Bell v. Sec'y

ANTWAUNE BELL, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.

CASE NO. 6:14-cv-90-Orl-31DAB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

December 21, 2015

ORDER

This cause is before the Court on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed a response to the petition in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases for the United States District Courts (Doc. 7). Petitioner filed a reply to the response (Doc. 14).

Petitioner alleges two claims for relief in his habeas petition. For the following reasons, the Court concludes that Petitioner is entitled to relief on claim one.

I. PROCEDURAL HISTORY

Petitioner was charged with burglary of an occupied dwelling (Doc. 8-1 at 14). At trial, victim Gail Calleja ("Calleja") testified that on July 26, 2009, she came home from church at approximately 11:20 a.m. and encountered Petitioner in her home (Doc. 9-3 at 47). Petitioner had not been invited into her home. Id. at 48. Petitioner told Calleja to get on the ground; however, Calleja screamed and ran out of the house. Id. Calleja stood in the street and observed Petitioner exit the house, enter his red vehicle, and drive away. Id. at 49-50. Calleja later walked around the outside of house and observed gouge marks in a back window and a missing screen. Id. at 50-52. Officer Hedengren also observed marks on a window and opined that the marks were made with a screwdriver or similar tool. Id. at 96. A screwdriver was found in the grass near the victim's home. Id. at 113-15.

Detective Snowden interviewed Petitioner, and Petitioner admitted being in the home. Id. at 128, 133. Petitioner told the detective that he was looking for "tree work" and did not break into Calleja's home to steal anything. Id. at 133-35. The State also presented evidence that Petitioner previously burglarized Ronald Perry's unoccupied home in October 2008 by prying open a sliding glass door. Id. at 145-46, 152, 168-70. In the previous burglary, a red or maroon Ford Explorer was used by Petitioner. Id. at 168-69.

The jury convicted Petitioner of burglary of a dwelling (Doc. 9-2 at 4). The trial court sentenced Petitioner to a twenty-year term of imprisonment as a habitual felony offender. Id. at 31-32. Petitioner appealed, and the Fifth District Court of Appeal ("DCA") affirmed per curiam (Doc. 10-1 at 89).

Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure (Doc. 10-1 at 93-104). The trial court entered an interim order staying several of the claims and giving Petitioner leave to amend (Doc. 10-2 at 22-23). Petitioner filed an amended Rule 3.850 motion. Id. at 28-31. The trial court summarily denied Petitioner's claims (Doc. 10-3 at 61-65). Petitioner appealed, and the Fifth DCA affirmed per curiam (Doc. 11-1 at 61).

Petitioner subsequently filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. Id. at 72-77. The Fifth DCA denied the petition without discussion (Doc. 11-2 at 9).

II. LEGAL STANDARDS

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). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the UnitedStates Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. 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 United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

Even if the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id. Whether a state court's decision was an unreasonable application of law must be assessed in light of the record before the state court. Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law).

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and(2) whether the deficient performance prejudiced the defense.¹ Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

Likewise, it well established that a defendant has the right to effective counsel onappeal. Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984). Claims of ineffective assistance of appellate counsel are governed by the same standard applied to trial counsel under Strickland. See Sairras v. Fla. Dep't of Corr., 496 F. App'x 28, 34 (11th Cir. 2012) (citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)). When evaluating the prejudice prong of Strickland, the Court must first review the merits of the omitted claim to determine whether counsel's actions affected the outcome of the appeal. See Heath, 941 F.2d at 1132. Counsel's performance will be deemed prejudicial if the Court concludes that "the neglected claim would have a reasonable probability of success on appeal." Id.

III. ANALYSIS

A. Claim One

Petitioner alleges that the trial court erred by instructing the jury on and listing burglary of a dwelling² as a lesser included offense of burglary of an occupied dwelling on the verdict form (Doc. 1 at 6). In support of this claim, Petitioner contends that burglary of a dwelling is not a lesser included offense of burglary of an occupied dwelling, and the crime was therefore improperly included on the verdict form. Id. at 6-8. Petitioner states that the jury was misled into believing that they were exercising a jury pardon by convicting him of burglary of a dwelling instead of burglary of an occupied dwelling. Id. at 8.

Respondents argue that the claim was procedurally defaulted in the state court (Doc. 7 at 5-6). Petitioner raised this claim in his Rule 3.850 motion (Doc. 10-1 at 98-99). The trial court found that this claim was procedurally barred because it was not cognizable in a post-conviction proceeding (Doc. 10-3 at 63). The Fifth DCA affirmed per curiam (Doc. 11-1 at 61).

A per curiam affirmance of a trial court's finding of procedural default is a sufficiently clear and express statement of reliance on an...