Opinion
19-13214
07-21-2021
JEFFERY NEIL BRANTLEY, Petitioner-Appellant, v. FLORIDA ATTORNEY GENERAL, SECRETARY, DEPARTMENT OF CORRECTIONS, Respondents-Appellees.
DO NOT PUBLISH
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:16-cv-00354-PAM-MRM
Before WILSON, ROSENBAUM, and LAGOA, Circuit Judges.
PER CURIAM:
Jeffery Brantley, a Florida state prisoner proceeding pro se, appeals the district court's denial of his 28 U.S.C. § 2554 habeas petition concerning his convictions and corresponding sentence for unlawful sexual activity, promoting a sexual performance by a minor, and tampering with or fabricating physical evidence. We granted a certificate of appealability ("COA") on two issues related to Brantley's ineffective assistance of counsel claim and his claim that the district court failed to address a different ineffective assistance claim. For the following reasons, we affirm in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
The present habeas petition relates to Brantley's trial and subsequent conviction of unlawful sexual activity, promoting a sexual performance by a minor, and tampering with or fabricating physical evidence. In January 2002, the mother of Brantley's 16-year-old victim contacted law enforcement and explained that her daughter had been missing for two days and a man whom she met online might have abducted her. The mother voluntarily provided agents with copies of emails between her daughter and an adult man-that was later identified as Brantley. These emails indicated that her daughter and the man had previously engaged in sexual activity. Based on these emails, Agent Devine obtained, through invocation of 18 U.S.C. § 2703, as amended by the Patriot Act, Brantley's name from records associated with the email and IP address used to contact the victim, and again invoking the Patriot Act, he determined that Brantley used an American Express account to pay for internet access. Agent Devine then contacted American Express and advised that the instant case met the requirements of the Patriot Act and that immediate dissemination of Brantley's financial information was necessary. This inquiry revealed that Brantley's account had been used to rent two hotel rooms.
Agent Devine contacted the Naples Police Department ("NPD") and advised them of these facts, which led the NPD to find Brantley and the minor victim at the hotel where Brantley's credit card was used and to arrest Brantley. Brantley's trial counsel filed a motion to suppress all evidence obtained from the warrantless search of Brantley's hotel room, including, in relevant part, the seizure and search, or viewing, of various videotapes. At the suppression hearing, Detective David Lupien testified that he went to the hotel after being told that Brantley's credit card had been used there. Detective Lupien explained that the minor victim and Brantley were found inside the room, and upon being escorted out, the minor victim explained that she and Brantley had been having sex. Another officer, William Fedak, stated that he arrested Brantley upon entering the hotel room, and when Officer Fedak "took him to the ground," he discovered three cassettes under the couch, two of which had their film stripped. Officer Fedak also observed a tripod, camera case, and a digital camera in the room. He further stated that slivers of film, consistent with the type of film found under the couch, were found in the bathroom's toilet. The trial court denied the motion to suppress with respect to the videotapes, finding that the videotapes were in plain view.
During jury selection, Brantley's trial counsel moved for a mistrial after he had received belated discovery-170 pages of discovery related to how the state obtained Brantley's name and credit card information. The state trial court allowed Brantley's counsel to review the discovery overnight and instructed the parties that the trial would begin the next day. At trial, Brantley's trial counsel again moved for a mistrial based on the belated discovery. He argued that Agent Devine had violated the law in obtaining Brantley's information under the Patriot Act, which would preclude the evidence found at Brantley's hotel room as fruit of the poisonous tree. The trial court instructed the parties that it was "going forward" with the case, stating that the "Secret Service issues [were] not going to slow us down. [That is] a different issue [for] a different court."
During trial, Agent Devine testified in support of the facts above regarding how he retrieved Brantley's information from American Express under the Patriot Act. And the videotapes discovered at the hotel room were played for the jury. During closing arguments, Brantley's trial counsel stated that, based on the contents of the videotapes played for the jury, Brantley was conceding to the two charges against him relating to him having oral sex with the minor victim. Following deliberations, the jury returned guilty verdicts for unlawful sexual activity, promoting a sexual performance by a minor, and tampering with or fabricating physical evidence. The trial court sentenced him to thirty years' imprisonment.
After exhausting his appeals, Brantley filed a post-conviction motion in state court under Florida Rule of Criminal Procedure 3.850. As relevant to this appeal, he argued, in Ground II, that his counsel was ineffective for failing to investigate or depose certain state witnesses, including Agent Devine. He asserted that, had his counsel deposed these witnesses, his counsel would have had the documents belatedly provided the day of trial that showed the allegedly illegal nature of the government's search. And, in Ground VI, Brantley argued that the videotapes introduced at trial were "containers" with unknown contents at the time of their seizure. He claimed that law enforcement needed a warrant to subsequently search these containers, which his trial counsel failed to argue.
The state court held a post-conviction evidentiary hearing, during which Brantley's trial counsel testified that he knew that Agent Devine initiated the underlying criminal investigation, but he chose not to depose him. He conceded to not filing any motion to suppress with respect to Agent Devine's use of the Patriot Act. Brantley testified that he had grown concerned about his counsel's performance after he was unable to make timely payments. He further stated that, while he did not know at the time whether Agent Devine's actions were legal, he explained to his trial counsel that he knew Agent Devine had contacted his credit card company so that his counsel could investigate these issues, and that his main concern was how to suppress the entry of the videotapes at trial.
The state post-conviction court denied Brantley's motion. As to Ground II, it concluded that Brantley's counsel was not ineffective for failing to depose or investigate Agent Devine, determining that trial counsel's initial decision not to depose Agent Devine was within the reasonable bounds of trial strategy and that, once trial counsel had learned of Agent Devin's value as a witness during the mid-trial discovery disclosure, counsel took reasonable steps to assert Brantley's interest. Regarding Ground VI, it agreed with the trial court, which found the videotapes to be in plain view at the time of his arrest and were therefore admissible. Brantley appealed, and the state appellate court affirmed the denial of post-conviction relief.
Brantley then filed the present habeas corpus petition under 28 U.S.C. § 2254, raising the same claims that he raised in his state post-conviction motion. The district court denied the petition. As relevant here, it found that the videotapes did not need to be suppressed because they were in plain view. It further found that the incriminating character of the videotapes was immediately apparent because of circumstances surrounding the case, including the victim's statement that sexual activity had occurred and had been filmed, the presence of a camcorder in the room, and the pieces of film in the toilet. As for trial counsel's failure to investigate Agent Devine, it found that the exchange of information between Agent Devine and American Express did not violate federal law in light of 12 U.S.C. § 3414(b)(1)(A), which allowed the government to obtain financial records if it determined that a delay would create imminent danger of physical injury.
Brantley appealed the district court's denial of his habeas petition. And we granted a certificate of appealability ("COA") on the following two issues: (1) whether Brantley's trial counsel was ineffective for failing to investigate or depose a key state witness who caused the search and seizure of evidence under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("Patriot Act"), and (2) whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by not addressing whether counsel was ineffective for failing to argue that the state could not view the contents of videotapes lawfully seized from a hotel room without a search warrant.
II. STANDARD OF REVIEW
We review the district court's denial of habeas corpus relief under 28 U.S.C. § 2254 de novo and any factual findings for clear error. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). Our review under § 2254 is limited to the issues specified in the COA. Spencer v. Sec'y, Dep't of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010).
III. ANALYSIS
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), federal courts are precluded from granting habeas relief on claims that were previously adjudicated on the merits in state court, unless the adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
As contained in § 2254(d)(1), the phrase "clearly established" refers to the holdings of the Supreme Court at the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court decision can be contrary to established law in two ways: "(1) it applies a rule contradicting the governing law as set forth by Supreme Court case law, or (2) the state court, in a case with facts indistinguishable from those in a decision of the Supreme Court, arrives at a different result." Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003).
A state court decision represents an unreasonable application of clearly established federal law if the state court correctly identifies the controlling legal rule from Supreme Court cases but unreasonably applies it to the facts of a case. Id. The "unreasonable application" inquiry requires that the state court decision "be more than incorrect or erroneous"-it must be "objectively unreasonable." Lockyer, 538 U.S. at 75. A petitioner must show that the state court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." White v. Woodall, 572 U.S. 415, 419-20 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
Additionally, a state court's factual determinations are generally entitled to a presumption of correctness, and the applicant has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." DeBruce v. Comm'r, Ala. Dep't of Corr., 758 F.3d 1263, 1266 (11th Cir. 2014) (quoting Burt v. Titlow, 571 U.S. 12, 18 (2013)). Rather, a state court's factual determinations are unreasonable if no fairminded jurist could agree. See Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012).
Brantley raised two issues in his habeas petition, over which we granted a COA-(1) an ineffective assistance of counsel claim related to his trial counsel's failure to investigate, and (2) a claim under Clisby that the district court failed to address one of his other ineffective assistance of counsel claims. We address each issue in turn.
A. The Ineffective Assistance of Counsel Claim
To establish ineffective assistance of counsel, a petitioner must show that (1) his attorney's performance was deficient, and (2) the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). "[T]o establish prejudice, a 'defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Wiggins v. Smith, 539 U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at 694).
Deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. It is presumed that a petitioner's counsel acted competently, and the petitioner must prove "that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (quoting Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir. 1994)). "[A] petitioner must establish that no competent counsel would have taken the action that his counsel did take." Id. at 1315. In order to prevent the effects of hindsight, a court must analyze an attorney's action from the perspective that the attorney would have had when he took the action. Id. at 1316. "In assessing the reasonableness of an attorney's investigation . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins, 539 U.S. at 527.
Moreover, state post-conviction courts cannot merely assume that counsel's investigation was adequate. Id. at 527. A state post-conviction court's deference to counsel's "strategic decision not to present every conceivable mitigation defense" is likewise unreasonable when counsel conducted an unreasonable investigation. Id. at 527-28. An unreasonable investigation occurs when "counsel [chooses] to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible." Id. Counsel's duty to investigate is "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Everett v. Sec'y, Fla. Dep't of Corr., 779 F.3d 1212, 1249 (11th Cir. 2015) (quoting Strickland, 466 U.S. at 690-91).
The reasonableness of counsel's investigation is also substantially influenced by the defendant's statements or actions, as an attorney usually bases his actions on information provided by his client. Pooler v. Sec'y, Fla. Dep't of Corr., 702 F.3d 1252, 1269 (11th Cir. 2012). The need for an investigation can be reduced or eliminated if the defendant has provided facts to counsel that support a certain line of defense. Id. at 1269-70.
When the deferential standard of Strickland is combined with the deferential standard under AEDPA, the result is a doubly deferential standard of review in federal court. Harrington, 562 U.S. at 105. "It was meant to be, and is, difficult for a petitioner to prevail under that stringent standard." Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1301 (11th Cir. 2019). However, if we determine that the state court's adjudication of a petitioner's Strickland claim was unreasonable under § 2254(d), we review the record de novo. Debruce, 758 F.3d at 1266.
Here, Brantley's ineffective assistance claim is based on his trial counsel's failure to investigate how the state came to determine his name and credit card information, which ultimately led authorities to find him and the victim at a hotel, to arrest him, and to seize various items in the hotel rooms. We therefore briefly outline the relevant law surrounding the obtainment of financial records. Federal law prohibits the government from obtaining access to financial records of any customer of a financial institution absent authorization from the customer, a subpoena or summons, a search warrant, or a formal written request where no summons or subpoena is reasonably available. 12 U.S.C. § 3402. One exception exists, however, where the government determines that a delay in obtaining access to records would create imminent danger of physical injury to any person. Id. § 3414(b)(1)(A). When invoking this exception, however, the government must submit to the financial institution a certificate stating that it has complied with various statutory requirements. Id. §§ 3403(b), 3414(b)(2). Section 3403 provides that "[a] financial institution shall not release the financial records of a customer until" the government provides this certificate of compliance.
The Patriot Act was enacted to, among other things, "enhance law enforcement investigatory tools" through the amendment of several statutes relating to government acquisition of communications or records in the possession of a person or entity that provides a communication or computing service to the public. The Patriot Act, Pub. L. No. 107-56, §§ 209-12, 115 Stat. 272, 272 (2001). One of the statutes amended by the Patriot Act was 18 U.S.C. § 2703, which allows a governmental entity to require a provider of "electronic communication" or remote computing services to disclose records and information of one of its subscribers or customers. 18 U.S.C. § 2703(c)(1). But such disclosures are authorized only when the government entity: (1) subpoenas the information; (2) obtains a warrant, a court order, consent from the subscriber or customer; (3) issues a formal request relevant to a telemarketing-fraud investigation; or (4) requests only the name, address, telephone connection records, length of service and types of service utilized, telephone or instrument number or the subscriber number or identity, including network addresses, and the means and source of payment for such service. 18 U.S.C. § 2703(c)(1)-(2).
Section 2703 also authorizes the compelled disclosure of the contents of a wire or "electronic communication" in an electronic storage or in a remote computing service pursuant to a warrant, subpoena, or court order. Id. § 2703(a)- (b). But § 2510, which was also amended by the Patriot Act, expressly excludes "electronic funds transfer information stored by a financial institution in a communications system used for the electronic storage and transfer of funds" from the definition of "electronic communication." 18 U.S.C. § 2510(12)(D); see also id. § 2711(1) (incorporating the terms defined in 18 U.S.C. § 2510).
The Patriot Act further provides that any individual aggrieved by a violation of the statute has the right to sue the United States for damages. Id. § 2712. Such an action is the exclusive remedy provided for in the Patriot Act. Id. § 2712(d).
The Fourth Amendment guarantees that individuals will be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Under the exclusionary rule, evidence obtained as a direct result of an illegal search or seizure is subject to exclusion, as well as "evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.'" Segura v. United States, 468 U.S. 796, 804 (1984). To suppress evidence based on Fourth Amendment violations, "a claimant has the burden of proving (1) that the search was unlawful and (2) that the claimant had a legitimate expectation of privacy." United States v. McKennon, 814 F.2d 1539, 1542 (11th Cir. 1987). This expectation of privacy must be subjective to the defendant and one that society recognizes as reasonable. United States v. Trader, 981 F.3d 961, 967 (11th Cir. 2020). The Fourth Amendment "does not prohibit the obtaining of information revealed to a third party and conveyed by [the third party] to Government authorities," even if the individual revealed that information "on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." United States v. Miller, 425 U.S. 435, 443 (1976). As we have explained, individuals do not have a legitimate expectation of privacy in subscriber information, such as email and IP addresses, that individuals disclose during the ordinary use of the internet. Trader, 981 F.3d at 967-69. Likewise, individuals do not possess a reasonable expectation of privacy in financial records held by a bank. See Presley v. United States, 895 F.3d 1284, 1291 (11th Cir. 2018); Miller, 425 U.S. at 442-43.
To invoke the exclusionary rule under the Fourth Amendment, defendants cannot rely on a statutory violation alone, unless that statute, either expressly or implicitly, provides such a remedy. United States v. Thompson, 936 F.2d 1249, 1251 (11th Cir. 1991); Nowicki v. Comm'r, 262 F.3d 1162, 1163-64 (11th Cir. 2001).
Here, the record demonstrates that the state post-conviction court based its decision on an unreasonable determination of the facts. Regarding trial counsel's performance, the state court focused its analysis on counsel's conduct after receiving the belated discovery. It did not discuss the significant fact that Brantley had informed his counsel, much earlier in the case, of his suspicions regarding the Patriot Act's invocation to retrieve his credit card information and discussion of a potential Fourth Amendment violation. Moreover, the state court found that his counsel's decision was reasonable without elaboration, and the record reflects that his counsel did not proffer a reason for not deposing the key witness. The state court therefore improperly assumed that Brantley's counsel's behavior was reasonable. The state court's decision regarding a lack of prejudice was likewise based on an unreasonable determination of the facts, as it focused solely on the steps that counsel took after receiving the belated discovery, rather than counsel's initial failure to depose the witness and conduct a reasonable investigation that would have prevented the belated discovery issue altogether.
But upon de novo review, see Debruce, 758 F.3d at 1266, Brantley has failed to demonstrate that he was prejudiced by his counsel's actions. Neither the Patriot Act nor any other statute would have been sufficient to support a motion to suppress. First, Brantley had no expectation of privacy over his email address, IP address, and financial records because he had provided this information to third parties. See Trader, 981 F.3d at 967-69. As such, Brantley could not meet his burden to warrant suppression of that information. Second, Brantley could not have relied on a violation of the Patriot Act by itself to exclude this information, as the Patriot Act does not provide for such relief. Instead, the Patriot Act provides only for the remedy to recover damages resulting from violations. 18 U.S.C. § 2712. As such, even reviewing the record de novo, the motion to suppress should have been denied with respect to the recovered information that ultimately led the officers to Brantley and the victim's location. Brantley therefore suffered no prejudice from his counsel's failure to investigate or depose the witness. Accordingly, we affirm as to this issue.
B. The Claim under Clisby
Brantley next argues that the district court erred by not addressing his argument that his trial counsel was ineffective for failing to challenge a subsequent, warrantless viewing of recovered videotapes. He grounds this argument in our decision in Clisby v. Jones. In Clisby, we expressed our "deep concern over the piecemeal litigation of federal habeas petitions filed by state prisoners" and "the growing number of cases in which we are forced to remand for consideration of issues the district court chose not to resolve." 960 F.2d at 935-36. Based on this concern, we directed district courts to resolve all claims for relief raised in a habeas petition, regardless of whether habeas relief is granted or denied. Id. When a district court fails to address all claims in a § 2254 petition, we vacate the district court's judgment without prejudice and remand the case for consideration of the unaddressed claims. Id. at 938; see also Rhode, 583 F.3d at 1292. In doing so, we will not address whether the underlying claim has any merit. Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013).
A claim for relief for purposes of this instruction is any allegation of a constitutional violation, and allegations of distinct constitutional violations constitute separate claims for relief, "even if both allegations arise from the same alleged set of operative facts." Clisby, 960 F.2d at 936 . "A habeas petitioner must present a claim in clear and simple language such that the district court may not misunderstand it." Dupree, 715 F.3d at 1299 (concluding that the district court violated Clisby by failing to address an ineffective assistance of counsel claim that "consist[ed] of two sentences found in the middle of a fifteen-page supporting memorandum of law attached to [the § 2254] petition"). A pro se petitioner has presented his constitutional claim to the district court for Clisby purposes when that claim is described in a memorandum of law attached to the petition. Id. But no Clisby error occurs when the habeas petitioner fails to "clearly present[]" the claim to the district court. See Barritt v. Sec'y, Fla. Dep't of Corr., 968 F.3d 1246, 1251 (11th Cir. 2020) (concluding that the petitioner's passing reference to "coercion" did not state an independent coercion claim for Clisby purposes).
Here, Brantley sufficiently raised a Fourth Amendment videotapes-as-containers claim and a related ineffective assistance of counsel claim to the district court such that the district court should have addressed them. Brantley made the Fourth Amendment claim in his § 2554 petition and supporting memorandum, and he expressly refenced Ground VI of his state post-conviction relief motion, in which he argued that the videotapes were containers with unknown contents at the time of their seizure and law enforcement needed a warrant to "search" them. He also sufficiently raised a claim that trial counsel was ineffective for failing to challenge the subsequent "search," or viewing, of these videotapes.
The district court did not reference or address these claims when it denied his § 2554 petition. Rather, the district court focused its discussion exclusively on the initial seizure of the videotapes-i.e., that the tapes were in plain view at the time of Brantley's arrest and that their incriminating nature was obvious. But Brantley's challenge is not to their initial seizure; instead, he challenges whether their subsequent "search," or viewing, required a warrant and whether his counsel was ineffective in failing to challenge this "search." Accordingly, we vacate the judgment without prejudice and remand for further consideration of Brantley's unaddressed videotapes-as-containers claims.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.