Tarleton v. Sec'y

• Decision Date: 18 January 2018
• Docket Number: Case No. 3:15-cv-741-J-39MCR
• Parties: MARVIN TYRONE TARLETON, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

MARVIN TYRONE TARLETON, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

Case No. 3:15-cv-741-J-39MCR

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

January 18, 2018

ORDER

I. INTRODUCTION

Petitioner Marvin Tyrone Tarleton challenges a 2011 Duval County conviction for robbery. In his Petition (Doc. 1), he raises eight claims for habeas relief. Respondents filed an Answer in Response to Order to Show Cause and Petition for Writ of Habeas Corpus (Response) (Doc. 18) with supporting Exhibits.¹ Petitioner countered the Response by filing a Response to Respondents' Response to Order to Show Cause (Reply) (Doc. 19). See Order (Doc. 9).

II. CLAIMS OF PETITION

Petitioner seeks habeas relief on eight grounds: (1) ineffective assistance of counsel for failure to object to inadmissible hearsay from non-testifying witness April Hoffman; (2) ineffective assistance of counsel for failure to object to inadmissible hearsay from non-testifying witnesses James and Nynce [sic] Tarleton; (3) ineffective assistance of counsel for failure to object to inadmissible hearsay from non-testifying crime stoppers' witness; (4) ineffective assistance of counsel based on the cumulative effect of the errors and omissions of counsel presented in grounds one, two and three; (5) trial court error in failing to conduct a proper Nelson² hearing; (6) a Sixth Amendment Confrontation Clause claim based on Detective John Venosh's testimony that non-testifying witness April Hoffman identified Petitioner as the perpetrator of the crime after Ms. Hoffman viewed photographs taken during the robbery; (7) ineffective assistance of appellate counsel for failure to investigate, supplement the record with the transcripts of all hearings, and raise all constitutional violations and errors of law; and (8) a catch-all claim concerning due process rights, confrontation rights, and the ineffectiveness of trial and appellate counsel.

Respondents urge this Court to deny the Petition. Response at 40. The Court will address the eight grounds raised in the Petition, see Clisby v. Jones, 960 F.2d 925, 936 (11th Cir. 1992), but no evidentiary proceedings are required in this Court.

III. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act (AEDPA) governs a state prisoner's federal petition for habeas corpus. See 28 U.S.C. § 2254; Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct. 1432 (2017). "AEDPA limits the scope of federal habeas review of state court judgments[.]" Pittman v. Sec'y, Fla. Dep't of Corr., 871 F.3d 1231, 1243 (11th Cir. 2017). As such, AEDPA ensures that federal habeas relief is limited to extreme malfunctions, and not used as a means to attempt to correct state court errors. Ledford, 818 F.3d at 642 (quoting Greene v. Fisher, 132 S.Ct. 38, 43 (2011)).

The parameters of review are as follows:

Thus, under AEDPA, a person in custody pursuant to the judgment of a state court shall not be granted habeas relief on a claim "that was adjudicated on the merits in State court proceedings" unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "For § 2254(d), clearly established federal law includes only the holdings of theSupreme Court—not Supreme Court dicta, nor the opinions of this Court." Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th Cir. 2014).

As for the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Terry Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). 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 Supreme Court's] decisions but unreasonably applies that principle to the facts." Id. at 413, 120 S.Ct. 1495. "In other words, a federal court may grant relief when a state court has misapplied a 'governing legal principle' to 'a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). And "an 'unreasonable application of' [Supreme Court] holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. Donald, --- U.S. ----, 135 S.Ct. 1372, 1376, 191 L.Ed.2d 464 (2015) (per curiam) (quotation omitted). To overcome this substantial hurdle, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). This is "meant to be" a difficult standard to meet. Id. at 102, 131 S.Ct. 770.

Pittman, 871 F.3d at 1243-44.

There is a presumption of correctness of state court's factual findings, unless the presumption is rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The standard of proof is demanding, requiring that a claim be highly probable. Bishop v. Warden, GDCP, 726 F.3d 1243, 1258 (11th Cir. 2013), cert. denied, 135 S.Ct. 67 (2014). Also, the trial court's determination will not be superseded if reasonable minds might disagree about the factual finding. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015). Also of note, "[t]his presumption of correctness applies equally to factual determinations made by the state trial and appellate courts." Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271, 1284 (11th Cir. 2012) (quoting Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003)), cert. denied, 568 U.S. 1233 (2013).

In applying AEDPA deference, the first step is to identify the last state court decision that evaluated the claim on its merits. Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016).³ Once identified, the Court reviews the state court's decision, "not necessarily its rationale." Pittman, 871 F.3d at1244 (quoting Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 785 (11th Cir. 2003) (citation omitted)).

Regardless of whether the last state court provided a reasoned opinion, "it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 99 (2011). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Richter, 562 U.S. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

Where the last adjudication on the merits is unaccompanied by an explanation, the petitioner must demonstrate there was no reasonable basis for the state court to deny relief. Id. at 98. "[A] habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the] Court." Richter, 562 U.S. at 102; Marshall, 828 F.3d at 1285.

Although the § 2254(d) standard is difficult to meet, it was meant to be difficult. Rimmer v. Sec'y, Fla. Dep't of Corr., 876 F.3d 1039, 1053 (11th Cir. 2017) (opining that to reach the level of an unreasonable application of federal law, the ruling must be objectively unreasonable, not merely wrong or even clear error). Indeed, in order to obtain habeas relief, "a state prisoner mustshow that the state court's ruling on the claim being presented . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.

IV. PROCEDURAL HISTORY

In order to give historical context to the eight grounds presented in the Petition for habeas relief, the Court will provide a brief procedural history of the state criminal case. Petitioner was charged by information with robbery. Ex. A at 10. The state filed a notice of intent to classify Petitioner as an habitual felony offender. Id. at 13. Petitioner filed a Notice of Intention to Claim Alibi. Id. at 25.

On February 3, 2011, the trial court conducted a jury trial. Ex. B; Ex. B1; Ex. C; Ex. D. The jury returned a verdict of guilty. Ex. D at 392. Petitioner moved for a new trial, Ex. A at 99-100, and the trial court denied the motion. Id. at 134. Petitioner filed pro se motions for mistrial/new trial and to reverse judgment. Id. at 101-12. These were denied. Id. at 113; Ex. A1 at 175, 213-215.

On March 10, 2011, the trial court held a sentencing proceeding. Ex. A1 at 172-231. The court adjudicated Petitioner guilty as an habitual offender and sentenced him to a term of thirty years in prison. Id. at 230. The court entered judgment and sentence on March 10, 2011. Ex. A at 126-31.

Petitioner appealed his conviction. Id. at 139. Through counsel, Petitioner filed an appeal brief. Ex. G. The state filed an answer brief. Ex. H. On August 13, 2012, the First District Court of Appeal (1st DCA) affirmed per curiam. Ex. I. The mandate issued on August 29, 2012. Ex. J.

On November 26, 2012, pursuant to the mailbox rule, Petitioner filed a petition for writ of habeas corpus alleging ineffective assistance of...