Shuler v. Wellhausen

• Decision Date: 30 September 2013
• Docket Number: CASE NO. 8:10-CV-1678-T-27AEP
• Parties: CURTIS LEE SHULER, Petitioner, v. STEVEN WELLHAUSEN, WARDEN, TOMOKA CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Middle District of Florida

CURTIS LEE SHULER, Petitioner,
v.
STEVEN WELLHAUSEN, WARDEN, TOMOKA CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 8:10-CV-1678-T-27AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

DONE and ORDERED: September 30, 2013

ORDER

Petitioner initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1) and a memorandum of law in support (Dkt. 2). Petitioner challenges his convictions for attempted burglary and first-degree murder in case no. 98CF2951, and the sentence imposed in case no. 98CF2950, in the Tenth Judicial Circuit Court, Polk County, Florida. Respondent filed a response to the petition (Dkt. 29), and Petitioner filed a reply (Dkt. 37). An evidentiary hearing is not necessary for the disposition of the petition. Rules Governing Section 2254 Cases 8(a) (2013).

Procedural History

Petitioner and his co-defendant, Sylathum Streeter, were charged with first-degree murder,¹ armed burglary, and shooting into an occupied vehicle (Resp. Ex. 1, Vol. I at record pp. 81-84). Petitioner and Streeter were tried separately. Petitioner was found guilty as charged (Id.

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at record pp. 100-01). He was sentenced to life in prison on the first-degree murder conviction, and concurrent 248.5 month prison terms on the armed burglary and shooting into an occupied vehicle convictions (Id. at record p. 103). The state appellate court reversed and remanded for a new trial (Id. at record pp. 106-09); Shuler v. State, 816 So. 2d 257 (Fla. 2d DCA 2002).²

After a change of venue (Id. at record p. 110), Petitioner was tried again. That trial ended in a jury deadlock and mistrial (Id. at record pp. 61, 118). After Petitioner's third jury trial, he was found convicted of first-degree murder and the lesser offense of attempted burglary, and acquitted of the shooting into an occupied vehicle charge (Id. at record pp. 127-28). He was sentenced to life in prison on the first-degree murder conviction and a concurrent five-year prison term on the attempted burglary conviction (Id. at record pp. 129-34).³ His convictions and sentences were affirmed on appeal (Resp. Ex. 4); Shuler v. State, 888 So. 2d 35 (Fla. 2d DCA 2004) [table]. Certiorari review was denied. Shuler v. Florida, 543 U .S. 1161 (2005).

In state appellate court, Petitioner filed a pro se petition for writ of habeas corpus, alleging ineffective assistance of appellate counsel (Resp. Ex. 8). His petition was denied (Resp. Ex. 12); Shuler v. State, 911 So. 2d 1244 (Fla. 2d DCA 2005) [table].

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Petitioner filed a pro se motion for post conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. (Resp. Ex. 14, Vol. II at record pp. 226-306). Several of Petitioner's claims were summarily denied (Resp. Ex. 14, Vol. III at record pp. 430-53; Vol. IV at record pp. 552-665; Vol. V at record pp. 656-756, 771-85). An evidentiary hearing was held on the remaining claims (Resp. Ex. 14, Vol. V at record pp. 802-26; Vol. VI at record pp. 827-1014). Following the hearing, the 3.850 motion was denied (Resp. Ex. 14, Vol. VII at record pp. 1015-1162). On appeal, the denial was per curiam affirmed, without written opinion (Resp. Ex. 16); Shuler v. State, 32 So. 3d 631 (Fla. 2d DCA 2009) [table].

Petitioner also filed: 1) a petition for writ of habeas corpus (Resp. Supp. Ex. 22), which was dismissed (Resp. Ex. 23); 2) a petition for writ of certiorari (Resp. Supp. Ex. 24), which was denied (Resp. Ex. 25); 3) a petition to invoke the discretionary review of the Florida Supreme Court (Resp. Ex. 29), which was dismissed for want of jurisdiction (Resp. Ex. 30); 4) a petition for writ of habeas corpus (Resp. Ex. 32), which the Florida Supreme Court dismissed (Resp. Ex. 31); 5) a second Rule 3.850 motion (Resp. Ex. 33) and an amended ground to the second Rule 3.850 motion (Resp. Ex. 34), which was denied as untimely, successive, and without merit (Resp. Ex. 35); 6) a petition to invoke all writs jurisdiction, which the Florida Supreme Court dismissed for want of jurisdiction (Resp. Ex. 44); and 7) a Motion to Correct Illegal Sentence (Resp. Supp. Ex. 45), which was denied (Resp. Supp. Ex. 46).

The AEDPA Standard of Review

Petitioner timely filed the instant petition pursuant to 28 U.S.C. § 2244(d), raising ten grounds for relief. The petition is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA") effective April 24,1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The

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AEDPA amended 28 U.S.C. § 2254 by adding the following provision:

(d) 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.

Section 2254, as amended, establishes a highly deferential standard for reviewing state court judgments. Parker v. Secretary, Dep't of Corr., 331 F.3d 764 (11^thCir. 2003) (citing Robinson v. Moore, 300 F.3d 1320, 1342 (11^thCir. 2002)).

Section 2254(d)(1) refers to a state-court adjudication that resulted in a decision that was contrary to, or involved an unreasonable application of, established law. The record under review is limited to the record in existence at that time, i.e., the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398-1401 (2011). In addition, § 2254(e)(1) "provides for a highly deferential standard of review for factual determinations made by a state court." Robinson, 300 F.3d at 1342. The correctness of state court findings of fact will be presumed, unless the petitioner is able to rebut that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Standard of Review for Ineffective Assistance of Counsel Claims

Petitioner claims that his trial and appellate lawyers were ineffective and performed substantially below the standard guaranteed by the Sixth Amendment, and that he was prejudiced as a result. A petitioner claiming ineffective assistance of trial counsel must meet the two-part

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standard established by Strickland v. Washington, 466 U.S. 668 (1984). To establish a prima facie claim of ineffective assistance of trial counsel, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. at 687. Deficient performance is performance which is objectively unreasonable under prevailing professional norms. Id. at 688. Prejudice results when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

"Claims of ineffective assistance of appellate counsel are governed by the same standards applied to trial counsel under Strickland." Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per curiam) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)). Appellate counsel's performance is prejudicial if "the neglected claim would have a reasonable probability of success on appeal[.]" Heath, 941 F.2d at 1132.

Procedural Default

A § 2254 application cannot be granted unless a petitioner "has exhausted the remedies available in the courts of the State; . . ." 28 U.S.C. 2254(b)(1)(A); Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). In other words, the state prisoner must provide the state courts an opportunity to address his claims before he presents them to a federal court in a habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also, Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364

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(1995) ("[E]xhaustion of state remedies requires that the state prisoner 'fairly present' federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]'") (citation omitted).

Under the procedural default doctrine, "if the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11^thCir. 2001).

A procedural default will be excused only in two circumstances. First, Petitioner may obtain federal habeas review of a procedurally defaulted...