Palumbo v. Sec'y
| Decision Date | 18 December 2017 |
| Docket Number | Case No: 6:16-cv-1278-OrI-18DCI |
| Parties | PATRICK PALUMBO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE is before the Court on a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 by Patrick Palumbo ("Petitioner" or "Palumbo"). (Doc. 1, filed July 15, 2016). In compliance with this Court's Order (Doc. 3), Respondents filed a Response to Petition. (Doc. 16). Palumbo filed a Reply (Doc. 18), and the Petition is ripe for review. For the reasons set forth below, the Petition will be denied.
On September 22, 2005, the State of Florida charged Palumbo with sexual battery on a person less than twelve years of age by a person older than eighteen, in violation of Florida Statute § 794.011(2) (count one) and lewd and lascivious molestation (count two). (Ex. A at 122).1 A jury found Palumbo guilty as charged. (Id. at 385-90). He was sentenced to life in prison on count one, and the conviction on count two was vacated. (Id. at 391-94, 475, 482, 485-86). Florida's Fifth District Court of Appeal affirmed. (Id. at 488); Palumbo v. State, 52 So. 3d 834 (Fla. 5th DCA 2011).
On November 9, 2012, Palumbo filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 Motion"). (Ex. E at 1). He filed an amended motion on May 9, 2013. (Id. at 298). The motions were denied by the post-conviction court in two separate orders. (Ex. at 363, 403, 417). On May 31, 2016, Florida's Fifth District Court of Appeal affirmed. (Ex. F-43).
Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 29 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Courtwhen faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The 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 for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
Notably, even when the opinion of a lower state post-conviction court contains flawed reasoning, the federal court must give the last state court to adjudicate the prisoner's claim on the merits "the benefit of the doubt." Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert granted Wilson v. Sellers, No. 16-6855, 137S. Ct. 1203 (2017). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits—warranting deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Therefore, to determine which theories could have supported the state appellate court's decision, the federal habeas court may look to a state post-conviction court's previous opinion as one example of a reasonable application of law or determination of fact; however, the federal court is not limited to assessing the reasoning of the lower court. Wilson, 834 F.3d at 1239.
Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" andthe petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) () (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. This is a "doubly deferential" standard of review that gives both the state court and the petitioner's attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)).
The focus of inquiry under Strickland's performance prong is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Indeed, the petitioner bears the heavy burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," applying a "highly deferential" level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690).
As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice "requiresshowing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. That is, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Palumbo raises nine grounds of ineffective assistance of counsel and one claim of cumulative error in his § 2254 petition. The first eight grounds were raised in Petitioner's Rule 3.850 Motion, and affirmed by Florida's Fifth District Court of Appeal without a written opinion. (Ex. F at 43). Accordingly, these grounds are exhausted. The silent affirmance of the post-conviction court is entitled to deference, and the Court must determine whether any arguments or theories could have supported the appellate court's decisions. Wilson, 834 F.3d at 1235. Each ground will be addressed separately.
Palumbo asserts that Counsel was ineffective for failing to challenge for cause or use a peremptory strike to remove Juror Reynolds from the jury panel. (Doc. 1 at 18). Palumbo takes issue with Reynolds' response to a question regarding a prior crime that had been committed against her. When asked whether anyone had been arrested for the crime, Reynolds stated: (T. at 140). Reynolds then affirmed that her opinion had no bearing on her ability to sit on the case. (Id.).2 Palumboraised this claim in his first Rule 3.850 Motion. It was denied because Palumbo had expressed satisfaction with the jury panel and had ratified the jury selection procedure. (Ex. E at 403). The record supports the state courts' rejection of Ground One.
The Sixth Amendment guarantees the accused a trial by an impartial jury in federal criminal prosecutions. U.S. Const, amend VI. The Due Process Clause of the Fourteenth Amendment guarantees the same right to the accused in state criminal prosecutions. Duncan v. Louisiana, 391 U.S. 145, 149 (1968). As with federal law, the test for determining juror competency in the Florida courts is "whether the juror can...
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