TAI A. PHAM, Appellant, vs. STATE OF FLORIDA, Appellee. TAI A. PHAM, Petitioner, vs. JULIE L. JONES, etc., Respondent.
No. SC14-142; No. SC14-1248
Supreme Court of Florida
[November 5, 2015]
Tai Pham appeals an order of the circuit court denying his motion to vacate his sentence of death filed under
STATEMENT OF THE CASE & FACTS
Tai Pham was convicted in 2008 in Seminole County for the first-degree murder of his estranged wife Phi Pham, the attempted first-degree murder of her boyfriend Christopher Higgins, the armed kidnapping of his stepdaughter Lana Pham, and armed burglary. Pham v. State, 70 So. 3d 485 (Fla. 2011). This Court summarized the facts as follows:
Pham entered Phi‘s apartment where her oldest daughter, his stepdaughter Lana, was alone and awaiting Phi‘s return. After binding Lana, Pham hid in her bedroom for an hour, then stabbed Phi at least six times as she entered the room. Prior to returning to the apartment, Phi and Higgins were together at a party and returned in different vehicles. Phi‘s stabbing occurred while Higgins secured his motorcycle outside. Once Higgins entered the apartment, he struggled with Pham. During the struggle, Lana was able to get free and call the police. Higgins was severely injured during the struggle, but was able to subdue Pham until the police arrived.
Id. at 491. After the penalty phase, the jury recommended the death sentence by a vote of ten to two. Id. After the Spencer1 hearing, the trial court found that the
On February 25, 2013, Pham filed his Motion to Vacate Judgment of Conviction and Sentence of Death raising twenty-one claims.5 Pham withdrew the first claim, and did not request an evidentiary hearing for claims 8, 16, 17, and 19-20. The circuit court summarily denied claims 2, 3, 14, and 18, and held an evidentiary hearing on the remaining claims on October 8, and 28-31, 2013. After
ANALYSIS
First, regarding the circuit court‘s summary denial of some of Pham‘s claims on appeal, we review de novo. See Davis v. State, 142 So. 3d 867, 875 (Fla.) (citation omitted), cert. denied, 135 S. Ct. 15 (2014). The summary denial of a postconviction claim will be upheld if the motion is legally insufficient or its allegations are conclusively refuted by the record. Id.; see also Rutherford v. State, 926 So. 2d 1100, 1108 (Fla. 2006) (citing Hodges v. State, 885 So. 2d 338, 355 (Fla. 2004)). After a review of the pleadings and record, we find that the circuit court properly summarily denied these claims. We now turn to Pham‘s remaining issues on appeal.
Ineffective Assistance of Trial Counsel
The circuit court granted an evidentiary hearing to consider Pham‘s allegations of several instances of ineffective assistance of trial counsel. In accordance with Strickland v. Washington, 466 U.S. 668 (1984), we employ the following standard of review:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.
There is a strong presumption that trial counsel‘s performance was not deficient. See Strickland, 466 U.S. at 690. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” Id. at 689. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “Judicial scrutiny of counsel‘s performance must be highly deferential.” Id. “[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel‘s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So. 2d 1366, 1369 (Fla. 1992).
In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court‘s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court‘s legal conclusions de novo.
Shellito v. State, 121 So. 3d 445, 451 (Fla. 2013) (citing Mungin v. State, 79 So. 3d 726, 737 (Fla. 2011); Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004)).
During the penalty phase, Pham presented the testimony of his older sister, Thuy, as well as other character evidence from his niece, brother-in-law, and former employers. However, it was Thuy‘s testimony about their difficult childhood, imprisonment, escape, and time as refugees, in addition to the Canadian Broadcasting Corporation‘s documentary about “boat people” and the testimony of
Likewise, Pham is unable to demonstrate that counsel was ineffective for failing to obtain the records from his confinement at the Florida State Hospital (FSH). Counsel testified that the reports included incidents of violence against the staff and that the decision not to obtain the records was based on the negative information contained within them. This was a reasonable strategic decision. See Nelson v. State, 43 So. 3d 20, 32 (Fla. 2010) (“[I]t is reasonable for trial counsel to
Last, Pham‘s contention that counsel was ineffective for failing to present additional mental health evaluations is without merit. As we have repeatedly stated, trial counsel is not deficient simply because postconviction counsel can find a more favorable expert. See Hoskins v. State, 75 So. 3d 250, 255 (Fla. 2011) (” “This Court has repeatedly held that counsel‘s entire investigation and presentation will not be rendered deficient simply because a defendant has now found a more favorable expert.” “) (quoting Card v. State, 992 So. 2d 810, 818 (Fla. 2008)). The trial court found and gave moderate weight to the mitigating factor that Pham was experiencing an emotional disturbance at the time of the crime. Accordingly, Pham cannot establish that he was prejudiced by counsel‘s alleged omission and the circuit court properly denied relief on this claim.
Pham has not established “that counsel‘s ineffectiveness deprived [him] of a reliable penalty phase proceeding.” Robinson v. State, 95 So. 3d 171, 178 (Fla. 2012). Therefore, we affirm the lower court‘s denial of these claims.
Next, Pham alleges that he received ineffective assistance of counsel because trial counsel failed to impeach Christopher Higgins during the guilt phase. Because Pham cannot establish both prongs under Strickland, the court properly denied relief.
The postconviction court found that counsel was aware of Higgins’ convictions and “could not offer any strategic explanation for failing to ask the witness whether he had been convicted of any felonies or crimes of dishonesty.” Nevertheless, the circuit court found that Pham could not establish prejudice because the evidence of his guilt was overwhelming:
The victim‘s daughter was an eyewitness to the events and her testimony was corroborated not only by Higgins’ testimony, but also by the first responding law enforcement officers, the 911 tape, and the physical evidence.
We find that the circuit court did not err. See Kormondy v. State, 983 So. 2d 418, 432 (Fla. 2007); Lamarca v. State, 931 So. 2d 838, 851 (Fla. 2006); Mansfield v. State, 911 So. 2d 1160, 1174 (Fla. 2005).
Cumulative Error
Lastly, Pham contends that the cumulative effect of errors identified in this case deprived him of a fundamentally fair trial and undermines confidence in the result of his capital proceedings. The circuit court denied these three claims—all
As we have previously stated, “where the alleged errors urged for consideration in a cumulative error analysis are individually “either procedurally barred or without merit, the claim of cumulative error also necessarily fails.” ” Hurst v. State, 18 So. 3d 975, 1015 (Fla. 2009) (quoting Israel v. State, 985 So. 2d 510, 520 (Fla. 2008)).
HABEAS PETITION
Ineffective Assistance of Appellate Counsel
In Pham‘s Petition for a Writ of Habeas Corpus, he refashions one argument from his direct appeal into a claim of ineffective assistance of appellate counsel and fashions a second argument as an alternative claim from his postconviction appeal. We find both claims without merit.
On direct appeal, Pham alleged that certain members of the venire prejudged him based on his nationality, and now alleges that appellate counsel was ineffective for failing to raise a specific claim regarding the trial court‘s denial of Pham‘s motion to interview jurors. Secondly, Pham asserts that should this Court
Claims of ineffective assistance of appellate counsel are properly raised in a petition for writ of habeas corpus. See Jackson v. State, 127 So. 3d 447, 476 (Fla. 2013) (citing Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)). “In raising such a claim, the defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Id. (internal quotation marks and alterations omitted); see also Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981). Consistent with the Strickland standard, to grant habeas relief based on ineffective assistance of counsel, this Court must determine:
first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So. 2d at 1069; Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000). However, a petition for habeas corpus is not the proper method for raising a claim that could have or should have been raised on appeal or in a postconviction proceeding. Mills v. Dugger, 559 So. 2d 578, 579 (Fla. 1990) (“Habeas corpus is not to be used for additional appeals of issues that could have been, should have been, or were raised on appeal or in other postconviction motions.“). Furthermore, “[i]f a legal issue “would in all probability have been found to be without merit” had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel‘s performance ineffective.” Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000) (quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)). Additionally, appellate counsel is not “necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivolous issue.” Valle v. Moore, 837 So. 2d 905, 908 (Fla. 2002) (emphasis removed).
Pham‘s first subclaim, that appellate counsel was ineffective for failing to raise a specific claim regarding his motion to interview jurors, misapprehends the record. Notably, appellate counsel addressed the juror bias on appeal despite not raising a separate claim regarding the denial of the motion to interview jurors. Such a claim would have been without merit because, as noted by the State, trial counsel was asked whether he wished to continue to interview jurors and declined. Accordingly, appellate counsel cannot be found ineffective for failing to raise a meritless claim.
CONCLUSION
For the foregoing reasons, we affirm the circuit court‘s denial of Pham‘s motion for postconviction relief and deny his petition for a writ of habeas corpus.
It is so ordered.
LABARGA, C.J., and LEWIS, POLSTON, and PERRY, JJ., concur.
PARIENTE, J., concurs in result with an opinion, in which QUINCE, J., concurs.
CANADY, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
PARIENTE, J., concurring in result.
I agree with the ultimate result reached by the majority to affirm the denial of postconviction relief. I write because I respectfully disagree with the majority‘s decision to address the performance component of Pham‘s ineffective assistance of counsel claim, where it is clear that Pham cannot establish prejudice. As we have held over and over again, “[a] court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.” Turner v. State, 143 So. 3d 408, 415 (Fla. 2014) (quoting Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010)).
For example, the majority states that trial counsel‘s failure to obtain records from Florida State Hospital (FSH) “was a reasonable strategic decision“—thus apparently concluding that there was no deficiency—but then concludes that Pham “cannot demonstrate that he was prejudiced by counsel‘s failure to obtain the FSH records.” Majority op. at 9-10. The majority is similarly internally inconsistent as to Pham‘s claim that trial counsel was ineffective for failing to present additional mental health evaluations, stating on the one hand that “trial counsel is not deficient simply because postconviction counsel can find a more favorable expert,” while also stating, on the other hand, that “Pham cannot establish that he was prejudiced by counsel‘s alleged omission.” Id. at 10.
While I agree that Pham has not established prejudice and is therefore not entitled to relief, if the majority is going to address deficiency, it should clearly conclude that trial counsel‘s failure to investigate mitigation did in fact constitute deficient performance. See, e.g., Hardwick v. Sec‘y, Fla. Dep‘t of Corr., 25 Fla. L. Weekly Fed. C1624, C1626, 2015 WL 5474275, at *6 (11th Cir. Sept. 18, 2015) (“[A] decision not to put on mitigating evidence is only reasonable, and thus due deference, to the extent it is based on a professionally reasonable investigation.“). In its order, the postconviction court found that Pham “demonstrated at the evidentiary hearing that trial counsel failed to contact the members of [Pham‘s] family who lived outside the United States, failed to obtain records from the Illinois Department of Children and Family Services, and failed to obtain the complete records from the Florida State Hospital.” The postconviction court further found that “[t]rial counsel did not provide a satisfactory explanation for the failure to obtain much of this evidence.”
Nevertheless, the postconviction court cogently reasoned that Pham was unable to establish prejudice as a result of these failures—regardless of a specific finding of deficiency—because, “[w]hile this information could easily have been discovered, there is no possibility that it would have altered the jury‘s recommendation or [the sentencing court‘s] weighing of the aggravating and mitigating circumstances.” Likewise, the postconviction court carefully detailed the mitigation presented during the penalty phase and noted that the sentencing court “already gave great weight to mitigation from [Pham‘s] background as it related to his escape from Vietnam and his upbringing in Illinois.”
QUINCE, J., concurs.
Two Cases:
An Appeal from the Circuit Court in and for Seminole County, Marlene Michelle Alva, Judge - Case No. 592005CF004717A000X And an Original Proceeding – Habeas Corpus
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region, Raheela Ahmed, Assistant Capital Collateral Regional Counsel, Middle Region, and Maria Christine Perinetti, Assistant Capital Collateral Regional Counsel, Middle Region, Tampa, Florida, for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stacey E. Kircher, Assistant Attorney General, Daytona Beach, Florida, for Appellee/Respondent