Shorter v. Sec'y
| Decision Date | 12 December 2017 |
| Docket Number | CASE NO. 6:15-cv-362-Orl-28GJK |
| Parties | DALTONICA SHORTER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on a Petition for Writ of Habeas Corpus ("Petition," Doc. 1) filed pursuant to 28 U.S.C. § 2254. Thereafter, Respondents filed a Response to the Petition ("Response," Doc. 12) in accordance with this Court's instructions. Petitioner filed a Reply to the Response ("Reply," Doc. 16).
Petitioner alleges eleven claims for relief in the Petition. Upon due consideration of the pleadings and the state court record, the Court concludes that the Petition must be denied.
Petitioner, along with six co-defendants, was charged by indictment with racketeering (Count One), conspiracy to commit racketeering (Count Two), conspiracy to traffic in 400 grams or more but less than 150 kilograms of cocaine (Count Three), and conspiracy to traffic in 25 pounds or more but less than 2000 pounds of cannabis (Count Four) (Doc. 12-1 at 141-61). After a jury trial, Petitioner was convicted as charged of Counts One and Two and was acquitted of Count Three (Doc. 12-2 at 201-03). The State filed a nolle prosequi with regard to Count Four. Id. at 205. The trial court sentenced Petitioner to fifteen-year terms of imprisonment for Counts One and Two to be followed by ten-year terms of probation (Doc. 12-3 at 78-82). Petitioner appealed, and the Fifth District Court of Appeal ("Fifth DCA") affirmed per curiam (Doc. 12-8 at 198).
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure in which he alleged four claims. Id. at 225-252. The trial court summarily denied the motion (Doc. 12-9 at 237-43). Petitioner appealed, and the Fifth DCA affirmed per curiam (Doc. 12-10 at 141).
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). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.
Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id. Whether a state court's decision was an unreasonable application of law must be assessed in light of the record before the state court. Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam).
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.1 Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Petitioner alleges in claim one that the evidence was insufficient to support convictions for racketeering and conspiracy to commit racketeering. (Doc. 1 at 5). In claim two, Petitioner contends that the admission of "gruesome photographs" as a predicate incident for Counts One and Two was prejudicial error. (Id.). Petitioner asserts in claim four that his convictions are due to be vacated because "the charged offenses occurred within a single judicial circuit and therefore, the statewide prosecutor lacked jurisdiction" to pursue the charge. (Id. at 18). Furthermore, in claim six, Petitioner alleges that his convictions should be vacated because the State failed to prove that venue was proper in Orange County, Florida. (Id. at 24). In claim eight, Petitioner states that testimony of State's gang expert was admitted in error. (Id. at 28). Finally, Petitioner argues in claim ten that the admission of his prior judgments of conviction at trial was prejudicial error. (Id. at 32).
Respondents assert that these claims are unexhausted. (Doc. 12 at 8). Pursuant to the AEDPA, federal courts are precluded, absent exceptional circumstances, fromgranting habeas relief unless the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842-44 (1999). In order to satisfy the exhaustion requirement a "petitioner must 'fairly present[ ]' every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review." Isaac v. Augusta SMP Warden, 470 F. App'x 816, 818 (11th Cir. 2012) (quoting Castille v. Peoples, 489 U.S. 346, 351 (1989)). A petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998).
These claims were raised on direct appeal, however, Petitioner did not cite to any federal constitutional issue or provision in his initial brief. (Doc. 12-8 at 31-90). In discussing these claims, Petitioner merely relied upon Florida law and statutes. (Id.). Therefore, these claims are unexhausted. See Snowden, 135 F.3d at 735. The Court is precluded from considering these claims because they would be procedurally defaulted if Petitioner returned to state court. "[W]hen it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural default, we can forego the needless 'judicial ping-pong' and just treat those claims now barred by state law as no basis for federal habeas relief." Id. at 736. Petitioner could not return to the state court to raise these grounds because he already filed a direct appeal. Thus, Petitioner's claims are procedurally defaulted.
Procedural default may be excused only in two narrow circumstances: if a petitioner can show (1) cause and prejudice or (2) actual innocence. Murray v. Carrier, 477U.S. 478, 496 (1986); Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). Petitioner has failed to demonstrate cause or prejudice for the procedural default. Likewise, he cannot show the applicability of the actual innocence exception. Accordingly, these claims are procedurally barred.
Petitioner argues that trial counsel rendered...
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