CHARLES E. STALLWORTH, Pеtitioner, v. WALTER A. McNEIL, Respondent.
CASE NO. 09-20381-Civ-SEITZ
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
MAGISTRATE JUDGE P.A. WHITE
February 11, 2010
Entered on FLSD Docket 02/11/2010 Page 1 of 19
I. Introduction
Charles E. Stallworth, a state prisoner confined at Okeechobee Correctional Institution at Okeechobee, Florida has filed this pro se petition for writ of habeas corpus pursuant to
This Cause has been referred to the undersigned for consideration and report pursuant to
For its consideration of the petition with supporting memorandum of law and attached documentary exhibits, the Court has the petitioner‘s response to an order regarding the limitations рeriod, the respondent‘s response to an order to show cause with multiple exhibits, and the petitioner‘s reply with attached exhibits.
II. Claims
Stallworth claims that he received ineffective assistance of
III. Procedural History
Stallworth was charged by Indictment with the following offenses: first degree murder of Todrick McDonald (Count I), attempted first degree murder of Jason Hunter (Count II), attempted first degree murder of John Brown (Count III), and use of a firearm during the commission of a felony (Count IV).2 (DE# 13; App. A). The case proceeded to trial before a jury after which Stallworth was found guilty as charged in Counts I, III and IV of the Indictment. (DE# 13; App. B). The jury also found Stallworth guilty of a lesser offense charged in Count II, attempted second degree murder of Jason Hunter. Id. As to Counts I, II and III, the trial court adjudicated Stallworth guilty of the offenses and sentenced him to life imprisonment. (DE# 13; App. C). The finding of guilt as to Count IV was vacated. Id. Stallworth prosecuted a direct appeal from his convictions and sentences, raising claims not relevant to this federal proceeding. (DE# 13; App. F). The Florida Third District Court of Appeal affirmed the convictions and sentences in a per curiam decision without written opinion. See Stallworth v. State, 941 So. 2d 385 (Fla. 3 DCA 2006)(table).
Stallworth also pursued pro se postconviction proceedings in
IV. Threshold Issues - Timeliness, Exhaustion and Procedural Bar
The respondent correctly does not challenge the timeliness of this petition. See
V. Standard of Review
Petitioner filed his petition after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Post-AEDPA law, therefore, governs this action. Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S.Ct. 1654, 1664, 167 L.Ed.2d 585 (2007); Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n .9 (11 Cir. 2007). It is important tо recognize just how limited is this Court‘s review in a habeas proceeding. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L .No. 104-132, 110 Stat. 1214 (1996), provides that a federal court may not grant the writ unless the state court adjudication on the merits either:
(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 upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
As the United States Supreme Court explained in Williams v. Taylor, 529 U.S. 362, 412-13 (2000):
Under the “contrary to” clause, a federal hаbeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this 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 this Court‘s decisions but unreasonably applies that principle to the facts of the prisoner‘s case.
In deciding whether a state court ruling involved an “unreasonable application” of federal law, this Court dоes not focus merely upon whether the state court decision was erroneous or incorrect; rather, this Court may issue a writ of habeas corpus only if the state court‘s application of clearly-established federal law was objectively unreasonable. See id. at 409-11. See also Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1418 (2009).
The statutory phrase “clearly established Federal law” “refers to the holdings, as opposed to the dicta, of [the U.S. Supreme] Court‘s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523 (majority opinion by O‘Connor, J.). Findings of fact by the state court are presumed correct, and the petitioner bears the burden of rebutting that presumption of correctness by clear and convincing evidence. See
VI. Discussion
Petitioner claims that he received ineffective assistance of trial counsel for two specified reasons. To prevail on a claim of ineffective assistance, a petitioner must demonstrate both that his attorney‘s efforts fell below constitutional standards, and that he
Stallworth alleges in ground one that his lawyer rendered ineffective assistance when he failed to strike Martha Schrier as a juror since she had admitted during the voir dire proceedings that she could not be fair and impartial. As properly determined by the state courts, this claim is meritless in that it is belied by the record.
Review of the trial transcript reveals that Schrier, prospective juror number 35, was not selected as a juror.5 See Trial Transcript at 216-25.6 When deciding on the three alternates, the subject prospective juror was stricken by the state by way of
During the state postconviction proceеding, the trial court noted that Stallworth‘s claim was apparently based upon statements made by the successor trial court judge at the start of the trial. See Trial Transcript at 247-48. The successor trial court judge had not presided over the jury selection process. Id. When she met the jury for the first time, she introduced herself and then decided to familiarize herself with the jurors by stating their names aloud. Id. The trial transcript indicates that the court, apparently reading from a list of names, called the name “Ms. Schraier” [sic] along with the name “Ms. Jones” and someone identified by the court reporter as “Ms. Schraier” [sic] responded in the affirmative. Id. at 248. After reviewing the record, the postconviction court denied relief on this claim, stating in pertinent part in its written order as follows:
With respect to [Stallworth‘s] first claim, I find it to be conclusively refuted by the record. I find that the exchange cited by [Stallworth] on pages 247-48 of the trial transcript
to be undoubtedly a scrivener‘s error. In any case, [Stallworth] made no objection to the jury that was selected in this case. See, Attachment A, page 227.8
(Order Denying Defendant‘s Motion for Post-Conviction Relief at 2)(DE# 13; App. Q). The court further noted that if there was any ambiguity as to whether Schrier sat on the jury, the above-mentioned polling of the jury after the verdict was renderеd, where her name was not one of the names called, resolved the issue against Stallworth. Id. The trial court‘s ruling was affirmed on appeal. See Stallworth v. State, 995 So. 2d 508.
Thus, the record when viewed in its entirety clearly demonstrates that Ms. Schrier did not serve on the jury, and did not participate in the deliberations or render a verdict of guilty. While the trial transcript indicates that someone responded when the name “Schraier” was stated aloud by the court, it is apparent that this was a misidentification and the transcript contained a typographical error, as found by the state courts in the postconviction proceedings. The trial court‘s factual finding that the transcript contained a scrivener‘s error is presumed correct unless rebutted by clear and convincing evidence.
Moreover, Stallworth was present for jury selection and had consulted with trial counsel during the proceeding regarding the selection of the jurors. See Trial Transcript at 216, 227. As pointed out by the trial court during the postconviction proceeding, at the conclusion of jury selection, Stallworth expressly indicated on the record during questioning by the trial court that he was satisfied with the jurors selected and the representation received from counsel regarding the jurors chosen to serve on the jury. Id. at 227. Thus, Stallworth, at the very least, acquiesced in the jury selected by trial counsel. Finally, since there is ample competent evidence supporting Stallworth‘s convictions in this case, Stallworth suffered no prejudice as a result of counsel‘s performance regarding the jury selection process. See Baldwin v. Johnson, 152 F.3d 1304, 1315 (11 Cir. 1998)(holding that defense counsel‘s failure to challenge prosecutor‘s use of peremptory strikes did not constitute ineffective assistance of counsel since such decision was reasonable under law which existed at the time, and defendant failed to show prejudice in that there was overwhelming evidence of guilt), cert. denied, 526 U.S. 1047 (1999). Stallworth is not entitled to habeas corpus relief on this claim.
Stallworth alleges in ground two that his lawyer rendered ineffective assistance when he failed to call as a defense witness at trial Pierre Roach. Stallworth states that the prospective witness would have testified that Stallworth was not the person with co-defendant Willie Hill on the night of the incident. As he did in the state postconviction proceeding, in support of his claim, Stallworth refers this Court to a letter written to him by
Please be advised that Thursday, May 20, 2004, I took the deposition of Willie Hill. A transcript of that deposition has been ordered and will be provided to you upon receipt.
In essence, Mr. Hill states that he observed a fight between two individuals in the Frontier Lounge. You were one of the individuals. Subsequently, he testified that you, at gun point forced him to drive you in his vehicle in pursuit of another vehicle. He thereafter testified that you exited the vehicle with a shot gun and returned a short time later. During the interval time period, he heard several rapid fire shot gun blasts.
Mr. Hill also states that at the time you forced him to drive you in pursuit of the unknown vehicle, an individual by the name of Pierre Roach was present. Mr. Roach was deposed on March 11, 2004, with regard to what he saw relative to that scenario. Enclosed please find a copy of Mr. Roach‘s deposition.
The key part of Mr. Roach‘s deposition is that he admitted to seeing a scenario similar to what Mr. Hill described in his deposition. However, he does not identify you as one of the individuals that Mr. Hill was talking to at the time, See attachments to Mr. Roche‘s [sic] deposition [i.e., phоtographs presented by the state of two individuals]. Mr. Roach therefore may become an essential defense witness for you if in fact he testifies on your behalf and, if in fact he states in front of the jury that you are not one of the individuals that was involved with Mr. Hill outside the Frontier Lounge shortly before the shooting.
Moreover, Mr. Hill clearly states that from the time he observed you outside the Frontier Lounge up to an including the shooting, you are not wearing any shirt or clothing above the waste [sic] and your tattoos were clearly visible.
(Letter from Michael H. Bloom to Stallworth dated May 24, 2004, at 1).
In its written order, the trial court first made the following findings of fact:
[Stallworth‘s] second claim of ineffective assistance of counsel relates to his attorney‘s alleged failure to call listed defense witness Pierre Roach to the stand and have him testify. Although [Stallworth] is not specifically colloquied as to this matter, his trial counsel does state during the trial that he did not intend to call Mr. Roach to the witness stand, and would probably not call him unless [Stallworth] insisted that he do so. See, Attachment A, page 870, lines 13-17.9
At the evidentiary hearing conducted by the Court on November
Mr. Bloom further testified that he did not recall Mr. Stallworth ever requesting that Mr. Roach be called as a defense witness, and that in any case, he made a strategic decision not to call Mr. Roach, because Mr. Roach put a gun in “Pete‘s” hand, and he had no idea whether or not Mr. Roach would identify his client as being “Pete” during the trial. In addition, Mr. Bloom testified that his defense in the instant case was mistaken identity,11 and any witness who potentially put a gun in the defendant‘s hand would have been terribly damaging tо his defense.
Id. at 2.
After making these factual findings, the trial court went on to find the claim meritless for the following reasons:
With respect to [Stallworth‘s] second claim, I specifically credit Mr. Bloom‘s testimony that he made a strategic decision
Id. at 3. Again, the trial court‘s ruling was affirmed by the state appellate court. See Stallworth v. State, 995 So. 2d 508.
Thus, after hearing former trial counsel‘s testimony provided at the evidentiary hearing, the trial court expressly found that the trial lawyer‘s testimony was credible. Determinations of credibility are best made by the trial court judge, who can assess the demeanor and candor of the witnesses. Gore v. Secretary for Dept. of Corrections, 492 F.3d 1273, 1300 (11 Cir. 2007)(noting that while reviewing court also gives a certain amount of deference to crеdibility determinations, that deference is heightened on habeas review), citing, Rice v. Collins, 546 U.S. 333, 341-42 (2006)(stating that “[r]easonable minds reviewing the record might disagree about the [witness‘] credibility, but on habeas review that does not suffice to supersede the trial court‘s credibility determination“). See also Baldwin v. Johnson 152 F.3d 1304, 1317 (11 Cir. 1998), citing, Marshall v. Lonberger, 459 U.S. 422, 434 (1983)(”
Thorоugh review of the record in this case yields no suggestion that the trial court‘s findings of fact made during the state postconviction proceeding where the subject second claim was raised was not supported by the record or were otherwise deficient. Because Stallworth has not rebutted the trial court‘s findings of fact by clear and convincing evidence, the findings are presumed correct. See
It is well-settled that which witnesses to call, if any, is a strategy decision that should seldom be second guessed. See Conklin v. Schofield, 366 F. 3d 1193, 1204 (11 Cir. 2004), cert. denied, 544 U. S. 952 (2005). See also Dorsey v. Chapman, 262 F.3d 1181, 1186 (11 Cir. 2001)(holding that petitioner did not establish ineffective assistance based on defense counsel‘s failure to call expert witness for the defense in that counsel‘s decision to not call the expert witness was not so patently unreasonable a strategic decision that no competent attorney would have chosen the strategy); United States v. Guerra, 628 F.2d 410, 413 (5 Cir. 1980)(“Complaints concerning uncalled witnesses impose a heavy showing since the presentation of testimonial evidence is a matter of trial strategy and often allegations of what a witness would have testified to arе largely speculative“). Accordingly, complaints of uncalled witnesses are not favored. Buckelew v. United States, 575 F.2d 515, 521 (5 Cir. 1978). See also White v. Singletary, 972 F.2d 1218, 1220 (11 Cir. 1992)(“Courts should at
Here, the record reveals that codefendant Hill, before entering his plea of guilty,13 had listed Pierre Roach as a defense witness and the state had deposed Roach. See Trial Transcript at 244-45. See also Transcript of hearing conducted on November 20, 2007, at 7-9)(DE# 13; App. X). Trial counsel decided before the start of trial, and before hearing Hill‘s trial testimony, to include him as one of the two witnesses to testify on behalf of Stallworth. See Trial Transcript at 244-45. After hearing Hill‘s direct trial testimony and before cross-examination had concluded, trial counsel and his investigator spoke to Roach. Id. at 870. The following morning, trial counsel elected as a strategic decision not to call Roach as a defense witness. Id. See also Transcript of hearing conducted on November 20, 2007, at 8-13. During the postconviction hearing, former trial counsel testified in detail how he came to the conclusion that Roach would not have been a beneficial defense witness and why he believed that Roach‘s testimony could have, instead, aided the state‘s case by corroborating the testimony of codefendant Hill and other evidence presented by the state. Id. at 10-3. Trial counsel Bloom also stated that Roach‘s credibility was subject to attack by the state, because Roach was at least a five-time convicted felon and he had spent at least twelve of the prior fourteen years in prison. Id. at 10.
Based upon the above-reviewed record, Stallworth has failed to
Even if counsel‘s performance was in any way deficient, Stallworth cannot satisfy the second prong of Strickland, prejudice. In other words, Stallworth cannot show with a reasonable likelihood that the оutcome of the trial would have been different if Roach had testified. There was overwhelming evidence of guilt admitted at trial, which included codefendant Hill‘s testimony as well as testimony from two eyewitnesses that Stallworth was the shooter. See e.g., Trial Transcript at 483-93, 566-86, 691-713. It is additionally pointed out that during his cross-examination of Hill, trial counsel referred to Roach in an attempt to impeach Hill‘s testimony and discredit his motivation for testifying on behalf of the state. Id. at 844-46. Trial counsel elicited testimony from Hill that Hill had listed Roach as a defense witness for his trial and that Roach allegedly supported Hill‘s defense of kidnapping or coercion. Id. Such impeachment possibly would not have been available if Roach had been called as a defense witness.
Since Petitioner cannot demonstrate that any potential testimony from Mr. Roach would probably have affected the outcome
In conclusion, the record reflects that the petitioner received vigorous and able representation more than adequate under the Sixth Amendment standard. See Strickland v. Washington, 466 U.S. 668 (1984). Defense counsel made a reasonable investigation of the facts, was well-prepared for trial, conducted full and extensive cross-examination of the state‘s witnesses, made appropriate objections, called an expert defense witness, moved for judgment of acquittal, and presented a compelling closing argument. Trial counsel forcefully attempted to persuade the jury that Stallworth had been misidentified as the shooter. In support of the defensе presented, he argued that Hill was not credible based upon
It is clear that defense counsel presented the best possible defense under the circumstances of this case, and the fact that the defense presented at trial was not successful does not mean that counsel‘s performance was constitutionally ineffective. As was the prerogative of the jury, it rejected the misidentification defense presented, and instead believed the strong evidence admitted by the state and the testimony of the state witnesses indicating that Stallworth had been the shooter. Stallworth did not receive constitutionally ineffective assistanсe of trial counsel, as alleged in ground two.
Accordingly, the trial court‘s determination that Stallworth was not entitled to postconviction relief on his two claims of ineffective assistance of trial counsel, which decision was affirmed on appeal, see Stallworth v. State, 995 So. 2d 508 (Fla. 3 DCA 2008), was not in conflict with clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Relief must therefore be denied pursuant to
VII. Conclusion
Based upon the foregoing, it is recommended that this petition for habeas corpus relief be denied.
Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report.
Signed this 11th day of February, 2010.
UNITED STATES MAGISTRATE JUDGE
cc: Charles E. Stallworth, Pro Se
M49801
Okeechobee Correctional Institution
3420 N.E. 168th Street
Okeechobee, FL 34972-4824
Ansley B. Peacock, AAG
Department of Legal Affairs
444 Brickell Avenue
Suite 650
Miami, FL 33131
Notes
THE COURT: ...That is your jury with alternates. Mr. Stallworth, time for me to talk to you. Are you satisfied that you have consulted with your attorney about the jury selection?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with the work that your attorney has done with respect to the jury selection so far?
THE DEFENDANT: Yes.
(Trial Transcript at 227).
...The State has the medical examiner and then I think the State is going to rest. I do not intend to call Pierre Roche [sic] although he is in the building from what I understand. Mr. Fuentes my investigator and I met with him last night. I‘m going to share that with Mr. Stallworth but probably not going to call him unless Mr. Stallworth insists.
Id. at 870.
...Mr. Stallworth‘s defense was identity, that he was not at all connected with the shooting that took place. [Co-defendant] Mr. Hill‘s defense was that he drove Mr. Stallworth to the scene of the murder but was forced at gunpoint to do so, duress, coercion, necessity, something аlong those lines.
(Transcript of hearing conducted on November 20, 2007, at 8)(DE# 13; App. X).