Sanders v. Sec'y, Dep't of Corr.

• Decision Date: 27 March 2013
• Docket Number: Case No. 8:09-cv-2509-T-23TGW
• Parties: TERROL SANDERS Petitioner, v. SECRETARY, Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

TERROL SANDERS Petitioner,

v.SECRETARY, Department of Corrections, Respondent.

Case No. 8:09-cv-2509-T-23TGW

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

ORDERED: March 27, 2013

ORDER

Terrol Sanders petitions for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state convictions for first-degree murder, attempted second-degree murder, burglary of a dwelling with a firearm, attempted robbery with a firearm, and attempted kidnapping with a firearm. Sanders alleges several grounds of trial court error and ineffective assistance of both trial counsel and appellate counsel. Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 14)

FACTS¹

Armed with a gun, Sanders forcibly entered the home of Rick and Linda Valdez by "kicking-in" the front door. Sanders found the couple asleep in their bedroom. Sanders used an electrical cord from an alarm clock to bind Rick's andLinda's hands. Rick lunged at Sanders and a struggle ensued. Linda fled the room and pushed the panic button on the home burglar alarm. Hearing gunshots, Linda ran back toward the bedroom to help Rick and she sustained a non-fatal gunshot wound to her chest. Linda discovered Rick collapsed on the floor in the hallway. Rick sustained five gunshots wounds and died at the scene.

Sanders fled to New Jersey, where he was later arrested in an unrelated case. New Jersey law enforcement officers informed the Tampa Police Department that Sanders was in custody. Tampa Police Detective Childers flew to New Jersey to interview Sanders about the Florida crimes. Sanders confessed to Detective Childers and returned to Florida to face capital charges.²

The trial judge appointed attorneys Gerod Hooper and Jill Menadier to represent Sanders at his jury trial. After Hooper's opening statement, in which he conceded some incriminating facts in an effort to avoid Sanders's receiving a death sentence, Sanders moved to discharge Hooper. The trial judge granted the motion. Menadier represented Sanders during the remainder of the trial.³ The jury at the conclusion of the guilt phase convicted Sanders of first-degree murder, attempted second-degree murder, burglary of a dwelling with a firearm, two counts of attempted robbery with a firearm, and attempted kidnapping. Following thepenalty phase, the jury recommended a life sentence for the first-degree murder conviction, a sentence the trial judge imposed.⁴

I. COGNIZABILITY AND PROCEDURAL DEFAULT Ground One

The week before trial commenced Sanders moved to terminate his appointed counsel (attorneys Hooper and Menadier). Following several Nelson⁵ inquiries and a Faretta⁶ hearing, the trial judge allowed Sanders to represent himself with his discharged counsel remaining as stand-by counsel. Sanders moved for a lengthy continuance to prepare his defense. The trial judge denied the continuance. As a result, Sanders changed his mind about representing himself and the trial judge re-appointed Hooper and Menadier to represent Sanders. Sanders contends that the trial court erred by denying his pro se motion for a continuance.

Federal habeas relief for a person in custody pursuant to the judgment of a state court is available only on the ground that the custody violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Relying only upon state law, Sanders argued in his direct appeal that the trial courterroneously denied him a continuance. (Respondent's Exhibit C, Sanders's appellate brief, pp. 20-21) Sanders failed to alert the state appellate court of a federal constitutional claim. See Anderson v. Harless, 459 U.S. 4, 5-6 (1982) ("It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made."). A claim that a trial judge failed under state law or state procedural rules to grant a continuance provides no basis for federal habeas corpus relief because the claim presents no federal constitutional question.⁷ 28 U.S.C. § 2254(a). See also Swarthout v. Cooke, ___ U.S. ___, 131 S. Ct. 859, 861, 178 L. Ed. 2d 732 (2011) ("The habeas statute unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.") (internal quotations and citations omitted); Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions."). Consequently, ground one warrants no relief.⁸

Ground Two

Sanders contends that the trial judge erred by upwardly departing from the state sentencing guidelines in fashioning Sanders's sentence. A ground alleging afailure to follow a state sentencing procedure presents no basis for federal habeas corpus relief because the claim presents no federal constitutional question. 28 U.S.C. § 2254(a). See also Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) ("In the area of state sentencing guidelines in particular, [the Eleventh Circuit has] consistently . . . held that federal courts cannot review a state's alleged failure to adhere to its own sentencing procedures."). Consequently, ground two warrants no relief.

Ground Four

During the trial the prosecutor questioned a police officer about a gun the officer recovered from Sanders's grandmother's house. Sanders contends that his trial counsel rendered ineffective assistance by not moving to suppress the gun. Sanders claims that, "[b]ecause the gun (1) was not shown to have fired the bullets recovered from the victims, (2) was in poor condition, and (3) fired [only] intermittently, if at all, counsel should have filed a motion to suppress the firearm." (Doc. 1, pp. 27-28)

The state post-conviction court rejected this ground (Respondent's Exhibit I, pp. 2-3) (court's record citations omitted):

Defendant alleges ineffective assistance of counsel for failing to argue for the suppression of the firearm before its being introduced as evidence during the trial. Defendant contends that had counsel argued before trial that, because of where the gun was found, the condition of the gun once it was found, its firing history, and the fact that the gun recovered was not the gun used in the crime, Defendant would not have been further prejudiced by the jury hearing counsel['s] objections to the admission of this firearmduring the course of the trial. However, "allegations of ineffective assistance of counsel cannot be used to circumvent the rule that post-conviction proceedings cannot serve as a second appeal." Thompson v. State, 759 So. 2d 650, 653 (Fla. 2000) [(]citing Teffeteller v. State, 734 So. 2d 1009, 1023 (Fla. 1999)[)]. On direct appeal, Defendant raised the issue that the court erred in allowing the introduction of an exhibit, the firearm, where the firearm was not sufficiently shown to have any relevance to any disputed fact in the case. In his argument on direct appeal, Defendant argued precisely the same reasoning that he now alleges as ineffective assistance of counsel for failing to file a motion to suppress. Since the allegation was raised and addressed on direct appeal, Defendant is precluded form re-litigating the allegation by couching it as ineffective of [sic] assistance.

Moreover, even assuming arguendo, that counsel committed an error by failing to file a motion to suppress, Defendant fails to show how counsel's failure to file such a motion affected the outcome of the proceedings. A review of the trial transcript reflects that three witnesses testified with regards to the firearm. Ms. Courter testified that upon discovering a gun in her backyard, she called the Tampa Police Department to retrieve it. Officer Holloway testified that he collected the firearm, a .22 revolver, from the backyard and put it into evidence. He was then cross-examined on how a revolver works. Lastly, Bill Hornsby, a criminal analyst with the Florida Department of Law Enforcement (FDLE) regarding his comparison of the submitted bullets and recovered firearm, concluded that although "they could have been fired from the same revolver," he was unable to get a positive identification. Therefore, it would have been impossible to suggest that a motion to suppress would have led to a different outcome, as the conclusion of the firearms expert, Mr. Hornsby, failed to state with any degree of certainty one way or another as to whether or not the bullets could or could not have been fired from the submitted firearm. Defendant fails to meet the second prong of the Strickland test and, as such, no relief is warranted on this ground.

The failure of a federal habeas petitioner to adhere to state procedural rules governing the proper presentation of a claim generally bars federal review of that claim in a subsequent federal habeas corpus proceeding. See Coleman v. Thompson, 501 U.S. 722 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 (1977); Sims v. Singletary,155 F.3d 1297, 1311 (11th Cir. 1998). "However, a state court's rejection of a federal constitutional claim on procedural grounds will only preclude federal review if the state procedural ruling rests upon [an] 'independent and adequate' state ground." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying on a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion," or in a "manifestly unfair manner." Judd, 250 F.3d at 1313.

Sanders litigated the...