Nelson v. Sec'y

• Decision Date: 28 September 2017
• Docket Number: Case No. 8:14-cv-1257-T-36JSS
• Parties: REGINALD BERNARD NELSON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

REGINALD BERNARD NELSON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:14-cv-1257-T-36JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

September 28, 2017

ORDER

Reginald Bernard Nelson, a Florida inmate, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Hillsborough County convictions. (Dkt. 1.) In the response (Dkt. 6), Respondent agrees that the petition is timely. Nelson filed a reply. (Dkt. 11.) After consideration, the petition will be denied.

PROCEDURAL HISTORY

Nelson was charged with two counts of attempted first degree murder (counts one and two), two counts of aggravated assault (counts three and four), and one count of shooting at, within, or into a vehicle (count five). (Dkt. 8, Ex. 1.) His first trial ended in a mistrial. (Dkt. 8, Ex. 3, p. 332.) Upon retrial, Nelson was convicted of the lesser-included charges of attempted second degree murder on counts one and two, and was convicted of the remaining counts as charged. (Dkt. 8, Ex. 6.)

On counts one and two, the trial court sentenced Nelson to life in prison as a habitual felony offender. (Dkt. 8, Ex. 7, pp. 149-50.) The court imposed minimum mandatory terms of 30 years as a prison releasee reoffender and minimum terms of 20 years in prison under § 775.087, Fla. Stat. (Id., p. 150.) On counts three and four, the trial court sentenced Nelson to 20 years in prison as a habitual felony offender and imposed 20-year mandatory minimum terms pursuant to § 775.087, Fla. Stat. (Id., pp. 153-54.) On count five, the trial court sentenced Nelson to 30 years in prison as a habitual felony offender. (Id., pp. 157-58.) The state appellate court per curiam affirmed. (Dkt. 8, Ex. 13.)

Nelson filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 14.) He also filed an amended motion after several of his claims were dismissed. (Dkt. 18.) The state court denied Nelson's motions. (Dkt. 8, Exs. 15, 19, 21, 25.) The state appellate court per curiam affirmed the denial of relief. (Dkt. 8, Ex. 29.) Nelson's first successive postconviction motion was dismissed without prejudice. (Dkt. 8, Ex. 31.) Nelson then filed a second successive postconviction motion alleging newly discovered evidence. (Dkt. 8, Ex. 32.) The state court denied this motion, and the state appellate court per curiam affirmed. (Dkt. 8, Exs. 33, 35.)

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998). 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), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this 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 this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "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." Harrington v. Richter, 562 U.S. 86, 103 (2011).

The state appellate court affirmed Nelson's convictions and sentences and affirmed the denial of his postconviction motions without discussion. The court's 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 courtadjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.").

DISCUSSION

Ground Two: Trial Court Error

Nelson claims that the trial court erred in denying his motion to suppress Paul Carey's out-of-court identification of him. He argues that Detective Danny Connell utilized an impermissibly suggestive identification procedure when he showed Carey a single photograph of Nelson, resulting in a federal due process violation.

At the hearing, Carey testified that he knew Nelson as "Reggie," and that the two men met when Carey was selling items at his house. (Dkt. 8, Ex. 3, p. 141.) Nelson spent two or three hours with Carey and decided to buy a boat and a truck. (Id., pp. 141-42.) He left to obtain payment and, upon returning, spent another 45 minutes to an hour with Carey. (Id., pp. 142-43.) Nelson left and came back a third time to retrieve the boat and truck and the two spent 20 to 25 minutes together. (Id., p. 144.)

Carey testified that he next saw Nelson when he was driving his RV and a car flashed its lights at him. (Id.) Carey testified that after he pulled over, Nelson entered the RV. (Id., p. 145.) He testified that he recognized Nelson due to their earlier meetings. (Id.) Carey testified that he and Nelson were "face to face" in the RV and had a conversation about the items that Nelson had purchased. (Id., pp. 148-49.) Carey testified that Nelson pulled out a firearm and that he was paying attention to Nelson at that time because "he was acting a little crazy and mean and stuff like that there, and then next thing you know he reached in and pulled out a .38." (Id.) Nelson's charges resulted from his actions in andnear the RV.¹

Detective Connell testified that he received a description of the perpetrator as a black male who stood 5'10" to 6' tall, weighed 220 to 230 pounds, was bald, and had brown eyes. (Id., p. 138.) The description contained no reference to the suspect having tattoos or gold teeth, and Carey did not notice such characteristics. (Id., pp. 138, 147.) After investigation, Detective Connell obtained a photograph of Petitioner Reginald Nelson, and showed it to Carey. (Id., p. 134.) Carey "immediately" identified him as the perpetrator. (Id.) Carey recalled Detective Connell showing him Nelson's photograph one or two days after the crimes. (Id., p. 149.) The trial court denied the motion to suppress after the hearing:

In this particular case, based upon Manson,² which is a U.S. Supreme Court case, I'm supposed to take the totality of the circumstances. When I look at whether the single photograph by itself would suggest or whether there's other circumstances tending to show this is, in fact, the same person.

Given the fact, the description by the victims along with all the other facts and circumstances of this case, I do not believe that this single photograph was unduly suggestive.

(Id., pp. 157-58.)

In determining whether an identification violates due process, a court undertakes a two-part analysis. "First, we must determine whether the original identification procedure was unduly suggestive. . . . If we conclude that the identification procedure was suggestive, we must then consider whether, under the totality of the circumstances, the identificationwas nonetheless reliable." Cikora v. Dugger, 840 F.2d 893, 895 (11th Cir. 1988). See Neil v. Biggers, 409 U.S. 188, 199 (1972) ("[T]he central question" is "whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive.").

A single photograph procedure may be unduly suggestive. United States v. Cueto, 611 F.2d 1056, 1063-64 (5th Cir. 1980). But Nelson has not identified any clearly established federal law³ holding that this procedure is unduly suggestive when, as here, the victim has stated to police that the perpetrator is known to him. Cf. Manson v. Brathwaite, 432 U.S. 98, 111-12 (1977) (addressing concerns with eyewitness identifications and noting that "[u]sually the witness must testify about an encounter with a total stranger" and "[t]he witness' recollection of the stranger can be distorted easily by the circumstances or by later actions of the police."). Moreover, even assuming that the single photograph procedure was unduly suggestive, Nelson has not demonstrated that Carey's identification of him was so unreliable as to violate due process.

"For an identification to be unconstitutionally unreliable, there must be 'a substantial risk of misidentification.'" United States v. Walls, 237 Fed. App'x 599, 601 (11th Cir. 2007) (quoting Johnson v. Dugger, 817 F.2d 726, 729 (11th Cir. 1987)). Factors used in...