DAVID WARNER, Petitioner, v. STATE OF FLORIDA, Respondent.
Case No. 4:13cv552-RH/CAS
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION
October 12, 2016
REPORT AND RECOMMENDATION TO DENY § 2254 PETITION
The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to
Background and Procedural History
Petitioner was charged by information filed December 28, 2007, in the Circuit Court of the Second Judicial Circuit, Leon County, Florida, with two counts in connection with events that took place on December 10, 2007: (1) burglary of a dwelling, in violation of
Petitioner Warner‘s direct appeal of his convictions and sentences to the First District Court of Appeal in case number 1D08-2134 was affirmed per curiam without a written opinion. Ex. K; Warner v. State, 23 So. 3d 716 (Fla. 1st DCA 2009). The district court‘s mandate was issued December 30, 2009. Ex. L. Warner‘s pro se petition for discretionary review to the Florida Supreme Court was denied for lack of jurisdiction on February 3, 2010. Ex. N, O; Warner v. State, 29 So. 3d 292 (Fla. 2010).
On May 6, 2010, Petitioner, pro se, filed his initial Motion for Post-Conviction Relief in the state trial court pursuant to Florida Rule of Criminal Procedure 3.850 raising five grounds. Ex. Q at 73-94. Petitioner‘s motion for leave to amend was granted, Ex. Q at 97, and the amended motion was filed.2 Ex. Q at 98-141. An evidentiary hearing was held on October 21,
On appeal of the order denying Petitioner‘s initial motion for post-conviction relief, Petitioner‘s appellate counsel filed an “Anders” brief, which was stricken as unauthorized, and Warner was given leave to file a pro se brief. Ex. T. Petitioner‘s pro se brief raised one point of error: “The trial court erred in denying appellant‘s motion challenging that omitted jury instruction that combined elements of one and three. This would have caused the jury to believe that Mr. Warner did not have permission from [the victim].” Ex. U at 2. The State filed an answer brief contending that trial counsel was not ineffective for failing to object during the charge conference to combining elements 1 and 3 on the count of burglary because the jury was apprised of Petitioner‘s defense that he was inside the victim‘s home with permission. Ex. V. Petitioner filed a reply brief.
While that appeal was still pending, Warner filed a second motion for post-conviction relief in the state trial court pursuant to Florida Rule of Criminal Procedure 3.850 on May 22, 2012, raising one ground. Ex. BB. The trial court denied the second motion as untimely and successive on May 29, 2012. Ex. CC. Rehearing was denied by order entered on June 11, 2012, and Warner did not appeal that order.
As noted above, Warner filed a petition and amended petition for writ of habeas corpus in this Court pursuant to
- It was fundamental error to instruct the jury on proof of possession of recently stolen property, and ineffective assistance of counsel for failure to object to the improper jury instructions, in violation of the U.S. Constitution. ECF No. 7 at 5.
- The trial court erred in denying Petitioner‘s motion for judgment of acquittal, thereby denying Petitioner‘s due process under the Fourteenth Amendment of the U.S. Constitution and creating a manifest injustice. ECF No. 7 at 6.
Counsel was ineffective in failing to object to jury instructions concerning the lesser included offense of trespass, where the jury instructions given were from 2008 and the arrest occurred in 2007, in violation of the Fourteenth Amendment to the U.S. Constitution. ECF No. 7 at 8. - Counsel was ineffective for failing to object to incomplete jury instructions violating Petitioner‘s due process rights in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution. ECF No. 7 at 10.
- Even if counsel‘s ineffectiveness in one instance is not in itself sufficiently prejudicial to require reversal, the cumulative instances of ineffective assistance of counsel clearly create the reasonable probability of a different outcome during trial. ECF No. 7 at 15.
- Counsel failed to object and move for mistrial during the prosecutor‘s cross-examination of the defense‘s key witness, where the prosecutor elicited testimony of an uncharged crime, in violation of Petitioner‘s rights under the Sixth and Fourteenth Amendments to the U.S. Constitution. ECF No. 7 at 16.
- Trial counsel was ineffective by failing to object and move for mistrial where the prosecutor misstated the testimony of the defense‘s sole witness and erroneously affected the trial, in violation of Petitioner‘s Sixth and Fourteenth Amendment due process rights. ECF No. 7 at 17.
- Trial counsel failed the constitutional duty to ensure that adversarial testing worked to aid Petitioner by eliciting patently prejudicial testimony from Petitioner‘s primary witness, his co-defendant, thereby lessening the State‘s burden to convict, resulting in an unreliable trial in violation of Petitioner‘s Sixth, Fifth, and Fourteenth Amendment rights of due process, and creating a manifest injustice. ECF No. 7 at 18.
Pursuant to
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.
“It is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” and “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (“[W]e have long recognized that ‘a “mere error of state law” is not a denial of due process.’ ” (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982))). Where federal claims are properly raised in a habeas proceeding, “[b]efore a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.” O‘Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);
For claims of ineffective assistance of counsel, 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 deficient performance, 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, “[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.” Knowles, 556 U.S. at 123. It is
Ground 1
Petitioner contends in his first claim in this Court that it was fundamental error and an abuse of discretion for the trial court to instruct the jury on proof of possession of recently stolen property; and that it was ineffective assistance of counsel for failure to object to the improper jury instruction, in violation of the U.S Constitution. ECF No. 7 at 5.
This two-part claim was not raised in the post-conviction proceeding, nor was it raised in the appeal from denial of post-conviction relief. In that appeal, Petitioner raised only this issue: “The trial court erred in denying appellant‘s motion challenging that omitted [burglary] jury instruction that combined elements of one and three. This would have caused the jury to believe that Mr. Warner did not have permission from [the victim].” Ex. U at 2.
Petitioner did raise a claim of fundamental error unsuccessfully in his state court appeal from his convictions and sentence. There, he contended that the jury was instructed that possession of recently stolen property gives rise to a presumption of knowledge of the stolen nature of the
The portion of Ground 1 in which Petitioner claims ineffective assistance of counsel for failure to object to a jury instruction addressing possession of recently stolen property is also procedurally defaulted. Regardless of any default, this ground should be denied on the merits. The only jury instruction by the trial court concerning recently stolen property was given in relation to the charge of burglary, as follows:
Proof of unexplained possession by an accused of property recently stolen by means of a burglary may justify a conviction of burglary with the intent to steal that property if the circumstances of the burglary and of the possession of stolen property when considered in light of all the evidence in the case
convinces you beyond a reasonable doubt that the defendant committed the burglary.
Ex. E at 112 (emphasis added); Fla. Std. Jury Instr. 13.2 (Crim.) (2007). This instruction creates, at most, a permissive inference of intent to steal, and only when the evidence proves beyond a reasonable doubt that the defendant committed the burglary.
In the jury trial, Warner did not testify but presented testimony through his codefendant that Warner was hired by the codefendant to help him move some items and furniture from the apartment for an individual who used to live there. Ex. E at 76-81, 86. That individual testified at trial, however, that in December 2007 he had not given the codefendant permission to enter the apartment and did not ask him to move any possessions out of the apartment, although he had asked him to do so in October of 2007. Ex. E at 92-93. Further, the evidence showed that Warner and his codefendant were in the apartment preparing to remove items, and had removed items and placed them in a truck parked nearby, before dawn on the day in question. Ex. E. at 29, 32-33. The door to the apartment was “kicked in” and no key was found. Ex. E at 29, 35. The current occupant of the apartment testified that she did not give Warner or his codefendant permission to be in her apartment. Ex. E at 53. Thus, the
Ground 2
In his second ground, Petitioner Warner asserts that the trial court erred in denying his motion for judgment of acquittal, thereby denying him due process under the Fourteenth Amendment of the U.S. Constitution and creating a manifest injustice. ECF No. 7 at 6. He did raise this same issue in his appeal from his convictions and sentences, in which he contended that the State failed to present proof of intent necessary to convict him of either burglary or grand theft. Ex. I at 13 (Initial Brief of Appellant, Case Number 1D08-2134). This argument was based on the special circumstantial evidence rule in Florida law that for the evidence to be be sufficient in a wholly circumstantial evidence case, it must establish each element of the offense and be inconsistent with any reasonable hypothesis of innocence. See, e.g., Twilegar v. State, 42 So. 3d 177, (Fla. 2010). In
No federal basis for relief was presented to the state trial or appellate court for this claim, and this claim was not raised in his post-conviction proceeding or in the appeal from the state trial court‘s denial of post-conviction relief. The claim is thus unexhausted and procedurally defaulted. Even if the claim had been properly raised in his post-conviction proceeding, federal habeas relief would be unavailable.
The Eleventh Circuit in Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001), has explained that in evaluating the sufficiency of the evidence to sustain a conviction on federal habeas review, the Court asks whether after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the petitioner guilty beyond a reasonable doubt. Id. at 1172. “[T]he State is not required to rule out every hypothesis except that of guilt of the defendant.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 326 (1979)). Where there are conflicting inferences, it is presumed under a deferential view of the jury‘s credibility
Evidence was presented that the victim left her apartment locked and did not return until approximately 5:30 a.m. on the day of the offense. Ex. E at 49. The door was open and appeared to have been kicked in. Ex. E at 29, 50. When a deputy arrived, he found Warner coming out of the victim‘s apartment and the codefendant hiding inside. Ex. E at 22-25. Neither Warner nor his codefendant had a key to the apartment in his possession. Ex. E at 35. The victim testified she did not give either man permission to enter her apartment. Ex. at 53. Items belonging to the victim had been loaded into the back of a truck that sat at the bottom of the stairs to the apartment, including a flat screen television, cable boxes, a digital recorder, baby diapers, a purse, two cell phones, and a power drill. Ex. E at 33, 52. In light of this evidence, and the other evidence presented in the State‘s case-in-chief, denial of the motion for judgment of acquittal was proper and does not constitute an unreasonable application of clearly established United States Supreme Court precedent. Nor was denial of the motion for judgment of acquittal an unreasonable determination of the facts
Ground 3
Petitioner‘s third claim asserts ineffective assistance of trial counsel based on his failure to object to the jury instruction that was given as to the lesser included offense of trespass. Petitioner contends that the 2008 jury instruction for trespass was given improperly because the offense occurred in 2007, although the 2008 jury instruction did not differ from the 2007 jury instruction. See Comment, Fla. Std. Jury Instr. (Crim.) 13.3 Trespass—In Structure or Conveyance (noting that the instruction was adopted in 1981, and was amended in 1985 and 2012). Further, this specific claim, contending a different version of the instruction should have been given, was not raised in the post-conviction proceeding in the trial court and was not the subject of an appeal to the state appellate court, and is unexhausted and procedurally defaulted.
Petitioner did claim in his amended post-conviction motion in the state trial court that counsel was ineffective for failing to object to the trespass instruction on the grounds that it omitted a portion of the instruction requiring the State to prove that the defendant‘s entry in the
The instruction given at trial also omitted that portion of the trespass instruction that stated: “Authority to enter or remain in a [structure] . . . need not be given in express words. It may be implied from the circumstances. It is lawful to enter or remain in a [structure] . . . of another if, under all the circumstances, a reasonable person would believe that [he] . . . had the permission of the owner or occupant.” Fla. Std. Jury Inst. (Crim.) 13.3. Petitioner contended that the jury should have been instructed with the additional language requiring the state to prove that defendant did not have the permission, express or implied, of any other person authorized to give that permission. Ex. Q at 104.
The standard jury instruction for trespass in 2007 and 2008 did include the additional element requiring proof that the defendant was without the invitation, authorization, or permission of any other person
At the conclusion of the evidentiary hearing, the trial judge ruled as to this issue that ineffective assistance of trial counsel had not been demonstrated. Ex. Q at 218. The post-conviction court concluded that although the additional language in the standard jury instruction was not given, the instruction clearly required it be proven beyond a reasonable doubt that the defendant entered without the victim‘s permission. Ex. Q at 217. The court noted that the testimony was in conflict regarding whether the codefendant, and thus Petitioner, had permission or authorization to enter the apartment in December—the former occupant having testified he
To the extent that the claim raised in this Court was presented in the post-conviction proceeding to the state trial court, it remains unexhausted and procedurally defaulted because Petitioner did not appeal that ruling to the state appellate court. Petitioner‘s counsel stated at the evidentiary hearing that this ground, along with grounds 3, 4, and 5 of the post-conviction motion, standing alone, is not “sufficient to warrant a new trial or any kind of relief.” Ex. Q at 204.
Regardless of any default, the claim should be denied on the merits. Even if deficiency has been demonstrated by counsel‘s failure to object to the incomplete trespass instruction, prejudice has not been shown, as is required by Strickland. This prong of the test for ineffective assistance of counsel requires a showing that counsel‘s errors were so serious as to deprive the defendant of a trial whose result is reliable. Strickland, 466 U.S. at 687. The defendant must show that but for counsel‘s error, there is
The jury heard testimony by Petitioner‘s codefendant that he “hired” Petitioner to help move items for an individual who had occupied the apartment before he was arrested, and who had requested the codefendant to move his items from the apartment. That individual testified that he asked the codefendant to move the items in October, not in December. The victim testified she gave neither Petitioner nor his codefendant permission to enter the apartment. The issue of permission to enter was presented to the jury and resolved against Petitioner; and the jury found that a burglary had been proven, requiring the additional element of intent to commit theft. There is no reasonable probability, sufficient to undermine confidence in the outcome, that the jury would not have convicted Petitioner of burglary and theft if the complete trespass instruction had been given. For all these reasons, this ground should be denied.
In this ground, Petitioner contends that trial counsel was ineffective for failing to object to “incomplete jury instructions,” without specifying in the amended petition to which instructions this ground refers. ECF No. 7 at 10. To the extent that this claim refers to the burglary instruction that was the subject of Petitioner’s second ground in his
As to the charge of burglary by unlawful entry, the jury was instructed in pertinent part as follows:
To prove the crime of burglary of a dwelling, the State must prove the following elements beyond a reasonable doubt: One, David Warner entered a dwelling owned by or in the possession of [the victim] without permission. Two, at the time of entering the dwelling David Warner had the intent to commit the offense of theft or some other offense.
Ex. E at 111. The standard jury instruction for burglary, as revised in July of 2007, provided in pertinent part as follows:
To prove the crime of Burglary, the State must prove the following [two][three] elements beyond a reasonable doubt:
- (Defendant) entered a [structure] [conveyance] owned by or in the possession of (person alleged).
- At the time of entering the [structure] [conveyance], (defendant) had the intent to commit [an offense] [(the crime alleged)] in that [structure] [conveyance].
The offense intended cannot be trespass or burglary.
Give element 3 only if defendant meets his or her burden of production that he or she had an invitation or license to enter, or that the premises were open to the public. . . .
- [(Defendant)] was not [licensed] [invited] to enter the [structure] [conveyance].] [The premises were not open to the public at the time of the entering.]
See In re Standard Jury Instructions in Criminal Cases – Report No. 2006-2, 962 So. 2d 310, 321 (Fla. 2007) (amending Fla. Std. Jury Instr. (Crim.) 13.1 Burglary).
In the post-conviction proceeding, and in the appeal that followed denial of relief, Petitioner’s claim was that the state trial court improperly combined element three with element one of the offense of burglary, and failed to give the separate instruction concerning whether Petitioner was invited to enter the property. See, e.g., Ex. Q. at 203. The state court denied relief on this claim, finding no deficient performance of counsel and no prejudice. Ex. Q at 218.
The state court ruled at the conclusion of the evidentiary hearing that although it appears the instruction given combined elements 1 and 3 of the
Petitioner’s Ground 4 in his
Regardless of any default, Petitioner’s Ground 4 should also be denied on the merits. The language that Petitioner contends should have been included in the jury instruction on burglary was deleted by the Florida Supreme Court in the revisions made in an opinion issued in 2007 before the date of the offense in this case and before the date of the trial. See In re Standard Jury Instruction, etc., 962 So. 2d at 321. Because the standard jury instruction did not incorporate the language about which Petitioner now complains was omitted, his trial counsel was not deficient in
Ground 5
In this ground, Petitioner argues that the cumulative instances of ineffective assistance of counsel, even if each instance standing alone is insufficient to require reversal, require reversal when viewed in the aggregate. ECF No. 7 at 15. This claim should be denied. Although the Supreme Court has not directly addressed the cumulative error doctrine in the context of an ineffective assistance of counsel claim, it has held that “there is generally no basis for finding a
Ground 6
In his sixth claim, Warner argues that trial counsel was ineffective for failing to object and move for a mistrial during the prosecutor’s cross-examination of the defense’s key witness. ECF No. 7 at 16. Warner argues that the prosecutor elicited testimony of an uncharged crime, which also implicated Petitioner, in violation of the
In Petitioner’s amended
The cross-examination at issue transpired as follows:
Q Let’s go ahead and go back to December 10th. Were you using any drugs or alcohol that evening?
A I was.
Q Can you tell us what type?
A I was using crack cocaine and alcohol and possibly a little bit of marijuana.
Q And you decided to pick up a random person to help you move?
A Yeah. Crack heads do that.
Q And you decided to pay him?
A Yes, ma’am. Not all crack heads are broke.
Q And can you explain to me the exact arrangement that you had for payment?
A No. I was just going to give him a hundred dollars.
Q Do you recall back on March 10th, 2008 giving a deposition with me and - -
A I do recall that.
Q -- Mr. Garcia? And do you recall being placed under oath?
A I sure do.
. . . .
Q Is it possible that you had another method of payment for Mr. Warner?
A Such as?
Q Crack cocaine.
A I might have done something like that. Is that relevant to the case?
. . . .
Q And so you were actually paying Mr. Warner, according to your testimony, to help you move in crack cocaine?
A Actually, it was a little bit of money and a little bit of crack cocaine.
Ex. E at 77-79.
Regardless of any default, it should be denied on the merits. While a claim of ineffective assistance of counsel can be based on state law issues, when the underlying claim is clearly a question of state law, the federal court will defer to state court precedent in construction of its own law. See Shaw v. Wilson, 721 F.3d 908, 914 (7th Cir. 2013). The post-conviction court concluded that the evidence would have been relevant and
The prejudice prong of Strickland, requiring a showing of a reasonable probability of a different result—a reasonable probability being one sufficient to undermine confidence in the outcome—has not been shown. For the foregoing reasons, the post-conviction court’s adjudication of Warner’s ineffective assistance of counsel claim did not involve an unreasonable application of clearly established federal law, nor was it
Ground 7
Petitioner argues in this ground that trial counsel was ineffective by failing to object and move for mistrial when the prosecutor misstated the testimony of Petitioner’s codefendant during closing argument. ECF No. 7 at 17. The basis for the claim is not specified in the amended
On direct examination, the codefendant testified at trial in pertinent part as follows:
Q . . . have you been convicted of any felony offenses?
A Yes, sir, I have.
Q Do you know how many?
A Approximately ten, I think.
Q And among those ten convictions, you were also convicted of a burglary that occurred on or about December 10th, 2007?
A Correct.
Q And in that burglary case in which you were convicted, you entered a plea of guilty; is that right?
A Yes, sir I did.
Q Now, . . did you plea [sic] guilty because you are guilty?
A I pled guilty because I don’t have as much faith in the system as a lot of people. And I have a kid out there. And I couldn’t get a hold of the person who actually owned the apartment, who was renting the apartment whose stuff it really was. I didn’t think I could get him in to testify because I thought the State - - his lawyer said that the State was going to put down - -
. . . .
A His lawyer, Annabelle Dias, was going to, pretty much recommend that he not say anything because he said that he was going to trial and that he may be taking a deal and the State would put a thumb down on him if he testified on my behalf.
During her closing statement, the prosecutor argued, “[The codefendant’s] exact testimony is I pled. I did it. I committed a burglary. He didn’t plea to a burglary out of convenience. He pled because he accepted responsibility for his actions.” Ex. E at 129. Prior to the prosecutor’s argument, defense counsel had already argued to the jury in closing that the codefendant “told you I pled to this case. I did it. I feel bad for David Warner because I know I got him into this. Why is he doing that? Why is he telling you that? He has already taken his lick. He is telling you that because he is coming clean.” Ex. E at 127.
At the post-conviction evidentiary hearing on this claim, Petitioner’s trial counsel testified that he brought up the subject of the witness’s burglary conviction on direct examination, and that he had no strategic reason why he did not object to the prosecutor’s characterization of the testimony in closing argument. Ex. Q at 176. Counsel also testified that as a general principle, he tries to avoid objecting during the State’s closing
At the conclusion of the post-conviction evidentiary hearing, the judge denied relief on this claim, ruling that the prosecutor’s characterization of a guilty plea entered by the defense witness, which the court equated to an admission of “I did it,” was an accurate statement of the law and common sense. Ex. Q at 213. The court concluded that the prosecutor’s statement that the witness pled guilty because he took responsibility was “fair comment and argument based upon the testimony before the Court.” Ex.
The denial of relief on this ground was not appealed to the state appellate court and is thus unexhausted and procedurally defaulted. Regardless of any default, the claim should be denied on the merits. Petitioner has not demonstrated that the state post-conviction court’s rejection of this ground was either (1) contrary to, or involved an unreasonable application of, clearly established U.S Supreme Court precedent, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See
The record is clear that the defense witness pled guilty to the burglary that occurred on December 10, 2007. As trial counsel noted at the evidentiary hearing, simply because the codefendant was committing a burglary did not prove that Petitioner also entered the apartment with the intent to commit a crime. Evidence was presented that the codefendant
Moreover, as the state post-conviction court concluded, even if an objection and motion for mistrial had been made, it had little possibility of success. This is in accord with Florida law that holds “[a] mistrial will be granted only when the error is so prejudicial as to vitiate the entire trial.” See Salazar, 991 So. 2d at 372. Petitioner has not demonstrated that the
Ground 8
Petitioner argues in Ground 8 that trial counsel was ineffective and failed to provide counsel as guaranteed by the
Even if the claim had been exhausted, it should be denied on the merits. Petitioner failed to demonstrate deficient performance under the first prong of the two-prong test for ineffective assistance of counsel set forth in Strickland. When asked at the evidentiary hearing why he brought out the defense witness’s felony convictions and the guilty plea for the December 10, 2007, burglary on direct examination, he explained that he did so “[b]ecause the State would have used it to impeach him, so I would try to take out some of the sting of that.” Ex. Q at 177.
The state post-conviction court determined that ineffective assistance of counsel had not been shown, stating:
I totally agree. I think many, many defense attorneys would agree that it is preferable to go ahead and get what is certainly going to come out on cross examination out of the way. I think it clearly was admissible that he had already plead guilty to this charge. I don’t find it was ineffective for going ahead and bringing it out. In fact, it probably was the best strategy that could have been employed. And, particularly, given [the codefendant] goes on to explain in a very exculpatory manner why he pled to the charge. I don’t think there was ineffective assistance at all. And, again, as Mr. Garcia pointed out, the fact that [the codefendant] was guilty, didn’t necessarily make Mr. Warner guilty, given their strategy in the case.
Trial counsel’s actions in eliciting this information on direct examination of the defense witness was shown to be valid trial strategy and, thus, not outside the “wide range of professionally competent assistance” referred to in Strickland. See Strickland, 466 U.S. at 690. The Supreme Court further explained:
No particular set of detailed rules for counsel‘s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.
Id. at 688-89. Accordingly, Petitioner Warner has not shown that the state court’s adjudication of this ground involved an unreasonable application of clearly established federal law or that it is based on an unreasonable
Conclusion
Based on the foregoing, Petitioner David Warner is not entitled to federal habeas relief. Accordingly, the amended
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by
Petitioner fails to make a “substantial showing of the denial of a constitutional right.”
Leave to appeal in forma pauperis should also be denied. See
Recommendation
It is therefore respectfully RECOMMENDED that the Court DENY the amended
IN CHAMBERS at Tallahassee, Florida, on October 12, 2016.
S/ Charles A. Stampelos
CHARLES A. STAMPELOS
UNITED STATES MAGISTRATE JUDGE
Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations.