Hardy v. Dixon

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JENELLA LESHAE HARDY, Petitioner, v. RICKY D. DIXON, Secretary, Florida Department of Corrections, Respondent.

No. 5:22cv153-TKW/MAF

United States District Court, N.D. Florida, Panama City Division

September 11, 2023

REPORT AND RECOMMENDATION

MARTIN A. FITZPATRICK UNITED STATES MAGISTRATE JUDGE

On May 19, 2022, Petitioner Jenella L. Hardy, a state inmate proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On December 5 2022, Respondent filed an answer, with exhibits. ECF No. 13. Petitioner has not filed a reply, although she was given the opportunity to do so. See ECF No. 9.

The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration, the undersigned has determined no evidentiary hearing is required for the disposition of this matter. See Rule 8(a), R. Gov § 2254 Cases. For the reasons stated herein, the filings before the Court show Petitioner is not entitled to federal habeas relief, and this § 2254 petition should be denied.

Procedural Background

By amended information filed September 19, 2019, in Bay County Circuit Court Case 2019-CF-1604A, the State of Florida charged Petitioner Jenella L. Hardy with two counts: (1) aggravated battery with a deadly weapon (crowbar), a second degree felony, in violation of sections 784.045(1)(a)1-2 Florida Statutes; and (2) criminal mischief, a third degree felony, in violation of section 806.13(1)(a) and (b)3 Florida Statutes. Ex. A at 56; see id. at 14 (initial information).^[1]The charges arose from an altercation on April 3, 2019, between Hardy and the victim, Barbara Sudano, resulting in injuries to Sudano and damage to Sudano's car. See id. at 56.

Hardy proceeded to a jury trial, with jury selection on September 23, 2019, Ex. A at 129-59, and trial on September 25, 2019, Ex. B. Hardy did not testify at the trial. Ex. B at 69-70. The jury found her guilty as charged on both counts, with specific findings on Count 1 that she had caused great bodily harm and had used a deadly weapon. Id. at 98-99. The trial judge adjudicated her guilty, id. at 100, Ex. A at 172-73, and, on October 29, 2019, sentenced her to twelve (12) years in prison on Count 1, followed by three (3) years' probation, and time served on Count 2, Ex. A at 102-07, 173.

Hardy appealed to the First District Court of Appeal (First DCA), assigned case number 1D19-3933. Ex. A at 113. Her counsel filed an initial brief pursuant to Anders v. California, 386 U.S. 738 (1967). Ex. D. On July 10, 2020, the First DCA affirmed the case per curiam without a written opinion. Ex. F; Hardy v. State, 300 So.3d 598 (Fla. 1st DCA 2020) (table).

On February 8, 2021, Hardy filed a pro se Motion for Postconviction Relief, pursuant to Florida Rule of Criminal Procedure 3.850. Ex. G at 7-15. By order on February 23, 2021, the state postconviction trial court found the motion insufficient and allowed Hardy sixty (60) days to file a facially sufficient amended motion. Id. at 16. On March 12, 2021, Hardy filed an amended Rule 3.850 motion. Id. at 17-31. By order on May 19, 2021, the court found the motion “remains insufficient” and allowed Hardy “one additional opportunity to amend her motion so that it complies with the factual requirements” of Rule 3.850. Id. at 32-33. On May 28, 2021, Hardy filed a second amended Rule 3.850 motion, raising five claims of ineffective assistance of counsel (IAC). Id. at 34-46. By order rendered June 16, 2021, the court summarily denied relief. Id. at 47-56 (exclusive of attachments).

Hardy appealed to the First DCA, assigned case number 1D21-2124. Id. at 112; Ex. H. No briefs were filed. See Ex. H. On November 19, 2021, the First DCA affirmed the case without a written opinion. Ex. I; Hardy v. State, 328 So.3d 957 (Fla. 1st DCA 2021) (table). The mandate issued December 17, 2021. Ex. I.

On May 19, 2022, Hardy filed the § 2254 petition. ECF No. 1. The petition presents five grounds, all alleging ineffective assistance of counsel (IAC):

(1) IAC - Jury Selection: “Counsel provided ineffective assistance in violation of the 6th and 14th Amendments to the U.S. Constitution when he failed to move to strike juror Virginia Starling.” Id. at 4.

(2) IAC - No Expert Mental Health Witness: “Counsel was ineffective in violation of the Sixth and Fourteenth Amendment to the United States Constitution when he failed to call an expert mental health witness on behalf of the Petitioner.” Id. at 6.

(3) IAC - Failure to Call Eyewitnesses to Testify: “Counsel was ineffective, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, for failing to call two eye-witnesses who would have provided testimony, the substance of which would have benefitted the Petitioner.” Id. at 7.

(4) IAC - No Motion for New Trial: “Counsel provided ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution when [counsel] failed to file a motion for new trial based on factually insufficient evidence.” Id. at 9.

(5) IAC - Cumulative: “The cumulative effect of Counsel's errors rendered his representation of the Petitioner constitutionally ineffective in violation of the Sixth and Fourteenth Amendments to the United States Constitution.” Id. at 10.

On December 5, 2022, Respondent filed an answer, with exhibits. ECF No. 13. Petitioner has not filed a reply, although she was given the opportunity to do so. See ECF No. 9.

Analysis

Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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). See, e.g., Cullen v. Pinholster, 563 U.S. 170, 180-83 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011). “This is a ‘difficult to meet' and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'” Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Id.

For IAC claims, the United States Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffectiveness, a “defendant must show that counsel's performance fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice, a defendant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. For this Court's purposes, importantly, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable - a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Id. It is a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id.

Ground 1: IAC - Jury Selection

In her first ground, Petitioner Hardy asserts her trial counsel provided ineffective assistance as he did not move to strike a juror, Virginia Starling, who had retired from the office of the Clerk of Court for Bay County, the site of Hardy's trial. ECF No. 1 at 4. She asserts that “[i]t is undisputed that Ms. Starling was personally and professionally acquainted with the Judge who presided over the Petitioner's trial as well as the bailiffs, court reporters, State Attorney's office lawyers and other employees who worked daily in the same environment with the Judge, assistant state attorney, bailiffs and other court employee involved in and around the Petitioner's case and trial.” Id. at 4-5. She further asserts that “[t]his information was brought out during voir dire and the petitioner immediately informed her counsel that she feared the ability of someone so well acquainted and friends with everyone in the legal community of Bay County to be impartial and not have a bias against the defendant due to her friendships with these...