Opinion
Case No. 3:04-cv-1026-12HTS.
May 3, 2006.
ORDER
I. Status
Petitioner Jean E. Dormezil, an inmate of the Florida penal system proceeding pro se and in forma pauperis, initiated this action by filing a Petition for Writ of Habeas Corpus (Doc. #1) (hereinafter Petition) pursuant to 28 U.S.C. § 2254 on June 18, 2004. Petitioner challenges a 1998 state court (Brevard County, Florida) judgment of conviction for trafficking in cocaine on the following grounds: (1) Petitioner was denied due process when the trial court denied his motion to suppress because his consent to the search was involuntary; (2) Petitioner was denied due process and a fair trial when the trial court did not declare a mistrial based on improper prosecutorial comments on his post-arrest silence; (3) trial counsel was ineffective for failure to advise Petitioner that he would face a fifteen-year mandatory minimum sentence if convicted at the trial; (4) counsel was ineffective for failure to obtain an interpreter for Petitioner at the suppression hearing; and, (5) counsel was ineffective for failure to request a curative instruction or move for a mistrial regarding prosecutorial comments which addressed his post-arrest silence and which shifted the burden of proof.
Respondents filed an Amended Response to Petition (Doc. #26) (hereinafter Response). In support of their Response, they submitted exhibits. Petitioner was granted an opportunity to file a Reply. See Court's Orders (Docs. #21, 25). Petitioner has notified the Court that he intends to rely upon his initial Reply. See Petitioner's Amended Notice to the Court (Doc. #27); Petitioner's Reply Response to Petition (Doc. #23). This case is now ripe for review.
Respondents' exhibits will be hereinafter referred to as "Ex."
II. Procedural History
On May 28, 1997, Petitioner Dormezil was charged by Information with trafficking in 450 grams or more, but less than 150 kilograms of cocaine in Brevard County, Florida. Ex. A at 97. After a trial by jury, Petitioner was sentenced to a fifteen-year mandatory minimum term of imprisonment. Id. at 185-90; see http://www.dc.state.fl.us/ActiveInmates (website for the Florida Department of Corrections).
On direct appeal, Petitioner ised the following claims: (1) whether the trial court erred in denying his motion to suppress any and all substances alleged to be cocaine which were seized from a vehicle that Petitioner was driving, and (2) whether the trial court erred in not ordering a mistrial where the State impermissibly commented on Petitioner's right to remain silent. Ex. C. The State filed an Answer Brief. Ex. D. On March 31, 2000, the appellate court affirmed with a written opinion. Dormezil v. State, 754 So.2d 168 (Fla. 5th DCA 2000); Ex. E. The mandate issued on April 19, 2000. Ex. F.
On July 5, 2000, Petitioner filed a Petition for Writ of Mandamus in the Supreme Court of Florida, seeking to file a belated notice to invoke the discretionary jurisdiction in the Fifth District Court of Appeal. Ex. G. The court treated the petition as a petition for writ of habeas corpus. Ex. H. On June 19, 2001, the court granted the petition and permitted Petitioner thirty days to file a notice to invoke discretionary jurisdiction in the appellate court. Dormezil v. State, 791 So.2d 1096 (Fla. 2001) (table decision); Ex. M.
On July 17, 2001, Petitioner filed a notice to invoke discretionary jurisdiction in the Fifth District Court of Appeal. Ex. N. On December 21, 2001, following the filing of jurisdictional briefs, the Supreme Court of Florida declined to accept jurisdiction and denied the petition for review. Dormezil v. State, 805 So.2d 805 (Fla. 2001) (table decision); Ex. Q.
On February 5, 2002, Petitioner filed a pro se motion for post conviction relief pursuant to Fla. R. Crim. P. 3.850, in which he raised the following grounds: (1) trial counsel was ineffective for failure to file a motion to suppress, alleging that Petitioner's car was searched due to racial profiling; (2) trial counsel was ineffective for failure to provide Petitioner with an interpreter at the suppression hearing; (3) the trial court committed fundamental error and deprived Petitioner of due process in not providing an interpreter at the suppression hearing; (4) the trial court abused its discretion and deprived Petitioner of due process when, over objection, it allowed the State to "switch its key witness on the day of trial"; (5) the trial court erred in not declaring a mistrial when the State impermissibly commented on Petitioner's right to remain silent; (6) trial counsel was ineffective for failure to explain the State's plea agreement and advise him that he faced a fifteen-year mandatory sentence if convicted at the trial; (7) trial counsel was ineffective for failure to request a curative instruction and for not moving for a mistrial when the prosecutor made improper comments on Petitioner's post-arrest silence; and (8) trial counsel was ineffective for telling Petitioner that two African-American potential jurors could not participate in his trial. Ex. R at 95-103. On September 5, 2002, Petitioner, through counsel, filed an amended motion for post conviction relief, adding ground nine: trial counsel was ineffective for failure to object and request a mistrial regarding the State's improperly shifting the burden of proof and making golden rule arguments during the closing argument. Id. at 152-54. An evidentiary hearing was conducted on November 21, 2002. Id. at 11-66, Transcript of the Evidentiary Hearing (hereinafter EH Tr.). On December 4, 2002, the trial court denied the motions. Id. at 165-72.
On appeal, Petitioner argued: (1) the lower court erred in denying his claim that trial counsel was ineffective for failing to competently advise him when counseling him on the State's plea offer that, if convicted, he would necessarily serve a fifteen-year mandatory minimum prison sentence; (2) the lower court erred in denying his claim that trial counsel was ineffective for failing to properly object to, and preserve for review, prejudicial and improper comments by the prosecutor during closing arguments; and, (3) the lower court erred in denying his claim that trial counsel was ineffective for failing to obtain an interpreter for Petitioner during a critical stage of his trial proceedings. Ex. V. The State filed an Answer Brief, and Petitioner filed a Reply Brief. Ex. W; Ex. X. On March 2, 2004, the appellate court per curiam affirmed without a written opinion, and the mandate issued on March 19, 2004. Dormezil v. State, 869 So.2d 569 (Fla. 5th DCA 2004); Ex. Y; Ex. Z.
Petitioner's Petition (handed to the correctional institution for mailing to this Court on June 15, 2004, and filed in this Court on June 18, 2004) is timely filed within the one-year period of limitations. See 28 U.S.C. § 2244(d); Response at 6-7.
III. EVIDENTIARY HEARING
This Court has carefully reviewed the record and, for the reasons set forth more fully below, concludes Petitioner is not entitled to an evidentiary hearing. A habeas corpus petitioner is entitled to an evidentiary hearing in federal court if he alleges facts which, if proven, would entitle him to habeas corpus relief. Smith v. Singletary, 170 F.3d 1051, 1053-54 (11th Cir. 1999) (citation omitted); Cave v. Singletary, 971 F.2d 1513, 1516 (11th Cir. 1992) (citing Townsend v. Sain, 372 U.S. 293 (1963)). Here, the pertinent facts of the case are fully developed in the record before the Court. Smith, 170 F.3d at 1054 (stating that a district court does not need to conduct an evidentiary hearing "if it can be conclusively determined from the record that the petitioner was not denied effective assistance of counsel"). No evidentiary proceedings are required in this Court. High v. Head, 209 F.3d 1257, 1263 (11th Cir. 2000) (citing McCleskey v. Zant, 499 U.S. 467, 494 (1991)),cert. denied, 532 U.S. 909 (2001). The Court can "adequately assess [Petitioner's] claim[s] without further factual development." Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004). Therefore, for the reasons set forth above, an evidentiary hearing will not be conducted by this Court.
IV. STANDARD OF REVIEW
On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (hereinafter AEDPA). Since this action was filed after the effective date of AEDPA, the Court will analyze Petitioner's claims under 28 U.S.C. § 2254(d), as amended by AEDPA. Nelson v. Alabama, 292 F.3d 1291, 1294-95 (11th Cir. 2002), cert. denied, 538 U.S. 926 (2003); Fugate v. Head, 261 F.3d 1206, 1215 n. 10 (11th Cir. 2001), cert. denied, 535 U.S. 1104 (2002); Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000).
The Eleventh Circuit has described the standard of review under AEDPA:
Title 28 U.S.C. § 2254 governs the authority of the federal courts to consider applications for writs of habeas corpus submitted by state prisoners. Section 2254 was amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which was effective as of April 24, 1996. AEDPA applies to all petitions filed after its effective date. . . .
AEPDA "places a new constraint on a federal habeas court's power to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court" by establishing a deferential standard for reviewing state court judgments in these cases. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Subsection (d) of § 2254 provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
AEDPA also makes clear that substantial deference is to be accorded a state court's findings of fact. Section 2254(e)(1) provides that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).Henderson v. Campbell, 353 F.3d 880, 889-891 (11th Cir. 2003) (footnote omitted), cert. denied, 543 U.S. 811 (2004).
Clearly, the new 28 U.S.C. § 2254(d) creates a more deferential standard for federal court review of state court adjudications: "[u]nless a state court decision is directly contrary to Supreme Court case law, we review state court findings of fact and conclusions of law for reasonableness." Van Poyck v. Florida Dep't of Corr., 290 F.3d 1318, 1321 (11th Cir. 2002) (per curiam), cert. denied, 537 U.S. 812 (2002), 537 U.S. 1105 (2003); Mitchell v. Esparza, 540 U.S. 978 (2003) (per curiam) (holding that the Ohio Court of Appeals' decision was not "contrary to" or an "unreasonable application" of clearly established federal law and stressing "the limits imposed on federal habeas review by 28 U.S.C. § 2254(d)").
The "contrary to" and "unreasonable application" clauses have independent meaning and provide separate bases for federal habeas review:
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13, 120 S.Ct. at 1523 (O'Connor, J., concurring). The "contrary to" clause "suggests that the state court's decision must be substantially different" from the controlling legal precedent. Fugate v. Head, 261 F.3d 1206, 1216 (11th Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 2310, 152 L.Ed.2d 1065 (2002) (quoting Williams, 529 U.S. at 405, 120 S.Ct. at 1519). A state court's decision that applies the correct legal rule would not fit within the "contrary to" clause even if the federal court might have reached a different result relying on the same law. See Williams, 529 U.S. at 404-06, 120 S.Ct. at 1519-20 (O'Connor, J., concurring).
. . . .
"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 414, 120 S.Ct. at 1523 (O'Connor, J., concurring). In deciding this issue, the federal court should consider whether the state court's application of the law was objectively unreasonable and should not apply the subjective "all reasonable jurists" standard. Id. at 409-10, 120 S.Ct. at 1521-22. The Supreme Court recently adhered to its pronouncements in Williams, stating that "we stressed in Williams that an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). The Court further noted that "a federal habeas court may not issue a writ under the unreasonable application clause `simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'" Id. (quoting Williams, 529 U.S. at 411, 120 S.Ct. at 1522 (O'Connor, J., concurring)).Wellington v. Moore, 314 F.3d 1256, 1260-61 (11th Cir. 2002).
The Eleventh Circuit has addressed the application of the "contrary to" clause in reviewing a state court adjudication:
In applying the "contrary to" prong of AEDPA, we have recognized that where no Supreme Court precedent is on point, "we cannot say that the state court's conclusion . . . is contrary to clearly established Federal law as determined by the U.S. Supreme Court." McIntyre v. Williams, 216 F.3d 1254, 1258 (11th Cir. 2000).Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir.), cert. denied, 540 U.S. 965 (2003).
Under 28 U.S.C. § 2254(d)(2), this Court must determine whether the state court's adjudication 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. Furthermore, AEDPA "also directs that a presumption of correctness be afforded factual findings of state courts, which may be rebutted only by clear and convincing evidence. See id. at § 2254(e)(1). This presumption of correctness applies equally to factual determinations made by state trial and appellate courts." Bui v. Haley, 321 F.3d 1304, 1312 (11th Cir. 2003) (footnote omitted) (citing Sumner v. Mata, 449 U.S. 539, 547 (1981)).
Finally, for a state court's resolution of a claim to be an adjudication on the merits, so that the state court's determination will be entitled to deference for purposes of federal habeas corpus review under AEDPA, all that is required is a rejection of the claim on the merits, not an opinion that explains the state court's rationale for such a ruling. Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002), cert. denied, 538 U.S. 906 (2003). Thus, to the extent that Petitioner's claims were adjudicated on the merits in the state courts, they must be evaluated under the new § 2254(d).
V. Ineffective Assistance of Trial Counsel
"The Sixth Amendment guarantees criminal defendants effective assistance of counsel. That right is denied when a defense counsel's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citations omitted). "[H]indsight is discounted by pegging adequacy to `counsel's perspective at the time' . . . and by giving a `heavy measure of deference to counsel's judgments.'" Rompilla v. Beard, 125 S.Ct. 2456, 2462 (2005) (citations omitted). If counsel's performance falls "below the line of reasonable practice, there is a further question about prejudice, that is, whether `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 2467 (citation omitted).
The Eleventh Circuit has captured the essence of an ineffectiveness claim:
[A] petitioner must show that his lawyer's performance fell below an "objective standard of reasonableness" and that the lawyer's deficient performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Establishing these two elements is not easy: "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)).
For assessing a lawyer's performance, Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000) (en banc) cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001), sets out the basic law: "Courts must indulge the strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment." Id. at 1314 (internal marks omitted). . . . Our role in reviewing an ineffective assistance claim is not to "grade" a lawyer's performance; instead, we determine only whether a lawyer's performance was within "the wide range of professionally competent assistance." See Strickland, 104 S.Ct. at 2066.
The inquiry into whether a lawyer has provided effective assistance is an objective one: a petitioner must establish that no objectively competent lawyer would have taken the action that his lawyer did take." See Chandler, 218 F.3d at 1315. . . .
A petitioner's burden of establishing that his lawyer's deficient performance prejudiced his case is also high. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test." Strickland, 104 S.Ct. at 2067. Instead, a petitioner must establish that a reasonable probability exists that the outcome of the case would have been different if his lawyer had given adequate assistance. See id. at 2068. Van Poyck, 290 F.3d at 1322-23 (footnotes omitted).
However, "when a defendant raises the unusual claim that trial counsel, while efficacious in raising an issue, nonetheless failed to preserve it for appeal, the appropriate prejudice inquiry asks whether there is a reasonable likelihood of a more favorable outcome on appeal had the claim been preserved." Davis v. Sec'y for the Dep't of Corr., 341 F.3d 1310, 1316 (11th Cir. 2003) (per curiam) (citation omitted).
In sum, "[w]ithout proof of both deficient performance and prejudice to the defense, . . . it could not be said that the sentence or conviction `resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable,' and the sentence or conviction should stand." Bell v. Cone, 535 U.S. 685, 695 (2002) (internal citation omitted) (quoting Strickland, 466 U.S. at 687).
VI. Findings of Fact and Conclusions of Law A. Ground One
Petitioner claims that he was denied due process when the trial court denied his motion to suppress because his consent to the search was involuntary. Petitioner raised this claim on direct appeal (Ex. C), and the appellate court affirmed with a written opinion, stating in pertinent part:
He contends the trial court erred in denying his motion to suppress the cocaine. Dormezil argues that his consent allowing the Florida Highway Patrol to search his rental car was not knowing and voluntary in that his command of the English language was faulty and in that the officer repeatedly asked for Dormezil's consent. . . .
In Davis v. State, 594 So.2d 264, 266 (Fla. 1992), the Supreme Court stated: Whether a suspect voluntarily consents to a search is a question of fact to be determined by the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Shapiro v. State, 390 So.2d 344 (Fla. 1980), cert. denied, 450 U.S. 982, 101 S.Ct. 1519, 67 L.E[d].2d 818 (1981). In addition, the determination of whether the consent to a search was voluntary is a question for the trial judge and should not be disturbed on appeal unless the determination is clearly erroneous.
Where the state asserts it had the right to search the defendant despite the absence of a warrant because the defendant consented to the search, the state has the burden to prove that consent was freely and voluntarily given. See Norman v. State, 379 So.2d 643, 646 (Fla. 1980); Bailey v. State, 319 So.2d 22 (Fla. 1975); Younger v. State, 433 So.2d 636 (Fla. 5th DCA 1983); Restrepo v. State, 438 So.2d 76 (Fla. 3d DCA 1983). The burden of proof in these cases depends on whether there is invalid police conduct prior to obtaining the consent. See Denehy v. State, 400 So.2d 1216, 1217 (Fla. 1980). "Under ordinary circumstances the voluntariness of the consent to search must be established by preponderance of the evidence." Id. With invalid police conduct like prolonged detention, threats to obtain a warrant, or repeated requests for consent, the burden of proof is elevated to the clear and convincing standard. Id.; see also Gonterman v. State, 358 So.2d 595, 596 (Fla. 1st DCA 1978) (listing "repeated requests for the consent" as an example of inappropriate conduct by authority seeking consent to search).
The trial court applied the clear and convincing standard in denying the motion to suppress, apparently due to the repeated questioning of Dormezil by the highway patrolman prior to obtaining Dormezil's consent, which was captured on the patrolman's video. The video tape of the encounter in the instant case reveals that Dormezil conversed with the patrolman readily with only minor difficulties throughout the traffic stop. During the hearing on the motion to suppress, Dormezil did not require an interpreter, and he testified that he had lived in the United States for six years and had begun learning the English language almost a decade before this police stop occurred. Based on the totality of circumstances, the trial court did not clearly err in determining that Dormezil voluntarily consented to the search of his rental car, which led to the discovery of the cocaine. See Castro v. State, 755 So.2d 657 (Fla. 4th DCA 1999) (holding that it was within trial court's discretion to reject appellant's contention that he did not speak English in light of officer's testimony that appellant conversed with officer in English at scene of arrest prior to the arrest); cf. Balthazar.Dormezil, 754 So.2d at 169-70 (footnote omitted).
Respondents contend that this ground is barred by Stone v. Powell, 428 U.S. 465 (1976), and this Court agrees. See Response at 10-11. Under the principles of Stone v. Powell, federal habeas review of Petitioner's illegal search and seizure claim is not cognizable in this proceeding because Petitioner had a full and fair opportunity to litigate his Fourth Amendment issue in state court.
[W]hen "the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976) (footnotes omitted). Thus, before [this Court] may review the merits of [Petitioner's] Fourth Amendment claim, [he] must demonstrate that the state courts deprived him of a full and fair opportunity to litigate the claim.
In Tukes v. Dugger, 911 F.2d 508, 513-14 (11th Cir. 1990), [the Eleventh Circuit Court of Appeals] said this in applying Stone: "For a claim to be fully and fairly considered by the state courts, where there are facts in dispute, full and fair consideration requires consideration by the fact-finding court, and at least the availability of meaningful appellate review by a higher state court."Peoples v. Campbell, 377 F.3d 1208, 1224 (11th Cir. 2004),cert. denied, 125 S.Ct. 2963 (2005). The Eleventh Circuit has "construed Stone v. Powell to bar consideration of a Fourth Amendment claim if the state has provided an opportunity for full and fair litigation of the claim `whether or not the defendant employs those processes.'" Huynh v. King, 95 F.3d 1052, 1058 (11th Cir. 1996) (citing Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)) (footnote omitted).
This claim was raised in a pretrial motion to suppress, and the court heard testimony from the State and the defense. The trial judge allowed both parties to argue the issue before making his ruling. This Court has reviewed the record of the suppression hearing and finds Petitioner had a full and fair opportunity to argue his Fourth Amendment claim in state court. In addition, this claim was raised on direct appeal, and the trial court's decision with regard to this issue was affirmed. Petitioner was afforded every full and fair opportunity to litigate and have adjudicated the search and seizure issue; therefore, under Stone v. Powell, he should not be permitted to further litigate the claim in this Court. This ground is barred.
B. Ground Two
Petitioner Dormezil claims that he was denied due process and a fair trial when the trial court did not declare a mistrial based on improper prosecutorial comments on his post-arrest silence. Petitioner raised this claim on direct appeal (Ex. C), and the appellate court affirmed with a written opinion, stating in pertinent part:
[Petitioner] Dormezil raises two issues in his appeal. . . . Second, he argues that the trial judge should have granted a mistrial due to a comment during the state's closing argument on his right to remain silent.
. . . .
The defense counsel's objection to the single, isolated comment by the prosecutor [footnote: The comment which garnered defense counsel's objection: "Well, taking that same vehemence and force that he used to inform the officer that he wasn't speeding, why would not a person whose [sic] just been placed under arrest, placed in handcuffs, why doesn't that person ask, `What are you handcuffing me for? What are you doing?'" (emphasis supplied.)] was not preserved because defense counsel declined the trial court's offer to make a curative instruction. See State v. Fritz, 652 So.2d 1243 (Fla. 5th DCA 1995) (objection to improper prosecutorial closing argument, where prosecutor improperly vouched for credibility of police officers' testimony, waived where no request for curative instruction or mistrial made); see also State v. Benton, 662 So.2d 1364, 1365 (Fla. 3d DCA 1995) ("As to the state's impermissible comment on defendant's right to remain silent, defendant's failure to request a curative instruction or a mistrial after the court apparently sustained defendant's objection precludes awarding a new trial based on that comment"); Jean v. State, 638 So.2d 995, 997 (Fla. 4th DCA 1994) ("appellant's complaint of an improper comment on his right to remain silent was waived when appellant refused the court's offer of a curative instruction"). The error was not fundamental. See Walker v. State, 701 So.2d 1258, 1261 (Fla. 5th DCA 1997) (en banc) (citing State v. Marshall, 476 So.2d 150 (Fla. 1985)) (the harmless error rule applies in cases involving comments on the right to remain silent).Dormezil, 754 So.2d at 170 (emphasis added).
Thus, the appellate court, in the alternative, adjudicated the claim on the merits. Therefore, this ground should be addressed applying the deferential standard for federal court review of state court adjudications, as required by AEDPA. The Court must next consider the "contrary to" and "unreasonable application" components of the statute. "It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide." Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001), cert. denied, 537 U.S. 978 (2002).
Upon a thorough review of the record and the applicable law, it is clear that Petitioner is not entitled to relief on the basis of this claim because the state court's adjudication of the claim was not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
During the closing argument, the prosecutor stated:
If you remember correctly, in the videotape, when that car — when the vehicle was stopped, do you remember how the Defendant began to act with the officer? The Trooper informed him, first off, "I stopped you because you were speeding. You were observed speeding." Just a simple traffic stop. And what did the Defendant say, "Oh, no. No. I wasn't speeding." He was adamant that he was not speeding.
Well, taking that same vehemence and force that he used to inform the officer that he wasn't speeding, why would not a person whose [sic] just been placed under arrest, placed in handcuffs, why doesn't that person ask, "What are you handcuffing me for? What are you doing."
Tr. at 241 (emphasis added). Defense counsel (Ms. Taylor) objected and requested to approach the bench. Id. at 241-42. During the sidebar conference, defense counsel argued that this was an impermissible comment on Mr. Dormezil's right to remain silent. Id. at 242. After some discussion, the trial judge stated: "The law is pretty close on this. I think you commented on the Defendant's right to remain silent at a time when he had a right to remain silent." Id. at 244. Assuming that defense counsel would want a curative instruction, the trial judge asked: "Won't that emphasize it if I tell the jury?" Id. Defense counsel responded that she was not requesting "any kind of instruction" and simply requested that the prosecutor not comment on Mr. Dormezil's right to remain silent again. Id. at 244-45. The trial judge concluded the sidebar conference with a directive not to comment on Mr. Dormezil's right to remain silent, to which the prosecutor agreed. Id. at 245. Thus, the record clearly reflects that defense counsel did not request a mistrial or a curative instruction.
However, even assuming arguendo that the prosecutor's comments were improper, the comments, when considered in the context of the entire proceeding, did not in any way render the proceeding fundamentally unfair. There is no reasonable probability that the comments changed the outcome of the case.Cargill v. Turpin, 120 F.3d 1366, 1379 (11th Cir. 1997),cert. denied, 523 U.S. 1080 (1998); Sexton v. Howard, 55 F.3d 1557, 1559 (11th Cir. 1995) (setting forth the two-prong test for prosecutorial misconduct: that the conduct must be improper and the conduct must prejudicially affect the substantial rights of the defendant in that there is a reasonable probability that, but for the conduct, the outcome of the trial would have been different), cert. denied, 516 U.S. 1124 (1996).
The jury heard testimony from the arresting officers and Mr. Dormezil and also viewed the actions of the parties at the search on videotape. The videotape of the arrest was entered into evidence and showed Petitioner watching the police search of his vehicle and then attempting to run when the cocaine was found. Tr. at 26, 41-42, 51-52. Petitioner testified at the trial and explained that he briefly loaned the rental car to an acquaintance by the name of "Frank" and that Frank must have put the cocaine in the car; defense counsel reminded the jury of Frank's presence. Id. at 146-51, 155-56, 235, 263. Further, at the trial, Petitioner testified that he did ask the officer why he was being handcuffed. Id. at 174. It is noteworthy that the trial judge instructed the jury that the attorneys were not witnesses in the case and therefore their statements and arguments were not evidence. Id. at 12, 215; see Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir. 2001) (citations omitted) (stating that "jurors are presumed to follow the court's instructions."), cert. denied, 534 U.S. 1085 (2002). Further, defense counsel reminded the jury that what the attorneys say is not evidence. Tr. at 216. Thus, as noted by the Respondents, the trial court's failure to declare a mistrial based on the prosecutor's comments did not deny Petitioner a fair trial. See Response at 11-13.
C. Ground Three
Petitioner claims that trial counsel was ineffective for failure to advise Petitioner that he would face a fifteen-year mandatory minimum if convicted at the trial. Specifically, he states that he would have accepted the State's six-year plea offer if he had known that he faced a fifteen-year mandatory minimum sentence if convicted at the trial. Petitioner raised this ground in his Rule 3.850 motion (as ground six), and the trial court, after conducting an evidentiary hearing, adjudicated the claim on the merits. In denying the claim, the trial court stated in pertinent part:
Petitioner Dormezil was represented by counsel at the evidentiary hearing, and both Petitioner and his former trial counsel (Susan Taylor) testified at the hearing. See EH Tr.
As to Claim Six, it is asserted that counsel was not effective in failing to urge the defendant to accept the plea offer of six years. Counsel testified that she conveyed the six year plea offer to the defendant, but he said he was innocent and did not know the cocaine was there in the car. The defendant at the evidentiary hearing testified he did not accept the six year offer but was unaware of the 15 year mandatory penalty at the time of not accepting the plea offer. The defendant further testified he knew before trial of the possibility of 15 years. The defendant was charged with the first degree felony of trafficking in cocaine over 400 grams carrying a minimum penalty of 15 calendar years. There was no evidence of any counteroffer or attempted acceptance of the 6 years by the defendant before going to trial. The theory of the ineffective counsel is that the counsel should have persuaded defendant to accept six years in prison prior to trial and a failure to do [so] constitutes ineffective assistance of counsel.
To prevail on this claim the defendant must prove counsel failed to communicate a plea offer or misinformed him concerning the penalty he faced in a trial. Young v. State, 608 So. 2d 111 (Fla. 5th DCA 1992). There is no assertion that defense counsel failed to communicate the plea offer of six years. The defendant testified in the evidentiary hearing that counsel conveyed the six year offer. The defendant [sic] did not misinform the defendant of the penalty if the offer were rejected and he was convicted. The defendant testified that counsel failed to inform him of the 15 year mandatory penalty. Suzanne Taylor testified she did not know if she mentioned the mandatory. However, there is no prejudice, even if one considers the failure to inform, as misinforming, because the defendant was aware of the 15 years possibility before trial and did not offer to plead guilty in return for a 6 year sentence. Or did the defendant wish to exercise his right to a jury trial? The defendant did testify he knew the possibility of 15 years but did not know of the mandatory sentence. The 15 years is the mandatory sentence for this felony first degree punishable by thirty years. That the defendant knew he was facing 15 years allows the court to conclude that he did know of the mandatory portion of the sentence contrary to his assertion. In weighing his credibility on this issue I am guided by his assertion that he understand [sic] English as a a [sic] two year old at the time of the incident and the suppression hearing. Based on the evidence, the Court finds that is clearly untrue. His testimony that he knew he was facing 15 years but not that it was a mandatory penalty is unworthy of belief.
Ex. R at 166-68.
As noted previously, upon Petitioner's appeal, the appellate court per curiam affirmed the trial court's order. Accordingly, the claim was rejected on the merits by the state trial and appellate courts. Thus, this ground should be addressed applying the deferential standard for federal court review of state court adjudications, as required by AEDPA.
Upon a thorough review of the record and the applicable law, it is clear that Petitioner is not entitled to relief on the basis of this claim because the state courts' adjudications of the claim were not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and were not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
In evaluating the performance prong of the Strickland ineffectiveness inquiry, there is a strong presumption in favor of competence. Thus, Petitioner must establish that no competent attorney would have taken the action that counsel, here, chose.United States v. Freixas, 332 F.3d 1314, 1319-20 (11th Cir. 2003) (citations omitted). Given defense counsel's actions based on the record before this Court, defense counsel's performance was not deficient.
The evidentiary hearing transcript reflects that counsel pursued Petitioner's best interests. Ms. Susan Taylor (Petitioner's former trial counsel) testified that her general practice, in conveying plea offers and making recommendations as to whether or not a client should accept a plea, "was to let the client decide." EH Tr. at 10. Specifically, with respect to Petitioner Dormezil, she recalled Petitioner's proclamation of innocence:
Ms. Susan Taylor had worked on at least 100 felony drug cases before taking Petitioner's case. EH Tr. at 18; see Williams v. Head, 185 F.3d 1223, 1229 (11th Cir. 1999) (noting that "[i]t matters to our analysis" whether the attorney is an experienced criminal defense attorney), cert. denied, 530 U.S. 1246 (2000).
I do remember that every time we talked about [sic] his answer was always the same.
He always contended that he was innocent and he didn't know how the cocaine got there, and that he couldn't give up anybody because there was nobody. He didn't know how it got there, so we didn't get past that very often, but I do remember him [sic] saying that many times.Id. Ms. Taylor recalled that she was aware of the mandatory minimum sentence of fifteen years and "was concerned about it."Id. at 11.
Even assuming arguendo deficient performance by defense counsel, Petitioner has not shown prejudice. Petitioner has not shown that a reasonable probability exists that the outcome of the case would have been different if his lawyer had given the assistance that Petitioner has alleged he should have provided. As noted by defense counsel at the evidentiary hearing, Petitioner had expressed his desire to proceed to trial because he continuously proclaimed his innocence. Id. at 10, 48. The trial transcript reflects that, even after the jury returned a verdict of guilty, Mr. Dormezil explained that he proceeded to trial because he "knew that [he] was not going to be found guilty. . . ." Tr. at 287, 289. This ineffectiveness claim is without merit. See Response at 13-16.
D. Ground Four
Petitioner claims that defense counsel was ineffective for failure to obtain an interpreter for Petitioner at the suppression hearing. Petitioner raised this ground in his Rule 3.850 motion (as ground two), and the trial court, after conducting an evidentiary hearing, adjudicated the claim on the merits. In denying the claim, the trial court stated in pertinent part:
Claim Two is that trial counsel was ineffective for not providing the defendant with an interpreter or translator at a pretrial hearing to suppress evidence which violated defendants' [sic] due process rights. It is true that a failure to obtain an interpreter may constitute ineffective assistance of counsel. Gonzalez v. Phillips, 195 F.Supp.2d 893 (E.D. Mich. 2001). However, the premise for this holding is that the defendant needed an interpreter and did not understand English. That is not supported by the facts. At the suppression hearing on November 24, 1997, the defendant testified (pages 32 through 42). The defendant, without an interpreter testified responsively and coherently. Defendant's counsel Suzanne Taylor testified at the evidentiary hearing that she communicated with the defendant in English and she did not experience any problem. Finally, during the course of the stop by Florida Highway Patrol[,] officer Michael Brown videotaped the encounter he had with the defendant and this video was introduced into evidence at the suppression hearing as Exhibit 1 (page 7 of the transcript). This court has reviewed that videotape.
In that videotape, the defendant communicated in understandable English to Trooper Brown. He understood requests made, such as for a driver's license and registration. He understood questions in English and responded in an appropriate manner. He gave substantive information that he drove down from North Carolina to Miami to sell his car. He said a suitcase in the car was his. He said the car was rented by his sister-in-law. He also said he did restaurant work.
In short, counsel was not ineffective in failing to obtain an interpreter because the defendant understood and communicated in English and did not need one.
Ex. R at 165-66.
As noted previously, upon Petitioner's appeal, the appellate court per curiam affirmed the trial court's order. Accordingly, the claim was rejected on the merits by the state trial and appellate courts. Thus, this ground should be addressed applying the deferential standard for federal court review of state court adjudications, as required by AEDPA.
Upon a thorough review of the record and the applicable law, it is clear that Petitioner is not entitled to relief on the basis of this claim because the state courts' adjudications of the claim were not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and were not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See Response at 16-18.
E. Ground Five
Petitioner claims that his defense counsel was ineffective for failure to request a curative instruction or move for a mistrial regarding prosecutorial comments which addressed his post-arrest silence and which shifted the burden of proof. Petitioner raised these claims in his Rule 3.850 motion (as grounds seven and nine), and the trial court, after conducting an evidentiary hearing, adjudicated the claims on the merits. In denying the claims, the trial court stated in pertinent part:
As to Claim Seven, the defendant asserts trial counsel was ineffective in not requesting a curative instruction or moving for a mistrial based on improper prosecutorial comment on the defendant's right to remain silent. The failure to request a curative instruction is problematic because how do you demonstrate prejudice. Suppose that the jury that received a curative instruction — would they have rendered a different verdict? As [sic] effective curative instruction would have eradicated the imputation and inference from the silence, that an innocent person would ask why he was being handcuffed. Stewart v. State, 221 So.2d 155 (Fla. 3rd DCA 1969). Movant can not demonstrate prejudice that there is a reasonable probability, that but for counsel not requesting a curative instruction, the result of the trial would be different. Strickland v. Washington, 466 U[.]S[.] 668 (1984). The whole idea of an effective curative instruction is that the improper comment would be eradicated and no influence would be drawn. The failure to move for a mistrial requires the consideration by this court as to whether a motion for mistrial would have been granted. That will be determined by consideration of whether this comment on post arrest silence was harmless.
To demonstrate harmless error, it must be shown that there is no reasonable possibility that the error (comment) contributed to the conviction and application of this test requires examination of the permissible evidence on which the jury could have legitimately relied and on the impermissible evidence which might have possibly influenced the jury verdict. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). Let's review the permissible evidence.
After the defendant's car was stopped by Trooper Brown, the defendant consented to a search. Trooper Traylor conducted that search while Brown remained with the defendant. When Trooper Traylor motioned with his flashlight that the [sic] located contraband under the back seat[,] the defendant attempted to take off and run. The defendant had been intensely watching the search by Trooper Traylor. This attempted run was captured by the videotape. These physical acts by the sole operator and occupant of a vehicle containing 1035.8 grams of cocaine was observed by the jury on videotape. It completely predominates the comment of why the defendant did not ask why he was being handcuffed. The attempted fleeing and the circumstances attendant thereto, were already observed by the jury. The Court concludes this comment on post arrest silence did not contribute to the conviction. The error is harmless and a motion for mistrial would not have been well taken and the defendant has not shown prejudice, in that there is no reasonable probability that the result of the proceeding would have been different if a motion for mistrial were made.
. . . .
Post conviction counsel asserted that the prosecutor incorrectly shifted the burden of proof to the defendant as to why the defendant did not call as a witness Frank, who had briefly used the rental car containing the cocaine. That was improper argument. Jones v. State, 653 So.2d 1110 (Fla. 4th DCA 1995). Post conviction counsel also asserted that the prosecutor made an improper golden rule argument by asking the jurors to place themselves in the position of the defendant concerning the lack of his fingerprints on the cocaine packaging and the choice of where the cocaine was placed in the car.
. . . .
The arguments were objectionable and that would have been sustained, but the failure to object was due to a trial strategy of Suzanne Taylor not to object, unless the comments were egregious. That was her call in this trial. Tactical or strategic decisions do not justify post conviction relief. Gonzalez v. State, 579 So.2d 145 (Fla. 3rd DCA 1991). Strategy decisions by counsel do not normally violate the Sixth Amendment right to counsel. United States v. Simmons, 915 F.2d 1128 (7th 1990). The decision to object and move for mistrial based on the prosecutor's improper argument is a complicated trial strategy decision in which reasonably competent criminal defense lawyers may differ and absent special circumstances cannot be [in]effective assistance of counsel. Anderson v. State, 467 So. 2d 781 (Fla. 3rd DCA 1985). There are no special circumstance here. This case is not like the case of Gordon v. State, 469 So.2d 795 (Fla. 4th DCA 1985), wherein occurred 104 instances where defense counsel failed to object to improper question or improper comments by the prosecutor or the case of Ross v. State, 726 So.2d 317 (Fla. 2nd DCA 1999), wherein the prosecutor improperly argued and repeatedly stressed the defense witnesses were "pathetic", "ridiculous", "inappropriate", "insulting to the jury's intelligence", "totally incredible", and flat out lied. [The] [p]rosecutor characterized Ross's testimony as "preposterous", "nonsense", and "bologna".
See Section VI.B., Ground Two (addressing Petitioner's claim that he was denied a fair trial when the trial judge did not declare a mistrial based on improper prosecutorial comments on his post-arrest silence); Tr. at 241 (prosecutor's comments).
See Dormezil, 754 So.2d at 170 (concluding that counsel's declining the trial court's implied offer to give a curative instruction was not fundamental error); Section VI.B., Ground Two.
Petitioner's counsel filed an amended post conviction motion to add a final claim. Ex. R at 152-54.
Anderson v. State, 467 So. 2d 781, 787 (Fla. 3rd DCA 1985) ("Absent special circumstances, the failure to so object and move for a mistrial cannot amount to ineffective assistance of counsel.") (citation omitted).
Ex. R at 168-69, 169-71.
As noted previously, upon Petitioner's appeal, the appellate court per curiam affirmed the trial court's order. Accordingly, the claims were rejected on the merits by the state trial and appellate courts. Thus, this ground should be addressed applying the deferential standard for federal court review of state court adjudications, as required by AEDPA.
Upon a thorough review of the record and the applicable law, it is clear that Petitioner is not entitled to relief on the basis of this ground because the state courts' adjudications of the claims were not contrary to clearly established federal law, did not involve an unreasonable application of clearly established federal law, and were not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
The challenged prosecutorial comments regarding Petitioner's post-arrest silence were previously quoted in this Order. See Section VI.B., Ground Two; Tr. at 241. Further, the prosecutor stated:
The Defendant looked down, tied his shoe, he was ready. He put the items in his pocket. He was ready to flee. And in fact, did attempt to flee, but he messed up. He was caught, he was videotaped, and you're here today because of it, because of the evidence that's before you. You may say, "Now, did he have knowledge that the drugs were in the car?" Yes, he did.
Now, of course, we did hear about Frank. Frank was picked up. Where is he? I guess Frank could clear all this up for us today if he wanted to, but he hasn't. Why hasn't he? I submit to you because there's nothing to clear up. The Defendant is the one who placed that cocaine underneath the seat.
. . . .
What else? We think that this mysterious Frank, with no last name, Frank, is not here today. Did Frank just leave over a thousand grams of cocaine, such valuable property, in the back seat of a rental car? No, not at all, because Frank wasn't there.Id. at 249-50 (emphasis added).
Even assuming arguendo that the prosecutor's comments were improper, the comments, when considered in the context of the entire proceeding, did not in any way render the proceeding fundamentally unfair. There is no reasonable probability that the comments changed the outcome of the case. Cargill v. Turpin, 120 F.3d at 1379; Sexton v. Howard, 55 F.3d at 1559.
In evaluating the performance prong of the Strickland ineffectiveness inquiry, there is a strong presumption in favor of competence. During the evidentiary hearing, defense counsel stated:
I try generally not to do a lot of objecting unless I think it's something that's pretty outrageous, just in general, not necessarily in closings. I'm not the type of attorney who objects all the time.
EH Tr. at 24. Given defense counsel's actions based on the record before this Court, defense counsel's performance was not deficient. Even assuming arguendo deficient performance by defense counsel, Petitioner has not shown prejudice. Petitioner has not shown that a reasonable probability exists that the outcome of the case would have been different if his lawyer had given the assistance that Petitioner has alleged he should have provided.
The trial judge instructed the jury that the attorneys were not witnesses in the case and therefore their statements and arguments were not evidence. Tr. at 12, 215; see Brown v. Jones, 255 F.3d at 1280 (stating that "jurors are presumed to follow the court's instructions."). Further, defense counsel reminded the jury that what the attorneys say is not evidence. Tr. at 216. Additionally, the jury was instructed that Petitioner Dormezil has a right to remain silent; that the State must prove the elements of the charge beyond a reasonable doubt; and that "[a]t no time is it the duty of a defendant to prove his innocence." Id. at 11, 14, 267-68, 269-70.
The prosecutor, during closing argument, reminded the jury that the State has the burden of proof: "I have to prove this case, the elements of this charge, the elements that I read to you, beyond a reasonable doubt." Id. at 256. Finally, in responding to the State's closing argument, defense counsel addressed the State's reference to Frank.
Now the one fingerprint that we don't know who's it is, except that it's not Mr. Dormezil's, I think that fingerprint alone, that alone, is a reason for you to conclude that this Frank, this friend, Frank, is not a figment of Mr. Dormezil's imagination, which is what the State would lead you to believe. What the State argues is that Frank does not exist, that this is completely a made up story.
Well even if Mr. Dormezil had touched the cocaine and wiped off his prints as the State has just argued, who touched it? Somebody did. It wasn't the officer, but somebody did. It was Frank. Who else could it have been? It was somebody. And if it's somebody — Mr. Dormezil says it's Frank. You have no reason to believe it's not Frank. There's no reason not to believe that. Somebody touched it other than — if Mr. Dormezil touched it and wiped his prints off as the State said, somebody had touched it because the State has a fingerprint and it's not Mr. Dormezil's.Id. at 263. Immediately thereafter, defense counsel again stressed that it is the State's burden to prove their case beyond a reasonable doubt: "That's what the State's burden always is in a criminal case. It's critical. It's critical." Id. at 264. Thus, as noted by the Respondents, the ineffectiveness claim is without merit. See Response at 18-19; Section VI.B., Ground Two.
VII. Conclusion
Any other claims not specifically addressed are found to be without merit. Accordingly, for all of the above-stated reasons, the Petition will be denied and this case will be dismissed with prejudice.
Therefore, it is now
ORDERED AND ADJUDGED:
1. The Petition (Doc. #1) is DENIED, and this action is DISMISSED WITH PREJUDICE.
2. The Clerk of the Court shall enter judgment denying the Petition and dismissing this case with prejudice.
3. The Clerk of the Court shall close this case.
DONE AND ORDERED.