Preston v. Sec'y, Fla. Dep't of Corr.

• Decision Date: 29 April 2015
• Docket Number: No. 12–14706.,12–14706.
• Citation: 785 F.3d 449
• Parties: Robert Anthony PRESTON, Jr., Petitioner–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

785 F.3d 449

Robert Anthony PRESTON, Jr., Petitioner–Appellant

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Attorney General, State of Florida, Respondents–Appellees.

No. 12–14706.

United States Court of Appeals, Eleventh Circuit.

April 29, 2015.

David Robert Gemmer, Tampa, FL, for Petitioner–Appellant.

James Donald Riecks, Daytona Beach, FL, for Respondents–Appellees.

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

Opinion

MARCUS, Circuit Judge:

Robert Preston appeals from the district court's denial of his federal habeas petition. A jury convicted Preston of premeditated murder for the brutal 1978 killing of Earline Walker and recommended that he be sentenced to death. The sentencing court imposed the ultimate penalty. Nearly thirty years later, Preston filed a habeas petition in federal district court, raising twenty-eight claims. The district court denied habeas relief on all of them. We granted a certificate of appealability on one claim, which alleges that the state failed to present sufficient evidence of premeditation at trial, and that Preston's conviction, therefore, violated his due process rights. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). After thorough review, we affirm the district court's denial of habeas relief.

For starters, to obtain a writ under 28 U.S.C. § 2254, Preston must show that he exhausted state court remedies for challenging his conviction. He does not, and did not. Before the Florida Supreme Court, Preston brought only a state sufficiency of the evidence claim, and relied on Florida's heightened burden of proof in cases involving circumstantial evidence. Notably, neither his claim nor his briefs cited to any federal cases, let alone Jackson v. Virginia; he did not mention the Jackson standard; he did not cite to the Due Process Clause of the Fourteenth Amendment or any other federal constitutional provisions; indeed, he did not even mention the word “federal” or refer to federal law in any other way. Because Preston did not make the state court aware that his claim included a federal constitutional claim, he did not fairly present his federal claim to the Florida courts, and he is procedurally barred from asserting it now. The petitioner, after all, was obliged to first give the state courts a meaningful opportunity to address his federal claim. This he did not do.

But, even if Preston could now bring a federal due process claim under Jackson , he does not show that he is entitled to relief. We may only grant his habeas petition if the Florida Supreme Court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The Florida Supreme Court reasonably concluded that a rational trier of fact could find premeditation based on the evidence produced at trial, which included the nature of the wounds

on Walker's body, the weapon used to inflict those wounds, Preston's statements on the eve of the murder, and the fact that Preston took Walker to a remote location and killed her, after robbing the local convenience store at which she worked.

I.

A.

The essential facts are these. In January 1978, Earline Walker was employed as a night clerk at a Li'l Champ convenience store in Forest City, Florida. She was reported missing from the store at around 3:30 a.m. on the morning of January 9, when an officer from the Altamonte Springs Police Department (“ASPD”) conducted his regular patrol. The doors to the store had been locked, and when a Li'l Champ regional supervisor let the officer into the store, he discovered that $574.41 was missing from the store's register and safe. Around 1:45 p.m. that same day, an ASPD detective discovered Walker's nude and mutilated body in an open field a mile and a half from the store. Her car had been abandoned on the side of the road bordering the field, several hundred feet away from where her body was located.

The wounds

suffered by Walker were severe. Specifically, she had been nearly decapitated. She also sustained several broken ribs and multiple stab wounds, including a cross mark carved onto her forehead and an eight-centimeter wound to her vagina. The medical examiner, Dr. Gumersindo Garay, estimated that the cause of Walker's death had been massive blood loss resulting from her near-decapitation, which was inflicted by a slash to the neck from behind while she was standing. She would have lost consciousness immediately and died within a minute or two. The remaining wounds were likely inflicted while her body was lying on the ground. Dr. Garay also determined that Walker's wounds had probably been inflicted by a four to five inch blade.

At the time, the petitioner, Preston, lived with his brothers, Scott and Todd, at his mother's home, which was located about a quarter of a mile from the field where Walker's body was discovered. At roughly 12:30 a.m. on the morning of January 9, Preston knocked on Scott's door, asking him to go to the Parliament House, a bar in the area, “to get some money.” When Scott declined, Preston said “Okay, then. I'll just go do it myself.” He also asked Scott and his girlfriend, Donna Maxwell, to help him inject some PCP. They refused to do so. Preston left the house and returned at 4:30 a.m. When he returned, he asked Scott and Maxwell to help him count some money. Preston was acting excited and told them, “All right. I did it.” Because he “wasn't acting normal,” they counted the money for him, which came to approximately $325. Preston told Scott and Maxwell that he and a friend, Crazy Kenny, had robbed two men at the Parliament House and taken their money. However, there was no police report of any incident at the Parliament House that night, and the head security guard on duty at the Parliament House testified at trial that he was aware of no disturbances. A woman driving late that night also testified at trial that she had observed Preston at a Jack in the Box in the area shortly after 2 a.m. Around 9 a.m. the next morning, several hours before the police found Walker's body, Preston told Maxwell that the body of a woman who worked in a store near his home had been discovered in a field.

Preston was arrested the following day on an unrelated charge. The police conducted a search of Preston's home with the consent of his mother, and discovered a jacket as well as several food stamps which police confirmed had been used to make purchases at the Li'l Champ convenience store in the days before the murder. In addition to the food stamps, several pieces of forensic evidence tied Preston to the murder of Earline Walker. The police found a light brown pubic hair on his belt buckle when he was taken into custody, which could have come from Walker.¹ Blood stains on Preston's jacket were revealed to be of the same blood type

and enzyme group as Walker's. The police found several fingerprints in Walker's car that matched Preston's prints. Maxwell also testified at trial that Preston habitually carried a five inch folding “buck knife,” which could have been used to inflict the wounds on Walker's body.

At trial, Preston took the stand on his own behalf, and testified that he had been at his home the night of January 8. He said, however, that he injected PCP that night, and had very little recollection of what happened next. He did recall trying to count some money, and had some memory of going to the Parliament House in a car driven by Crazy Kenny. He could not remember touching Walker's automobile, and said that, to the best of his recollection, he had not been near the Li'l Champ store for several months before the murder. He claimed that he found the food stamps behind a Li'l Champ store on the morning of the murder, when he went out to buy cigarettes. He admitted that he spoke with Maxwell about the discovery of a body, but said that the conversation occurred around 3:30 to 4:30 p.m.—after the police had discovered Walker's body.

B.

In connection with the killing of Earline Walker, Preston was charged with seven counts in all: four counts of first-degree murder, along with robbery, kidnapping, and sexual battery. After a jury trial, he was convicted of premeditated murder, felony murder committed in the course of a robbery, and felony murder committed in the course of a kidnapping, as well as the underlying charges of robbery and kidnapping. The trial court entered a judgment of acquittal on the count of felony murder committed in the course of a sexual battery and the count of sexual battery. Following the penalty phase, the jury recommended death by a vote of seven to five. The trial court found four aggravating circumstances: Preston had a prior violent felony conviction, Fla. Stat. § 921.141(5)(b) ; the murder was committed immediately after Preston committed robbery and while he was engaged in the commission of a kidnapping, id. § 921.141(5)(d) ; the murder was especially heinous, atrocious, or cruel, id. § 921.141(5)(h) ; and the murder was committed in a cold, calculated, and premeditated manner, id. § 921.141(5)(i).² Finding no mitigating factors, the trial court sentenced Preston to death.

In his direct appeal to the Florida Supreme Court, Preston raised five claims, including a claim that the evidence of premeditation presented at his trial was insufficient (Ground 2). The Florida Supreme Court rejected all of his claims and affirmed his conviction and sentence. Preston v. State (Preston I ), 444 So.2d 939, 941 (Fla.1984) (per curiam) vacated, 564 So.2d 120 (Fla.1990) (per curiam). As for his sufficiency of the evidence argument, the Florida Supreme Court explained:

As his second point of error, appellant alleges that the trial court erred by failing to grant his motions for judgment of acquittal. Appellant's argument is that the record fails to contain sufficient evidence of the element of premeditation to sustain Preston's conviction for first-degree murder. The

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