Wardlow v. Sec'y

• Decision Date: 18 November 2014
• Docket Number: Case No: 2:12-cv-185-FtM-29DNF
• Parties: VINCE E. WARDLOW, Petitioner, v. SECRETARY, DOC, Respondent.
• Court: U.S. District Court — Middle District of Florida

VINCE E. WARDLOW, Petitioner,
v.
SECRETARY, DOC, Respondent.

Case No: 2:12-cv-185-FtM-29DNF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

November 18, 2014

OPINION AND ORDER

Vince E. Wardlow ("Petitioner"), a prisoner currently incarcerated at the South Bay Correctional Facility in South Bay, Florida, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner attacks the lawfulness of his conviction and sentence for second degree murder entered in case number 06-CF-20099 in the Circuit Court of the Twentieth Judicial Circuit at Lee County, Florida. Id. Petitioner's amended petition is now before the Court (Doc. 19).

As his sole claim, Petitioner asserts that his appellate counsel provided ineffective assistance of counsel by failing to assert on direct appeal that the trial court erred by giving a fundamentally erroneous jury instruction on manslaughter by act (Doc. 23 at 7). Petitioner maintains that counsel was required to present this argument in a supplemental brief in light of the intervening decision in Montgomery v. State, 70 So. 3d 603 (Fla. 1st DCA 2009) (holding that the then-standard 2006 version of

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manslaughter by act jury instruction was fundamentally erroneous because it imposed an additional element of intent to kill), approved by State v. Montgomery, 39 So. 3d 252 (Fla. 2010).

Upon due consideration of the pleadings and the state court record, the Court concludes that the petition must be denied. Because the Court may resolve the petition on the basis of the record, an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if the record refutes the factual allegations in the petition or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing).

I. Background and Procedural History¹

On October 22, 2006, Jermaine Thompson was shot five times outside of his home in Fort Myers, Florida (T. at 268).² As he lay dying, Thompson identified the shooter as "Vince Wardlow." Id. On November 22, 2006, Petitioner was charged by information with second degree murder with a firearm (Ex. 1). At trial, Petitioner claimed that he was not the shooter and presented evidence of an alibi for the time of the shooting (T. at 276, 775-82).

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At the close of trial, the trial court instructed the jury on the offense charged, second degree murder (T. at 1055-58). The jury was also give the Florida standard jury instruction for manslaughter by act and for manslaughter by culpable negligence pursuant to the 2006 version of the Florida standard jury instructions. In relevant part, the trial court instructed:

The lesser crime indicated in the definition of second degree murder while possessing and discharging a firearm and causing death is manslaughter.

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:

One, Jermaine Thompson is dead; and 2, (A) Vince E. Wardlow intentionally caused the death of Jermaine Thompson, or (B) the death of Jermaine Thompson was caused by the culpable negligence of Vince E. Wardlow.

However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I've previously explained those terms.

I will now define "culpable negligence" for you. Each of you has a duty to act reasonably toward others. If there is a violation of that duty without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care towards others.

In order for negligence to be culpable, it must be gross and flagrant.

Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of conscious

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indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury.

In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

(T. at 1059-60).

The jury found Petitioner guilty of second degree murder. He was adjudicated guilty and sentenced to life in prison (Ex. 5). On direct appeal, Petitioner raised twelve claims unrelated to the subject jury instruction claim (Ex. 8). On May 6, 2009, Florida's Second District Court of Appeal per curiam affirmed (Ex. 11).

On July 20, 2009, Petitioner filed a pro se petition for a belated appeal which raised two claims of ineffective assistance of appellate counsel, one being the same claim raised in the instant petition (Ex. 13). Petitioner asserted that appellate counsel was ineffective for failing to file supplemental briefing based upon Montgomery v. State, a case decided by Florida's First District Court of Appeal after Petitioner filed his brief on appeal, but before the Second District Court of Appeal ruled on

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the merits of Petitioner's claims. Id. The appellate court construed the petition as alleging ineffective assistance of appellate counsel and ordered a response from the State (Ex. 14). The State responded that the issues had not been preserved for appellate review (Ex. 15). The State also argued that appellate counsel could not be ineffective for failing to assert a theory that was not law at the time of appeal. Id. The petition was denied by Florida's Second District Court of Appeal without a written opinion (Ex. 17).

On April 26, 2010, Petitioner filed a state petition for writ of habeas corpus in which he again argued that his appellate counsel was ineffective (Ex. 22). Petitioner raised the same claim as he raised in his first ineffective assistance petition (and the same claim raised in the instant petition), but argued that it would be manifest injustice for the appellate court to deny his claim because new case law had been released by the Florida Supreme Court subsequent to his direct appeal. Id. On July 20, 2010, Florida's Second District Court of Appeal denied the claim without a written opinion and without ordering briefing from the state (Ex. 23).

On April 20, 2010, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion") (Ex. 24). Petitioner raised four claims in the Rule 3.850 motion, including a claim

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that trial counsel was ineffective for failing to object to the manslaughter by act jury instruction (Ex. 25). In response, the state argued that the jury instruction was not fundamentally erroneous and that Petitioner could not be prejudiced since he also received a manslaughter by culpable negligence jury instruction (Ex. 26). It does not appear that a written order was entered by the post-conviction court on the Rule 3.850 motion, but Florida's Second District Court of Appeal per curiam affirmed on February 8, 2012 (Ex. 32).

Petitioner filed the instant habeas petition in this Court on March 30, 2012 (Doc. 1). An amended petition was filed on September 27, 2012 (Doc. 19). The Court ordered Respondent to show cause why the relief sought in the amended petition should not be granted (Doc. 24). Respondent filed a response to the amended petition (Doc. 27) which did not address the sole claim raised in the petition (Doc. 33).³ Thereafter, Respondent filed a supplemental response, and Petitioner filed a supplemental reply (Doc. 39; Doc. 43).

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II. Governing Legal Principles

A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

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:

(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.

28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).

"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law;

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or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or...