Pittman v. Florida

• Decision Date: 07 December 2018
• Docket Number: Case No. 1:17cv250-MW/CAS
• Parties: RODERICK PITTMAN, Petitioner, v. STATE OF FLORIDA, Respondent.
• Court: U.S. District Court — Northern District of Florida

RODERICK PITTMAN, Petitioner, v. STATE OF FLORIDA, Respondent.

Case No. 1:17cv250-MW/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA GAINESVILLE DIVISION

December 7, 2018

REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

On or about October 8, 2017, Petitioner Roderick Pittman, a state inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, with attachments. ECF No. 1. On June 25, 2018, Respondent filed an answer and exhibits. ECF No. 15. Petitioner has filed a reply. ECF No. 18.

The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons stated herein, the pleadings and attachments before the Court show Petitioner is not entitled to federal habeas relief, and this § 2254 petition should be denied.

Background and Procedural History

On November 13, 2013, by amended information filed in Alachua County Circuit Court case number 01-2013-CF-808-A, the State of Florida charged Petitioner Roderick Pittman with four counts in connection with events that occurred on or about February 23, 2013: (1) attempted sexual battery by use of force likely to cause serious personal injury, contrary to sections 794.011(3) and 777.04, Florida Statutes; (2) attempt to commit robbery while armed with a deadly weapon (a knife), contrary to sections 812.13(2)(a) and 777.04, Florida Statutes; (3) aggravated battery with a deadly weapon (a knife), contrary to sections 775.087 and 812.13(2)(a), Florida Statutes; and (4) aggravated assault with a deadly weapon, contrary to section 784.021, Florida Statutes. Ex. B1 at 22-23.¹

Pittman proceeded to a jury trial before Judge Aymer Curtin. See Exs. B1-B7. Pittman testified during the trial. Ex. B5 at 269-71, 272-305. On November 20, 2013, the jury returned a verdict finding him guilty, on Count 1, of the lesser included offense of attempt to commit simple battery;on Count 2, of the lesser included offense of simple assault; guilty as charged on Count 3, specifically finding that he used a deadly weapon; and not guilty on Count 4. Ex. B1 at 49-52; Ex. B6 at 125-27. At proceedings held January 22, 2014, Judge Curtin adjudicated Pittman guilty and sentenced him to concurrent terms of sixty (60) days in jail on Counts 1 and 2, with credit for sixty (60) days previously served, and ten (10) years in prison on Count 3, with credit for 280 days previously served, to be followed by five (5) years of probation. Ex. B1 at 56-69; Ex. B3 at 223-50 (transcript of sentencing).

Pittman appealed his judgment and sentence to the First District Court of Appeal (First DCA), assigned case number 1D14-761. See Exs. B8 (Initial Brief), B9 (Answer Brief). On March 19, 2015, the First DCA per curiam affirmed the case without a written opinion. Ex. B10; Pittman v. State, 160 So. 3d 416 (Fla. 1st DCA 2015) (table).

On April 21, 2015, Pittman filed a pro se Motion for Modification/ Mitigation of Sentence. Ex. E1. The state trial court summarily denied the motion by order rendered April 30, 2015. Ex. E2.

On July 23, 2015, Pittman filed a pro se Motion for Postconviction Relief, raising two ineffective assistance of counsel claims. Ex. C1 at 1-36. He filed two amended motions. Id. at 37-74, 84-121. He also filed a motion for appointment of counsel. The state post-conviction court denied the appointment of counsel and denied post-conviction relief by order rendered November 21, 2016. Id. at 173-80 (exclusive of attachments). Pittman appealed, id. at 267-69, and filed an initial brief in case number 1D16-5513, Ex. C2. The State did not file an answer brief. Ex. C3. The First DCA per curiam affirmed the case without a written opinion on February 28, 2017. Ex. C4; Pittman v. State, 230 So. 3d 1170 (Fla. 1st DCA 2017) (table). The mandate issued May 1, 2017. Ex. C7.

As indicated above, Pittman filed a § 2254 petition in this Court on or about October 8, 2017. ECF No. 1. He raises four grounds, including two claims of ineffective assistance of counsel (IAC):

(1) "The unduly suggestive photo lineup played the most pertinent role to obtain this conviction." Id. at 5.

(2) IAC: Trial counsel "failed to object to improper comments and obvious consideration by the Court during the most pertinent sentencing proceedings." Id. at 7.

(3) IAC: Trial counsel "was not prepared for trial as evident on the face of the record." Id. at 8.

(4) "Impermissible factors used at sentencing." Id. at 10.

Respondent filed an answer, with exhibits. ECF No. 15. Pittman has filed a reply. ECF No. 18.

Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides, in pertinent part:

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.

28 U.S.C. § 2254(d). See, e.g., Cullen v. Pinholster, 563 U.S. 170, 180-83 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011). "This is a 'difficult to meet' and 'highly deferential standard for evaluating state- court rulings, which demands that state-court decisions be given the benefit of the doubt.'" Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Id.

For claims of ineffective assistance of counsel (IAC), the United States Supreme Court has adopted a two-part test:

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.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffectiveness, a "defendant must show that counsel's performance fell below an objective standard of reasonableness." Id. at 688. To demonstrate prejudice, a 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." Id. For this Court's purposes, importantly, "[t]he question 'is not whether a federal court believes the state court's determination' under the Strickland standard 'was incorrect but whether that determination was unreasonable - a substantially higher threshold.'" Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). "And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id. It is a "doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard." Id.

Ground 1: Photo Lineup

In his first ground, Petitioner Pittman asserts the photo lineup used by law enforcement was "unduly suggestive." ECF No. 1 at 5. As Respondent indicates, Pittman did not present this claim in state court; rather, he presented a related claim alleging IAC. See Ex. C1 at 99-107. Accordingly, Pittman has not exhausted this claim.

In his reply, Pittman indicates he presented this claim to the state court "on every available petition." ECF No. 18 at 2. Assuming, therefore, that Pittman thus intended to raise here the IAC claim regarding the photo lineup that he raised in state court, the state post-conviction court denied that claim, making the following findings:

As to Ground Two, Defendant alleges that trial counsel was ineffective for failing to move to suppress the unduly suggestive photographic line-up. Immediately after the incident in this case, law enforcement did a show-up of Defendant to the victim; however, the victim was unable to identify Defendant as her attacker. See Trial Transcript at 64 (lines 15-25) - 65 (lines 1-3). The victim did, however, subsequently identify Defendant in a photographic line-up as the person who most resembled her attacker. Id. at 67 (lines 1-25) - 69 (lines 1-7). Defendant argues that his counsel should have suppressed the line-up identification as unduly suggestive because: (1) the victim had already seen Defendant in a show-up prior to picking him [in] the photographic line-up; and, (2) Officer King purportedly told the victim to pick Defendant.

"The primary evil to be avoided in the introduction of an out-of-court identification is a very substantial likelihood of misidentification." Simmons v. State, 934 So. 2d 1100, 1118 (Fla. 2006) (quoting Grant v. State, 390 So. 2d 341, 343 (Fla. 1980); see alsoNeil v. Biggers, 409 U.S. 188 . . . (1972). In Grant, the Florida Supreme Court held that "a suggestive confrontation procedure, by itself, is not enough to require exclusion of the out-of-court

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