Moseley v. Sec'y Dep't of Corr., Case No. 5:09-cv-378-Oc-29PRL

• Decision Date: 11 September 2012
• Docket Number: Case No. 5:09-cv-378-Oc-29PRL
• Citation: Moseley v. Sec'y Dep't of Corr., Case No. 5:09-cv-378-Oc-29PRL (M.D. Fla. Sep 11, 2012)
• Parties: JEFFREY W. MOSELEY, Petitioner, v. SECRETARY DEPARTMENT OF CORRECTIONS; FLORIDA ATTORNEY GENERAL, Respondents.
• Court: U.S. District Court — Middle District of Florida

JEFFREY W. MOSELEY, Petitioner,

v.SECRETARY DEPARTMENT OF CORRECTIONS; FLORIDA ATTORNEY GENERAL, Respondents.

Case No. 5:09-cv-378-Oc-29PRL

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

Dated: September 11, 2012

OPINION AND ORDER

I.Status

Jeffrey Moseley(hereinafter "Petitioner" or "Defendant") initiated this action by filing a pro se Petition for Writ of Habeas Corpus("Petition," Doc. #1) pursuant to 28 U.S.C. § 2254 on August 25, 2009.¹Petitioner attaches voluminous exhibits to his Petition consisting of portions of the trial transcript and post-conviction motions.²

By Amended Information dated February 20, 2006,³Petitioner was charged with the following three counts: Count 1- unlawful sexual activity with minor KB⁴; Count 2- lewd or lascivious battery upon SF; and, Count 3- interfering with child custody.See Exh. XXVI;see alsoResponseat 2.The jury found Petitioner not guilty as to count 1, but guilty as charged in counts 2 and 3. Id.Petitioner was sentenced to fifteen-years of imprisonment as to count 2 and five-years on count 3.Responseat 2(citingExhs. Appx. 1at 163-64, 203-11, 239-44;Appx. 2).Petitioner's sentence and conviction were per curiam affirmed on direct appeal on October 10, 2006.Responseat 2;Moseley v. State, 939 So.2d 1077(Fla. 5th DCA2006).

The Petition sub judice identifies the following twelve grounds for relief, each alleging ineffective assistance of trial counsel(as stated by Petitioner):

Ground 1: Counsel failed to object to the State prosecuting an uncharged offense;

Ground 2: Counsel failed to call or interview exculpatory witnesses on defense witness list;Ground 3: Inadmissible evidence- Counsel failed to file a pre-trial motion to suppress an unauthenticated confession letter;

Ground 4: Inadmissible evidence-Counsel failed to file adequate motion to suppress tattoo with available witnesses;

Ground 5: Failed to use exculpatory 911 record;

Ground 6: Counsel failed to acquire and use Petitioner's cell phone records;

Ground 7: Counsel knowingly elicited harmful and damaging testimony;

Ground 8: Counsel failed to object to WilliamsRule 90.404, and failed as well to object to state requirements under 90.404(2)(C)(1);

Ground 9: Counsel was deficient and ineffective as counsel's direct confession of guilt;

Ground 10: Counsel failed to object or request a mistrial to improper comments made by the prosecutor;

Ground 11: Counsel provide[d] ineffective assistance when counsel failed to object to trial court vindictively sentencing Petitioner to the maximum term allowed, as threatened in the trial courts initiated plea bargaining session;

Ground 12: Counsel was ineffective for failing to motion the Court with a proper and adequate judgment of acquittal.

Petitionat 16;Responseat 6.

Respondent filed a Response to the Petition (Doc. #7, Response), and attached exhibits in support (Exhs. I-LV).Respondent concedes that the Petition istimely filed pursuant to 28 U.S.C. § 2244(d),⁵ but submits that the Petition should be denied based on Petitioner's procedural defaults of Grounds 12 and 13; and, Petitioner's failure to satisfy his burden under 28 U.S.C. § 2254(d), (e) as to the remaining grounds.Seegenerally Response.Petitioner filed a Reply (Doc. #12, Reply).This matter is ripe for review.

II.Applicable§ 2254 Law

A.Only Federal Questions Cognizable

A federal court only may entertain an application for a writ of habeas corpus from a state prisoner who claims his custody violates the "Constitution or the laws or treaties of the United States."⁶"The writ of habeas corpus was not enacted to enforce State-created rights."⁷In particular, "[a] state's interpretation of its own lawsor rules provides no basis for federal habeas corpus relief, since no question of a constitutional nature is involved."⁸"Federal courts entertaining petitions for writs of habeas corpus must follow the state court's interpretation of a state law absent a constitutional violation."Consequently, "a challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment - i.e., the conviction itself - and thus habeas relief is not an appropriate remedy."⁹Similarly, a claim that petitioner's federal rights have been violated because state officials failed to correctly apply state law is merely a state law claim "couched in terms" of a federal claim, and fails to state a claim upon which relief may be granted by habeas corpus.¹⁰

B.Exhaustion and Procedural Default

A federal court may only review an issue under § 2254 if petitioner first afforded the state courts an adequate opportunity to address that issue.¹¹

Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.To provide the State with the necessary opportunity, the prisoner must fairly present his claim in eachappropriate state court(including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.

Baldwin v. Reese, 541 U.S. 27, 29(2004)(internal citations and quotations omitted).This imposes a "total exhaustion" requirement in which all the federal issues must have first been presented to the state courts.¹²"In other words, the 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."¹³Additionally, in articulating a factual basis in support of a claim for relief, a petitioner must have also alleged the factual predicate to the state court.¹⁴

"A claim is procedurally defaulted if it has not been exhausted in state court and would now be barred under state procedural rules."¹⁵Under the procedural default doctrine, "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeasrelief, . . . . ."¹⁶A procedural default for failing to exhaust state court remedies will only be excused in two narrow circumstances.First, a petitioner may obtain federal habeas review of a procedurally defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting from the asserted error.¹⁷Second, under exceptional circumstances, a petitioner may obtain federal habeas review of a procedurally defaulted claim, even without a showing of cause and prejudice, if such review is necessary to correct a fundamental miscarriage of justice.¹⁸

C.Deferential Review Required By AEDPA

Petitioner filed his timely Petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,110 Stat. 1214(1996).Consequently, post-AEDPA law governs this action.Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1664(2007);Penry v. Johnson, 532 U.S. 782, 792(2001);Davis v. Jones, 506 F.3d 1325, 1331, n.9(11th Cir.2007).Under the deferential review standard, habeas relief may not be granted with respect to 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).¹⁹"This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt."²⁰

Both the Eleventh Circuit and the Supreme Court broadly interpret what is meant by an "adjudication on the merits."²¹Thus, a state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits that warrants deference by a federal court.²²Indeed, "unless the state court clearly states that its decision was based solely on a state procedural rule [the Court] will presume that the state court has rendered an adjudication on the merits when the petitioner's claim 'is the same claim rejected' by the court."²³

"A legal principle is 'clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme] Court."²⁴"Astate court decision involves an unreasonable application of federal law when it identifies the correct legal rule from Supreme Courtcase law but unreasonably applies that rule to the facts of the petitioner's case, or when it unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Courtcase law to a new context."²⁵The "unreasonable application" inquiry requires the Court to conduct the two-step analysis set forth in Harrington v. Richter, 131 S. Ct. 770.²⁶First, the Court determines what arguments or theories support the state court decision; and second, the Court must determine whether "fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior"Supreme Court decision.²⁷Whether a court errs in determining facts "is even more deferential than under a clearly erroneous standard of review."²⁸The Court presumes the findings of fact to be correct, and petitioner bears the burden of rebutting the presumption by clear and convincing evidence.²⁹

The Supreme Court has held that review "is limited to the record that was before the state court that adjudicated the claim on the merits."Cullen, 131 S. Ct. at 1398.Thus, the Court is limited to reviewing only the record that was before the state court at the time it rendered its order.³⁰

D.Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are reviewed under the standards established by 28 U.S.C....