Midgett v. Sec'y, Case No. 8:17-cv-1801-T-33JSS

• Decision Date: 09 August 2018
• Docket Number: Case No. 8:17-cv-1801-T-33JSS
• Parties: JOEY MIDGETT, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

JOEY MIDGETT, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:17-cv-1801-T-33JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

August 9, 2018

ORDER

Joey Midgett, a Florida prisoner, timely filed a pro se second amended petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Polk County conviction. (Doc. 10). Respondent filed a response and supplemental response. (Docs. 17, 23). Midgett filed a reply and supplemental reply. (Docs. 27, 28). Upon consideration, the petition is DENIED.

Procedural History

Midgett was convicted after a jury trial of one count of second degree murder. (Doc. 19, Ex. 27, Vol. II, pp. 321-22). The state trial court sentenced him to life in prison. (Doc. 19, Ex. 27, Vol. III, p. 347). The state appellate court per curiam affirmed the conviction and sentence. (Doc. 19, Ex. 4). Midgett's motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850, was denied. (Doc. 19, Exs. 6, 7, 10, 16). The state appellate court per curiam affirmed the denial of relief. (Doc. 19, Ex. 20). Midgett's successive postconviction motion was also denied. (Doc. 24, Exs. 28, 29). The state appellate court per curiam affirmed the lower court. (Doc. 19, Ex. 24).

Factual Background;¹ Midgett's Theory Of Defense

Midgett lived with his girlfriend, D.B. D.B. claimed that the victim, Jonas Ward, had sexually assaulted her in the past and was sharing photographs and/or videos of the assault. D.B. frequently talked about Ward's actions, which upset both her and Midgett. In the early morning hours of December 29, 2009, D.B. became "aggravated" and "frustrated" and picked up a knife, saying that she "hate[d]" the person who raped her. (Doc. 19, Ex. 27, Vol. VI, pp. 553-54). Midgett took the knife from D.B., and then drove her and their friend Holly Evans to Ward's house. Midgett, armed with a cocked, loaded handgun, approached the home while D.B. and Evans remained in the truck. A man opened the door. When Midgett told him he was there to retrieve the images, the man said, "Go fuck yourself," and shut the door on Midgett's hand. Midgett attempted to push the door open, fired one shot, ran back to his truck, and left.

Ward's girlfriend was coming out of a bathroom in the house when she heard a gunshot. She found Ward unresponsive by the front door and called 911. Ward died as a result of a single gunshot to the head. Police located one bullet hole in the front door, one shell casing on the porch, and one bullet inside the house.

Police made contact with Midgett the next day, December 30, 2009. He allowed police to search his home. Inside a hole in the bedroom closet, police saw but were unable to retrieve a box of ammunition and an object inside a sock. When police talked to him about their findings, Midgett told them about his confronting Ward. He stated that when thedoor crushed his finger, he pushed on the door and the gun went off, but that he did not know at the time that he had killed someone. Midgett said that he did not intend to harm anyone. Midgett was arrested, and police retrieved the sock and found a loaded .45 caliber pistol inside. Midgett was transported to the police station and gave a recorded interview during which he again stated that he did not intend to hurt anyone. A Florida Department of Law Enforcement analysis determined that the bullet and shell casing found at Ward's home were fired from the gun recovered from Midgett's bedroom closet. Either Midgett or D.B. had purchased ammunition for the gun several days before the shooting.

Midgett testified at trial that it was not Ward, but another man, John Draper, who answered the door. Draper knew both D.B. and Ward. Some evidence indicated that Draper had been romantically interested in D.B. and had been present at Ward's house on the night of the alleged assault, but became so mad that he left. Midgett claimed that the bullet from his gun did not kill Ward, but that John Draper was the "second shooter" that night who shot and killed Ward from inside the home. Defense witness Jonathan Markley testified that a man who went by "John John" stopped by a house party he had one night around New Year's covered in blood and asking for a change of clothes. Markley testified that John John stated he had just killed "the pervert," and that Markley knew people referred to Jonas Ward as "the pervert."

Standard Of Review

The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federalhabeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(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.

A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

The AEDPA was meant "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, 693 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").

The state appellate court affirmed the judgment and sentence and the denial ofpostconviction relief without discussion. These decisions warrant deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). When a state appellate court issues a silent affirmance, "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

Discussion

Ground One

Midgett claims that the state trial court erred in denying his motion to suppress his statements to law enforcement. Midgett gave three statements to police. On the morning of December 30, 2009, after Sergeant Mike Evans stopped Midgett for a traffic infraction, Midgett went to the Bureau of Criminal Investigations ("BCI") with Sergeant Evans. There, he made his first statement "regarding what he did the previous night of the incident" and expressed displeasure with law enforcement's failure to act on D.B.'s complaint that Ward had assaulted her. (Doc. 19, Ex. 27, Vol. I, p. 84). Midgett also agreed to allow officers to search his home. Midgett and several officers went to his home, where Detective Aaron Campbell located ammunition and a sock that was later found to conceal a firearm. Midgett sat with officers in his front yard and gave a second, recorded statement. After his arrest,Midgett was transported back to BCI, where he waived his Miranda² rights and gave a third, recorded statement.

Midgett claims that the trial court erred in denying his motion to suppress these statements. Midgett argues that he was in custody but was not given Miranda warnings when he made his first and second statements, and that police continued to question him after he invoked his right to counsel during his first statement. Further, he appears to argue that the Miranda waiver prior to his third statement was invalid because he had previously invoked his right to counsel.

A. Midgett's First Statement To Police

The state court found that Midgett's first statement to police was admissible:

The Defendant claims that he requested an attorney during the first interview at BCI. The motion specifically states on page two, "When the Defendant later became aware of the investigation the Defendant asked for his attorney. When questioned as to whom his attorney was the Defendant could only recall "Kevin", and not the last name. He asked to look at his cell phone because the attorney's name and number were in the records. However, the Defendant was denied access to his phone." Had the Defendant requested counsel, no further interrogation would be allowed. The Defendant testified at the first evidentiary hearing that Detective Lopez asked him who his attorney was and he stated "Kevin". The Defendant could not recall his attorney's last name and

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