HOLLEY v. SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS (2017)

ORDER:

Duriel Keith Holley is a Florida prisoner serving a 20-year total sentence after a jury convicted him of robbery with a firearm and several counts of aggravated assault with a firearm. In January 2014, Mr. Holley filed the instant 28 U.S.C. § 2254 petition, raising four claims. As will be discussed below, the district court denied all of Mr. Holley’s claims, and declined to grant a certificate of appealability (“COA”), which he now seeks from this Court. He also seeks leave to proceed in forma pauperis.

BACKGROUND:

The State of Florida charged Mr. Holley with burglary with an assault or battery while armed, robbery with a firearm, and four counts of aggravated assault with a firearm. The trial court consolidated Mr. Holley’s case with that of a codefendant, Richard Green. The charges arose out of the robbery of a GTE Federal Credit Union branch. The evidence at trial established that two armed, masked men wearing surgical gloves robbed the credit union, but the employees were not able to identify the robbers.

At trial, Stacy Sawyer, another of Mr. Holley’s codefendants, who agreed to testify against him as part of a plea agreement, identified Mr. Holley as an accomplice. He testified that he met Mr. Holley through friends and that Mr. Holley wanted to be involved in the robbery because he needed money. According to Sawyer, he waited in the car while Mr. Holley and Green went inside. Mr. Holley was wearing a black leather jacket and blue latex gloves.

Sawyer’s girlfriend at the time, Kenyatta Vasan, also testified at trial, and identified Green as someone she knew through Sawyer. She testified that she was with Sawyer, Green, and a third man that she did not then know on the morning of the robbery. The men dropped her off outside a hotel room and returned approximately half an hour later to change clothes. Vasan and the men then drove to Orlando, where they dropped off the third man. The conversation between Sawyer and the third man, which Vasan overheard in the car, led her to conclude that they had just robbed a bank. When Vasan was later questioned by police, she immediately identified Mr. Holley’s picture from a photo pack as that of the third man. She felt completely certain in her identification.

Jennifer Smith, the girlfriend of Sawyer’s father at the time of the robbery, also testified. She and Sawyer’s father were also present at the hotel where Vasan was dropped off. She testified that she observed Vasan, Sawyer, Green, and a third man she did not know at the hotel on the morning of the robbery. Like Vasan, she testified that the men left the hotel and returned half an hour later to change. She stated that the third man wore blue gloves. Smith also identified Mr. Holley as the third man when she was questioned by police, stating that she was 90% sure it was him. Sawyer’s father, Gregory Williams, also identified Mr. Holley out of a photo pack.

Following trial, the court granted Mr. Holley’s motion for judgment of acquittal as to the burglary charge, and instructed the jury as to the remaining counts. In instructing the jury on the elements of assault, the court informed the jury that the state was required to prove beyond a reasonable doubt “that Duriel Keith Holley and/or Richard Green[,] here and after referred to as the Defendant,” committed certain acts. The court also instructed the jury on “the law of principals,” explaining the circumstances under which the jury could convict one defendant based on the acts of the other. It also gave a “multiple defendants instruction,” informing the jury that separate counts were charged against each defendant and that “[a] finding of guilty or not guilty as to one Defendant must not affect your verdict as to any other Defendant or crime charged.” The court provided the jury with separate verdict forms for each defendant, and read over them with the jury.

The jury found Mr. Holley guilty as charged on the remaining counts. The trial court then sentenced Mr. Holley to 20 years’ imprisonment on the robbery count, and 5 years’ imprisonment on each of the aggravated assault counts, all to run concurrently.

Mr. Holley appealed his convictions and sentences to the Florida Second District Court of Appeal (“DCA”). He raised only one issue on appeal: whether he was entitled to a judgment of acquittal on all counts because the state had failed to prove his identity. Specifically he argued that Sawyer’s testimony that Mr. Holley participated in the robbery was untrustworthy because he had provided five different versions of the events surrounding the robbery, and the other identifications were unreliable because they were made by people close to Sawyer. The DCA per curiam affirmed Mr. Holley’s convictions and sentences without an opinion.

Mr. Holley then filed in the DCA a pro se petition for writ of habeas corpus, alleging ineffective assistance of appellate counsel for failing to argue on appeal that the trial court fundamentally erred by using the conjunction “and/or” between his and his codefendant’s names and by using the “generalized word ‘the defendant’ ” in the jury instructions. Following the state’s response, the DCA denied Mr. Holley’s petition without elaboration.

Mr. Holley then filed in the trial court a pro se Fla. R. Civ. P. 3.850 motion, raising four claims for relief, including the following: (1) trial counsel was ineffective for failing adequately to advise him of his right to testify and for threatening and coercing him into not testifying; and (2) trial counsel was ineffective for filing to “investigate, contact, [and] depose” two potential alibi witnesses, who would have testified that Mr. Holley was studying with them in Orlando on the morning of the robbery.

After conducting an evidentiary hearing, the state court denied both of these claims. As to the first claim, the court based its decision on trial counsel’s credible testimony at the evidentiary hearing, in which he stated that he wanted to put Mr. Holley on the stand, but Mr. Holley refused. This testimony was corroborated by a note, submitted into evidence by the state, which showed that Mr. Holley had asked counsel if it was necessary for him to testify. Counsel responded, in writing, that it was not necessary, but that he would like Mr. Holley to testify to clear up an issue concerning outstanding warrants. Based on this evidence, the court determined that Mr. Holley had not shown any error on his counsel’s part.

As to the second claim, the court again based its decision on trial counsels credible testimony. Counsel testified that Mr. Holley specifically asked him not to contact one of the alibi witnesses because he did not want her involved. He also stated that he attempted to contact another witness, but he was unable to locate her prior to trial. One of the witnesses appeared at the evidentiary hearing and testified that she remembered studying with Mr. Holley on the day in question, but the state impeached her with post-conviction deposition testimony, in which she stated multiple times that she could not remember the date with certainty. Again, the court concluded that Mr. Holley failed to show that counsel was ineffective, and further concluded that he failed to show that counsel’s failure to call these witnesses prejudiced him. The DCA subsequently per curiam affirmed the trial court’s denial of Mr. Holley’s Rule 3.850 motion without an opinion.

In January 2014, Mr. Holley filed the instant timely § 2254 petition, raising the following four claims for relief:

(1) the trial court erred in denying his motion for judgment of acquittal based on the state’s failure to prove identity;

(2) appellate counsel was ineffective for failing to argue that the trial court committed fundamental error in providing jury instructions that improperly contained the “and/or” conjunction between his name and his codefendant’s and “generalized” the term “defendant”;

(3) trial counsel was ineffective for failing to “investigate, contact, and depose” two alibi witnesses; and

(4) trial counsel was ineffective for failing to adequately inform him of his right to testify and for threatening and coercing him into not testifying.

The state responded, arguing that the DCA had properly denied all of Mr. Holley’s claims. The district court then denied Mr. Holley’s § 2254 petition, deferring to the DCA’s denial of all four claims on the merits. The district court also denied Mr. Holley a COA.

DISCUSSION:

In order to obtain a COA, the petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court has denied a habeas petition on procedural grounds, a petitioner must show that reasonable jurists would find debatable both (1) the merits of an underlying claim, and (2) the procedural issues that he seeks to raise. Slack v. McDaniel, 529 U.S. 473, 478, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

If a state court has adjudicated a claim on the merits, a federal court may grant habeas relief only if the decision of the state court (1) “was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court,” or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d). A state court’s decision is “contrary to” federal law if “the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court’s factual findings are presumed correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). When the last adjudication on the merits from a state court provides no reasoned opinion, a petitioner’s burden under § 2254(d) is to “show[ ] there was no reasonable basis for the state court to deny relief.” Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016) (en banc) (alteration in original) (quoting Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ), cert. granted, ––– U.S. ––––, 137 S.Ct. 1203, 197 L.Ed.2d 245 (2017).

Here, the last adjudication on the merits for all of Mr. Holley’s claims was a per curiam decision by the DCA that provided no reasoned opinion. Thus, Mr. Holley bore the burden of showing that there was no reasonable basis for the DCA to deny him relief.

Claim 1: Sufficiency

In his first claim, Mr. Holley asserted that his due process rights were violated when the trial court denied his motion for acquittal. Specifically, he argued that the state failed to prove identity beyond a reasonable doubt because none of the witnesses who identified him were credible. He claimed that Sawyer was not credible because he had provided authorities with five different versions of the events surrounding the robbery and admitted to fabricating statements. Vasan and Smith similarly lacked credibility because they were close to Sawyer, and thus, had reason to provide testimony that was helpful to Sawyer.

To succeed on a sufficiency-of-the-evidence claim in a § 2254 proceeding, the petitioner must establish that, even when the evidence adduced at trial is viewed in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Federal courts may not overturn a state court’s rejection of a sufficiency-of-the-evidence claim unless the state court’s decision was objectively unreasonable. Parker v. Matthews, 567 U.S. 37, 43, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012).

If the record contains facts supporting conflicting inferences, the jury is presumed to have resolved those conflicts in favor of the State and against the defendant. Johnson v. Alabama, 256 F.3d 1156, 1172 (11th Cir. 2001). Accordingly, federal courts must defer to the judgment of the jury in assigning credibility to witnesses and weighing the evidence. Id.

Here, the district court did not arguably err in denying this claim. See Slack, 529 U.S. at 484, 120 S.Ct. 1595. Because the DC A per curiam affirmed Mr. Holley’s conviction on direct appeal, he bore the burden of showing that there was no reasonable basis for the DCA to deny relief. See Wilson, 834 F.3d at 1235. The DCA reasonably could have concluded that a rational trier of fact could have found the essential elements beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781. Mr. Holley’s argument essentially was that no reasonable juror could have found the witnesses who identified him to be credible, but federal courts should defer to the judgment of the jury in assigning credibility to witnesses. See Johnson, 256 F.3d at 1172. The jury here apparently found the identifying witnesses to be credible, notwithstanding the impeachment evidence before them. Construing the evidence in the light most favorable to the prosecution, the DCA reasonably could have concluded that it was sufficient to prove Mr. Holley’s identity.

Thus, the district court did not arguably err in denying this claim, and no COA is warranted as to this issue. See 28 U.S.C. § 2254(d).

Claims 2-4: Ineffective Assistance

The Supreme Court decision applicable in an ineffective-assistance claim is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Premo v. Moore, 562 U.S. 115, 121, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011). To succeed on an ineffective-assistance claim, a petitioner must show that (1) his attorney’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. In determining whether counsel gave adequate assistance, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S.Ct. 2052. Counsel’s performance is deficient only if it falls below the wide range of competence demanded of attorneys in criminal cases. Id. at 687-88, 104 S.Ct. 2052. Thus, the petitioner must show that no competent counsel would have taken the action that his counsel did. Callahan v. Campbell, 427 F.3d 897, 933 (11th Cir. 2005). To demonstrate prejudice, the petitioner must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Claims of ineffective assistance of appellate counsel are also analyzed under the two-part test set forth in Strickland. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). To establish a claim, a petitioner must show that appellate counsel’s performance was objectively unreasonable, and that there is a reasonable probability that, but for this performance, he would have prevailed on his appeal. Id. at 285-86, 120 S.Ct. 746.

Claim 2: Appellate Counsel’s Failure to Raise Improper Jury Instructions

In his second claim, Mr. Holley argued that counsel on direct appeal was ineffective for failing to argue that the trial court committed fundamental error in providing jury instructions that improperly contained the “and/or” conjunction between his name and his codefendant’s and “generalized” the term “defendant.”¹ In the habeas petition filed in the DCA, Mr. Holley relied on a decision from that court, Cabrera v. State, 890 So.2d 506 (Fla. Dist. Ct. App. 2005), in which it concluded that a trial court’s unobjected-to administration of jury instructions on the elements of a crime that included the conjunction “and/or” between codefendants’ names was fundamental error, as the jury could have convicted either defendant based solely on its conclusion that his codefendant’s conduct satisfied an element of the offense. Cabrera, 890 So.2d at 507-08.

However, the Florida Supreme Court subsequently disapproved of this holding. See Garzon v. State, 980 So.2d 1038 (Fla. 2008). While the court acknowledged that giving such an instruction was error, it found no fundamental error where the trail court took the following actions. Id. at 1045. First, the court instructed the jury on the law of principals, which “communicated to the jury that it could not convict one defendant based on the other defendants’ actions unless the requirements of the law of principals were met.” Id. at 1044. Second, the court “properly framed the use of the ‘and/or’ instruction,” by giving a multiple defendants instruction, which “clearly explained to the jury that its verdict as to one defendant should not affect its verdict as to another” and “reinforced that the jury was to consider each defendant individually.” Third, the court provided separate verdict forms that “focused on one defendant and one crime each.” The Florida Supreme Court determined that “[w]orking in tandem, the instructions and verdict forms strongly emphasized to the jury that each defendant was to receive an individualized consideration.” Id.

Here, again, the DCA, which issued the final and only merits decision on this issue, did not provide a reasoned opinion, and, therefore, according to our precedent, Mr. Holley bore the burden of showing that there was no reasonable basis for the DCA to deny relief. See Wilson, 834 F.3d at 1235. The DCA reasonably could have concluded either that appellate counsel’s decision not to raise the issue was not objectively unreasonable or that Mr. Holley was not prejudiced, as the argument likely would not have been successful on appeal. See Robbins, 528 U.S. at 285-86, 120 S.Ct. 746. Applying the Florida Supreme Court’s decision in Garzon, the DCA could have determined that the trial court here took the same precautions identified in that case—instructions on the law of principals and multiple defendants, and individual verdict forms for each defendant—to emphasize that each defendant was to receive individual consideration. Garzon, 980 So.2d at 1044.

Thus, the district court did not arguably err in denying this claim, as it properly concluded that the DCA’s decision was not contrary to, nor did it involve an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d); Strickland, 466 U.S. at 687, 104 S.Ct. 2052. No COA is warranted as to this issue.

Claim 3: Trial Counsel’s Failure to Call Alibi Witnesses

In his third claim, Mr. Holley argued that trial counsel was ineffective for failing to “investigate, contact, and depose” two potential alibi witnesses, who Mr. Holley claims would have testified that he was in Orlando studying with them on the morning of the robbery.

In a federal habeas proceeding, when considering whether a state court’s decision was based on an unreasonable determination of the facts, the federal court generally should defer to the state court’s credibility determination. See 28 U.S.C. § 2254(d); Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) (“We must accept the state court’s credibility determination and thus credit [the attorney’s] testimony over [the petitioner’s].”).

Here, counsel testified, at the state post-conviction hearing, that Mr. Holley specifically asked him not to contact one of the alibi witnesses because he did not want her involved, and he attempted to contact the other, but was unable to locate her prior to trial. The state court found this testimony credible, and concluded that trial counsel therefore did not perform deficiently. The district court properly accepted the state court’s credibility determination. See Baldwin, 152 F.3d at 1316. Taking this testimony as credible, it does not appear that counsel’s performance fell below the wide range of competence demanded of attorneys in criminal cases. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.

In any case, the record also supports the district court’s further conclusion that Mr. Holley was not prejudiced by counsel’s failure to call the two alibi witnesses he identified. Only one of those witnesses actually testified at the post-conviction hearing or provided an affidavit, and while she stated that she was with Mr. Holley on the morning of the robbery, the state impeached her with prior statements that she made during a deposition, in which she claimed that she could not remember the date with certainty. Thus, the district court did not arguably err in denying this claim, and no COA is warranted as to this issue. See 28 U.S.C. § 2254(d).

Claim 4: Trial Counsel’s Failure to Explain Mr. Holley’s Right to Testify

In his fourth claim, Mr. Holley argued that trial counsel failed to adequately advise him of his right to testify on his own behalf and threatened and coerced him into not testifying. As with the previous ineffective-assistance claim, the merit of this claim turns on witness credibility. Mr. Holley testified, at the post-conviction hearing, that he repeatedly told counsel that he wanted to take the stand, but counsel told him that he could not and that counsel would abandon him if he tried to assert his right to testify. Counsel, however, testified that he wanted Mr. Holley to testify, but Mr. Holley refused. The state court found counsel’s testimony to be credible, and that credibility determination was bolstered by tangible evidence in the form of a note passed between Mr. Holley and counsel during trial.

Again, the district court properly deferred to the state’s credibility determination, which was supported by the record, and concluded that Mr. Holley had failed to overcome the presumption that the state’s credibility determination was correct. See Baldwin, 152 F.3d at 1316. Thus, the district court did not arguably err in denying this claim, and no COA is warranted. See 28 U.S.C. § 2254(d).

CONCLUSION

Based on the existing record, reasonable jurists would not find debatable or wrong the district court’s denial of Mr. Holley’s habeas petition, and his motion for a certificate of appealability therefore is DENIED. His motion for leave to proceed in forma pauperis is DENIED AS MOOT.

FOOTNOTES

1.   Because Holley’s trial counsel did not contemporaneously object to the jury instructions, Holley would have been entitled to relief on appeal only if the trial court committed fundamental error in giving the challenged instructions. See State v. Delva, 575 So.2d 643, 644 (Fla. 1991) (“[Jury] [instructions ․ are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.”)