Wyоn Dale CHILDERS, Petitioner-Appellant, v. Willie L. FLOYD, Warden-Glades Correctional Institution, Respondent-Appellee.
No. 08-15590.
United States Court of Appeals, Eleventh Circuit.
Nov. 14, 2013.
1331-1339
Because the govеrnment produced sufficient evidence to support the jury‘s reasonable finding that Robertson murdered Williams and Arseneau “for the purpose of maintaining or increasing [his] position” in Tampa Blood and Honour,
IV.
For the foregoing reasons, we affirm Robertson‘s convictions.
AFFIRMED.
JORDAN, Circuit Judge, concurring.
Except as to the discussion and resolution of the Batson claim, I join the majority opinion. As to the Batson claim, I concur in the judgment. Although the district court initially (and improperly) appeared to use the cause standard when sustaining the government‘s Batson challenge to the defense‘s peremptory strike of JMD, see Trial Transcript [D.E. 207] at 342, it later confirmed, see Trial Transcript [D.E. 209] at 10, that it did not believe that defense counsel‘s proffered reason for the strike of JMD was genuine. On this record, that finding of pretext was not clearly erroneous.
Nathan Z. Dershowitz, Dershowitz, Eiger & Adelson, P.C., New York, NY, for Petitioner-Appellant.
Christine Ann Guard, Office of The Attorney General, Tallahassеe, FL, for Respondent-Appellee.
On Remand from the Supreme Court of the United States
PER CURIAM:
In Childers v. Floyd, 568 U.S. —, 133 S.Ct. 1452, 185 L.Ed.2d 358 (2013), the United States Supreme Court granted a writ of certiorari, vacated our judgment in Childers v. Floyd, 642 F.3d 953 (11th Cir. 2011) (en banc) (Childers I), and remanded the case for further consideration in light of Johnson v. Williams, 568 U.S. —, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). In a previous case, Harrington v. Richter, 562 U.S. —, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the Supreme Court held that when a state court decision “summarily rejects without discussion all the claims raised by the defendant, including a federal claim that the defendant subsequently presses in a federal habeаs proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.”
In this case, the defendant, Wyon Childers, a former County Commissioner for Escambia County, Flоrida, was on trial for receiving a bribe from a codefendant, Joe Elliot, in exchange for voting to have the Commission approve the County‘s purchase of a piece of land Elliot owned.1 Childers I, 642 F.3d at 958. A third codefendant and fellow Commissioner, Willie Junior, pleaded guilty under a plea agreement and testified for the State at Elliot‘s trial. Id. The jury acquitted Elliot, and thereafter Junior informed the State of incriminating information he hаd not disclosed prior to Elliot‘s trial. Id. at 958-59. Due to the nondisclosure, the State moved the trial court to revoke Junior‘s plea agreement. Id. at 959. The court denied the motion. Id. at 959-60.
Prior to his trial, Childers moved the trial court to permit him to bring out on Junior‘s cross-examination both Elliot‘s acquittal and the State‘s attempt to revoke Junior‘s plea agreement arguing that these events were relevant to Junior‘s credibility and bias as a witness. Id. at 960. The court denied his motion. Id. at 962. Addressing the admissibility of the Elliot acquittal, thе court found that the unfair prejudice that the State would suffer if the testimony were allowed outweighed any probative value it might have.2 Id. Regarding the admissibility of the State‘s motion to revoke Junior‘s plea agreement, the court held that both the State‘s motion and the court‘s denial were irrelevant and therefore inadmissible.3 Id.
A jury convicted Childers of one count of bribery and one count of unlawful compensation for official behavior but found him not guilty of the money laundering charge. Id. at 962-63. He appealed his convictions to the Florida District Court of Appeal. Id. at 963. Childers‘s brief to the District Court of Appeal argued that the trial court abused its discretion and denied him his Sixth Amendment right of confrontation by barring him from cross-examining Junior as proposed in his motion.4 Id.
The District Court of Appeal, sitting en banc,5 ruled per curiam that the trial court‘s ruling did not constitute an abuse of discretion and affirmed Childers‘s cоnvictions under Florida Evidence Rule 90.403. Childers v. State, 936 So.2d 585, 587 (Fla. 1st Dist.Ct.App.2006) (en banc) (per curiam) (Childers II). The court affirmed the convictions without expressly
In granting certiorari and remanding this case for reconsideration in light of Johnson, the Supreme Court effectively asks us to determine whether Childers has rebutted the presumption that the District Court of Appeal adjudicated his Sixth Amendment right of confrontation claim on the merits. To determine whether the presumption has been rebutted, we look to the state court‘s decision and the record in the case6 to determine whether “the evidence leads very clearly to the conclusion that [the] federal claim was inadvertently overlooked in state court.” Johnson, 568 U.S. at —, 133 S.Ct. at 1097.
The District Court of Appeal began its analysis of Childers‘s claim that the trial court had abused its discretion in prohibiting Childers from eliciting during his cross-examination of Junior evidence relating to the Elliot acquittal and the State‘s attempt to withdraw Junior‘s plea agreement by holding that such evidence was relevant under Florida Rule of Evidence 90.401. Childers II, 936 So.2d at 592. The court then observed that the Florida Rules of Evidence, specifically
It is clear to us that Childers‘s Confrontation Clause claim was not “inadvertently overlooked” by the District Court of Appeal. The claim was squarely before the court.9 Although the court expressly analyzed Childers‘s claim under only the Florida rules of evidence, the underpinnings of these rules fit hand in glove with the rights guaranteed under the Confrontation Clause.
In sum, we hold that the Florida District Court of Appeal adjudicated Childers‘s Confrontation Clause claim on the merits. We therefore reinstate our decision in Childers I, and the District Court‘s decision denying Childers‘s a writ of habeas corpus is
AFFIRMED.
WILSON, Circuit Judge, dissenting:
This casе was remanded back to us from the Supreme Court so that we may assess, in light of Johnson v. Williams, 568 U.S. —, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013), whether Childers rebutted the presumption that the Florida District Court of Appeal (DCA) reached the merits of his Sixth Amendment confrontation claim. Under Johnson, “if, ... in at least some circumstances the state standard is less protective [than the federal standard,] [i]n such circumstances, the presumption that the federal claim was adjudicated on the merits may be rebutted....” Id. at 1096. “The presumption may be overcome when there is reason to think some other explanation for the state court‘s decision is more likely.” Harrington v. Richter, 562 U.S. —, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). Here, the presumption is rebutted because
As the majority concedes, the DCA affirmed Childers‘s convictions “without expressly addressing Childers‘s claim that the trial court‘s ruling infringed his Sixth Amendment right of confrontation.” Majority Op. at 1334. As I previously stated, the DCA did not address Childers‘s Sixth Amendment claim when it exclusively discussed Florida‘s substantive evidentiary rule. See Childers v. Floyd, 642 F.3d 953, 983-989 (11th Cir. 2011) (en banc) (Wilson, J., concurring), cert. granted, judgment vacated, — U.S. —, 133 S.Ct. 1452, 185 L.Ed.2d 358 (2013). His Sixth Amendment rights could be violated even if his cross-examination of Willie Junior was properly limited under
The DCA does not even mention the words “Sixth Amendment” or “confrontation” in its opinion. Its opinion is confined exclusively to determining whether there was a violation of a Florida substantive evidentiary rule. The tests are not thе same, and our per curiam opinion is unable to cite any authority to support the proposition that such a constitutional analysis can be subsumed, by implication, within the resolution of a state substantive evidentiary rule. Beyond failing to mention the more protective federal claim while extensively analyzing a less protective state claim, “there is [one additional] reason to think some other explаnation for the state court‘s decision is more likely” than an adjudication of Childers‘s Sixth Amendment claim on the merits. Harrington, 562 U.S. at —, 131 S.Ct. at 785. Determinations under
The majority believes it to be clear that Childers‘s Confrontation Clause claim was not “inadvertently overlooked” by the DCA. I disagree. In reviewing a criminal conviction, if an appellate court is going to limit its analysis to one оf several distinct as the DCA did here, the court would choose the most protective claim with the least deferential standard of review—unless the more protective claim was overlooked. Given these circumstances, Johnson‘s presumption that the claim was adjudicated on the merits has been rebutted.
I dissent because I believe that we are obligated to decide Childers‘s Sixth Amendment confrontation claim on thе merits. As I previously indicated, however, I am not inclined to conclude ultimately that Childers‘s Sixth Amendment rights were violated by the limitations placed on his counsel during his cross-examination of Willie Junior.
MARTIN, Circuit Judge, dissenting:
I dissent from the Majority‘s opinion on remand, which reinstates this Court‘s en banc opinion in Childers v. Floyd, 642 F.3d 953 (11th Cir. 2011) (en banc) (Childers I), cert. granted, judgment vacated, — U.S. —, 133 S.Ct. 1452, 185 L.Ed.2d 358 (2013), after the Supreme Court had vacated it and remanded it for our consideration
In Childers I, the en banc Majority said that “an ‘adjudication on the merits’ is best defined as any state court decision that does not rest solely on a state procedural bar.” 642 F.3d at 968 (emphasis added). Childers I then held: “unless the state court clearly states that its decision was based solely on a state procedural rule, we will presume that the state court has rendered an adjudication on the merits when the petitioner‘s claim ‘is the same claim rejected’ by the state court.” Id. at 969 (quoting Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 364, 154 L.Ed.2d 263 (2002)). This exceedingly broad interpretation of the term “adjudicated on the merits” is directly at odds with the Supreme Court‘s decision in Williams because the Majority‘s rule elevates all state court decisions, except for rulings “clearly” and “solely” based on state procedural grounds, to be “adjudications on the merits.”
In Williams, the Supreme Court was called upon to “ascertain the meaning of the adjudication-on-the merits requirement” of
[t]his issue arises when a defendant convicted in state court attempts to raise a federal claim, either on direct appeal or in a collateral state proceeding, and a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question. If this defendant then raises the same claim in a federal habeas proceeding, should the federal court regard the claim as having been adjudicated on the merits by the state court and apply deference under § 2254(d)? Or may the federal court assume that the state court simply overlooked the federal claim and proceed to adjudicate the claim de novo, the course taken by the Court of Appeals in the case at hand?
Id. at 1091 (emphasis added). The answer to this question, the Supreme Court told us in Williams, “follows logically from [its] decision in Harrington v. Richter, 562 U.S. —, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).” Williams, 133 S.Ct. at 1091.
By way of background, the Supreme Court held in Richter that
But it is important to note that Williams also reaffirmed that the Richter presumption was rebuttable: “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits—but that presumption can in some limited circumstances be rebutted.” Id. at 1096. In sustaining the principle that the presumption a claim has been adjudicated on the merits may be rebutted, the Supreme Court considered and rejected the State of California‘s invitation to hold otherwise. California argued in Richter that an irrebuttable presumption should apply where “a defendant claimed in state court that something that occurred at trial violated both a provision of the Federal Constitution and a related provision of state law” and the state court, “in denying relief, made no reference to federal law.” Id. Williams rejected California‘s argument for an irrebuttable presumption in this scenario because it “goes too far.” Id. The Supreme Court explained, “while the Richter presumption is a strong one that may be rebutted only in unusual circumstances, it is not irrebuttable. Per se rules should not be applied ... in situations where the generalization is incorrect as an empirical matter, and an irrebuttable presumption that state courts never overlook federal claims would occasionally miss the mark.” Id. at 1096-97 (quotation marks, internal citation and footnote omitted).
In light of the Supreme Court‘s holding and reasoning in Williams, the Majority opinion‘s per se rule from Childers I cannot stand. That is because the Majority‘s per se rule in Childers I operates like an “irrebuttable presumption that state courts never оverlook federal claims,” id. at 1097, at least in cases where the state court did not “clearly” and “solely” rely on a procedural rule. As Justice Alito explained for the Court in Williams, “[i]f a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of the matter.” Id. Said another way, claims that have been overlooked cannot have been “adjudicated on the merits in State court” within the meaning of
Although the en banc Majority‘s rule may seem simpler to apply than Williams‘s rebuttable presumption, the Supreme Court was not “persuaded that applying a rebuttable presumption in this context will be unduly burdensome for fed
For these reasons, I dissent.
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