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In the Supreme Court of Florida CASE NO. SC12-1634
GROVER REED, Petitioner
v.
KENNETH S. TUCKER, Respondent.
RESPONSE TO SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS Reed, through registry counsel Martin McClain, filed a
successive petition for writ of habeas corpus in this Court raising
two issues. For the reasons discussed below, the successive petition
should be denied.
2
FACTS AND PROCEDURAL HISTORY
The facts of the crime and the procedural history of the case
are recited in the Eleventh Circuit’s opinion affirming the district
court’s denial of the federal habeas petition. Reed v. Sec’y, Fla.
Dept. of Corrs., 593 F.3d 1217, 1220-1239 (11th 2010).
Untimely
The entire successive habeas petition is untimely. The
provision of the rule of criminal procedure governing time
limitations for habeas petitions, rule 3.851(d)(3), provides:
All petitions for extraordinary relief in which the Supreme Court of Florida has original jurisdiction, including petitions for writs of habeas corpus, shall be filed simultaneously with the initial brief filed on behalf of the death-sentenced prisoner in the appeal of the circuit court's order on the initial motion for postconviction relief filed under this rule.
The successive habeas petition is untimely because it was filed eight
years after the postconviction appeal in Reed v. State, 875 So.2d 415
(Fla. 2004); see also SC03-558.
3
ISSUE I
WHETHER THIS COURT SHOULD REVISIT ITS DIRECT APPEAL OPINION FINDING NO VIOLATION OF BATSON V. KENTUCKY, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) DURING JURY SELECTION?
Reed asserts that this Court should revisit its direct appeal
opinion in which this Court determined that the prosecutor did not
use his peremptory challenges in a racially discriminatory manner in
violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986) and Melbourne v. State, 679 So.2d 759 (Fla. 1996).
Reed contends, based on Johnson v. California, 545 U.S. 162, 170, 125
S.Ct. 2410, 162 L.Ed.2d 129 (2005) and Miller–El v. Cockrell, 537 U.S.
322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003), that this Court’s direct
appeal opinion should be reconsidered under the manifest injustice
exception to the law of the case doctrine.
Direct appeal opinion
This Court determined that “[g]iven the circumstances that both
the defendant and the victim were white and that two black jurors were
already seated, we cannot say that the trial judge abused his
discretion in concluding that the defense had failed to make a prima
facie showing that there was a strong likelihood that the jurors were
challenged because of their race.” Reed v. State, 560 So.2d 203, 206
(Fla. 1990).
This Court reasoning was two-fold. First, this was not a
racially-charged crime. Rather, a white defendant was being charged
4
with the murder and rape of a white victim. And second, Reed was tried
by a racially mixed jury that included two black jurors.
Time bar
First, regardless of any injustice, manifest or otherwise, this
claim is untimely. Reed is relying on two cases decided after the
direct appeal, Johnson v. California and Miller–El v. Cockrell, but
Miller–El was decided in 2003 which was nearly a decade ago and Johnson
was decided in 2005 which was nearly seven years ago. Reed is filing
a successive habeas petition based on cases decided years ago.
Current habeas counsel, Marty McClain, has been aware of this jury
selection issue for years. Indeed, the same Batson claim presented
in this successive habeas petition was raised as claim I in the federal
habeas appeal filed in the Eleventh Circuit by Mr. McClain in 2009.
Reed, 593 F.3d at 1239, n.14 (noting the federal district court had
granted Reed a certificate of appealability on two issues including
the issue of whether the State's peremptory challenges violated
Batson). Even a manifest injustice claim should be required to be
presented in a timely manner and this one was not. Reed should not
be allowed to present a manifest injustice claim at this late a date.
Jury selection
During first round of peremptory challenges, the prosecutor used
six challenges. (T. Vol. XI 216-220). The prosecutor struck Mr. Wesley
5
without objection. (T. Vol. XI 216). The prosecutor struck Ms. Madison
without objection. (T. 216). The prosecutor accepted the black juror
Mr. Daise. (T. 219). The prosecutor struck Ms. Humphries without
objection. (T. 219-220). The judge had the stricken jurors return to
the fourth floor. (T. 226).
During the second round, the prosecutor used three more
peremptory challenges. (T. 300). The prosecutor struck Mr. Seldon
without objection. (T. 301). The prosecutor struck Ms. Robinson
without objection. (T. 303). The prosecutor accepted the black juror
Ms. Hayes. (T. 303). The prosecutor used nine of his ten allotted
peremptory challenges. (T. Vol. XI 303).
The prosecutor struck Mr. Strickland as an alternate without
objection. (T. 304). The prosecutor struck Mr. Adams as an alternate
without objection. (T. 304).
At the end of jury selection, defense counsel stated "there are
very few blacks on the jury." (XI 305). Defense counsel noted that
there were two blacks on the jury. (XI 305). Both Mr. Daise and Ms.
Hayes were black according to the court and prosecutor. (T. 305-306).
None of the alternates were black. (T. 306).
The trial court then noted that in the first group of 21 person
there were six blacks and in the second set of 21 person there were
seven blacks. (XI 306). Defense counsel then stated that the State
used eight of their ten peremptory challenges to excuse blacks. (XI
306). The judge then looking only at the actual jurors, not
6
alternates, explained that the prosecutor used six of the nine actual
peremptories to remove blacks. (T. 307). “They used nine peremptory
challenges on the principle jury of twelve and I’ve
got six peremptories exercised against blacks” (T. 307). Defense
counsel agreed as did the prosecutor. (T. 307-308).Trial counsel then
moved for a mistrial “based on the fact that the peremptories have
been used in such a fashion as to systemically exclude blacks.” (XI
308).
The prosecutor then justified his use of peremptories against
the prospective jurors going juror by juror based mainly on
immaturity, unemployment/ underemployment or having a prior arrest
record. The trial court then denied the motion. (XI 308-314). The
trial court then asked defense counsel if he had any argument and he
responded no. (T. XI 314). The trial court then explained that
approximately 25% of population was black and that with the two black
jurors on the jury, the jury was approximately 16% black (XI 315).
The trial court also noted that both the victim and the defendant were
white. (T. XI 315). The trial court found “that the challenges
exercised against the blacks are not based purely upon race or racial
discrimination.” (T. XI 315).
Two of the eight black prospective jurors stricken by the
prosecutor were prospective alternate jurors only. Both Mr.
Strickland and Mr. Adams were stricken as alternates. (T. 304-305).
No alternates participated in jury deliberations.
7
Johnson and Miller-El
In Johnson v. California, 545 U.S. 162, 170, 125 S.Ct. 2410, 162
L.Ed.2d 129 (2005), United States Supreme Court held that the first
step of Batson, a showing of a prima facie case, did not require a
showing that it was it was “more likely than not” that a peremptory
challenge had been exercised on a prohibited ground. The Court
explained that Batson’s first step was not intended “to be so onerous
that a defendant would have to persuade the judge ... that the
challenge was more likely than not the product of purposeful
discrimination. Instead, a defendant satisfies the requirements of
Batson's first step by producing evidence sufficient to permit the
trial judge to draw an inference that discrimination has occurred.”
The defendant must make out a prima facie case “by showing that the
totality of the relevant facts gives rise to an inference of
discriminatory purpose.” Johnson, 545 U.S. at 168.
As the federal district court found, whether or not the Florida
Supreme Court utilized the wrong standard in addressing the first step
of the Batson inquiry is irrelevant because once a prosecutor has
offered a race-neutral explanation for the peremptory challenges and
the trial court has ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the defendant had
made a prima facie showing becomes moot. Reed v. McNeil, 2008 WL
4456745, *17 (M.D.Fla. September 29, 2008)(citing Hernandez v. New
8
York, 500 U.S. 352 (1991)).
In Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 2331, 162
L.Ed.2d 196 (2005), the Supreme Court held that the prosecutors in
a capital murder trial made peremptory strikes of potential jurors
based on race and granted habeas relief. The Supreme Court rejected
the trial court’s finding that the prosecutor’s explanations were
credible. During the robbery of a motel, Miller-El shot two employees,
killing one of them. He was convicted and sentenced to death.
Ten of the eleven black venire members were peremptorily struck.
The prosecutors used peremptory strikes to exclude 91% of the eligible
black venire panelists, a disparity unlikely to have been produced
by happenstance. More powerful than the bare statistics are
side-by-side comparisons of some black prospective jurors, who were
struck, with white ones, who were not. If a prosecutor's proffered
reason for striking a black prospective juror applies just as well
to a white juror who is not stricken, that is evidence tending to prove
purposeful discrimination.
The Court developed a comparative juror analysis. The prosecutor
struck a black venireman who expressed unwavering support for the
death penalty and thus, should have been “an ideal juror in the eyes
of a prosecutor seeking a death sentence.” The prosecutor explanation
that the black venireman would not vote for death if rehabilitation
were possible was a mischaracterization of his testimony and cannot
reasonably be accepted when there where white veniremen expressing
9
comparable views on rehabilitation who were not struck. Another black
venireman, who thought death was an easy way out and defendants should
be made to suffer more, was stricken but white jurors also expressed
this view and were not stricken. So, the prosecution's proffered
reasons for striking this black venireman was comparably unlikely and
was evidence of pretext. The one black juror who actually served was
selected as the eighth juror when the State had used 11 of its 15
peremptory challenges but at least three of the remaining prospective
jurors opposed capital punishment.
Texas allowed jury shuffles. The prosecutor employed this
technique to rotate prospective black jurors out of the selection
process. No racially neutral reason was ever offered for the three
prosecution shuffles.
The prosecutor also engaged in disparate questioning using a
“graphic script” with black prospective jurors but not white ones.
The “graphic script” described the method of execution in rhetorical
and clinical detail. The prosecutor employed the “graphic script”
with only 6% of white prospective jurors but employed the “graphic
script” with 53% of black prospective jurors. The District Attorney's
Office had, for decades, followed a specific policy of systematically
excluding blacks from juries and the office had a jury selection
manual, used by the prosecutor, that included racial stereotypes.
The Miller-El Court repeatedly referred to statistics in its
analysis. The Court noted that the State had peremptorily challenged
10
12% of the qualified nonblack panel members, but eliminated 91% of
the black ones. The Court concluded that the evidence viewed
cumulatively was too powerful to conclude anything but
discrimination. The prosecutors' reasons for the strikes did not
“hold up” and were so far at odds with the evidence that pretext is
the fair conclusion. The selection process was “replete with evidence
that prosecutors were selecting and rejecting potential jurors
because of race.” See also McGahee v. Alabama Dept. Of Corrections,
560 F.3d 1252 (11th Cir. 2009)(finding a Batson violation where a
black defendant was tried by an all-white jury in a county that was
55% black.)
Furthermore, while Reed relies on the manifest injustice
exception to the law of the case doctrine, he ignores that there have
been additional United States Supreme Court cases applying Batson in
the years since the direct appeal in this cases, not solely Johnson
and Miller-El. See State v. Owen, 696 So.2d 715, 720 (Fla.
1997)(noting the Court has the power to reconsider and correct
erroneous rulings in exceptional circumstances and where reliance on
the previous decision would result in manifest injustice,
notwithstanding that such rulings have become the law of the case).
If this Court is going to reconsider its direct appeal opinion, it
must account for all of these cases.
The United States Supreme Court has never found a violation of
Batson where a white defendant was tried by a racially mixed jury.
11
Batson, after all, was designed to prevent the specter of a black
defendant tried (and often sentenced to death) by an all white jury.
The United States Supreme Court has never found a violation of Batson
where the composition of the final jury did not involve either a total
lack of representation or very significant underrepresentation of the
suspect class on the final jury. Synder v. Louisiana, 552 U.S. 472,
128 S.Ct. 1203, 170 L.Ed.2d 175 (2008)(finding a violation of Batson
where the prosecutor removed all five prospective black jurors and
the final jury was all white); Johnson v. California, 545 U.S. 162,
162, 125 S.Ct. 2410, 2412, 162 L.Ed.2d 129 (2005)(reversing based on
Batson and concluding that a prima facie case had been established
where the prosecutor removed all three prospective black jurors
resulting in an all white jury); Miller-El v. Dretke, 545 U.S. 231,
125 S.Ct. 2317, 162 L.Ed.2d 196 (2005)(finding a violation of Batson
where the prosecutor used over 90% of his peremptory challenges to
remove black prospective jurors resulting in a twelve person jury with
only one black juror). Batson, itself, involved a black defendant
tried and sentenced to death by an all-white jury. Batson and the more
recent cases of Snyder, Miller-El, and Johnson, all involved black
defendants, not a white defendant as here. Furthermore, Batson,
Snyder, and Johnson involved all white juries, not the racially mixed
jury as here. The United States Supreme Court has never reversed a
criminal conviction of a white defendant who was tried by a racially
mixed jury on equal protection grounds.
12
Reed’s current argument ignores this Court’s basic reasoning for
rejecting the Batson challenge in the direct appeal, namely that “both
the defendant and the victim were white and that two black jurors were
already seated.” Reed, a white defendant, was charged with the
murder of a white woman. While Reed has standing to raise a Batson
challenge under such facts, the fact is that this was not a racial
charged crime. The United States Supreme Court precedent is designed
to stop the specter of a black defendant being convicted and sentenced
to death by an all-white jury or a nearly all-white jury. Every one
of their precedent involves that type of fact pattern.
The United States Supreme Court has never found a violation of
Batson where the composition of the final jury did not involve either
a total lack of representation or very significant
underrepresentation of the suspect class on the final jury. Here,
as the trial court noted, approximately 25% of population was black
and that with the two black jurors on the jury, the jury was
approximately 16% black (XI 315). There can be no violation of Batson
on such facts.
Standard of review
As this Court observed in the direct appeal of this case, trial
judges are vested with broad discretion in determining whether
peremptory challenges are racially motivated and an appellate court
“must necessarily rely on the inherent fairness and color blindness
13
of our trial judges who are on the scene and who themselves get a ‘feel’
for what is going on in the jury selection process”. Reed v. State,
560 So.2d 203, 206 (Fla. 1990)
The standard of review of a Batson claim or Melbourne claim is
clearly erroneous. Banks v. State, 46 So.3d 989, 996 (Fla.
2010)(stating that “the trial court's decision turns primarily on an
assessment of credibility and will be affirmed on appeal unless
clearly erroneous.”). To meet the clearly erroneous standard, Reed
must establish not merely that the trial court was wrong but that the
trial court was wrong “with the force of a five-week-old
unrefrigerated dead fish.”1
Reed does not meet the “five-week-old,
unrefrigerated, dead fish” test. There was no clear error.
Preservation
This issue is not preserved. To preserve a Batson/Melbourne
claim in Florida, the defendant must renew his objection to the
stricken prospective jurors at the end of jury selection. As this
Court has explained, even if the three steps of Melbourne are
1 Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988); S.E.C. v. Pirate Investor LLC, 580 F.3d 233, 243-244 (4th Cir. 2009)(stating the “clear error standard of review demands something much more egregious than what confronts us here” citing Parts & Elec. Motors, Inc.); United States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990)(same quote); In re Papio Keno Club, 262 F.3d 725, 728 (8th Cir. 2001)(same quote); Ocean Garden, Inc. v. Marktrade Co., 953 F.2d 500, 502 (9th Cir. 1991)(same quote); In re Antrobus, 563 F.3d 1092, 1098, n.2 (10th Cir. 2009)(same quote); Hiram Walker & Sons, Inc. v. Kirk Line, 30 F.3d 1370, 1378, n.2 (11th Cir. 1994)(Dubina, J., concurring)(same quote).
14
“followed precisely, the issue is not preserved for appellate review
if the party objecting to the challenge fails to renew the objection
before the jury is sworn.” Zack v. State, 911 So.2d 1190, 1204 (Fla.
2005)(finding a Melbourne claim to be deemed abandoned because while
defense counsel objected at the time the State exercised its
peremptory challenge, he made no objection to the final jury citing
Franqui v. State, 699 So.2d 1332, 1334 (Fla. 1997) and Joiner v. State,
618 So.2d 174 (Fla. 1993). “By not renewing the objection prior to
the jury being sworn, it is presumed that the objecting party
abandoned any prior objection he or she may have had and was satisfied
with the selected jury.” Zack, 911 So.2d at 1204 citing and quoting
Joiner, 618 So.2d at 176 (“[C]ounsel's action in accepting the jury
led to a reasonable assumption that he had abandoned, for whatever
reason, his earlier objection. It is reasonable to conclude that
events occurring subsequent to his objection caused him to be
satisfied with the jury about to be sworn.”)).
Furthermore, if the defendant is raising a similarly situated
claim asserting that the prosecutor did not stricken a white juror
with that same characteristic as the stricken juror, the defendant
must make that same argument in the trial court. King v. State, 89
So.3d 209, 230 (Fla. 2012)(finding a similarly situated claim, in
which the defendant contended that there were other jurors on the
panel who had family members with criminal charges just like the
stricken juror, to be unpreserved because “defense counsel did not
15
raise that challenge before the trial court.”). The defendant must
also identify the race of the similarly situated juror for the record.
King v. State, 89 So.3d 209, 231 (Fla. 2012)(finding a Batson claim
was not preserved where the opponent of the strike failed to identify
the race of the similarly situated jurors). If the race of the seated
jurors is unclear, the defendant cannot show that the strike of the
similarly situated juror was racially motivated. Id. at 231 (citing
cases).
While this Court has never addressed the matter, there should
be additional preservation requirements. Defense counsel should
have state on the record, the number of other members of the cognizable
group that are on the final jury and any pattern of strikes of that
group by the prosecutor in addition to identifying any similarly
situated jurors not of the group that the prosecutor did not strike,
allowing the prosecutor to explain why he did not consider those
jurors to be similarly situated. Florida courts should require all
this information by the end of jury selection. This type of
information should be part of the preservation requirement or a prime
facie showing on appeal. Appellate courts reviewing a
Batson/Melbourne claim on appeal should have all of this type of
information available to them. Without such information, an
appellate court simply does not have the information it needs to
determine genuineness. Banks v. State, 46 So.3d 989, 996 (Fla.
2010)(noting in “making a genuineness determination, the court may
16
consider all relevant circumstances surrounding the strike” which
includes but is not limited to: the racial make-up of the venire; prior
strikes exercised against the same racial group; a strike based on
a reason equally applicable to an unchallenged juror; or singling the
juror out for special treatment” citing Melbourne v. State, 679 So.2d
759, 764, n.8 (Fla. 1996)); Hayes v. State, 2012 WL 1123745, 8 (Fla.
2012)(noting the the genuineness determination “must be weighed in
light of the circumstances of the case and the total course of the
voir dire in question, as reflected in the record.”).
Reed’s similarly situated claim was not preserved. Reed
asserts on appeal that both Juanita Davis and Laura Kates, who were
not stricken, are similarly situated to Ms. Humphries, who was
stricken, because all three were unemployed. The trial court and
prosecutor identified the two black jurors on the final jury and
therefore, it can be assumed that neither Juanita Davis and Laura
Kates were black but it is not clear whether Juanita Davis was Hispanic
or white. (T. 305-306). Reed did not identify the race of either
Juanita Davis and Laura Kates as required to preserve his similarly
situated claim under King. King, 89 So.3d at 231.
Equal Protection Analysis
In Melbourne v. State, 679 So.2d 759 (Fla. 1996), the Florida
Supreme Court established a three step procedure for resolving a claim
of an equal protection violation in the use of peremptory challenges.
17
First, the party objecting to the other side's use of a peremptory
challenge on racial grounds must: make a timely objection; show that
the venireperson is a member of a distinct racial group and request
the striking party give a reason for the strike. Second, the trial
court asks the striking party to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of
the strike to come forward with a race-neutral explanation. Third,
if the explanation is facially race-neutral and the trial court
believes that, given all the circumstances surrounding the strike,
the explanation is not a pretext, the strike will be sustained. See
also Hayes v. State - So.3d. -, 2012 WL 1123745, 7 (Fla.
2012)(discussing Melbourne’s three steps). This three-step
framework is from Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986).
Peremptory challenges are presumed to be exercised in a
nondiscriminatory manner. Hayes v. State, 2012 WL 1123745, 7 (Fla.)
(Fla. 2012). Throughout this process, the burden of persuasion never
leaves the opponent of the strike to prove purposeful discrimination.
Id.
In Banks v. State, 46 So.3d 989 (Fla. 2010), the Florida Supreme
Court recently conducted a three step Melbourne analysis. Banks was
convicted of first-degree murder and sentenced to death. On appeal,
Banks argued that the trial court reversibly erred when it allowed
the State to strike two African-American prospective jurors. The
18
Florida Supreme Court, after laying out the Melbourne three-step
framework, explained that “the court should focus on the genuineness
of the race-neutral explanation as opposed to its reasonableness.”
Banks, 46 So.3d at 996 (citing Murray v. State, 3 So.3d 1108, 1120
(Fla. 2009)). And in “making a genuineness determination, the court
may consider all relevant circumstances surrounding the strike.”
“Relevant circumstances may include - but are not limited to - the
following: the racial make-up of the venire; prior strikes exercised
against the same racial group; a strike based on a reason equally
applicable to an unchallenged juror; or singling the juror out for
special treatment.” Banks, 46 So.3d at 996 citing Melbourne, 679 So.2d
at 764 n.8.
First step - prima facie case
All a party must do in this first step in Florida is object to
the strike and show the prospective juror is a member of a distinct
racial group. Welch v. State, 992 So.2d 206, 212 (Fla. 2008)(finding
the defendant made a sufficient step one objection by objecting to
the State's peremptory challenge to Ms. Napolitano; alleging that Ms.
Napolitano belonged to a specific gender group and requesting the
State to provide a gender-neutral reason for the strike); Hayes v.
State, 2012 WL 1123745, *7 (Fla. 2012)(stating that the objecting
party must make a timely objection, show that the venireperson is a
member of a distinct protected group, and request that the trial court
19
ask the striking party to provide a reason for the strike).
Florida law is not demanding regarding the first step. Welch v.
State, 992 So.2d 206, 212 (Fla. 2008)(referring to “simplified first
step”); Hayes v. State, 2012 WL 1123745, 7 (Fla. 2012)(noting that
the ‘simplified inquiry’ adopted by this Court recognizes that little
is required to request a neutral explanation for the challenge). The
Florida Supreme Court thinks that a party should not have a heavy
burden just to ask for a race neutral reason in the trial court. See
also Commonwealth v. Maldonado, 788 N.E.2d 968, 971, n.4 (Mass.
2003)(stating that the burden of making a showing in step one “ought
not be a terribly weighty one”).
The State agrees that there should be a simplified first step
and there should not be a heavy burden on the opponent of the strike
to do anything other than identify the juror at issue and identify
their cognizable group under equal protection group. It is simply too
early in jury selection to require more than this. Many of the
factors that a trial court should look at to determine a prima facie
case have not occurred yet. The final jury has not been selected. A
trial court does not have the final racial/gender composition of the
final jury available yet. A trial court also does not have all the
various peremptory challenges used by the party. A pattern cannot
be established until the end of jury selection. Nor does the trial
court have similarly situated juror information at this point.
Here, the first step of Melbourne was not complied with. Defense
20
counsel did not object to the prosecutor’s striking of many of the
prospective jurors. Many of the prospective jurors that Reed now
complains about being stricken on appeal including Ms. Humphries were
stricken without objection. The prosecutor struck Mr. Wesley
without objection. (T. Vol. XI 216). The prosecutor struck Ms. Madison
without objection. (T. 216). The prosecutor struck Ms. Humphries
without objection. (T. 219-220). The judge had the stricken jurors
return to the fourth floor. (T. 226). The prosecutor struck Mr.
Seldon without objection. (T. 301). The prosecutor struck Ms.
Robinson without objection. (T. 303). The prosecutor struck Mr.
Strickland as an alternate without objection. (T. 304). The
prosecutor struck Mr. Adams as an alternate without objection. (T.
304).
Defense counsel cannot do as he did in this case which was to
wait until the stricken prospective juror is returned to the general
jury pool to object to the striking of that juror. It is too late
at that point for the trial court to not allow the strike. The failure
to object at the proper time as required by the first step of Melbourne
is fatal to Reed’s claim.
Second step - reason
During the second step of Melbourne, the party striking the
prospective juror has the burden of production to come forward with
an explanation for the peremptory challenge. The party must provide
21
a reason for the strike at this stage. Hayes v. State, 2012 WL 1123745,
*7 (Fla. 2012)(if the first step of Melbourne is met, the trial court
must ask the party challenging the prospective juror to explain the
reason for the strike and the party must provide a race-, ethnicity-
or gender- neutral reason for the strike).
Here, the prosecutor explained each of his eight peremptory
strikes of the eight black prospective jurors:
Regarding Ms. Wesley, the prosecutor stated:
Ms. Wesley, was black. She was excused by me because she is 23 years old and, essentially, impressed me with her lack of maturity.
Regarding Ms. Madison, the prosecutor stated:
Ms. Madison, No. 3 juror, No. 353, indicated to me that she was 20 years old and I excused her, essentially, for that reason. She was single, had no kids, worked as a hair operator. I was also concerned because there was hair evidence involved in this case. Her work with hair, I thought, may have an undue bearing on her in the manner she may have misinterpreted some of the evidence that's going to be presented. That's another reason I excused her.
Regarding Ms. Humphries, the prosecutor stated:
Your Honor, she was excused essentially because she was totally unemployed. I was concerned about -- she said she was unemployed for about a year, over a year, and I know a number of physical therapists or physical therapist assistants and I'm aware that there's a real demand.
THE COURT: She's on Workmen's Comp, whether you caught that or not.
The prosecutor: Beg your pardon?
THE COURT: She's currently on Workmen's Comp as opposed to being unemployed.
Prosecutor: Yes, sir.
22
THE COURT: Go ahead.
The prosecutor: That's the next point I wanted to make, she did assert that she was on Workmen's Comp. It would just seem to me someone who has remained unemployed for a period of a year when from my own experience I'm aware there's a need for services that she can render just struck me as an aspect of her character that I did not particularly like. And that was the reason that challenge was exercised.
Regarding Mr. Campbell, the prosecutor stated:
Your Honor, Mr. Campbell struck me by his age, number one, and, number two, his appearance. He just struck me as an individual who did not have a great deal of maturity about him and I thought he would have difficulty dealing with the factual issues involved in this case in a mature way.
Regarding Mr. Seldon, the prosecutor stated:
Yes, sir. Your Honor, my challenge to Mr. Seldon was essentially based on the fact that he admitted to me that he is now working on behalf of an individual that was previously convicted by the State Attorney's Office here in Jacksonville who convicted him of murder and he's in the process of working with the defense lawyers trying to seek a new trial, as he explained it, open up his case, as he said. He's searching through records of that individual's background to assist in reversing his conviction and I just thought that his leanings were too close or he was too defense oriented to be fair to the state in this case.
Regarding Georgia Robinson, the prosecutor stated:
Your Honor, she has an arrest record that I'm aware of. She has been arrested just a number of times, the last time being -- last time being in 1982, and she has prior arrests before that. That was my reason for excusing her.
Regarding Mr. Strickland, the prosecutor stated:
Mr. Strickland indicated that he's worked at St. Luke's Hospital for about four years.
THE COURT: Six or seven. Anyway it was a number of years.
The prosecutor: A number of years and is still a messenger
and that just struck me as a bit unusual. I thought that probably it comments on his intelligence, motivation,
23
maybe even maturity. It just seems to me that someone who has been with an organization like St. Luke's and is still a messenger after four, five, six, seven years employment just doesn't reflect very well on him in my eyes.
Regarding Mr. Adams, the prosecutor stated:
Yes, sir, Your Honor, it's hard to [put] into words. I just sensed an uneasy chemistry between Mr. Adams as I was interrogating him. A member of the plumber's union. I have had experiences with individuals that are in that union in the past as a prosecutor, individuals that are involved in illegal activities from that union. His wife also being a cosmetologist. I just got an impression from questioning him that he did not like me. It's hard to really put that into rational words. It was a rational decision, but it was kind of a gut level impression. I would just state had I received those impressions from a white man as opposed to a black man, I would exercise that challenge on Mr. Adams, but that was the basis of my challenge of Mr. Adams.
(T. 309-314). The second step of Batson and Melbourne was complied
with in this case.
Third step - Genuineness
In determining whether or not a proffered race-neutral reason
for a peremptory strike is a pretext, the court should focus on the
genuineness of the race-neutral explanation as opposed to its
reasonableness.” Banks, 46 So.3d at 996. In “making a genuineness
determination, the court may consider all relevant circumstances
surrounding the strike.” Banks, 46 So.3d at 996. “Relevant
circumstances may include - but are not limited to - the following:
the racial make-up of the venire; prior strikes exercised against the
same racial group; a strike based on a reason equally applicable to
an unchallenged juror; or singling the juror out for special
24
treatment.” Banks, 46 So.3d at 996 citing Melbourne, 679 So.2d at 764,
n.8. The trial court’s decision regarding the credibility of the
proffered reasons and the attorney or party proffering them, “must
be weighed in light of the circumstances of the case and the total
course of the voir dire in question, as reflected in the record.” Hayes
v. State, 2012 WL 1123745, 8 (Fla. 2012).
Although the presence of African-Americans on the jury does not
preclude a Batson challenge, it is a significant factor which the
trial court can consider in determining whether the prosecutor has
used his peremptory challenges in a race neutral manner. The
Eleventh Circuit routinely considers the racial composition of the
final jury in their Batson analysis.2
2 United States v. Hill, 643 F.3d 807, 838 (11th Cir. 2011)(rejecting a Batson challenge where the final jury of 18 included nine (50%) blacks); United States v. Dixon, 401 Fed.Appx. 491, 493, 2010 WL 4261212, 2 (11th Cir. 2010)(finding no pattern of sexual discrimination in jury selection where 67% of the final jury were women); Parker v. Allen, 565 F.3d 1258, 1267-1272 (11th Cir. 2009)(finding no Batson violation were the prosecutor struck eight black prospective jurors because blacks composed about seven percent of the total venire and eight percent of the seated jury); Presley v. Allen, 274 Fed.Appx. 800, 2008 WL 1776570 (11th Cir. 2008)(unpublished)(affirming the Alabama’s Supreme Court finding that defendant did not establish a prima facie case as required by Batson where 8% of the venire was black and 8% of the final jury was black); United States v. Campa, 529 F.3d 980, 989 (11th Cir. 2008)(finding no prima facie case were the 16 jurors (four alternates) who included four (25%) blacks even though the government used seven of its nine peremptory strikes (78%) against blacks); United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th Cir. 2005)(noting that the establishment of a prima facie case is an absolute precondition to establishing a Batson claim and finding no prima facie case where 44 of the 82 (54%) of the venire members were Hispanic, the government used 5 of its 9 (56%) strikes against Hispanics, and 6 of the 17 (35%) jurors and alternates selected to serve were Hispanic); United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir. 1986)(stating that
In the Eleventh Circuit’s
25
words, “the unchallenged presence of jurors of a particular race on
a jury substantially weakens the basis for a prima facie case of
discrimination in the peremptory striking of jurors of that race.”
Central Alabama Fair Housing Center, Inc. v. Lowder Realty Co., Inc.,
236 F.3d 629, 638 (11th Cir. 2000). Other federal circuits agree with
the Eleventh Circuit.3
Florida Courts are beginning to accept this position as well.
the unchallenged presence of two blacks on the jury undercuts any inference of impermissible discrimination from the prosecutor's use of three of the four peremptory challenges to strike blacks); United States v. Allison, 908 F.2d 1531, 1537 (11th Cir.1990)(rejecting a Batson challenge where the jury contained two blacks because their unchallenged presence undercuts any inference of impermissible discrimination); United States v. Jiminez, 983 F.2d 1020, 1023 (11th Cir.1993)(noting that the presence of blacks on the jury was "significant" in reviewing the district court's denial of a Batson challenge); United States v. Puentes, 50 F.3d 1567, 1578 (11th Cir. 1995)(explaining that although the presence of African-American jurors does not dispose of an allegation of race-based peremptory challenges, it is a significant factor tending to prove the paucity of the claim and finding a Batson claim "meritless" because the jury contained four African-Americans.).
3 United States v. Williamson, 53 F.3d 1500,1510 (10th Cir. 1995)(explaining that although the mere presence of members of a certain race on the final jury does not automatically negate a Batson violation, ... it can be a relevant factor, particularly when the prosecution had the opportunity to strike them.); United States v. Marin, 7 F.3d 679, 686, n. 4 (7th Cir. 1993)(concluding that while accepting one minority on the jury does not negate a Batson challenge but explaining that this does not mean that the trial court should ignore the fact that the government had not objected to the seating of another juror of the same race); United States v. Hughes, 970 F.2d 227, 232 (7th Cir. 1992)(concluding the fact that two of four blacks on the venire were empaneled weakens argument that government's strikes were based on a motive to discriminate); United States v. Mixon, 977 F.2d 921, 923 (5th Cir. 1992)(observing that the fact the jury contained one black weakens the argument that the government was accepting jurors solely on a racial basis).
26
Heggan v. State, 745 So.2d 1066, 1069 (Fla. 3d DCA 1999)(explaining
the fact that the prosecutor had accepted two other African-Americans
on the jury was relevant to, although by no means dispositive of, the
trial judge's assessment of the genuineness of the prosecutor's
stated reason); Walls v. State, 641 So.2d 381, 386, n.2 (Fla.
1994)(rejecting a Batson challenge in part because the final jury
consisted of four blacks and eight whites); but see Bryant v. State,
565 So.2d 1298, 1301 (Fla. 1990)(rejecting the argument that the fact
that the actual jury contained six black persons establishes that the
prosecution did not exclude persons because of race).4
4 The Bryant Court cited the Eleventh Circuit’s decision in United States v. Gordon, 817 F.2d 1538, 1541 (11th Cir. 1987),as support. The Eleventh Circuit has a solid wall of precedent considering the racial composition of the final jury in its more recent Batson cases. See infra, n.2.
A twelve
person jury which contains six black persons, which were the facts
in Bryant, necessarily and automatically satisfies Batson. It is
silly to be reviewing a criminal conviction for racial discrimination
in jury selection where over 50% of the final jury was black. While
“the striking of a single black juror for a racial reason violates
the Equal Protection Clause, even where other black jurors are
seated,” that does not make the presence of other blacks jurors
irrelevant to a proper Batson analysis. It is a highly relevant
circumstance that is part of the total course of the voir dire. This
Court, in Melbourne, Murray, Banks, and most recently in Hayes, has
recognized that all information should be considered in determining
27
genuineness. The failure to consider the final racial and gender
composition of the jury violates this Court’s statements that all the
circumstances should be considered by an appellate court. Hayes,
2012 WL 1123745 at *8 (noting an appellate court should consider “the
total course of the voir dire”). This Court’s failure to
consistently consider the racial composition of final jury in cases
such as Bryant has the effect of reducing “the noble idea” of Batson,
“to a formalistic rite in which any misstep from the intricate
choreography prescribed by the cases requires reversal.” Pickett v.
State, 922 So.2d 987, 993 (Fla. 3rd DCA 2005)(Schwartz, J.,
concurring).
Furthermore, as a policy matter, this Court should consider the
final composition of the jury. If a significant number of minority
jurors would insulate a conviction from a Batson claim, prosecutors
would actively seek out acceptable minority jurors. A clear
statement from this Court that a racially-mixed jury would immune the
conviction from a Batson reversal would positively encourage
prosecutors to include minorities on the jury. Prosecutors have no
such incentive under cases such as Bryant.
The Eleventh Circuit looks to certain factors in determining
whether a pattern exists, including (1) whether members of the
relevant racial or ethnic group served unchallenged on the jury; (2)
whether the striker struck all of the relevant racial or ethnic group
from the venire, or at least as many as the striker had strikes; (3)
28
whether there is a substantial disparity between the percentage of
jurors of a particular race or ethnicity struck and the percentage
of their representation on the venire; and (4) whether there is a
substantial disparity between the percentage of jurors of one race
struck and the percentage of their representation on the jury. United
States v. Ochoa-Vasquez, 428 F.3d 1015, 1044-45 (11th Cir. 2005).
Not only were there two blacks on the final jury but the
prosecutor had one remaining peremptory challenge that he could have
used to remove one of these two blacks jurors but did not do so. The
fact that the prosecutor had the ability to remove jurors of a
particular race and did not do so, adds to the genuineness of his
reasons for removing other prospective jurors. And as the trial
court observed, approximately 25% of population was black and that
with the two black jurors on the jury, the jury was approximately 16%
black (XI 315).
There were two blacks on the final jury. The Batson Court itself
observed that “a total or seriously disproportionate exclusion” of
African-Americans is itself a showing of intentional discrimination.
Batson, 476 U.S. at 93, 106 S.Ct. at 1721. But the converse is true
as well. The inclusion of black jurors is itself a showing of
non-discrimination.
While Reed relies on Miller-El, he does not conduct the same sort
of detailed statistical analysis that the Supreme Court in that case
conducted. Reed does not explain how Miller-El is violated when
29
there were two black jurors that actually served. He does not explain
how Miller-El is violated when the prosecutor had remaining
peremptory challenges but did not attempt to remove either of these
two black jurors. He does not explain how Miller-El is violated when
the final jury was 16% black in a county that was 25% black. Reed
does not account for any of these facts and his analysis is not the
type of analysis the Miller-El Court conducted.
Genuineness as applied to this case
The United States Supreme Court has held that the prosecutor's
proffered reason for striking the juror need not be particularly
persuasive, or even plausible, so long as it is race neutral. Purkett
v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834
(1995). The Florida Supreme Court has also explained that the focus
is on the genuineness of the race-neutral explanation, not its
reasonableness. Hayes v. State, 2012 WL 1123745, 8 (Fla. 2012)(citing
Murray v. State, 3 So.3d 1108 (Fla. 2009). So, the reason for the
strike need not be objectively true.
Here, the trial court after listening to the prosecutor’s
reasons, found “that the challenges exercised against the blacks are
not based purely upon race or racial discrimination.” (T. XI 315).
The trial court determined that all eight of the prosecutor’s reason
for the strikes were genuine. Hayes v. State, 2012 WL 1123745, 8
(Fla. 2012)(reversing because the trial court failed to conduct any
30
inquiry as to the genuineness of the explanation as required by the
third step of Melbourne).
Regarding Georgia Robinson, the prosecutor struck her because
she had an arrest record. Prior arrests are a valid race-neutral
reason. Symonette v. State, 778 So.2d 500, 503 (Fla. 3rd DCA
2001)(observing the fact that a prospective juror has been previously
arrested or has had a relative arrested has been repeatedly held to
be a valid race-neutral reason for the exercise of a peremptory
challenge citing cases including Fotopoulos v. State, 608 So.2d 784
(Fla.1992)). Reed argues that the prosecutor reason for striking
this prospective juror was not proven because the prosecutor asked
her no questions regarding her arrest record during his questioning
of her and did not introduce her rap sheet. Pet. at 16 & n.11. This
is not the proper focus of a genuineness analysis. The prosecutor
is not required to objectively prove their reasons for striking a
prospective juror. The prosecutor could have even been mistaken
regarding whether this Georgia Robinson was the one with an arrest
record and the reason is still genuine. Prosecutors are not required
to be 100% accurate in the exercise of their peremptory challenges,
only non-discriminatory. Cf. Johnson v. State, 21 So.3d 911, 912-913
(Fla. 3rd DCA 2009)(concluding the striking of an black woman
prospective juror was race-neutral and gender-neutral where a person
with her name, address, date of birth, and social security number was
charged with petit theft and convicted of criminal mischief even
31
though the prospective juror claimed that her purse had been stolen
and she was not the person charged in either case).
The prosecutor struck many of the prospective black jurors due
to their young age. Age is race neutral reason. In Rice v. Collins,
546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006), the Supreme
Court held that a state trial court's decision finding a prosecutor's
reason for a peremptory strike of African-American juror was
race-neutral. Collins was convicted by a jury of one count of
possessing cocaine and sentenced under California's three strikes
law. During jury selection, the prosecutor struck a young,
African-American woman. The prosecutor explained that the
prospective juror was young, single and lacked ties to the community
as well as other less supported reasons. The state trial court,
rejecting one reason given by the prosecutor and ignoring the other
reasons, observed that the prospective jury was “a youthful person,
as was [a white male juror the prosecutor also dismissed by peremptory
challenge]” and therefore, the trial court was “prepared to give the
District Attorney the benefit of the doubt.” The prosecutor had also
stricken a young white male.
The Collins Court explained that a Batson challenge to a
peremptory strike requires a three-step inquiry. First, the trial
court must determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge on the
basis of race. Second, the prosecutor must present a race-neutral
32
reason for the strike but the reason does not have to be “persuasive,
or even plausible” providing it is not discriminatory. Third, the
court must then determine whether the defendant has carried his burden
of proving purposeful discrimination which involves evaluating the
persuasiveness of the reason. The Court also noted that “the
ultimate burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike.” The Court
explained that it was “not unreasonable to believe the prosecutor
remained worried that a young person with few ties to the community
might be less willing than an older, more permanent resident to impose
a lengthy sentence for possessing a small amount of a controlled
substance.” The Court found the prosecutor’s “wariness of the young
and the rootless” to be race neutral and noted the prosecutor has also
used a peremptory strike on a white male juror who was also young and
rootless. See also United States v. Williams, 214 Fed.Appx. 935, 936,
2007 WL 140997, 1 (11th Cir. 2007)(finding youth and lack of worldly
experience to be race neutral reason citing Rice v. Collins, 546 U.S.
333, -, 126 S.Ct. 969, 975, 163 L.Ed.2d 824 (2006)). Being young is
a genuine and common reason for prosecutors striking prospective
jurors.
Similarly situated juror analysis
Reed asserts on appeal that both Juanita Davis and Laura Kates,
who were not stricken, are similarly situated to Ms. Humphries, who
33
was stricken, because all three were unemployed.
Prospective juror Ms. Humphries was unemployed. (XI 124; 169).
The prosecutor struck prospective juror Ms. Humphries “because she
was totally unemployed” and the prosecutor was aware that there was
a real demand for physical therapist. (T. 311). When the trial court
pointed out to the prosecutor that she was on worker’s compensation,
this did not change the prosecutor’s mind. (T. 311).
Unemployment is a valid race neutral reason to strike a
prospective juror. Files v. State, 613 So.2d 1301, 1304 (Fla.
1992)(approving strike of divorced, unemployed, African-American
mother of five because "excusing a juror for having no visible means
of support has been a basis for parties, in both civil and criminal
proceedings, to peremptorily excuse a prospective juror").
While not properly preserved as noted above, the similarly
situated claim is also meritless. These three women were not
similarly situated. Mrs. Davis was not “unemployed”. She was the
stay-at-home mother of four adult children, who had never worked after
her marriage. (T. XI 139). Contrary to Reed’s assertions, the
prosecutor did ask follow up questions regarding Mrs. Davis’ original
response that she did not work at all. (T. XI 116; 139). The
prosecutor asked her if she had ever worked after her marriage and
then asked about the employment history of her husband and her four
children. (T. XI 139-140). The youngest of her children was also a
homemaker and the prosecutor then asked about the employment of her
34
daughter’s husband. Laura Kates was also a housewife. (248). She
was married with a two-year-old daughter. (301)
Ms. Humphries, by contrast, was not a homemaker. While she had
one eight-year-old child, she was employed in the past five years.
(T. XI 124). Had Ms. Humphries expressed any indiction that she had
left the work force to remain home with her child, then she would be
similarly situated with Laura Kates, but she did not. (301). Her
being on worker’s compensation was a contraindication to this.
Furthermore, Ms. Humphries child was school-age whereas Ms. Kates was
not school-age. So, the three jurors were not similarly situated.
Alternate prospective jurors
Reed also complains of two peremptory challenges used against
Mr. Strickland and Mr. Adams. Mr. Strickland had a cousin that was
convicted of bank robbery and prosecuted in Duval County. (XI 275).
The prosecutor struck him because he was underemployed. (XI 313).
Mr. Strickland was messenger at St. Jude’s hospital and had remained
a messenger after four years. Underemployment is a valid race
neutral reason. Wollmann Engineering, Inc. v. Mactronix, Inc., 161
F.3d 16 (9th Cir. 1998)(affirming strike of Chinese woman because she
was underemployed relative to her level of education).
Mr. Adams was involved in the plumber’s union and the prosecutor
had had prior experience with that union. (XI 314). Belonging to a
union is a race neutral reason. Ross v. State, 665 N.E.2d 599, 602
35
(Ind. App. 1996)(upholding prosecutor’s strike of a prospective black
juror who was struck because she was a union representative and her
negative body language because the reasons were race neutral under
Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)).
These two prospective jurors, however, were prospective
alternate jurors only. Both Mr. Strickland and Mr. Adams were
stricken as alternates. (XI 304-305). No alternates sat in this
jury. There is absolutely no harm to Reed regarding the striking of
these two jurors. They would not have decided his case regardless
of whether they had been chosen as alternates. Chosen or not, they
would have gone home before jury deliberations. Any error was
harmless. United States v. Gonzalez-Largo, 436 Fed.Appx. 819, 821,
2011 WL 2214117, 1 (9th Cir. 2011)(finding a Batson error to be
harmless because the alternate juror was never called upon to serve
as a regular juror); People v. Mills, 226 P.3d 276, 300 (Cal.
2010)(concluding that any Batson error regarding an alternate in a
case were no alternate served “would necessarily be harmless”). The
prosecutor’s reasons were genuine and there was no violation of
Batson.
36
ISSUE II
WHETHER HABEAS COUNSEL WAS INEFFECTIVE FOR NOT RAISING A CLAIM IN THE FIRST HABEAS PETITION THAT ORIGINAL TRIAL COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED BECAUSE NO CONFLICT OF INTEREST EXISTED?
Reed asserts that he has a right to effective assistance of
habeas counsel relying on Martinez v. Ryan, – U.S. –, 132 S.Ct. 1309,
182 L.Ed.2d 272 (2012), and that habeas counsel failed to raise the
issue of whether a conflict of interest existed requiring the
disqualification of trial counsel in the first state habeas petition.
Martinez does not apply in state court and does not create a right
to effective habeas counsel in a state postconviction habeas appeal.
Furthermore, there was a conflict. The Office of the Public Defender
was representing both Reed and a witness who was going to be called
by the State as a witness against Reed. Additionally, a waiver
colloquy with Reed would not have cured the conflict.
Motion to disqualify defense counsel
The State filed a motion to disqualify the Assistant Public
Defendant Alan Chipperfield because the Public Defender Office had
represented Dell Wade Sperry and Mr. Sperry was going to be called
as witness against Reed by the State. The trial court held a hearing
on the motion to disqualify. (T. Vol. IX 17-21). The trial court
noted that, while the Public Defender’s Office could not certify
conflict, both Reed and Sperry were represented by the Office of the
Public Defender at the time Reed made statements to Sperry. (T. Vol.
37
IX 19). The trial court noted that the Public Defender’s Office would
have to cross examine Mr. Sperry at Reed’s trial and that a “very
strong likelihood” existed that “if a conflict is not present at this
time, that it will or could surface as late as during trial . . . ”(T.
Vol. IX 19-20). The trial court then granted the State’s motion and
discharged the Office of the Public Defender and appointed Mr. Nichols
to represent Reed. (T. Vol. IX 20).
Neither APD Chipperfield nor Reed objected at any point. (T. Vol.
IX 20-21). Both Reed and current counsel APD Chipperfield were
present as was Mr. Nichols. (T. Vol. IX 20). The trial court noted
that Reed was given an opportunity to consult with both counsels prior
to the hearing and then explained to Reed that “the Public Defender
will not be representing you any further” rather, “Mr. Nichols will
be your attorney . . . from this point forward.” (T. Vol. IX 20-21).
The trial court then inquired as to whether Reed understood this and
Reed responded: “Yes, sir.” (T. Vol. IX 21).5
Merits
First, Martinez v. Ryan, – U.S. –, 132 S.Ct. 1309, 182 L.Ed.2d
272 (2012), does not apply in state court as this Court recently
5 Sperry was not ultimately called by the State to testify against Reed. Rather, the State called another witness to testify as to Reed’s statements. Nigel Hackshaw, who was in the same jail cell as Reed, testified that Reed showed him newspaper articles about the murder and described many of the details of the murder to him. (T. XIII 588). Reed, however, does not make any argument based on the fact that Sperry was not called to testify.
38
explained in Gore v. State, 91 So.3d 769, 771 (Fla. 2012)(holding
“that the recent decision from the United States Supreme Court in
Martinez v. Ryan, – U.S. –, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012),
does not provide Gore with any basis for relief in this Court.”).
This Court concluded that Martinez does not create “a new and
independent cause of action for ineffective assistance of collateral
counsel in our state courts system.” Gore, 91 So.3d at 778. Rather,
Martinez is “designed and intended to address issues” that arise in
federal habeas proceedings. Id. As this Court observed in Gore, the
United States Supreme Court did not create a constitutional right to
effective assistance of collateral counsel in Martinez. Id. (noting
that the “Supreme Court specifically declined to address the issue
of whether a constitutional right to effective assistance of
collateral counsel exists.”).
And Martinez certainly did not create a constitutional right to
effective assistance of state habeas counsel as Reed seeks to do in
his successive habeas petition. Nor did it create an equitable right
to effective state habeas counsel. Martinez provides no basis for
Reed to file a successive habeas petition based on a claim of
ineffective assistance of state habeas counsel - equitable or
otherwise. On this basis alone, this claim should be denied.
Furthermore, the issue of the trial court’s failure to conduct
a waiver colloquy was not preserved. Generally, appellate counsel
cannot be deemed ineffective for failing to raise a claim that was
39
not preserved. Pittman v. State, 90 So.3d 794, 819 (Fla. 2011)(citing
Johnson v. Singletary, 695 So.2d 263, 266 (Fla. 1996)); Dessaure v.
State, 55 So.3d 478, 486 (Fla. 2010)(stating that “in the absence of
fundamental error, appellate counsel cannot be ineffective for
failing to raise claims which were not preserved due to trial
counsel's failure to object” quoting Brown v. State, 846 So.2d 1114,
1127 (Fla. 2003)). Neither Reed nor the Assistant Public Defender who
was representing him objected to his removal as counsel of record.
A.P.D. Chipperfield could have objected and requested a waiver
colloquy if he wished to continue representing Reed but did not do
so. Appellate counsel is not ineffective for not raising a claim that
is not preserved and neither is state habeas counsel.
Moreover, conducting a waiver colloquy with Reed would not have
cured the conflict. It was Sperry who had the attorney/client
privilege in this situation and it was Sperry who would have had to
waive any conflict, not just Reed.
Whether counsel or Reed “believed a conflict existed” is not the
standard for whether a conflict of interest actually exists. Pet. at
48. There was a conflict of interest under this Court’s precedent.
A single Public Defender’s Office may not knowingly represent both
the defendant and a witness called by the State to testify against
the defendant. As this Court has explained, “as a general rule, a
public defender's office is the functional equivalent of a law firm
and that different attorneys in the same public defender's office
40
cannot represent defendants with conflicting interests.” Mungin v.
State, 932 So.2d 986, 1001 (Fla. 2006)(quoting Bouie v. State, 559
So.2d 1113, 1115 (Fla. 1990); see also Keyes v. State, 2012 WL 2327730,
3 (Fla. 4th DCA 2012)(observing that an “imputed conflict with a public
defender's office may be enough to constitute an ‘actual conflict’
where trial counsel is aware that the office represents, or has
represented, state witnesses.”); Kormondy v. State, 983 So.2d 418,
434 (Fla. 2007)(finding no conflict of interest based on the
simultaneous representation of a capital defendant and a key State
witness because the Office withdraw its representation of the witness
as soon as it discovered the conflict and before speaking with the
witness). Reed does not even acknowledge this Court’s precedent in
this area.6
There was no deficient performance nor any prejudice from habeas
6 The State does not necessarily agree that a Public Defender’s Office should be treated as the same as a private law firm because the basis for treating all attorneys that are employed by a private law firm as a single entity is the financial interest of the firm which is a consideration that is not present in the case of a Public Defender Office. But both this Court and many other courts treat Public Defender’s Offices as the equivalent of a private law firm for purposes of conflict of interest. See Restatement (Third) of the Law Governing Lawyers § 123 & cmt. d(iv) (2000)(discussing imputation of conflicts among affiliated lawyers and noting that the “rules on imputed conflicts and screening ... apply to a public-defender organization as they do to a law firm in private practice in a similar situation”); Reynolds v. Chapman, 253 F.3d 1337, 1343 (11th Cir. 2001)(stating that “[w]hile public defenders' offices have certain characteristics that distinguish them from typical law firms, our cases have not drawn a distinction between the two” for purposes of conflict of interest). The trial court, of course, was bound by this Court’s precedent and properly found a conflict based on that well-established precedent.
41
counsel not raising this conflict-of-interest claim in the initial
habeas petition. There was no deficient performance because under
this Court’s precedent, the same Public Defender’s Office
representing a defendant and a state’s witness is indeed a conflict
of interest. “Appellate counsel cannot be deemed ineffective for
failing to raise meritless issues.” Butler v. State, 2012 WL 2848844,
25 (Fla. 2012). “In fact, 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.” Id. (quoting Valle v. Moore,
837 So.2d 905, 908 (Fla. 2002)). Where “a habeas petitioner argues
that appellate counsel was ineffective for failing to raise an issue,
the claim will not warrant relief if the issue would in all probability
have been found to be without merit.” Butler, 2012 WL 2848844 at *25.
Nor has Reed established any prejudice. He was represented at
trial by a conflict-free attorney that he never objected to
representing him during the hearing on the motion to disqualify his
previous attorney.
Reed’s reliance upon State v. De La Osa, 28 So.3d 201 (Fla. 4th
DCA 2010); Freeman v. State, 503 So.2d 997 (Fla. 3d DCA 1987); and
Larzelere v. State, 676 So.2d 394, 403 (Fla. 1996), is misplaced. Pet.
at 46-48. None of these cases involve a similar factual scenario as
this case. De La Osa involved a defense counsel who had previously
been a statewide prosecutor but who had resigned from that position
42
four years before the charges against De La Osa were filed. De La
Osa, 28 So.3d at 202. Furthermore, the trial court in De La Osa
conducted an evidentiary hearing into the matter and determined that
there was no conflict because defense counsel had not had “substantial
participation” in the case. There was no such evidentiary hearing in
this case.
Freeman involved a defense counsel who had previously
represented the co-defendant. Reed had no co-defendant. Moreover,
Freeman is incorrectly decided. The Third District held that the
trial court erred in removing defense counsel without a waiver
colloquy. But it was not just Freeman that had to waive any conflict;
it was the co-defendant as well and the co-defendant joined in the
state's motion to disqualify the attorney. Additionally, both De La
Osa and Freeman were petitions for writ of certiorari, not habeas
petitions, much less successive habeas petitions.
Larzelere involved dual representation where defense counsel
was representing both the defendant and a co-defendant. Larzelere,
676 So.2d at 402. Reed, however, had no co-defendant. Moreover,
Larzelere basically stands for the general proposition that conflicts
can be waived which the State does not dispute. Larzelere, 676 So.2d
at 403. See also McWatters v. State, 36 So.3d 613, 635 (Fla.
2010)(finding an express waiver of the conflict of interest).
Neither De La Osa nor Freeman nor Larzelere controls here.
This claim of ineffective assistance of appellate counsel should
43
be denied. Accordingly, the successive habeas petition should be
denied.
44
CONCLUSION
The State respectfully requests that this Honorable Court deny
the successive habeas petition.
Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL ____________________________ CHARMAINE M. MILLSAPS ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 0989134 OFFICE OF THE ATTORNEY GENERAL THE CAPITOL, PL-01 TALLAHASSEE, FL 32399-1050 (850) 414-3300 primary email address: [email protected] secondary email address: [email protected] COUNSEL FOR RESPONDENT
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing
response to successive petition for writ of habeas corpus has been
furnished by email service to [email protected] which is the
email address listed with the Florida Bar this 12th day of
September, 2012.
________________________________ Charmaine M. Millsaps Attorney for the State of Florida
CERTIFICATE OF FONT AND TYPE SIZE
45
Counsel certifies that this brief was typed using Courier New
12 point font.
________________________________ Charmaine M. Millsaps Attorney for the State of Florida
