Micciche v. Sec'y, Dep't of Corrs.
| Decision Date | 31 August 2021 |
| Docket Number | 8:18-cv-1270-MSS-JSS |
| Parties | DAVID MICCICHE, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Micciche petitions for the writ of habeas corpus under 28 U.S.C § 2254 and challenges his state court convictions for possession of child pornography and video voyeurism, for which he is serving 10 years in prison. After reviewing the petition (Doc. 1), the response and appendix (Docs. 10 and 12), and the amended reply (Doc. 14), the Court DENIES the petition.
An information charged Micciche with ten counts of child pornography possession, two counts of video voyeurism, and two counts of promotion of a sexual performance by a child. In exchange for Micciche's guilty plea to the child pornography possession and video voyeurism counts, the prosecutor offered a 10-year sentence, followed by 10 years of sex offender probation, and dismissal of the promotion of a sexual performance counts. The prosecutor would withdraw the global offer if Micciche deposed any witness or filed any motion. Facing twelve second-degree felonies punishable by 15 years and two third-degree felonies punishable by five years Micciche entered the negotiated guilty plea.
At the change of plea hearing, Micciche through counsel stipulated to the following factual basis. On April 24, 2012, police executed a search warrant at Micciche's home. (Doc. 12-2 at 105) Police discovered numerous images of child pornography on a password-protected computer used by Micciche. (Doc. 12-2 at 105) The computer contained images of children under 10 years of age, including at least one image or movie of a sexual battery on a child under 5 years of age. (Doc. 12-2 at 105-06) Police also discovered a videotape containing images of Micciche's 12-year old step-daughter undressed. (Doc. 12-2 at 105) After waiving his constitutional rights, Micciche admitted that he downloaded child pornography and deleted the child pornography after viewing it. (Doc. 12-2 at 106) He also admitted that he knew that the videotape contained the images of his step-daughter because he placed a video camera in her bedroom. (Doc. 12-2 at 105)
The trial court accepted the parties' agreement and sentenced Micciche to 10 years of prison for six child pornography possession counts, 10 years of sex offender probation for the other four child pornography possession counts, and a concurrent five years in prison for the two video voyeurism counts. (Doc. 12-2 at 7-26, 106-07) Micciche did not appeal his convictions. The post-conviction court denied Micciche's motion for post-conviction relief after an evidentiary hearing (Docs. 12-3 at 100-218 and 12-4 at 2-155), and the state appellate court affirmed. (Doc. 12-4 at 260) The post-conviction court also denied Micciche's motion to correct his sentence in which he challenged his designation as a sex offender (Doc. 12-4 at 270-71), and the state appellate court affirmed. (Doc. 12-4 at 317) His federal petition follows.
Because Micciche filed his federal petition after the enactment of the Antiterrorism and Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S. 320 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:
A decision is “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of materially indistinguishable facts.” Williams v Taylor, 529 U.S. 362, 412-13 (2000). A decision involves an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal principle from [the U.S. Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams 529 U.S. at 413. Clearly established federal law refers to the holding of an opinion by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529 U.S. at 412.
“[AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas ‘retrials' and to ensure that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 694 (2002). A federal petitioner must show that the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Micciche asserts ineffective assistance of counsel - a difficult claim to sustain. Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
“There is no reason for a court . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an 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.” Strickland, 466 U.S. at 690.
“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 691. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690-91. A defendant cannot meet his burden by showing that the avenue chosen by counsel was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992).
By pleading guilty, a defendant waives all non-jurisdictional claims arising before the guilty plea. Stano v. Dugger, 921 F.2d 1125, 1150 (11th Cir. 1991) (citing Tollett v. Henderson, 411 U.S. 258, 267 (1973)). However, a defendant has the right to effective assistance of counsel before pleading guilty. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Therefore, the two-part test under Strickland applies to an ineffective assistance of counsel claim arising before a guilty plea. Hill, 474 U.S. at 58.
Because the standards under Strickland and AEDPA are both highly deferential, “when the two apply in tandem, review is ‘doubly' so.” Richter, 562 U.S. at 105. “Given the double deference due, it is a ‘rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.'” Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).
The state appellate court affirmed in a decision without a written opinion the post-conviction court's order denying Micciche relief. (Doc. 12-3 at 100-43) A federal court
“‘look[s] through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume[s] that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Because the post-conviction court recognized that Strickland governed the claims (Doc. 12-3 at 102), Micciche cannot meet the “contrary to” test in Section 2254(d). Micciche instead must show that the state court either unreasonably applied Strickland or unreasonably determined a fact.
Micciche asserts that trial counsel was ineffective for not investigating a police report memorializing statements by Micciche during an interrogation at his home. (Doc. 1-1 at 2-10) He contends that the report misconstrued and misrepresented his statements to a detective, inaccurately made him appear as a “textbook pedophile, ” and incorrectly stated that he had confessed. (Doc. 1-1 at 2-10)
The post-conviction court denied the claim as follows (Doc. 12-3 at 102-16) (state court record citations omitted):
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