Norwood v. Sec'y, Dep't of Corr., Case No. 8:12-CV-1012-T-30EAJ

RONNIE NORWOOD, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:12-CV-1012-T-30EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: November 29, 2012

ORDER

Petitioner Ronnie Norwood (hereinafter "Petitioner") petitions for the writ of habeas corpus pursuant to Title 28 U.S.C. § 2254 (hereinafter "petition"). (Dkt. 1). Petitioner challenges his convictions for possession of cocaine, and delivery of cocaine within 1000 feet of a school zone entered in 2005 by the Thirteenth Judicial Circuit Court in Hillsborough County, Florida. (Dkt. 1). Respondent has filed a response to the petition. (Dkt. 7). Petitioner has filed a reply to Respondent's response. (Dkt. 12). After consideration, Petitioner's petition is DENIED.

BACKGROUND

On February 10, 2005, Petitioner was charged by Information with delivery of cocaine within 1000 feet of a school, possession of cocaine, and trespass on property other than a structure or conveyance. (Resp. Ex. 1, Vol. 1 at 9-12). On August 29, 2005, Petitioner pleaded guilty to all three charges (Id. at 20-22). Petitioner, however, successfully movedto withdraw his plea on September 20, 2005 (Id. at 27-29). On November 28, 2005, Petitioner pleaded guilty solely to the trespass charge, and he was sentenced to time served (Id. at 30-33). Following a jury trial, the jury found Petitioner guilty of the possession and delivery of cocaine charges. (Id. at 65). Petitioner was sentenced on the delivery of cocaine charge to twenty (20) years in prison. (Id. at 69-76).¹ On December 1, 2006, the state appellate court per curiam affirmed Petitioner's conviction and sentence. (Resp. Ex. 5); Norwood v. State, 945 So. 2d 517 (Fla. 2d DCA 2006) [table].

On March 19, 2007, Petitioner filed a Second Motion for Post-Conviction Relief pursuant to Florida Rule of Criminal Procedure 3.850 in the state circuit court. (Resp. Ex. 9, Vol. I at 52-69). The circuit court denied Petitioner's post-conviction motion with regard to Grounds One, Two, and Three(a), and dismissed Grounds 3(b) through 3(d), without prejudice for Petitioner to file facially sufficient claims (Id. at 70-75). After Petitioner amended Grounds 3(b) through 3(d), the circuit court denied Ground 3(c) and ordered the State to respond to Grounds 3(b) and 3(d) (Id. at 118-20). After receiving the State's response and Petitioner's reply to the response (Id. at 132-43), and following an evidentiary hearing on Grounds 3(b) and 3(d) on October 7, 2009 (Id. at 148-76), the state court denied Grounds 3(b) and 3(d) on December 11, 2009. (Id. at 185-88). On May 11, 2011, the state appellate court per curiam affirmed the denial of post-conviction relief. (Resp. Ex. 13);Norwood v. State, 63 So. 3d 766 (Fla. 2d DCA 2011) [table]. The appellate court mandate issued on July 7, 2011. (Resp. Ex. 15).

Petitioner filed his federal habeas petition in this Court on May 4, 2012. (Dkt. 1).² In his petition, Petitioner raises three grounds for relief:

GROUND ONE: THE STATE COURT'S DECISION DENYING PETITIONER'S CLAIM THAT THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO EXCUSE TWO MINORITY JURORS, ABSENT A VALID RACE NEUTRAL REASON FOR DOING SO WAS CONTRARY TO, OR INVOLVED AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW AS SET FORTH BY THE UNITED STATES SUPREME COURT IN BATSON V. KENTUCKY, 476 U.S. 79 (1986).

GROUND TWO: THE STATE COURTS [sic] DECISION DENYING

PETITIONER'S CLAIM THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO INSURE HE VIEWED A VIDEOTAPE MADE BY POLICE OF THE ALLEGED DRUG

TRANSACTION PRIOR TO REJECTING THE STATE'S PLEA OFFER WAS CONTRARY TO, OR INVOLVED AN UNREASONABLE

APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW AS SET FORTH BY THE UNITED STATES SUPREME COURT IN STRICKLAND V. WASHINGTON, 104 S. CT.2052 (1984).

GROUND THREE: THIS COURT MUST VACATE PETITIONER'S CONVICTION FOR DELIVERY OF COCAINE AND POSSESSION OF COCAINE BECAUSE SECTION 893.13, FLORIDA STATUTES, IS UNCONSTITUTIONAL ON ITS FACE.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law, including constitutional issues, must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involved an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362, 386 (2000). It is not enough that the federal courts believe that the state court was wrong; the state court decision must have been "objectively unreasonable." Id.; Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).

INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD

Strickland v. Washington, 466 U.S. 668 (1984), governs ineffective assistance of counsel claims.³ Strickland noted that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 692-93. There is a strong presumption, however, that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Because the court presumes effective assistance of counsel, Petitionermust prove both constitutionally deficient performance and resulting prejudice under Strickland to receive relief. Id. at 687.

To satisfy the two-part Strickland test, Petitioner must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Consequently, Petitioner may only succeed in claiming ineffective assistance if counsel failed to perform in a manner which was constitutionally compelled and that failure undermined the outcome of the trial. Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665, n. 38 (1984)).

PROCEDURAL DEFAULT

A § 2254 application cannot be granted unless a petitioner "has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. 2254(b)(1)(A); Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also, Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364 (1995) ("[E]xhaustion of state remedies requires that the state prisoner 'fairly present' federal claims to the state courts in order togive the State the 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]'") (citation omitted).

Under the procedural default doctrine, "if the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). "The doctrine of procedural default was developed as a means of ensuring that federal habeas petitioners first seek relief in accordance with established state procedures." Henderson, 353 F.3d at 891 (quoting Judd v. Haley, 250 F.3d at 1313).

Pre-AEDPA decisions from the Supreme Court establish the framework governing procedural default in federal habeas cases. A procedural default will only be excused in two narrow circumstances. First, Petitioner may obtain federal habeas review of a procedurally defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting from the default. "Cause" ordinarily requires Petitioner to demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court. Henderson, 353 F.3d at 892; Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).

To show "prejudice," Petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his factual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152,170 (1982)). Petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson, 353 F.3d at 892.

Second, Petitioner may obtain federal habeas review of a procedurally defaulted claim, without a showing of cause or prejudice, if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Henderson, 353 F.3d at 892. This exception is only available "in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent." Henderson, 353 F.3d at 892. The fundamental miscarriage of justice exception concerns a petitioner's "actual" innocence rather than his "legal" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)). To meet this standard, a petitioner must "show that it is more likely than not that no reasonable juror would have convicted him" of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, "'to be credible,' a claim of actual innocence must be based on [new]...