Merriel v. Sec'y, Dep't of Corr., CASE NO. 6:11-cv-1100-Orl-37DAB

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtROY B. DALTON
PartiesTERENCE L. MERRIEL, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
Decision Date04 April 2013
Docket NumberCASE NO. 6:11-cv-1100-Orl-37DAB


CASE NO. 6:11-cv-1100-Orl-37DAB


Dated: April 4, 2013


Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. section 2254 (Doc. No. 1). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted. Thereafter, Respondents filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases for the United States District Courts (Doc. No. 7). Petitioner filed a reply to the response (Doc. No. 9) and an amended reply (Doc. No. 11).

Petitioner alleges seven claims for relief in his habeas petition: trial counsel was ineffective for failing to (1) move to suppress the DNA evidence; (2) call Timothy Caldwell to testify at trial; (3) call Sergeant Dennis Casey to testify at trial; (4) hire a DNA expert; (5) call William Mott to testify at trial; (6) file a timely notice of intent to rely to on an insanity defense; and (7) object to the trial court's improper consideration

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of his lack of remorse at sentencing. For the following reasons, the petition for writ of habeas corpus is denied.

I. Procedural History

Petitioner was charged by information with sexual battery by use or threat of deadly weapon, (count one), burglary of a dwelling with an assault or battery (count two), and lewd or lascivious exhibition (count three). After a jury trial, Petitioner was convicted as charged. The trial court sentenced Petitioner to two concurrent terms of life imprisonment for counts one and two, and to a concurrent fifteen-year term of imprisonment for count three. Petitioner appealed, and the appellate counsel filed an Anders1 brief and moved to withdraw. The Fifth District Court of Appeal granted counsel's motion to withdraw and affirmed per curiam.

Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. The trial court summarily denied the motion. Petitioner appealed, and the appellate court affirmed per curiam. Petitioner subsequently filed a second motion for post-conviction relief. The trial court dismissed the motion as successive. There is no indication that Petitioner appealed the denial of that motion.

II. Legal Standards

A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

Pursuant to the AEDPA, federal habeas relief may not be granted with respect to

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a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

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Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable."2 Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court of the United States established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. "Thus, a court deciding an

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actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

III. Analysis

A. Claim One

Petitioner alleges trial counsel was ineffective for failing to move to suppress the DNA evidence in this case (Doc. No. 1 at 5). In support of this claim, Petitioner maintains that his DNA was illegally obtained after the police used coercion by striking him in the face and threatening to take him to jail. Id. at 5-6. Petitioner also contends that during his contact with Agent Reynolds, he was under the influence of alcohol and

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cocaine and could not properly consent. Id. at 6. Petitioner asserts that the DNA sample taken from him was matched to the DNA samples taken from the victim's vagina. Id. Petitioner argues that without his involuntary DNA sample, he could not have been convicted of sexual battery because the DNA evidence was the sole evidence linking him to this crime. Id.

Petitioner raised this claim in his Rule 3.850 motion (App. L). The trial court denied the claim pursuant to Strickland, finding that even if Petitioner's DNA sample was taken in violation of his Fourth Amendment rights, the DNA match would have inevitably been discovered because Petitioner's DNA was in the CODIS (Combined DNA Indexing System) database due to a previous arrest (App. M). The trial court concluded that counsel's failure to file a motion to suppress did not amount to deficient performance. Id. The Fifth District Court of Appeal affirmed per curiam (App. Q).

To establish prejudice in the context of ineffective assistance of counsel for failure to raise a Fourth Amendment claim, a petitioner must show that "(1) the underlying Fourth Amendment issue has merit and (2) there is a 'reasonable probability that the verdict would have been different absent the excludable evidence.'" Green v. Nelson, 595 F.3d 1245, 1251 (11th Cir. 2010) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).

Assuming Petitioner's DNA sample was not voluntarily given to Agent

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Reynolds3, the Court concludes that the DNA sample would not have been suppressed pursuant to the inevitable discovery doctrine. See Jefferson v. Fountain, 382 F.3d 1286, 1296 (11th Cir. 2004) (evidence is not excludable if there is a reasonable probability that the evidence would...

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