Porter v. Singletary, 94-667-CIV-T-17B.

• Decision Date: 17 April 1995
• Docket Number: No. 94-667-CIV-T-17B.,94-667-CIV-T-17B.
• Citation: 883 F. Supp. 660
• Parties: Richard PORTER, Petitioner, v. Harry K. SINGLETARY, Secretary, Department of Corrections, State of Florida, Respondent.
• Court: U.S. District Court — Middle District of Florida

883 F. Supp. 660

Richard PORTER, Petitioner, v. Harry K. SINGLETARY, Secretary, Department of Corrections, State of Florida, Respondent.

No. 94-667-CIV-T-17B.

United States District Court, M.D. Florida, Tampa Division.

April 17, 1995.

Richard Porter, Raiford, FL, pro se.

Davis Graham Anderson, Jr., Atty. General's Office, Dept. of Legal Affairs, Tampa, FL, for respondent.

KOVACHEVICH, District Judge.

ORDER

This cause is before the Court on Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Procedural History

The state attorney for the Tenth Judicial Circuit of Florida initiated the prosecution of the petitioner by filing a five count information charging petitioner with two counts of attempted first degree murder, the victims being his wife Shirley Porter and Willie Patterson, one count of being a felon in possession of a firearm, one count of shooting into a building, and one count of violating an injunction for protection against domestic violence. R at 738-741. Following a motion to sever the felon in possession of a firearm charge, R at 744-45, the state filed an amended information. The amended information charged two counts of attempted first degree murder, one count of possession of a firearm by a convicted felon, and one count of shooting into a building. R at 751-54. Then the state attorney filed a second amended information. This information charged one count of attempted armed burglary, two counts of attempted first degree murder, one count of shooting into a building, and one count of felon in possession of a firearm. R at 755-58. Then the state attorney filed a third amended information making the same charges. R at 760-64. Apparently the court severed the felon in possession of a firearm charge because appellant went to trial on the first four counts of the third amended information. The jury found petitioner to be guilty of trespass in an occupied structure, a lesser included offense of the attempted armed burglary charge, guilty of two counts of attempted third degree murder, lessers of the attempted first degree murder charges, and guilty as charged of shooting into a building. R at 782-85 (verdict slips). The court sentenced him as a habitual violent felony offender to be imprisoned for ten years on count one concurrent with counts two, three, and four. R at 800. It sentenced him to thirty years for each of the attempted third degree murder charges concurrent with the other charges. R at 801-02. And, it sentenced him to serve thirty years on the shooting into a building charge concurrent with the other sentences. R at 803. The state ultimately nolle prossed the violation of an injunction and felon in possession of a firearm charges. R at 834-35.

Response to Petition for Writ of Habeas Corpus (Hereinafter, "Response"), pp. 2-3 (footnote omitted).

Petitioner's Direct Appeal

Petitioner appealed from his judgments and sentences. He raised two issues on direct appeal: whether the trial judge had properly refused to disqualify himself, and whether the court had erred in permitting the State to introduce evidence relating to his arrest. The state court of appeal per curiam affirmed. Porter v. State, 606 So.2d 1176 (Fla. 2nd DCA 1992).

Petitioner's Motion for Post Conviction Relief Under Rule 3.850

Petitioner sought post conviction relief in the state court by filing a motion for post conviction relief under Florida Rule of Criminal Procedure 3.850. Petitioner raised six claims in the 3.850 motion. The first claim was ineffective assistance of counsel. Petitioner alleged that his counsel failed to pursue the defense that he offered. He also alleged that his counsel failed to allow him to testify; that his counsel failed to request proper instructions on justifiable and excusable homicide; and that his counsel failed to call Petitioner's witnesses. However, Petitioner did not specify the witnesses or what their testimony would have been.

The second claim was that the State used false evidence at his trial by suppressing the actual photographs of the crime scene.

The third claim was that the trial judge made impermissible remarks before the jury. However, Petitioner did not specify what these remarks were. He also alleged that the trial judge exhibited negative, prejudicial facial and body language before the jury.

The fourth claim was that the panel from which his jury was drawn had only two black people and that both were stricken.

The fifth claim was that the trial court had erred in denying his motion for judgment of acquittal because the State's evidence failed to show that he had a gun or that he shot the victim.

The sixth claim was that his sentences were illegal because a 1988 change in the law operated in an ex post facto manner because he was not aware at the time of his pre-1988 convictions that they could be used as grounds to habitualize him later.

The circuit court denied the motion for post conviction relief. The state court held that four of Petitioner's six grounds were procedurally barred including the claims of: fabricated evidence, judicial misconduct, prejudicial striking of jurors, and judicial error in denying the motion for judgment of acquittal. The state court held that these four issues "should have been or could have been raised on direct appeal and are not cognizable under a motion for post conviction relief." See Respondent's Exhibit 005. Petitioner appealed from the order denying his motion for post conviction relief and the state court of appeal per curiam affirmed. Porter v. State, 630 So.2d 1111 (Fla. 2nd DCA 1993).

Petitioner's State Petition for Writ of Habeas Corpus

Petitioner also sought habeas corpus relief in the state court of appeal. He claimed that he was being denied an appeal because the record had not been filed and because no specific assistant public defender had been assigned to his file. The court of appeal denied the petition.

Petitioner's First Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254

Petitioner's first petition for habeas corpus relief in this court was filed in Case No. 92-605-CIV-T-15-C. He raised the same grounds as those he raised in his state petition for writ of habeas corpus. This Court denied the petition as moot because his appeal was proceeding.

Petitioner's Second Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254

On April 19, 1994, Petitioner filed his current petition for writ of habeas corpus. He raises six claims for relief, which are essentially identical to the six claims raised in Petitioner's State Rule 3.850 Motion:

I. Petitioner was denied his Rights under the 5th, 6th, and 14th Amendments to the U.S. Constitution because the state fabricated evidence.

II. Petitioner was denied Effective Assistance of Counsel.

III. Petitioner was denied a Fair Trial because of the Trial Judge's misconduct and partiality.

IV. Petitioner was denied the right to trial by a jury of his peers because the panel from which the jurors were selected had only two (2) blacks, both of which were struck, leaving only white jurors.

V. The Trial Judge erred in denying defendant's Motion for Judgment of Acquittal.

VI. Petitioner's sentences are illegal as an ex post facto application of the law.

Petitioner has failed to raise any claim that merits habeas relief for the following reasons.

DISCUSSION

Abuse of the Writ

Respondent initially raised abuse of the writ as a defense to the current petition. Abuse of the writ is not applicable because the Court dismissed Petitioner's first petition as moot.

Grounds I, III, IV, and V and Procedural Default

Petitioner raised Grounds I, III, IV, and V of the petition in his State Rule 3.850 Motion. The state court held that they were procedurally defaulted.

Federal courts are precluded from addressing claims that have been held to be procedurally defaulted under state law. Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991).

Pursuant to the doctrine of procedural default, a state prisoner seeking federal habeas corpus relief, who fails to raise his federal constitution claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default. Wainwright v. Sykes, 433 U.S. 72, 87 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977); Presnell v. Kemp, 835 F.2d 1567, 1580 (11th Cir.1988). "Where a state court correctly applies a procedural default principle of state law, Sykes requires the federal court to abide by the state court decision." Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.), cert. denied, 498 U.S. 832 111 S.Ct. 96, 112 L.Ed.2d 68 (1990); Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.), cert. denied, ___ U.S. ___ 115 S.Ct. 673 130 L.Ed.2d 606 (1994).

Petitioner has not shown cause and prejudice to excuse the procedural bar. Therefore, Grounds I, III, IV, and V are procedurally barred from review by this Court.

Ground II — Ineffective Assistance of Counsel

Petitioner claims that he was denied effective assistance because:

Counsel failed to pursue the defense which defendant offered. Counsel failed to allow the defendant to testify in his own behalf. Counsel failed to request proper instruction of justifiable and excusable homicide. Counsel failed to call the defense witnesses, and misled defendant into believing they were going to testify and that defendant did not need to testify. (See Appendix A).

Petition for Writ of Habeas Corpus, p. 6.

The Sixth Amendment right to counsel is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). Counsel can deprive a defendant of the right to effective assistance simply by failing to render "adequate legal assistance." Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980); Boykins v....