Wellington v. Moore

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Dubina
• Citation: Wellington v. Moore, 314 F.3d 1256 (11th Cir. 2002)
• Decision Date: 18 December 2002
• Docket Number: No. 00-11998.,00-11998.
• Parties: Leonard WELLINGTON, Petitioner-Appellant, v. Michael MOORE, Respondent-Appellee.

314 F.3d 1256

Leonard WELLINGTON, Petitioner-Appellant, v. Michael MOORE, Respondent-Appellee.

No. 00-11998.

United States Court of Appeals, Eleventh Circuit.

December 18, 2002.

COPYRIGHT MATERIAL OMITTED

Randee Jill Golder, Randee J. Golder, P.A., Boynton Beach, FL, for Petitioner-Appellant.

Joseph Albert Tringali, West Palm Beach, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA and BARKETT, Circuit Judges, and HODGES^*, District Judge.

DUBINA, Circuit Judge:

Petitioner Leonard Wellington ("Wellington") brought a habeas corpus action pursuant to 28 U.S.C. § 2254 (2000), alleging that his trial counsel was ineffective for failing to obtain alibi testimony. The district court denied Wellington relief, finding that he could not demonstrate prejudice as a result of his counsel's deficient performance. We affirm.

BACKGROUND

The State of Florida charged Wellington with the crimes of robbery with a deadly weapon and two counts of false imprisonment. After entering a not guilty plea, Wellington proceeded to trial where a jury found him guilty as charged. At trial, Detective Molly McIntyre testified that the police received the initial call regarding the robbery at the Rite Aid drug store at 9:56 p.m. When she arrived at the scene, she spoke with several individuals who gave her descriptions of the suspect whom the authorities later identified as Wellington. She also testified that later in her investigation, a detective from Fort Lauderdale, Florida, gave her reason to believe that Wellington might have been involved in the robbery.

John Locke ("Locke"), the manager of a Publix grocery store located near the Rite Aid store, testified at trial that a short time before the robbery, a black male entered the Publix asking to use the restroom. Locke described the black male as approximately 6 feet, 2 inches tall, weighing about 180 to 200 pounds, with a moustache and shave "bumps" on his neck. Locke stated that the male wore a black baseball cap and a satin/silky suit that was brownish/copper in color. Locke looked at a photo line-up and identified Wellington as the man he saw on the night of the robbery. He commented that the moustache he saw on the night in question was different from the one shown in the photo line-up. Locke later picked the defendant out of a live line-up and, when he selected Wellington, stated that he "was very sure" that Wellington was the man he saw the night of the robbery. (R. Vol.2, Exh. 5, p. 37). Looking at Wellington at trial, Locke stated that he was "positive" that he was the man he saw in the Publix that night. (Id. at 45).

Cynthia Waring, a Publix employee, testified at trial that on the night of the robbery, a black male bought sunglasses from her and she placed the sunglasses in a small brown paper bag. Jean Wade, the Rite Aid manager, testified that two days after the robbery, she found a small brown paper bag in the store and Rite Aid did not utilize such bags.

Vivian Gehringer ("Gehringer"), a Rite Aid employee and victim of the robbery, testified that on the night of the robbery, she noticed a black male with a black baseball cap enter the store. At first, she thought he appeared to be wearing glasses. Later, she saw that the glasses were wrap-around reflective lens sunglasses. When he approached her, he had an automatic nine millimeter handgun which she recognized because her husband, who was a retired police officer, had a nine millimeter handgun. The man with the handgun asked Gehringer to take him to the office, so she led him in that direction. Another employee, Colleen Fahey ("Fahey") was in the office. The man told Fahey to get on the floor, turn her back to him, and not look at him. Gehringer stated that he instructed her to open the safe, which she did. Then he told her to turn around and not look at him. Out of the corner of her eye, she saw him put on gloves and put the money into a bucket. (Id. at 73). The man talked to Fahey, asking if she had children. When he finished, he told them not to do anything, wait a few minutes and then "do what you have to do." (Id. at 74). After he left, Gehringer called the authorities.

In describing the suspect, Gehringer stated that he had on a bronze, brown colored silk type shirt with long sleeves and no collar. He had a small growth on his upper lip and he was about 5 feet 10 inches to 6 feet tall and weighed about 185 pounds. Gehringer commented that the male was well-dressed and well-spoken. Ironically, she found him to be "soft-spoken" and "calm," with a "kind" voice. (Id. at 75). "He sounded like a very nice man." (Id.). Gehringer was unable to identify the suspect in a photo line-up, but at the live line-up, she identified Wellington by his voice. Gehringer stated that she narrowed it down to two men and, after she asked them to speak, she knew the robber was Wellington. She stated that she was "100% sure" it was the robber's voice. (Id. at 77).

The State rested and the defense did not call any witnesses. Defense attorney George Allen ("Allen") presented the first and final closing arguments. After deliberating, the jury returned guilty verdicts on both counts.

Wellington appealed his case to the Florida District Court of Appeal, which affirmed without written opinion. Wellington v. State, 729 So.2d 940 (Fla.Dist.Ct. App.1999) (Table). Wellington filed a post-conviction motion pursuant to Rule 3.850, Florida Rules of Criminal Procedure (1999), arguing that his counsel was ineffective for failing to call Wellington's parents as alibi witnesses. The state trial court conducted an evidentiary hearing on Wellington's motion for post-conviction relief. The trial court denied his motion and, on appeal, the state appellate court affirmed. Wellington then filed a timely petition for habeas corpus relief in federal district court. A magistrate judge issued a report and recommendation, recommending that the district court deny Wellington's petition for relief. The district court adopted the magistrate judge's recommendation and denied Wellington a Certificate of Appealability ("COA"). This court granted a COA on the sole issue of whether Wellington's counsel was ineffective for failing to obtain alibi testimony.

STANDARD OF REVIEW

Wellington's petition for habeas corpus is governed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). Pursuant to 28 U.S.C. § 2254(d), a federal court may issue a petition for habeas corpus relief only if the state court's ruling "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)(1)-(2); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). "Unless a state court decision is directly contrary to Supreme Court case law, we review state court findings of fact and conclusions of law for reasonableness." Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1321 (11th Cir.2002). We review de novo the district court's determination of whether the state court's findings and conclusions are reasonable. Id.

DISCUSSION

Since AEDPA governs this appeal, we must first determine whether the state court identified and applied the correct governing legal principles. We then consider whether the state court's application of the governing legal principles was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.

A. Governing Legal Principles

It is well established that the Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), is the "controlling legal authority" to be applied to ineffective assistance of counsel claims. Williams, 529 U.S. at 406, 120 S.Ct. at 1512 (O'Connor, J., concurring). To succeed on a claim of ineffective assistance of counsel, the petitioner must show both incompetence and prejudice. Chandler v. United States, 218 F.3d 1305, 1312 (11th Cir. 2000) (en banc), cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001). The petitioner's burden of demonstrating prejudice is high. Under the prejudice prong, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. Instead, the petitioner "must show that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Chandler, 218 F.3d at 1312-13 (quoting Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473, 91 L.Ed.2d 144 (1986)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

The state court correctly identified the Strickland standard in evaluating Wellington's claim of ineffective assistance of counsel. Thus, it applied the controlling legal principles, as required by AEDPA, in ruling on Wellington's claim of ineffective assistance of counsel.

B. Contrary To

"Under 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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13, 120 S.Ct. at 1523 (O'Connor, J., concurring). The "contrary to" clause "suggests that the state court's decision must be substantially different" from the controlling legal precedent. Fugate v. Head, 261 F.3d 1206, 1216 (11th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 2310, 152 L.Ed.2d 1065 (2002) (quoting Williams, 529 U.S. at 405, 120 S.Ct. at 1519). A state...