Anthony Williams v. Secretary, Florida Department of Corrections , 638 F. App'x 965 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-11351
Non-Argument Calendar
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D.C. Docket No. 6:12-cv-01217-GKS-GJK
ANTHONY WILLIAMS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 3, 2016)
Before WILLIAM PRYOR, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
Anthony Williams, a Florida prisoner, appeals the denial of his petition for a
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writ of habeas corpus. 28 U.S.C. § 2254. We issued a certificate of appealability to
address Williams’s argument that “he was denied his Sixth Amendment right to
counsel when his counsel allegedly dozed or slept during a part of [his] trial.”
Because it was not an unreasonable application of clearly established federal law
for the state trial court to conclude that Williams was not prejudiced by counsel
“[falling] asleep a couple of times” while the state replayed a recording of an
interview that was cumulative to earlier testimony from the interviewee, we affirm.
I. BACKGROUND
We divide the discussion into three parts. First, we discuss Williams’s
indictment and his trial. Second, we discuss the unsuccessful state postconviction
challenges filed by Williams. Third, we discuss the denial of Williams’s federal
petition for a writ of habeas corpus.
A. Williams’s Indictment and Trial
When Austin Joseph Paine intercepted burglars in his home, they shot and
killed him. Chad Michael Leon afterward overdosed on morphine and checked
himself into a hospital, where he implicated himself, Williams, and Randy Carter
Jr. in Paine’s murder. Leon later showed officers where in the ocean he had
discarded a revolver and a semiautomatic firearm used by Williams and Carter.
A Florida grand jury indicted Williams, Carter, and Leon for first degree
murder and for armed burglary. Leon pleaded guilty to the lesser crimes of second-
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degree murder and armed burglary.
At trial, the state introduced testimony and forensic evidence that connected
Williams to the crimes. Jarod Parrish testified that he introduced Williams to
Carter and Leon and overheard the three men planning the burglary at a bar and at
his house. Joshua Bartman testified that he saw Williams and Carter with a .38
caliber revolver and a nine millimeter semiautomatic handgun a few days before
the murder. Carter’s mother testified about renting a car for Carter, meeting
Williams in Pennsylvania, Williams’s relocation to the Carters’ home, and
Williams’s exodus after the murder. Paine’s girlfriend described how Paine
bounded from bed after hearing the sound of glass breaking and a voice near a
sliding door outside their bedroom, and then Rachel Vargas testified that she rented
a hotel room on the night of the murder at the behest of Williams and Parrish with
money that Williams provided. Leon testified about meetings with Williams and
Carter; a botched attempt to burgle Paine’s home; Williams’s and Carter’s
admissions to shooting Paine; his role as the getaway driver; his disposal of
Williams’s revolver and Carter’s semiautomatic handgun; and his interview with
Mike Spadafora, an agent of the Brevard County Sheriff’s Office.
Defense counsel questioned every witness. Counsel cross-examined Parrish
and Paine’s girlfriend about inconsistencies in their testimonies, and counsel
elicited from Carter’s mother that Williams planned to return to Pennsylvania
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before the murder occurred and from Vargas that she never heard Williams or his
cohorts discuss a burglary before asking her to rent the hotel room. Defense
counsel objected repeatedly to Bartman’s and Leon’s testimonies, and the trial
court allowed defense counsel to question Leon outside the presence of the jury
before allowing him to testify about his conversations with Parrish.
Agent Spadafora authenticated the recording of Leon’s interview and the
state offered the recording as a prior consistent statement. Defense counsel
objected and requested that the trial court examine the recording and allow him to
question Leon without the jury present, but counsel later withdrew the objection.
When questioned, Williams verified that he agreed with counsel’s decision.
The prosecutor played the recording of Leon’s interview, which consumed
about 71 pages of the trial transcript. When the state turned on the audiotape,
defense counsel complained that he couldn’t “hear it over here.” After the
recording ended, defense counsel immediately cross-examined Agent Spadafora.
The prosecutor requested a five minute break and defense counsel interjected, “I
need to take a break; I fell asleep a couple of times.”
The state introduced testimony from its experts and a second agent of the
Brevard County Sheriff’s Office. A forensic expert testified about discovering
Paine’s DNA on the armrest, inside the driver’s door, and on a seatbelt in the back
of the rental vehicle. On cross-examination, the forensic expert acknowledged that
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he had excluded Williams as a contributor of the DNA found in Paine’s fingernail
clippings. After a latent print expert testified about matching Williams’s left palm
print and thumb print to a handprint discovered on the hood of the rental vehicle,
defense counsel elicited from the expert that she had compared the handprint to
only four samples. A firearms expert testified that a bullet discovered in the rental
car matched ammunition that could be used in a nine millimeter pistol and that two
of the three bullets extracted from Paine were fired from the same gun, and on
cross-examination, the expert acknowledged that it was common to find bullets
with similar class characteristics in semiautomatic weapons and revolvers and that
she could not determine whether the bullets extracted from Paine were shot from
the same clip. Over defense counsel’s objections, Agent Gary Harrell testified that
he interviewed Carter and Leon and that Leon admitted to driving the getaway car
and discarding the murder weapons. On cross-examination, Agent Harrell
acknowledged that Carter did not implicate Williams.
Defense counsel argued about inconsistencies in the evidence. Defense
counsel recalled Leon and identified discrepancies in the statements that he made
to different officers. And during closing statements, defense counsel argued that
Leon’s statements conflicted with the forensic evidence.
The jury found Williams guilty of first degree felony murder and armed
burglary of a dwelling. Later, the trial court sentenced Williams to imprisonment
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for life.
Williams, assisted by new counsel, argued on direct appeal that the trial
court erred by denying his motion to suppress. The Fifth District Court of Appeal
affirmed Williams’s conviction and certified a question involving the right to
counsel during interrogation to the Supreme Court of Florida. Williams v. State, 38
So. 3d 188, 190–94 (Fla. Dist. Ct. App. 2010). That court “decline[d] to exercise
[its] jurisdiction” and denied summarily Williams’s petition for review. Williams v.
State, 39 So. 3d 1266 (Fla. 2010).
B. Williams’s Unsuccessful State Postconviction Filings
Williams petitioned a state appellate court to issue a writ of habeas corpus.
Williams argued that his appellate counsel should have argued that trial counsel
was ineffective for falling asleep during the trial. The Fifth District Court denied
Williams’s petition summarily. Williams v. State, No. 5D11-787 (Fla. Dist. Ct.
App. June 1, 2011).
Williams next moved for state postconviction relief, in part, based on the
same claim of ineffectiveness of trial counsel. See Fla. R. Crim. P. 3.850. The trial
court denied Williams relief under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052 (1984). Although defense counsel had “remark[ed] on the record that he
had fallen asleep,” the trial court found that “just two pages earlier . . . he [had
been] actively cross-examining a State’s witness.” After a careful examination of
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the trial transcript, the trial court found “it [was] clear that throughout the entire
trial, defense counsel actively and vigorously cross-examined each of the State’s
witnesses, asking questions relevant to the testimony they had just offered,” “[h]e
interjected appropriate objections, [and] he seemed to be actively engaged in the
entire process.” Because Williams did not “point to any specific portion of the trial
or any specific piece of testimony or evidence that counsel overlooked as the result
of his alleged sleeping,” the trial court ruled that Williams “fail[ed] to allege or
demonstrate prejudice on [his] claim.” The state appellate court affirmed without
opinion. Williams v. State, 90 So. 3d 304 (Fla. Dist. Ct. App. 2012).
C. Williams’s Federal Petition for a Writ of Habeas Corpus
Williams filed in the district court a petition for a writ of habeas corpus and
argued that he was denied the assistance of counsel because he was “sleeping
through the trial.” See 28 U.S.C. § 2254. The district court determined that United
States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984), did not control the analysis
of Williams’s claim because the record did not reflect that “counsel slept through a
substantial portion of the trial.” And the state court did not apply Strickland
unreasonably, the district court ruled, because Williams “ha[d] not shown that
counsel’s actions resulted in prejudice.” The district court based its decision on
factual findings that, “[a]lthough defense counsel indicated that he fell asleep for a
portion of the time period during which the taped statement was played,” Williams
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failed to “point to any other instance of counsel sleeping during the trial,” and that
a “review[] [of] the entire record” revealed that “defense counsel appear[ed] to
have been alert during trial, properly respond[ed] to objections and questions, and
cross-examin[ed] each witness.”
II. STANDARDS OF REVIEW
We review de novo the denial of a petition for a writ of habeas corpus that
alleges ineffective assistance of counsel. Williamson v. Fla. Dep’t of Corr., 805
F.3d 1009, 1016 (11th Cir. 2015). A petitioner is entitled to a writ of habeas corpus
only if the state court reached a decision that was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). A state court makes an “unreasonable application” of clearly
established federal law if the court “identifies the correct governing legal principle
from [the] decisions [of the Supreme Court] but unreasonably applies that principle
to the facts of petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct.
2527, 2534–35 (2003) (internal quotations and citation omitted). To establish an
unreasonable application of federal law, a petitioner “must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103, 131 S. Ct. 770, 786–87 (2011).
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III. DISCUSSION
Williams maintains that he is entitled to habeas corpus relief. Defense
counsel’s admission that he fell asleep twice while the jury listened to Leon’s
interview, Williams argues, constituted a denial of counsel and was prejudicial per
se under Cronic. Because the state court reasonably evaluated Williams’s claim
under Strickland and Williams does not argue that he was prejudiced by counsel’s
conduct, we affirm the denial of Williams’s petition for a writ of habeas corpus.
Williams failed to establish that the state court unreasonably applied clearly
established federal law. “[C]learly established Federal law for purposes of
§ 2254(d)(1) includes only the holdings . . . of [the Supreme] Court’s decisions.”
Woods v. Donald, 575 U.S. __, 135 S. Ct. 1372, 1376 (2015) (internal quotation
marks and citation omitted). The Supreme Court has not addressed whether the
rule in Cronic applies if counsel dozes twice while a recording of an interview that
is cumulative of earlier testimony and unobjectionable is played for the jury.
Williams cannot establish that the refusal of the state court to apply Cronic
to his claim of ineffective assistance “was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement,” Harrington, 562 U.S. at 103, 131 S. Ct. at 786–87.
A defendant is entitled to a presumption of prejudice if defense counsel’s conduct
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resulted in a “complete denial of counsel . . . at a critical stage” of trial or an
“entire[] fail[ure] to subject the prosecution’s case to meaningful adversarial
testing,” Cronic, 466 U.S. at 659–60, 104 S. Ct. at 2047. The Supreme Court has
held that Strickland, not Cronic, applies when “counsel failed to oppose the
prosecution . . . [only] at specific points.” Bell v. Cone, 535 U.S. 685, 697, 122 S.
Ct. 1843, 1851 (2002). And the Supreme Court in Woods held that it was not
contrary to or an unreasonable application of clearly established federal law for a
state court to apply Strickland to a claim involving the absence of defense counsel
from the courtroom for ten minutes while government witnesses testified about
other defendants. Woods, 135 S. Ct. 1377–78. In the absence of controlling
precedent, fairminded jurists could disagree about whether a defendant is entitled
to a presumption of prejudice because defense counsel, who was otherwise actively
engaged in the trial, “fell asleep a couple of times” while the jury listened to a
recorded interview that was cumulative to testimony earlier provided by the
interviewee.
Williams has abandoned any challenge that he could have made to the
determination that he was not prejudiced by counsel’s conduct. The state court
ruled that Williams failed to “demonstrate prejudice,” see Strickland, 466 U.S. at
694, 104 S. Ct. at 2068, and Williams makes no argument about that ruling.
Because “[i]ssues not clearly raised in the briefs are considered abandoned,”
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Marek v. Singletary, 62 F.3d 1295, 1298 n.2 (11th Cir. 1995), we need not address
whether Williams was prejudiced by counsel’s sleeping.
IV. CONCLUSION
We AFFIRM the denial of Williams’s petition for a writ of habeas corpus.
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