Troy v. Sec'y of Dep't of Corr., Case No. 8:11-cv-796-T30-AEP

• Court: U.S. District Court — Middle District of Florida
• Writing for the Court: JAMES S. MOODY
• Decision Date: 02 January 2013
• Docket Number: Case No. 8:11-cv-796-T30-AEP
• Citation: Troy v. Sec'y of Dep't of Corr., Case No. 8:11-cv-796-T30-AEP (M.D. Fla. Jan 02, 2013)
• Parties: JOHN TROY, Petitioner, v. SECRETARY OF DEPARTMENT OF CORRECTIONS, Respondent.

JOHN TROY, Petitioner, v. SECRETARY OF DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:11-cv-796-T30-AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

DONE: January 2, 2013

ORDER

John Troy, a State of Florida inmate under sentence of death, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254 and challenges the validity of his state conviction for first-degree murder.¹ Respondent argues that Troy fails to state a federal constitutional claim or meet the threshold requirements of 28 U.S.C. § 2254(d) and (e). Upon review, the court concludes the petition should be DENIED.

Procedural Background

A jury convicted Troy of the first-degree murder of Bonnie Carroll ("Carroll") and the state trial court judge imposed a death sentence. Troy appealed. The Florida Supreme Court affirmed Troy's conviction and sentence. (Doc. 17, Ex. A46). See Troy v. State, 948 So. 2d 635 (Fla. 2006). Troy filed a petition for writ of certiorari in the United States SupremeCourt, which petition the Court rejected. (Doc. 17, Ex. B3). See Troy v. Florida, 551 U.S. 1135 (2007).

Troy next filed a state motion to vacate his judgment of conviction and death sentence pursuant to Fla. R. Crim. P. 3.851. (Doc. 17, Ex. C3, pp. 511-71). While the motion was pending, Troy filed a motion pursuant to Fla. R. Crim. P. 3.575 seeking an order allowing post-conviction counsel to interview a juror to determine if the juror had an undisclosed connection to Carroll's family. (Doc. 17, Ex. C4, pp. 680-86). The state post-conviction court ultimately denied the Rule 3.851 motion (Doc. 17, Ex. C5, pp. 816-33) and granted the Rule 3.575 motion (Doc. 17, Ex. C7, pp. 1305-07).²

Troy appealed the denial of his Rule 3.851 motion. The Florida Supreme Court affirmed the denial of relief. (Doc. 17, Ex. C13). See Troy v. State, 57 So. 3d 828 (Fla. 2011). Troy's subsequent motion for rehearing was rejected. (Doc. 17, Ex. C15).

Troy filed the instant Section 2254 petition on April 12, 2011. Respondent does not challenge the petition's timeliness. Troy presents thirteen grounds for relief alleging ineffective assistance of trial counsel and trial court error.

Facts³

John Troy was indicted for [the] first-degree murder of Bonnie Carroll, as well as armed burglary and armed robbery; a fourth count, attempted sexual batterywith a weapon upon Carroll, was later added by information. Troy was separately charged by information for the related armed burglary, aggravated battery, armed kidnapping, and armed robbery of Traci Burchette. Trial by jury resulted in guilty verdicts on all counts in both cases. Following a penalty phase, the jury recommended a death sentence for the murder by an eleven-to-one vote and the trial court imposed a death sentence.

The evidence presented at trial indicated that on September 12, 2001, at approximately 5:30 p.m., the nude and dead body of Bonnie Carroll, twenty, was found in her home in the Timberchase Apartments in Sarasota. Debbie Ortiz, Carroll's mother, discovered her daughter's body. Ortiz had last seen Carroll alive at approximately 11:15 p.m. on September 11, 2001, when Carroll left Ortiz's home with Carroll's two-year-old daughter Cynthia.

Associate medical examiner Dr. Michael Hunter arrived on the scene of the homicide at 2:05 a.m. on September 13. A knife was discovered in close vicinity to Carroll's body, and an electrical cord was found tied around her thigh. Dr. Hunter determined that Carroll was murdered around midnight on September 12. Dr. Hunter also observed a cloth tied around the victim's neck, numerous stab wounds to the front of the body, large incised wounds to the neck area, and blunt force impact injuries around the face. During the autopsy, Dr. Hunter found a piece of cloth inside Carroll's mouth that had been folded over and wedged firmly in the back of her throat. Blood on the fabric indicated that she was alive when it was inserted. The autopsy also revealed another cloth loosely tied around Carroll's neck and petechial hemorrhages in the eyes - possibly but not conclusively indicating strangulation. Carroll suffered multiple areas of blunt impact injuries to her face, chin, and scalp, including small fresh injuries to the external genitalia and thighs. There were two very small areas of vascular dilation on her external genitalia, but no internal injuries to that area. No semen was identified, but at trial Dr. Hunter noted that all the factors were consistent with someone attempting to sexually batter the victim before she was killed. Carroll's body had suffered a total of fifty-four injuries, including forty-four stab wounds, three areas of incise wounds to the neck, at least seven impact injuries to the face, and multiple defense wounds on the hands.

A knife blade was also broken off within Carroll's body, which Dr. Hunter became aware of via x-ray. A bladeless knife handle was recovered from the counter of Carroll's bathroom. It contained the blood of both Troy and Carroll. Heather Velez, a crime lab microanalyst with the Florida Department of Law Enforcement (FDLE), testified that the bladeless knife handle and the knifeblade had at one time been a single piece. Carroll's blood was also found on a steak knife, indicating that two weapons were associated with her injuries. There was no evidence of drugs in her system, and her blood alcohol level of 0.037 was consistent with having had a glass of wine.

John Troy also resided at Timberchase Apartments with his mother, Debra Troy, his girlfriend Marilyn Brooks, and Brooks' daughter. Troy was released from prison on July 25, 2001, approximately five weeks before the murder, after serving a sentence for armed robbery. Upon his release, Troy was placed on two years' probation. His conditional release mandated that he submit to regularly scheduled drug testing; Troy admitted to his probation officer that he would be unable to pass his first scheduled drug test because he had smoked marijuana while incarcerated. The drug test was then rescheduled for September 11, 2001, and on that date, Troy tested positive for cocaine and was informed by his probation officer that he would soon be reincarcerated for violation of probation.

When he returned to his residence after his failed drug test, Troy got into a series of arguments with Brooks before leaving his apartment to visit Melanie Kozak's residence, where he used cocaine. Brooks testified that Troy took a kitchen knife with him and did not return. On September 11 and 12, Troy made a total of four visits to see Kozak - three before the murder and one after. During each visit, Troy and Kozak ingested cocaine together.

Troy was also involved in an incident with his downstairs neighbor, Karen Curry, on the evening of Carroll's murder. At approximately 12:30 a.m. on September 12, Troy pounded on her rear sliding glass door. She told him to go away, and called the police. Officer Derek Gilbert responded to Curry's call. Officer Gilbert went to the Troy apartment to investigate, but Troy was not home.

Carroll's death occurred some time between Troy's encounter with Curry and a 2 a.m. visit with Kozak. After Carroll's death, Troy stopped by Kozak's house, ingested some cocaine, then drove around in Carroll's car and decided to visit Traci Burchette, a psychiatric nurse and friend of Troy's mother. [FN1]. Troy parked a couple of streets away from Burchette's house, and then went into her backyard and picked up a two-by-four board. Concealing the board, Troy knocked on Burchette's front door at approximately 6:30 a.m. When she awoke and came to the door, Troy said that his car had broken down and he needed to use her telephone. She invited him in and Troy pretended to call a friend for a ride. Burchette stated that he appeared perfectly normal.

She made him coffee, and Troy asked to use her computer. When Burchette leaned down to turn the computer on, she was attacked by Troy from behind. In the attack, Burchette lost fingernails on both hands and broke her knuckles while suffering a skull fracture. Troy bound and gagged her, took her car keys and her ATM card, and left.

FN1. Troy and his mother stayed at Burchette's house for a week in August 2001.

Bank records indicated that Troy attempted to use Burchette's ATM card at a Sun Trust Bank in Arcadia at 8:24 a.m. Troy then headed south on Interstate 75 towards Naples. Meanwhile, Burchette managed to call 911; police arrived and she gave a description of Troy and her car. Troy was stopped in Naples by local police mid-afternoon on September 12 in Burchette's car with a female passenger. Police questioned the passenger and located the two-by-four board used in Burchette's attack along the highway near Ft. Myers. DNA testing later revealed Burchette's blood on the two-by-four.

At the time of his arrest, Troy was wearing a pair of tennis shoes, blue jeans, a T-shirt, and a baseball cap. Pursuant to trial stipulations regarding DNA evidence, the shoes contained Carroll's blood, the blue jeans contained both Carroll and Burchette's blood, and the T-shirt tested positive for Burchette's blood. Also, material removed from Carroll's fingernails disclosed a mixture of Troy's DNA. Two pieces of broken glass were recovered from Carroll's bedroom and tested for DNA. One piece, containing her blood, was found lying on her bra. The other piece of glass, which tested positive for Troy's blood, was found lying to the left of Carroll's body. Latent print examiner Jackie Scogin identified a match of Troy's fingerprint on a glass found on Carroll's kitchen counter.

At the outset of trial, with Troy's consent, defense counsel acknowledged in his opening statement both that Troy killed Carroll and that he had attacked Burchette. However, he claimed Troy was only guilty of second-degree murder on the basis that the killing was neither premeditated nor committed during the perpetration of any felony. Although Troy did not contest most of the charges, the defense, in its case and on

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