Paul A. Howell v. Secretary, Florida Department of COrrections

JORDAN, Circuit Judges.

PRYOR, Cirсuit Judge: appeal issue is whether the district court abused its discretion when it ruled that the decision Holland Flori- da,

L.Ed.2d which altered our pre- interpretation vious of limi- statute year tations of one for a for writ 2244(d)(1), corpus, of habeas 28 and Tillman in Patrick drove the car sat extraordinary circumstance judgment, seat, vacating Morgan a final shot and passenger that warranted the front 60(b), a habe- that dismissed Fed.R.Civ.P. Tillman. Howell and Patrick killed Id. untimely. A Florida court petition as as car up to clean after the attempted for Paul to death Howell sentenced girlfriend, Tammie shooting, Morgan’s Fulford of Trooper murder James Bailey, saw the blood and bullet holes interceptеd Highway Patrol who Florida the car. Id. to Howell sent opened bomb that and had taken over By October a murder report he feared would woman drug operation supervisory in the role trafficking part con- drug as committed Patrick, incarcerated, and from who was after Howell’s year More than a spiracy. Bailey became concerned fi- and death sentence became conviction Tillman report the murder of to the nal, a motion for state his counsel filed Bailey complained Id. After authorities. later, years review. collateral Several Howell that needed a microwave to a writ to she petition filed a federal for baby, for corpus. paid The district dis- milk her sick warm petition untimely, Howell’s and buy missed a microwave from a friend Sears. Crosby, 415 we affirmed. Howell v. F.3d pipe Howell then constructed bomb and (11th Cir.2005). the eve of On microwave, gift- it in the which placed execution, for Howell filed a motion relief delivery Bailey. for wrapped 60(b) and from under Rule ar- gift- Lester to deliver paid Watson gued that the in Holland estab- decision in a wrapped package Bailey rental car. that his had been lished February 1, On Lester Watson timely because statute of limitations driving were the rent- and Curtis Williams tolled, have been equitably should Highway they al car on Interstate 10 when 2244(d)(2), on the failure based Trooper, stopрed were a Florida James to file a for state collat- his counsel Fulford, speeding. After Fulford de- after his year eral review within a convic- did not have a driv- termined Watson final. The tion and sentence became dis- license, deputies two local arrived to er’s trict court denied Howell’s motion because change gave per- it concluded that in the inter- arrest him. Watson the officials car, of limitations pretation statute deputies mission to search the and the extraordinary not an circumstance that to the took Watson and Williams Jefferson from a would entitle Howell to relief final County jail. the rental car was Because judgment. We affirm. registerеd dispatcher called inquire him to the car was stolen. I. BACKGROUND dispatcher Howell told the he had Paul Howell was of an extensive a leader permission car, to drive the given Watson sophisticated to sell crack operation dispatcher and the informed Howell that Alabama, Florida, cocaine across Missis- impounded. the car would be Carolina, Georgia, and South sippi, North anyone Howell did about the not warn Mothersill, Carolina. United States bomb car. re- pipe When Fulford (11th Cir.1996). Au- gift-wrapped moved the microwave brother, Patrick, gust it, attempted open trunk and planned, to rob Morgan, with Michael exploded. The bomb Ful- bomb severed drug dealer named Alfonso Tillman. Id. leg nearly right ford’s left severed his Howell rented car for Patrick Mor- gan robbery. leg. injuries. Fulford later died from his use While Florida under the prosecuted Howell was influence extreme mental or (3) disturbance; making, first-degree court for murder and emotional Howell had discharging a de- possessing, placing, military served received bomb. Frank Sheffield discharge; structive device or honorable Howell behaved (5) represented During in his trial. detainee; Howell a pretrial well as Howell Howell, representation of Sheffield re- family a good .man. The Id. trial court that his wife and ported the trial aggravating court determined fac- secretary telephone a call at had received factors, far outweighed mitigating tors that the caller had told her his office and impose but trial court declined a message deliver the “that if Paul Howell separate sentence of construction down, going Mr. Sheffield is down goes the bomb because the two convictions also.” The trial denied Sheffield’s underlying were based on the same con- The prosecution motion to withdraw. duct. Id. Sheffield, moved to the trial disqualify but On direct appeal, Supreme Court of court denied the motion. Florida affirmed Howell’s conviction and guilty A found of jury Florida Howell sentence. See at 683. id. The first-degree making, pos- and of murder Court of the States United then denied a sessing, or destruc- placing, discharging petition Howell’s for writ of certiorari on State, device or tive bomb. v. 26, Florida, June 1998. Howell v. (Fla.1998). 674, And the So.2d 676-77 2381, L.Ed.2d 747 special jury returned a verdict that found (1998). year Howell then had one within charge first-degree that the murder was petition which file federal for writ of theory both of pre- established under corpus, habeas “a properly appli- filed theory felony mur- meditation and the post-conviction cation for State or other der. Id. at 677. The recommended collateral review” would have tolled the by a penalty the death vote of ten to two. period. limitations (d)(2). 2244(d)(1)(A), imposed The penal- trial court the death appointed A Florida court then Danielle ty. following Id. The trial court found the counsel, postconviction Jorden as Howell’s (1) factors: aggravating five Howell know- and she filed a motion for an extension of great ingly created a risk of death to time to file for state collateral review. (2) many persons; Howell committed the granted The state court extension engaged in murder while the unlawful time that allowed Jorden to file making, possessing, placing, discharg- by August for collateral review 1999. (3) bomb; of a ing destructive device or erroneously Jorden believed that mo- Howell committed the murder to avoid or tion for an extension of time would also toll (4) arrest; mur- prevent lawful periоd. the federal limitations engaged dered a law enforcement officer F.3d 1251. duties; in the of his official filed Howell’s motion for state Jorden (5) the murder in a committed August collateral review on The cold, calculated, premeditated manner motion, trial court denied Howell’s and the any pretense legal jus- of moral or without Supreme Court of Florida affirmed. How- tification. Id. The court found the (Fla.2004). State, ell 877 So.2d following statutory nonstatutory five (1) 26, 2004, On a federal mitigating sig- July had no Howell filed factors: activity; corpus. criminal history petition nificant for a writ petition, alleged murder was while Howell was he had committed judgment final justify reopening effective assistance of denied been the trial court refused to Based on Eleventh Circuit of dismissal. counsel because repre- from his 22—4(a)(7), temporary to withdraw allow Sheffield Rule we entered Secretary then filed mo- sentation. consideration of stay pending execution petition as untime- tion dismiss appeal. of this merits petition Howell conceded that ly. filed June II. REVIEW have been before OF

should STANDARD the statute of argued but he the denial of a motion for We review based on Jor- limitations should be tolled 60(b) Rule relief ‍‌‌​‌‌​​​​‌​‌​​‌​​‌‌‌‌​​‌‌​‌​​‌‌‌​​​‌‌‌‌‌​​‌‌​​​‌‍from The district court dis- mistake. den’s Baker, an abuse of discretion. Cano untimely because it missed (11th Cir.2006). 1337,1341 “[petitioner’s collateral concluded that [postconviction] mo- filing counsel’s оf III. DISCUSSION to file leaving without sufficient time a tion a prisoner petition A whose for petition extraordinary is not an federal may denied corpus writ of habeas has been application which warrants of circumstance motion, 60(b), a under Rule to chal file equitable tolling doctrine.” We af- the in lenge integrity defect the “some the petition firmed dismissal of Howell’s as not proceedings,” federal habeas but “to untimely precedents our held that a for ground add new relief.” Gonzalez “attorney is a basis negligence not 524, 2641, 532, Crosby, 125 S.Ct. 545 U.S. equitable tolling.” 415 F.3d at 2648, 162 L.Ed.2d 480 Under Rule 1252. “ 60(b), the must prisoner prove ‘extraordi 18, 2013, January On the Governor of nary justifying reopen circumstances’ the Florida, Scott, signed a warrant for Rick 535, at ing judgment.” of final Id. 125 Tuesday, to occur on execution (quoting at Aekermann v. Unit S.Ct. 2649 26, 2013, February at but p.m., 6:00 States, 193, 199, 209, 71 S.Ct. ed 340 U.S. 20, 2013, February Howell filed an emer- (1950)). 212, 95 207 argues L.Ed. gency judgment for relief in by in change the law effected the 60(b). the district court. Fed.R.Civ.P. in Supreme decision of the Court Holland The district court denied Howell’s motion circumstance, extraordinary an is the 60(b) untimely, under Rule and the not its district court did abuse discretion that, district court ruled if the motion even when denied motion. timely, were Howell was not entitled to 60(b)(6). relief under Rule The district explained The Supreme Court has rejected argument court that the inter- extraordinary that warrant circumstances in the law vening change effected Hol- rarely “will reopening of land, which held that behavior far Gonzalez, context,” in occur the habeas 545 negligence might more than serious entitle 2649, 535, at U.S. 125 S.Ct. at prisoner judgment, from a to relief was change in Supreme Court has held that extraordinary an that would circumstance statute of limita- interpretation reopen judgment. allow the petition is not an tions a federal circumstance, 536-37, at exceptional id. 2013, February On the district court Gonzalez, 125 S.Ct. at 2650-51. appealability. issued certificate That in law change that the effected Court held question certificate limited to the was Bennett, by the decision Artuz v. Supreme Court the decision Holland, L.Ed.2d extraordinary circum- U.S. is 60(b)(6) petitiоn held that a state stance Rule sufficient which Gonzalez, untimely. toll properly petition be filed so as to could U.S. 536,125 when all statute of limitations even at S.Ct. at 2650. procedurally of the claims had been de- argues that Gonzalez does not faulted, extraordinary circum- was not an govern his motion because the Gonzalez, stance. See 545 U.S. at in that appeal “placed heavy Court also agree” at 2650. The Court “d[id] S.Ct. emphasis petitioner’s on the ‘lack dili- “change interpretation that this gence’ seek failing to further review at AEDPA statute limitations” created original the time that petition [ ] Gonzalez, extraordinary circumstance. denied,” but the district did at S.Ct. at abuse its discretion when it read Gonzalez explained hardly Court instead that “[i]t Gonzalez, to hold otherwise. extraordinary [after the dismissal of prisoner explained had “aban- prisoner’s based statute on the any attempt doned seek review of the limitations], this Court at a dif- arrived District Court’s decision on this statute-of- interpretation.” the Court ferent And limitations issue” before the Court decided that, justified reopen- Artuz “[i]f Gonzalez, Artuz. at ing long-ago dismissals based on lower 2651. “This lack of diligence con- unduly parsimonious interpretation court’s firm[ed] that Artuz not an [wa]s extraordi- limitations], of statute of Pace v. [the then nary justifying circumstance relief from DiGuglielmo, 544 U.S. 125 S.Ct. judgment petitioner’s in the case.” Id. justify 161 L.Ed.2d 669 re- delay that explained Gonzalez the opening long-ago grants of habeas relief appeal in prisoner that “confirmed” that generous on a unduly based lower court’s in change the the law was not extraordi- interpretation tolling provi- of the same nary, not that change in the law was 536-37, sion.” Id. at at 2650-51. S.Ct. extraordinary delay. because of the The district did not abuse its circumstance, say cannot we read to discretion when it Gonzalez mean that district court abused its discretion change that the of law in was not Holland denying in motion. Howell’s extraordinary an circumstance. Like the Artuz, decision the decision in Holland IV. CONCLUSION interpretation altered the of statute of The denial оf Howell’s for relief limitations for a for a writ habe from is AFFIRMED. corpus: Supreme per a that se rule that “even BARKETT, Judge, specially Circuit that can grossly negligent conduct never concurring: [equitable] tolling warrant absent bad agree that, precedent, under our faith, dishonesty, loyalty, divided mental cannot be that said district lawyer’s forth impairment or so on the in dismissing abused its discretion Holland, part,” was “too rigid.” 60(b)(6) However, Howell’s Rule motion. (internal omitted). at 2563 quotation marks my concur- reasons articulated in But the Court in Gonzalez ruled Florida, ring opinion in Hutchinson v. change that this kind of decisional law is (11th Cir.2012) (Barkett, J., con- extraordinary circumstance under 60(b). curring), I that continue to believe it is hardly extrаordinary Rule “It is that ..., unjust inequitable require death Supreme] Court arrived at a th[e interpretation” consequences different row inmates to suffer of the statute of Moreover, attorneys’ negligence. limitations after our decision ‍‌‌​‌‌​​​​‌​‌​​‌​​‌‌‌‌​​‌‌​‌​​‌‌‌​​​‌‌‌‌‌​​‌‌​​​‌‍their guilt phases or wholly penalty either the ease where state’s another this is or fund- system appointing there was trial. Mr. Howell contends that inadequate conspires with thicket ing counsel habeas probability reasonable proce- federal habeas state and complex him, him acquitted convicted would have petitioners habeas deny dural rules lesser-ineluded-offense, recom- or their con- to have substantive oрportunity life imprisonment a sentence of mended by federal court. claims heard stitutional presented had Mr. evidence system habeas wherein is a What results Trooper Highway Fulford violated Florida attorneys incompetent reg- unqualified package con- policy opening Patrol navigate procedural ably ularly fail taining bomb-rigged microwave oven. by state and federal established waters Howell, Ful- According Trooper consistently which system, This statutes. unforeseeable, in- ford’s actions were being row inmates denied leads to death tervening cause that broke the chain non-frivolous ha- present ah opportunity nullified in- specific causatiоn and either view, claims, is, my antithetical to beas entirely mitigated culpability. tent corpus enshrined promise habeas claim, prevail on this order the Constitution. perform- show that “must counsel’s Here, appears to have color- Mr. Howell ance was deficient” and “that the deficient attorney, able claims both performance prejudiced defense.” who death threats to be excused fabricated Washington, Strickland v. and his ini- representing 2052, 2064, 80 L.Ed.2d attorney, tial who did not even conduct petition, On we until his federal contact after adju- deferential review of the state court’s passed, had were incom- habeas deadline ineffective, unprofes- prejudice dication of the petent, deeply it Strickland, I continue to believe that sional. prongs of such that relief is and immoral for death unconstitutional only if warranted decision the state court’s row a fundamental consti- inmates lose to, “contrary involved an unreason- right attorney’s because of their tutional of,” clearly able application established errors, egre- especially they when are as law, as determined gious those we deal with here. Court of the United States. See 28 U.S.C. 2254(d). per- And our review of counsel’s JORDAN, Judge, concurring: Circuit garners formance an additional level of join opinion. I concur and Court’s easy deference because “it is all too asserts that he Because Mr. Howell would court, it examining counsel’s after defense person be in Florida to execut- the first be unsuccessful, proved has to conclude that peti- having ed without his federal habeas particular act or omission counsel merits, sepa- tion on the I write reviewed Stnckland, unreasonable.” 466 U.S. at view, my rately. Mr. Howell would not at 104 S.Ct. 2065. See also Evans if even have been entitled relief Sec’y, ofCorr., Dep’t 1333- in his three claims raised received Cir.2013) (Jordan, J., concurring) full review. federal habeas “doubly that AEDPA (explaining under applies perform- deferential” review to the prong, prejudice prong, ance but not the thаt argues his trial coun- Strickland). sel, Sheffield, Esq., rendered inef- Frank has performance, As to fective because he failed to assistance present explain failed Mr. Sheffield’s deci- “intervening cause” defense at how forego “intervening cause” de- sion Strickland. See U.S. at anything (“The amounts to more than a fense defendant show must that strategic choice made after careful rational that, there is a probability reasonable example, at the evi- consideration. For errors, unprofessional for counsel’s the re- dentiary hearing on Mr. Howell’s proceeding sult would have been post-conviction petition, Sheffield tes- different. A probability reаsonable is a that that particular tified he discussed de- probability sufficient to undermine confi- trial, fense Mr. Howell before and outcome.”). dence ultimately that he came to the conclusion sum, Mr. Howell has not established likely it would backfire hurt Mr. deficient or prejudice. This for an acquittal. Howell’s chances See ineffective assistance counsel claim Transcript Evidentiary Hearing on Mr. therefore fails on merits. (“I at 21 Howell’s State Habeas Petition ... I went in made call II to, effect, Trooper tried blame Ful- Mr. Howell contends the penalty for his that it ford own death would not be defense; and, fact, phase of his trial Sixth viable it would hurt violated chances.”). Mr. Howell’s Mr. Sheffield Amendment because was the trial present he also declined to only sentencing court—with recommen- non-statutory mitigator this defense as a jury—which dation from the made the nec- during penalty phase be- essary of fact findings impose the death that it be attempt lieved seen as an penalty. type He believes that Trooper to blame Fulford for his own sentencing procedure, codified at Fla. Stat. jury.” death and “inflame the id. at (1993), § 921.141 is unconstitutional under 24. These pro- decisions were reasonable Apprendi Jersey, v. New judgments fessional the circum- S.Ct. 147 L.Ed.2d 435 case, stances of this and thus cannot rise Arizona, Ring v. to the level constitutionally deficient 2428, Ring L.Ed.2d 556 Strickland, pеrformance. See 466 U.S. at however, Apprendi, applicable are not 690, 104 S.Ct. at 2066 choices (“[Sjtrategic sentencing here. occurred in thorough investigation made after of law 1994, years Apprendi before and Ring. plausible and facts relevant to are options And neither decision has held to be been ”). virtually unchallengeable.... Summerlin, retroactive. See Schriro v. respect prejudice, With Mr. 358,124 2519, 348, 2526, 542 U.S. S.Ct. 159 post-conviction pro- conceded his state (“Ring L.Ed.2d announced a ceeding Trooper Fulford’s actions procedural new rule that not apply does intervening “would not have an been cause retroactively already to cases final on di- State, as matter of v. a law....” review.”); States, McCoy v. United rect (Fla.2004). 697, agree 877 So.2d 1245, (11th Cir.2001) Supreme Florida Court’s assess- circuits, (“Therefore, like these other we theory, ment that such a even if defense hold that the new constitutional rule of asserted, have had a probabili- “low procedure Apprendi criminal announced success, ty of combined with the tremen- on apply retroactively does not collateral potential alienating by dous for review.”). blaming [Trooper for his own Fulford] Nevertheless, Mr. Howell contends that death....” Id. at 703-04. Such remote rely should be on and Apprendi he able probability of success does not- meet the prejudice Ring Blakely Washington, standard v. articulated 1993, began, 2531, ary of the federal trial 159 L.Ed.2d 403 before 296, 124 S.Ct. (2004), Apprendi clarified she and wife claimed that re- expanded Mr. Sheffield’s yet has to decide office, ceived call at in which the Unfortu- Blakely is retroactive. whether down, stated, goes caller Paul Howell “[I]f Blakely argu- nately for Mr. Appel- Mr. is going Sheffield down also.” precedent. our foreclosed ment is now lant’s Brief at 4. contacted Mr. Sheffield States, 400 F.3d v. United Varela See officials, began to law enforcement who Cir.2005) (holding that Blake- 866-68 addition, pe- investigate claim. United, Booker, 543 U.S. States ly and titioned to withdraw from Mr. L.Ed.2d 621 S.Ct. case, his concerns citing review). on collateral are retroactivе family’s safety his difficulties com- Thus, Howell is not entitled relief client. The federal municating ‍‌‌​‌‌​​​​‌​‌​​‌​​‌‌‌‌​​‌‌​‌​​‌‌‌​​​‌‌‌‌‌​​‌‌​​​‌‍with his claim. his Apprendi/Ring granted district court Mr. Sheffield’s re- Pfeiffer, Esq., was quest, ap- and William Ill place. in his Law enforcement pointed that he was denied Mr. Howell asserts concluded, investigation an following later counsel because Mr. assistance of effective matter, threatening no call into the a conflict of interest and was Sheffield had actually had been to Mr. made Sheffield’s attorney. as not removed When office. conflict defendant asserts a of interest 15, 1993, Mr. sent a On March claim, always required to are not con- we letter the state trial court. He claimed analysis twо-step under Strick- duct the that Mr. was ineffective due to a land for ineffective assistance of counsel. Sheffield 776, 783,107 Kemp, Burger failure to communicate a lack trust. 97 L.Ed.2d 638 requested He that the also substitute fed- Instead, presumed, can be prejudice Pfeiffer, counsel, appointed eral be “only if that his a defendant demonstrates pen- counsel for his state death substitute actively represented conflicting later, alty days Three case. filed and that an actual conflict of interests disqualify Mr. Sheffield. The adversely lawyer’s interest affected his phone threatening motion referenced the (internal performance.” quotation by Mr. call and statements Sheffiеld that omitted). petition, marks In his Mr. How- Mr. was being uncooperative. cites separate ell to three occasions where hearing held “to determine he contends conflict interest arose. or not there reasonable [was] First, allegedly Mr. Sheffield had conflict cause to believe that [Mr. was] allegations anonymous upon based rendering [Mr. effective assistance Second, made threat was to his law office. State, Nelson v. 274 So.2d Howell].” disagreed Mr. Sheffield such (Fla.App.1973) (recommending Third, strategy. over the defense’s makes inquiry whenever a defendant consulted, during selection, Sheffield he or to discharge known that she desires represented with an one who counsel). appointed Mr. Howell’s co-defendants. address hearing, At the Mr. Sheffield indicated purported each of these conflicts below. outstanding safety no concerns that he had A willing representing and continue was to Mr. He also informed the trial Howell. Initially, Mr. was to appointed Sheffield pen- with death experience court about in represent Mr. Howell both his federal alty pointed out that Mr. and state criminal In Janu- cases and Pfeif- prosecutions. capital depositions.... tried a case. The taken problems fer had never [A]nd Mr. for his trial court then asked Howell occurring that were at that time in the represen- regarding exist.”). views Mr. Sheffield’s longer federal no case Howell that he did not tation. Mr. said Mr. Howell also at hearing. testified represent him be- want Mr. Sheffield to He indicated that there still were concerns Sheffield had failed to share cause Mr. alleged phone wake threat discovery certain matters with him. The family because Mr. Howell’s members all argument par- trial court heard from upset by they may were insinuations that ties, disqualify and the motion to denied have orchestrated the whole thing. (1) findings Mr. based on its that Sheffield response, Mr. Sheffield said that he did Mr. was not removed from the Sheffield not share these they concerns and that (2) diligence; for lack of there case ability not impact represent would to question was no to basis Howell. Based on this testimony, Mr. case; (3) pre- Mr. Howell’s (1) trial court found that “[Mr. Howell] replacement prior ferred had no death appeared] Mr. Sheffield to be able to com- penalty experience. (2) municate,” “Mr. proba- Sheffield [was] 4,1993, On June the state filed a motion bly good attorney] as [an [Mr. rehearing transcript and attached the going get,” “it cer- was] would hearing from the on Mr. Sheffield’s tainly Howell’s] be to benefit have [Mr. withdraw federal court. Those tran- represent at [Mr. Sheffield] Id. [him].” scripts provided additional information did, however, give 679. The trial court threat, alleged about Mr. Sheffield’s opportunity respond, Mr. Howell an time, safety at сoncerns and Mr. Shef- only said he left deci- Mr. that ethically field’s that he could belief not point, sion to the court. At that trial represent Mr. Howell in the federal case was concluded there “no reason those circumstances. The disqualify represent- Mr. Sheffield a hearing held to discuss this addi- ing Mr. Howell” and denied the state’s tional on At evidence November rehearing. motion for That decision hearing, acknowledged Mr. Sheffield upheld by later the Florida Supreme communicating that he had difficulties at See id. 677-79. Court. discovery matters view, In my the Florida alleged telephone federal case and that the on this issue was Court’s decision request threat led to his But withdraw. appliсation of Supreme unreasonable he stated that there were no such commu- un- precedent necessitating reversal case,1 nication in the and he no issues the applicable der deferential standard. longer his safety. had concerns for only Habeas be warranted relief (Fla. State, So.2d that an actual 1998) “demonstrate[d] at (quoting Sheffield’s statement adversely time, conflict interest existed hearing: “Since that performance.” affected [Mr. Sheffield’s] and I communicated with anoth- have one discovery. er. getting Burger, are We have See 483 U.S. at We hearing perception 1. Mr. at the eral case due to Mr. Howell’s Sheffield improved attornеy-client communication continuously served with capital in the state case resulted from differ- disclosures, requested discovery but could discovery ences the state and federal between gov- discovery obtain certain desired from the procedures. Compare Fed.R.Crim.P. Act, ernment because Jencks view, P. attor- 3.220. Fla. R.Crim. 3500(a). ney-client relationship was strained in the fed- (“We that And, record, possibility hold conflict is this Mr. Howell did on First, Mr. Howell that burden. to a criminal impugn not meet convic- insufficient convincing evi- tion.”). therefore, did not rebut—clear relief, Habeas is not finding factual state court’s dence'—'the on this claim. warranted any apprehension “evident that that it wаs concerning had that Sheffield [Mr.] B occurred allegedly had threat which bomb dissipated.” Mr. September nine months before had Sheffield some Howell, 707 So.2d at 679. Mr. claiming filed a motion that Howell finding by challenge to this attempted incompetent proceed to to trial be- was Mr. by made Shef- pointing to statements that an cause Mr. Sheffield believed insani- time of trial. But at the the federal field only ty defense was Mr. Howell’s viable as clear and statements cannot serve those however, option. Mr. did not want convincing evidence Mr. Sheffield’s state an At pursue insanity to defense. a hear- later, months approximately mind nine trial concluded that Mr. ing, the court provided espeсially when Mr. Sheffield had indicated competently that testimony longer that he no had sworn defense, insanity to pursue did not want Second, those concerns. Mr. cites and that decision on to do so to no evidence the record shows ultimately make. Mr. was his to Sheffield actually impact- anonymous how the threat insanity agreed to abandon the defense. in the Mr. Sheffield’s ed trial, not, On the eve of Mr. Howell wrote example, He capital case. did made questioning that Mr. letter to the trial court Mr. demonstrate Sheffield possible choice between alternative courses provide rep- to ability Sheffield’s effective of action that went his own inter- against to irreconcilable resentation due differ- by motivated ests or that choice was stemming Mr. prior ences Sheffield’s See, e.g., anonymous phone threat. relying on an insanity insistence de- White, 815 F.2d Smith fense. The trial court found that Mr. Cir.1987) (articulating standard estab- already Howell’s concerns had been ad- interest). lishing actual conflict of dressed, agreed Mr. had ad- Sheffield Instead, pre- relies on preference forego here to Mr. Howell’s that, sumption the federal district because defense, and, insanity consequently, court determined that Mr. had a Sheffield no replace there was basis to Mr. Shef- interest, trial court conflict the state The proceeded field. case then to trial. necessarily had reach the same conclu- trial, complained again At Corpus sion. See Habeas Petition [D.E. 2] per- the trial about Mr. Sheffield’s (“This already at 19 had determination He that Mr. formance. believed Sheffield judge. been made Federal court It unprepared ignored sugges- was preposterous conflict assume that, responded tions. only was in that and did not courtroom it was not professional judgment, benefi- well.”). extend to the state court as But evidence, challenge cial certain only argument, anything, establishes wished, evidence possibility there was mere anyway. later come conflict of interest in Mr. Howell’s state informed Mr. Howell thаt Mr. Shef- court case. And that does not suffice to approach not uncommon in field’s make out a Sixth violation. Amendment cases concluded that there Sullivan, 350, criminal Cuyler 1708, 1719, appoint no need to new counsel. 64 L.Ed.2d

1267 for argues disputes example, ignored these that Mr. Sheffield strategy Mr. Sheffield over defense with attempted Mr. Howell’s wishes put interest, a conflict which made it created on an insanity unsuccessful defense at tri- necessary court appoint for the trial al. Or that Mr. object Sheffield failed to most, disagree. counsel. At Mr. new to the prejudicial admission of evidence Howell has shown that was dissatisfied that otherwise would have been excluded. strategiс Mr. with Sheffield’s tactical circumstances, Under these the trial court decisions. But dissatisfaction alone is did not in declining appoint err new conflict of sufficient create interest. counsel. v. Young, See United States 482 1377, Wainmight, Blanco v. 507 See So.2d (5th Cir.1973) (“Unless 993, F.2d 995 (Fla.1987) (holding that “disagree- shown, Sixth Amendment is violation over to call wit- ments certain appoint whether to lawyer different did not nesses” constitute conflict an indigent criminal defendant who ex- interest). Accord v. McCaughtry, Oimen presses dissatisfaction his court-ap- with (7th Cir.1997) (“That is pointed counsel is a matter committed to interest; conflict disagree- is a court.”); the sound discretion of the district strategy.”); over ment United States Thomas v. Wainwright, 767 F.2d (D.C.Cir.1996) Leggett, 81 F.3d (11th Cir.1985) (“A general defendant’s (“[W]e are unpersuaded petition- [the counsel, loss of confidence or in his trust attempt style er’s] further his disagree- alone, standing is not sufficient [to estab- with trial ment counsel over tactics as good lish cause for substitution coun- ”); ‘conflict of interest.’ Stenson v. Lam- ‍‌‌​‌‌​​​​‌​‌​​‌​​‌‌‌‌​​‌‌​‌​​‌‌‌​​​‌‌‌‌‌​​‌‌​​​‌‍sel].”). Relief is not warranted on this bert, (9th Cir.2007) (“We 504 F.3d claim. find clearly can no established Supreme precedent holding disagree- [a strategy] ment over trial amounts to C interest.”); actual conflict of United States During jury selection Mr. Jones, 662 F.3d 1026-27 Cir. trial, state the state for the noted record 2011) (“[The Sixth is not vio- Amendment] that Mr. had with Sheffield consulted Rob- by general lated dis- dissatisfaction or Rand, Esq., ert the attorney for co-defen- agreements strategy....”). over Howell,2 dant Patrick jury challenges. disagreements Because these Mr. with Mr. sought that he had Sheffield did not create conflict inter- Mr. Rand’s assistance est, only Mr. Howell is if entitled to relief appoint lawyer declined to a second he can prejudice establish under Strick- help him with Mr. Howell’s case. The Burger, land. U.S. at recognized possible conflict at (holding that prejudice is interest, asked Mr. for his presumed only proof if is there of an actual views on the issue.3 interest). Mr. Howell stated In my conflict opinion, “no problem” he had Rand’s Howell has not met burden. In his involvement and that it petition, ex- desire that does not how, all, these be plain disagreements Rand allowed to assist Mr. Shef- contention, impacted his trial. There is no field. There no indication that Mr. gotten 2. Mr. Howell and previously Patrick Howell are broth- that the two men had into a ers. physical altercation in the courtroom. At the case, time of selection in Mr. Howell’s 3. The trial court found that Mr. plea agreement. Patrick had entered into a differing his brother had interests and noted they petition,- even beyond jury raised his federal extended Rand’s assistance adjudicated on the merits. were selection. matter, I note an initial As failed to address

Florida Court Supreme it reviewed Mr. Howell’s

this claim when petition. post-conviction See claim, therefore, The

707 So.2d at 677-81. standard subject

“is not deferential AEDPA” and “is re- aрplies under Debtor, FEINGOLD, re In Allen L. Bell, 556 de novo.” Cone v. viewed 449, 472, 1769, 1784, 173 L.Ed.2d Disciplinary Board of the 2254(d) also 28 Pennsylvania, Plaintiff- applies AEDPA (stating that deference Appellee, any adjudi- claim that was respect “with proceed- cated on the merits State Feingold, Allen L. Defendant- ings”). Appellant. Nevertheless, that, my it is view No. 12-13817. facts, any Howell waived claim these to ineffective assistance of counsel based Appeals, United States Court of on Mr. Rand’s involvement selec- Eleventh Circuit. Rodriguez, tion. See States v. United Sept. (11th Cir.1993) (“A defen- may [his dant waive Sixth Amendment by choosing proceed to trial with

right] who has conflict of adverse

interest.”). The record shows that informed Mr. Howell of the conflict, inqui- made

potential appropriate

ries, prevent him gave option consulting with Mr.

Rand, which would eliminated ‍‌‌​‌‌​​​​‌​‌​​‌​​‌‌‌‌​​‌‌​‌​​‌‌‌​​​‌‌‌‌‌​​‌‌​​​‌‍any have interest. response

conflict of

offer, provided a waiver that “clear, unequivocal, unambigu- ” Petz, ous .... States v. 764 F.2d United (11th Cir.1985)

1390, 1392 (quoting United Garcia, 517 F.2d

States

Cir.1975)). result, As a Mr. Howell cannot

obtain relief on claim.

IV sum, not be enti- any

tled to habeas relief on of the claims

Case Details

Case Name: Paul A. Howell v. Secretary, Florida Department of COrrections

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 13, 2013

Citation: 730 F.3d 1257

Docket Number: 13-10766

Court Abbreviation: 11th Cir.