the applicant "fairly presents" his claim in each available state court and alerts the state court to the federal source of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). An applicant can raise a federal claim in state court "by citing in conjunction with

Page 4

the claim the federal source of law on which he relies or a case deciding such claim on federal grounds, or by simply labeling the claim 'federal.'" Baldwin v. Reese, 541 U.S. 27, 32 (2004). An applicant must "do more than scatter some makeshift needles in the haystack of the state court record." McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (quotations and citations omitted).

In his direct appeal Melvin argued that the state failed to present sufficient evidence to satisfy the burden of proof under Florida law. (Respondent's Exhibit 2, pp. 11-16) In his state appellate brief Melvin did not cite either a federal case or a federal constitutional provision, and he did not label his claim "federal." Baldwin, 541 U.S. at 32. Melvin's reliance on Florida's circumstantial evidence standard, coupled with his failure to assert a federal constitutional claim, did nothing to alert the Florida courts to a federal sufficiency-of-the-evidence claim. As Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 460-61 (11th Cir. 2015), explains:

For starters, in cases turning on circumstantial evidence, the Florida standard for assessing a sufficiency of the evidence challenge differs greatly from the federal standard. While Florida may apply the Jackson standard in resolving an ordinary sufficiency claim, see, e.g., Melendez v. State, 498 So. 2d 1258, 1261 (Fla. 1986), a "special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence," or "predicated chiefly upon circumstantial evidence," Thorp v. State, 777 So. 2d 385, 389 (Fla. 2000) (per curiam) (quotation omitted). It is an age-old rule in Florida that "[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Id. (quotation omitted); see, e.g., Lowe v. State, 90 Fla. 255, 105 So. 829, 830 (1925) (requiring that the evidence be "irreconcilable with any reasonable theory of [the defendant's]

Page 5

innocence and exclude to a moral certainty every hypothesis but that of his guilt").

It is precisely the Florida rule, however, that the Supreme Court has rejected as a matter of federal law. In Jackson, the case upon which Preston rests his entire sufficiency of the evidence challenge, the Court instructed that a petitioner is entitled to relief under the Due Process Clause only if "no rational trier of fact could have found proof of [his] guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324, 99 S. Ct. 2781. Under federal law, the prosecution does not have "an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt." Id. at 326, 99 S. Ct. 2781. This remains true even when the only evidence relied on is "circumstantial evidence in the record." Id. at 324, 99 S. Ct. 2781. Thus, in cases involving circumstantial evidence, whether a defendant raises his sufficiency claim in terms of state or federal law can matter a great deal.

Preston invoked and relied upon Florida's unique rule for convictions based on circumstantial evidence in challenging his conviction. . . . We can safely assume that when the Florida Supreme Court considered Preston's appeal, it did so through the prism of this longstanding state doctrine, rather than federal law. The Florida Supreme Court had no opportunity to even consider federal law, because, as we've explained, Preston never once raised Jackson, the Jackson standard, any federal cases, the Due Process Clause or any other constitutional provisions, or, indeed, even referenced the word "federal" in his briefing on this claim.

Any federal claim that Preston could have brought would have been judged by a different standard than the state claim he actually did bring.

Melvin's failure to present to the state court a federal due process claim deprived the state court of a "full and fair opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." Boerckel, 526 U.S. at 845. See also Anderson v. Harless, 459 U.S. 4, 5-6 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made.");

Page 6

Preston, 785 F.3d at 460 (noting that "simply mentioning a phrase common to both state and federal law, like 'sufficiency of the evidence,' cannot constitute fairly presenting a federal claim to the state courts"). Consequently, ground one is unexhausted and procedurally defaulted.

"If the [applicant] 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 applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, an applicant "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To show prejudice, an applicant must demonstrate not only that an error at the trial created the possibility of prejudice but that the error worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimension. United States v. Frady, 456 U.S. 152 (1982). In other words, an applicant must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892.

Without showing cause and prejudice, an applicant may obtain...