Opinion
Case No. 8:09-cv-1350-T-17TBM, DEATH CASE PETITION.
September 30, 2010
ORDER
Richard W. Rhodes, Jr., a Florida prisoner under sentence of death, timely petitions for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Rhodes is proceeding on his amended petition (hereinafter "Petition" or "petition") (Docs. 13, 14 [memorandum]). Respondent filed a response to the petition (Doc. 20) and Petitioner filed a reply to the response. (Doc. 27). Because Rhodes was tried and sentenced in Pinellas County, Florida, venue properly lies in the Middle District of Florida.
BACKGROUND
On direct appeal following his first-degree murder conviction and death sentence, the Florida Supreme Court affirmed the conviction but remanded to the trial court for a new sentencing hearing. Rhodes v. State, 547 So. 2d 1201 (Fla. 1989). The Florida Supreme Court recited the facts of the case:
On March 24, 1984, the decomposing body of an approximately forty-year-old female, missing her lower right leg, [n1] was found in debris being used to construct a berm in St. Petersburg. The debris in the immediate area where the body was found came from the Sunset Hotel in Clearwater, which had been demolished on March 15, 1984. The body was identified by fingerprints as that of Karen Nieradka. The Pinellas County medical examiner determined manual strangulation to be the cause of death because the hyoid bone in the victim's throat was broken. No evidence was found of sexual intercourse, sexual molestation, or rape.
[n1] The lower right leg was found several days later a few yards away from the discovery site of the body.
On March 2, 1984, Rhodes was stopped by the Florida Highway Patrol in Hernando County while driving a white 1983 Dodge registered to the victim. Rhodes was arrested for driving without a valid driver's license and taken to the Citrus County Jail. On March 26, 1984, Rhodes was interviewed in the Citrus County Jail by detectives from the Pinellas County Sheriff's Department. During this and subsequent interviews, Rhodes gave different and sometimes conflicting statements to his interviewers, always denying that he raped or killed Karen Nieradka.
On April 27, 1984, during the ride from the Citrus County Jail to Pinellas County following his arrest for first-degree murder, Rhodes offered to tell Detective Porter how the victim had died if he could be guaranteed he would spend the rest of his life in a mental health facility. Rhodes then claimed the victim died accidentally when she fell three stories while in the Sunset Hotel.
At trial, three of Rhodes' fellow inmates at the Pinellas County Jail were called as witnesses for the state. Each inmate testified that Rhodes admitted killing Karen Nieradka. The jury found Rhodes guilty of first-degree murder. Upon conclusion of the penalty phase of the trial, the jury recommended that the trial court impose a sentence of death.
A sentencing hearing was held on September 12, 1985. The trial judge sentenced Rhodes to death and orally stated her findings of aggravation and mitigation. Written findings in support of the imposition of the death penalty were not filed until September 24, 1986.Rhodes, 547 So. 2d at 1202-1203.
The Florida Supreme Court found various penalty phase errors, vacated the death sentence, and remanded for a new sentencing before a jury. Rhodes, 547 So. 2d at 1208.
On remand, following a jury recommendation of death by a vote of ten to two, the trial court imposed a sentence of death, relying on three aggravators: (1) Rhodes committed the murder while on parole; (2) Rhodes was previously convicted of a violent felony; (3) the murder was committed while Rhodes was engaged in the commission of an attempted sexual battery. The trial court found two statutory mitigating factors: 1) Rhodes' age of thirty at the time of offense; and 2) Rhodes' capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired.
In addition, the trial court found, as non-statutory mitigation, that 1) as a child, Rhodes was abandoned by his parents; and, 2) Rhodes never experienced a normal family life because as a child he was never placed in a social environment that could address his needs and he spent most of his life in state hospitals and prisons. Rhodes, 638 So. 2d at 923. The Florida Supreme Court affirmed the death sentence imposed on remand, but vacated the March 20, 1992 conviction for first-degree murder finding it was extraneous in light of the affirmance of Rhodes' 1985 conviction. Rhodes v. State, 638 So. 2d 920 (Fla. 1994).
STANDARDS OF REVIEW AEDPA STANDARD
Rhodes' petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). AEDPA affects this Court's review of both factual findings and legal rulings entered by the state courts in the rejection of Rhodes' federal claims. This court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law-including constitutional issues-must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involve an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362 (2000). Indeed, it is not enough that the federal courts believe that the state court was wrong; it must be demonstrated that the state court decision was "objectively unreasonable." Id. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).
INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
To prevail on a claim of ineffective assistance of trial or appellate counsel, a Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires a Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. However, if a claim fails to satisfy the prejudice component, the court need not make a ruling on the performance component.
DISCUSSION
The state trial court conducted an evidentiary hearing on Rhodes' postconviction claims. The state trial court's findings are "presumed to be correct" ( 28 U.S.C. 2254(e)(1)) and there is no showing that its decision "was based on an unreasonable determination of the facts. . . . "( 28 U.S.C. § 2254(d)(2)). There are no claims in the habeas petition that permit further factual development. No federal evidentiary hearing is warranted on Rhodes' petition.
Given that Rhodes has not challenged Respondent's statement of the procedural history of this case, a recitation of the procedural history of Rhodes' criminal conviction is unnecessary. The issues are fully briefed and the case is ripe for decision. The record is fully developed and the claims of the petition raise issues of law, not issues of fact. See Breedlove v. Moore, 279 F.23 952, 959 (11th Cir. 2002).
Because of the deference due the state court's findings of fact and conclusions of law, the state courts' determination of Rhodes' claims largely governs review of those same claims. Consequently, in considering the reasonableness of the state courts' determinations, the review of Rhodes' claims includes a recitation of the pertinent state court analysis.
GROUND ONE
The Florida Supreme Court erred in not granting Mr. Rhodes a new trial when the government knew, or should have known, that FBI Special Agent Malone testified falsely. The government did not correct it, and the false statements evidence admitted therefrom was material in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
Rhodes asserts a Brady/Giglio claim based on the testimony of FBI Agent Malone.
Rhodes raised this claim in his postconviction motion and on postconviction appeal. Rhodes v. State, 986 So. 2d 501 (Fla. 2008).
At trial, Malone testified that he examined hair that came from the victim's hands and determined that the hairs recovered from both of her hands were her own. (A15/1873). Later, at the postconviction evidentiary hearing, Malone reviewed his bench notes and testified that a hair in the victim's left hand was unsuitable for comparison, rather than a hair that belonged to the victim.
Rhodes alleges that Malone's incorrect testimony at trial constitutes a violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). This Court disagrees.
Agent Malone testified, both at the original trial and at the postconviction evidentiary hearing, that he was unable to identify any hairs other than those belonging to the victim. The Florida Supreme Court found that the only difference between Malone's original testimony and his postconviction testimony was that Malone testified at trial that a hair located in the victim's left hand belonged to the victim, while at the evidentiary hearing he testified that the hair was not suitable for testing. The Florida Supreme Court stated that "[f]orensic testing of the hair evidence at the time of trial, and later during Rhodes' postconviction proceeding, revealed that the hair evidence collected on or around the victim's body either belonged to the victim or was inconclusive."
Rhodes asserts that this claim was raised on direct appeal and in postconviction. (Petition, Doc. 13 at pages 19-20). However, a review of the record demonstrates that Rhodes did not raise this claim on direct appeal. The only claim raised on direct appeal regarding FBI Agent Malone was the state law claim that Malone allegedly testified outside his area of expertise. (See Initial Brief of Appellant, App. Ex. 24, Issue V at pages 34-36). Rhodes' direct appeal claim was raised solely as a matter of state law and did not present any federal constitutional claim cognizable on federal habeas review. See, Engle v. Isaac, 456 U.S. 107 (1982).
A violation of state law is not a ground for federal habeas relief. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("[F]ederal habeas corpus relief does not lie for errors of state law. . . ."); Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law.").
Rhodes raised a Brady/Giglio/newly discovered evidence claim in his Rule 3.851 postconviction motion; an evidentiary hearing was held; and the trial court denied relief in its November 13, 2003 Order Denying Defendant's Motion To Vacate Conviction and Sentence:
The Defendant alleges in Claim XXI of his motion that he is entitled to a new trial based on newly discovered evidence. He argues that a 1994 Office of the Inspector General of the United States Department of Justice (OIG) investigation of the FBI's laboratory practices casts doubt on the reliability of the jury's verdict. Newly discovered evidence is information that was unknown to the trial court, to the party, and to counsel at the time of trial, was undiscoverable by due diligence, and would probably produce an acquittal at retrial. See Robinson v. State, 770 So. 2d 1167 (Fla. 2000); Blanco v. State, 702 So.2d 1250, 1252 (Fla. 1997). To qualify as new evidence, it must be admissible. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). The OIG report would be inadmissible hearsay. See Norton v. State, 709 So. 2d 87, 95 (Fla. 1997). Furthermore, the report did not exist at the time of trial. Newly discovered evidence, by its very nature, is evidence that existed but was unknown at the time of sentencing. Porter v. State, 653 So.2d 374, 380 (Fla. 1995).
However, Agent Malone admitted that his trial testimony in this case was false. Malone testified at trial that the victim had clumps of hair in her hands and he told the jury that he tested all the hair samples. Malone testified that he was unable to identify any other hairs than those belonging to the victim.
In 2001, Agent Malone admitted, after checking his handwritten bench notes, that he did not actually test all of the hair samples in this case. While the OIG report itself does not qualify as newly discovered evidence, the fact that Agent Malone testified untruthfully at trial could possibly constitute newly discovered evidence that would entitle the Defendant to a new trial. See McLin v. State, 827 So. 2d 948 (Fla. 2002). The issue to be resolved is whether this newly discovered evidence is of "such nature that it would probably produce an acquittal on retrial." Id. The Defendant argues that this false testimony affected the outcome of the original guilt phase of trial as well as the second sentencing trial.
The Defendant argues that the "new information would have shown the jury that the hair in the victim's hand was not the victim's or Mr. Rhodes', but could have been the real perpetrator of the crime." If true, the Defendant would be able to show prejudice and entitlement to a new guilt phase trial. However, the Defendant has not shown that the untested hair samples belonged to anybody but the victim. Without any such proof, the Defendant's conclusion that a proper test would have revealed that the hair belonged to an unknown third person is pure conjecture based on speculation. A proper test of all the hair samples could have just as likely revealed that hair belonged to the victim or, even more damaging, the hair could have belonged to the Defendant. The Defendant argued in court that the hair samples belonged to an unknown third party because the color did not match the Defendant or the victim's hair color. Without an expert opinion indicating a person can only have one hair color at a time, the court finds this argument unpersuasive.
Nothing has been brought to this court's attention, except for speculation on the Defendant's part, to suggest that the untested hair samples belonged to anybody besides the victim. While it is clear that Agent Malone's testimony was untruthful, the Defendant has not demonstrated that Agent Malone's ultimate conclusion was false. Additionally, the Defendant has not shown that Agent Malone's trial testimony was damaging to the Defendant because he did not implicate the Defendant in any way. Even though not all of the hair was tested, the Defendant has not shown that additional testing would have revealed anything inconsistent with Agent Malone's testimony. Absent any such evidence, the Defendant has failed to demonstrate that Agent Malone's false testimony affected the outcome of the guilt phase of the trial.
The Defendant also argues that Agent Malone's testimony affected the jury's verdict at sentencing because the jury was under the impression that the victim died an extremely painful death, ripping out her own hair in the "throes of death." However, as previously noted, the Defendant has not shown that the hair belonged to anyone besides the victim, therefore he has not shown that Agent Malone's conclusions were ultimately incorrect or that the jury would have returned a recommendation of life imprisonment absent this testimony. Furthermore, the court did not consider the manner of death as an aggravating factor when it imposed the death sentence, and the Defendant has not shown that Agent Malone's testimony affected the ultimate sentence imposed at the second sentencing trial. The Defendant has therefore failed to demonstrate that the discovery of Agent Malone's false testimony rises to the level of newly discovered evidence entitling the Defendant to a new guilt phase trial or sentencing trial.
The Defendant's argument that Agent Malone's testimony somehow constituted a Brady [FN2] violation is without merit, as there is no indication that favorable evidence was withheld or that prejudice ensued. Tomkins v. State, 2003 WL 22304578 (Fla. Oct. 9, 2003). As previously noted, the Defendant has failed to demonstrate that further testing of the hair samples would provide any favorable evidence. Unlike Hoffman v. State, 800 So. 2d 174 (Fla. 2001), there was no exculpatory hair analysis here because there has not been a subsequent test excluding the Defendant as a potential source of the hair. In this case, there are only inconclusive test results that do not exclude the Defendant, the victim or a third person as a potential source of the hair. The Defendant's conclusion that the victim's hands contained foreign hairs unrelated to the Defendant or the victim is simply not supported by any evidence presented to this court.
[FN2] Brady v. Maryland, 373 U.S. 83 (1963).
The Defendant's claim that a Giglio [FN3] violation occurred is also without merit because there has been no evidence presented to suggest that the State knowingly presented false or misleading testimony. Additionally, as previously noted, this court finds that Agent Malone's testimony did not affect the judgment of the jury and therefore, even if the State knew it was presenting false testimony, any error was harmless beyond a reasonable doubt.
[FN3] Giglio v. United States, 405 U.S. 150 (1975).
The Defendant also argues that Agent Malone's testimony should have been inadmissible because his conclusions were based on unscientific principles in violation of Frye v. United States, 293 F. 2d 1013 (D.C. Cir. 1923). If the Defendant is alleging that the procedures used to conduct the hair sample tests were not accepted by the scientific community, he should have raised this issue on direct appeal as it relates to the admissibility of evidence. See Duest v. Dugger, 555 So.2d 849, 851 (Fla. 1990). If the Defendant instead is alleging that Agent Malone's testimony was unreliable because he only tested sixty-three hair samples instead of every piece of fiber collected, the Defendant fails to demonstrate that any newly discovered evidence renders Agent Malone's testing procedures inadmissible under Frye. Additionally, as noted previously, the Defendant has not shown that he was prejudiced by Agent Malone's testimony because he has not shown the result of the proceeding would have been different. See Duest.
(E6/1020-1023).
The Florida Supreme Court affirmed the denial of postconviction relief in Rhodes v. State, 986 So. 2d 501 (Fla. 2008):
1. The Brady Claim
Rhodes contends that the State violated Brady by failing to disclose that Agent Malone falsely testified about exculpatory hair evidence found in the victim's hand. Agent Malone had analyzed the hairs found on various items of evidence and compared them to known hair samples taken from Rhodes and the victim. He testified that all of the unknown hairs given to him from the victim, or from the area where the victim was found, microscopically matched the victim's hair or were hairs that were "basically no good." Agent Malone explained that the hairs that were "no good" were just hair fragments that could not be identified and therefore could not be linked to anyone. Agent Malone testified that "the bottom line as far as the hair from the victim or area where she was found is that there were no foreign hairs at all." A foreign hair was identified as "a hair that originates from somebody else besides the victim."
On cross-examination, defense counsel highlighted the insignificance of Agent Malone's testimony, stating "Mr. Malone, is the bottom line you can't help us out in this case at all?" Agent Malone answered, "Well, there were no other hairs except hairs of the victim that I could come up with, yes. That's about it."
About sixteen years later, Agent Malone admitted that he falsely testified at trial that the hair evidence in the victim's left hand was hers. Agent Malone was called to testify at Rhodes' postconviction evidentiary hearing. On the morning he was scheduled to testify, Agent Malone admitted, after checking his handwritten bench notes, that the hair in the victim's left hand, which he originally identified as belonging to the victim, was in fact not suitable for testing. Rhodes argues that there is a reasonable probability that the outcome of the proceedings would have been different had this evidence been disclosed to him. See Giglio, 405 U.S. at 154, 92 S.Ct. 763; Brady, 373 U.S. at 87, 83 S.Ct. 1194.
In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. To establish a Brady violation, the defendant must demonstrate that (1) the evidence was favorable to the defendant, either because it was exculpatory or because it was impeaching; (2) it was suppressed by the State, either willfully or inadvertently; and (3) it was material, thereby causing prejudice to the defendant. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).
Agent Malone's trial testimony concerning the hair in the victim's left hand was admittedly false. The trial court denied the claim, however, because the false testimony was neither withheld, favorable to the accused, nor prejudicial. Giving deference to the trial court on questions of fact, we review de novo the application of the law, and independently review the cumulative effect of the suppressed evidence. See Green v. State, 975 So.2d 1090, 1101-1102 (Fla. 2008) (citing Mordenti v. State, 894 So.2d 161, 169 (Fla. 2004); Way v. State, 760 So.2d 903, 913 (Fla. 2000)).
We agree with the trial court that Agent Malone's testimony was not favorable to Rhodes. Favorable evidence encompasses both exculpatory evidence and evidence that impeaches the testimony of a witness when the reliability or credibility of that witness may determine guilt or innocence. See United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio, 405 U.S. at 153, 92 S.Ct. 763. Agent Malone testified, both at the original trial and the evidentiary hearing, that he was unable to identify any hairs other than those belonging to the victim. The only difference between his original testimony and his postconviction testimony was that a hair located in the victim's left hand was found not suitable for testing. Notwithstanding that error, Agent Malone's ultimate conclusion — that all of the identifiable hairs recovered from the victim's body, or the immediately surrounding area, belonged to the victim — remained unchanged. Because all of the identifiable hairs belonged to the victim, the hair evidence neither inculpated nor exculpated Rhodes. The change in Agent Malone's testimony could not be used to impeach Malone or exonerate Rhodes and therefore does not warrant relief under Brady.
Even assuming that the evidence was favorable, however, the hair evidence was neither suppressed nor prejudicial. The Brady rule only applies to "the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Here, it is undisputed that both the State and defense counsel were apprised of the error in Agent Malone's testimony at the evidentiary hearing on Rhodes' postconviction motion. In fact, Agent Malone did not become aware of the discrepancy between his trial testimony and his notes until preparing to testify on the morning of the hearing. Without demonstrating that the State suppressed evidence, Rhodes is not entitled to relief under Brady.
Finally, Agent Malone's testimony did not prejudice Rhodes. To satisfy Brady's prejudice prong, a defendant must show that the suppressed evidence was material. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Evidence is material if there is "a reasonable probability that had the suppressed evidence been disclosed the jury would have reached a different verdict. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Green, 975 So.2d at 1102 (citation omitted). A new trial is only warranted when "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. (quoting Strickler, 527 U.S. at 290, 119 S.Ct. 1936). Here, Agent Malone's testimony could not reasonably place the case in such a different light as to undermine confidence in the verdict. His testimony did not exclude either Rhodes or the victim as the source of the un-identifiable hairs. Further, subsequent DNA testing on the hair evidence proved inconclusive and therefore, again, did not exculpate Rhodes.
We denied Brady relief under similar circumstances in Allen v. State, 854 So. 2d 1255 (Fla. 2003). In Allen, we found that a forensic hair analysis the State had withheld was not material, even though it excluded the defendant as a source of the hair, because the analysis did not exclude the victim as the source and therefore neither supported nor negated the defendant's argument that an unidentified person perpetrated the murder. Id. at 1260. Similarly, the change in Agent Malone's testimony does not support or negate Rhodes' contention that an unidentified third party committed the murder. In other words, the fact that Agent Malone incorrectly identified a hair not suitable for testing as belonging to the victim does not present Rhodes with new evidence from which he could present a plausible and persuasive theory of innocence. Thus, we conclude that even given the benefit of Agent Malone's amended testimony, no prejudice has been established.
Contrary to Rhodes' suggestion, this case is distinguishable from our decision in Hoffman v. State, 800 So.2d 174 (Fla. 2001). In Hoffman, the State failed to disclose the results of an exculpatory hair analysis. We ordered a new trial. An important issue in the case was whether the defendant was even present at the crime scene. Id. at 180. Therefore, "any evidence tending to prove or disprove [that] fact would be highly probative." Id. Unlike the evidence in this case, however, the evidence in Hoffman excluded the defendant as the source of the hair, as well as the victim and the codefendant. Id. at 179. Hair found clutched in the victim's hand provided proof of recent contact between the victim and a person present at the crime scene when the victim died. Id. We found that defense counsel could have strenuously argued that the defendant was not present at the crime scene and was not the assailant. Id. at 180. The hair evidence in this case [Rhodes] does not have the same probative value; it is not exculpatory. Based on the above, we agree with the trial court that Rhodes failed to establish a Brady violation.Rhodes, 986 So. 2d at 506-508.
2. The Giglio Claim
The trial judge also concluded that Rhodes did not prove that the State knowingly presented false testimony at trial from Agent Malone, in violation of Giglio. To establish a Giglio violation, a defendant must show that: (1) the prosecutor presented or failed to correct false testimony; (2) the prosecutor knew the testimony was false; and (3) the false evidence was material. See Guzman v. State, 941 So.2d 1045, 1050 (Fla. 2006). Once the first two prongs are established, the false evidence is deemed material if there is any reasonable possibility that it could have affected the jury's verdict. See id. Under this standard, the State has the burden to prove that the false testimony was not material by demonstrating it was harmless beyond a reasonable doubt. Id.; see also Mordenti v. State, 894 So.2d 161, 175 (Fla. 2004).
Rhodes argues that Agent Malone falsely testified concerning the number of hairs he examined and the identity of the hairs in the victim's left hand. The trial court found that Agent Malone admitted to falsely testifying as to the numbers of hairs he tested and the identity of hairs clutched in the victim's hands; however, it denied relief because the State did not knowingly present the false evidence and because it was not material.
We find that competent substantial evidence supports the conclusion that Agent Malone falsely testified about the hair clutched in the victim's left hand; however, the record does not support the court's conclusion that Agent Malone testified falsely about the quantity of hairs tested. [FN4] See Green, 975 So.2d at 1101 (noting that we defer only to those factual findings supported by competent, substantial evidence and review de novo the application of the law to the facts). Notwithstanding the falsity of the testimony, we affirm the trial court's denial of Rhodes' Giglio claim because even if Rhodes satisfied the first two prongs under Giglio, he cannot demonstrate that Agent Malone's testimony was material. Agent Malone's testimony helped neither the State nor the defense. Forensic testing of the hair evidence at the time of trial, and later during Rhodes' postconviction proceeding, revealed that the hair evidence collected on or around the victim's body either belonged to the victim or was inconclusive. As the trial court found, "the inconclusive test results do not exclude the Defendant, the victim or a third person as a potential source of the hair." Because the hair evidence did not identify or exclude Rhodes as a source, it did not exonerate Rhodes or inculpate a third party. Therefore, Agent Malone's false testimony concerning the hair evidence was not sufficiently material and thus there is no "reasonable possibility that [it] could have affected the judgment of the factfinder." Guzman, 941 So.2d at 1051. As defense counsel aptly stated during trial, the "bottom line [is Agent Malone] can't help us out in this case at all." Accordingly, we deny relief on this issue.
FN4. The record demonstrates that Agent Malone maintained both at trial and the postconviction hearing that he examined all of the hairs submitted to him. There is insufficient record evidence to refute that claim.Rhodes, 986 So. 2d at 508-509.
Rhodes alleges the Florida Supreme Court "unreasonably applied" the Brady and Giglio materiality standards. (Doc. 14 at page 1). He summarily concludes that the Florida Supreme Court found that the evidence "must be exonerating in order to be material." (Doc. 14 at page 1). Rhodes' conclusion is incorrect. Both the trial court and the Florida Supreme Court correctly identified Brady and Giglio as the standards for evaluating Rhodes' claim and the state courts correctly applied the Brady/Giglio standards. In denying the Brady claim, the trial court explained:
. . . In this case, there are only inconclusive test results that do not exclude the Defendant, the victim or a third person as a potential source of the hair. The Defendant's conclusion that the victim's hands contained foreign hairs unrelated to the Defendant or the victim is simply not supported by any evidence presented to this court.
(E6/1022-1023).
In rejecting Rhodes' Brady claim on postconviction appeal, the Florida Supreme Court found:
Agent Malone testified, both at the original trial and the evidentiary hearing, that he was unable to identify any hairs other than those belonging to the victim. The only difference between his original testimony and his postconviction testimony was that a hair located in the victim's left hand was found not suitable for testing. Notwithstanding that error, Agent Malone's ultimate conclusion — that all of the identifiable hairs recovered from the victim's body, or the immediately surrounding area, belonged to the victim — remained unchanged. Because all of the identifiable hairs belonged to the victim, the hair evidence neither inculpated nor exculpated Rhodes. The change in Agent Malone's testimony could not be used to impeach Malone or exonerate Rhodes and therefore does not warrant relief under Brady.
* * *
Here, Agent Malone's testimony could not reasonably place the case in such a different light as to undermine confidence in the verdict. His testimony did not exclude either Rhodes or the victim as the source of the unidentifiable hairs. Further, subsequent DNA testing on the hair evidence proved inconclusive and therefore, again, did not exculpate Rhodes.Rhodes, 986 So. 2d at 507; 508.
In denying the Giglio claim, the trial court explained: The Defendant's claim that a Giglio violation occurred is also without merit because there has been no evidence presented to suggest that the State knowingly presented false or misleading testimony. Additionally, as previously noted, this court finds that Agent Malone's testimony did not affect the judgment of the jury and therefore, even if the State knew it was presenting false testimony, any error was harmless beyond a reasonable doubt.
(E6/1023). See also Order Denying Defendant's Motion for Rehearing, noting that pursuant to Guzman v. State, 868 So. 2d 498 (Fla. 2003) the correct Giglio standard was applied and "the court finds no reasonable likelihood that Agent Malone's testimony affected the jury's verdict." (E6/1034).
On postconviction appeal, the Florida Supreme Court further concluded:
. . . even if Rhodes satisfied the first two prongs under Giglio, he cannot demonstrate that Agent Malone's testimony was material. Agent Malone's testimony helped neither the State nor the defense. Forensic testing of the hair evidence at the time of trial, and later during Rhodes' postconviction proceeding, revealed that the hair evidence collected on or around the victim's body either belonged to the victim or was inconclusive. As the trial court found, "the inconclusive test results do not exclude the Defendant, the victim or a third person as a potential source of the hair." Because the hair evidence did not identify or exclude Rhodes as a source, it did not exonerate Rhodes or inculpate a third party. Therefore, Agent Malone's false testimony concerning the hair evidence was not sufficiently material and thus there is no "reasonable possibility that [it] could have affected the judgment of the factfinder." Guzman, 941 So.2d at 1051. As defense counsel aptly stated during trial, the "bottom line [is Agent Malone] can't help us out in this case at all." Accordingly, we deny relief on this issue.Rhodes, 986 So. 2d at 508.
In denying postconviction relief, the Florida Supreme Court specifically noted the denial of a Brady claim under similar circumstances in Allen v. State, 854 So. 2d 1255 (Fla. 2003). Rhodes, 986 So. 2d at 508. Recently, federal habeas relief was denied in that analogous case, Allen v. McNeil, 2009 WL 856017, 10 (S.D. Fla. 2009), affirmed, Allen v. Sec. Fla. Dep't of Corr., 611 F.3d 740, 745-751 (11th Cir. 2010). Here, as in Allen, "[g]iven the multitude of possible explanations for the hair, "there is nothing unreasonable about the state courts' holding that disclosure that the hair in the victim's left hand was unsuitable for testing did not create a reasonable probability of a different result.
The state courts conclusions as to the Brady factors are supported by the record. As stated in Strickler v. Greene, 527 U.S. 263, 281-282 (1999).
The term " Brady violation" is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence [FN20]-that is, to any suppression of so-called "Brady material" — although, strictly speaking, there is never a real " Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
FN20. Consider, for example, this comment in the dissenting opinion in Kyles v. Whitley: "It is petitioner's burden to show that in light of all the evidence, including that untainted by the Brady violation, it is reasonably probable that a jury would have entertained a reasonable doubt regarding petitioner's guilt." 514 U.S., at 460, 115 S.Ct. 1555 (opinion of SCALIA, J.).
In the present case, Rhodes has not satisfied his burden to stat that "in light of all the evidence, including that untainted by the Brady violation, it is reasonably probable that a jury would have entertained a reasonable doubt regarding petitioner's guilt." As to Brady factor one, it is not exculpatory that the hair in the left hand was unsuitable for comparison rather than is actually the hair of the victim, although it perhaps can be said to impeach minimally Malone's trial testimony. As to Brady factor two, the State did not suppress the evidence; rather, Malone's error in his testimony was discovered for the first time during the postconviction evidentiary hearing and the prosecutor immediately notified collateral counsel.
As to Brady factor three, Rhodes failed to satisfy the Brady prejudice prong as Malone's evidence related to the hair that could not be conclusively identified cannot reasonably be taken to put the whole case in such a different light so as to undermine confidence in the verdict. At trial, testimony from witnesses established that on March 24, 1984, the decomposing body of a white female was found in debris including carpeting being used to construct a berm in the Wyoming Antelope Gun Club in St. Petersburg. (A13/1454-1455, 1485-1486, 1489-1492). The lower right leg was missing but was located on March 30, 1984, a few yards from where the body had been found. (A13/1492, 1521-1522). Debris from two buildings that had been torn down was being used to construct the berm, but debris in the immediate area of the body came from the Sunset Hotel in Clearwater which was demolished on March 15, 1984. (A13/1453, 1455, 1463, 1465, 1467). The body was identified as that of Karen Nieradka through fingerprints; her known prints were on file with the Pinellas County Sheriff's Office as a result of her arrest in February 1984. (A13/1546, 1551-1559, 1567, 1570-1572; A15/1888). Medical Examiner Dr. Joan Wood determined the cause of death to be manual strangulation (A14/1701) and that she had been dead from two to eight weeks (A14/1705).
On March 2, 1984, Rhodes was stopped by a Florida Highway Patrol Trooper in Hernando County driving a white 1983 Dodge registered to the victim. Rhodes initially said the car belonged to his girlfriend Linda whose last name he could not pronounce because it was Russian. Documents in the glove compartment showed the car was registered to Karen Nieradka whom Rhodes claimed was another one of his girlfriends. There was also a note in the glove compartment giving Rhodes permission to drive the car, purportedly signed by Nieradka and Rhodes. (A15/1779-1789). Rhodes was arrested for driving without a valid driver's license and taken to Citrus County jail. (A15/1789). Rhodes' cellmate, Harvey Duranseau, testified that generally Rhodes was not interested in watching the news but when there was a broadcast on the evening news of a woman's body found in a landfill, he asked Duranseau questions about whether the police could determine the cause of death by strangulation or obtain fingerprints from a dead body. (A15/1836-1837). Rhodes mentioned that he was the only one who knew and he was not talking. He mentioned the word "girl" and he gestured a strangling motion with his hands. (A15/1840).
Detectives Porter and Kelly of the Pinellas County Sheriff's Department interviewed Rhodes at the Citrus County jail on March 26, 1984. When they were introduced to Rhodes, Rhodes volunteered "I know why you're here. You're here on a murder investigation." (A15/1896; A16/2007). Rhodes provided a number of different and conflicting statements. Rhodes claimed he had rented the victim's car from her (A15/1897-1898); that he had taken Karen and her boyfriend "Bear" to the Sunset Hotel and dropped them off (A15/1898-1903); and mentioned that the police could not prove he did it since too much time had elapsed and he "studied forensic lobotomy in prison." (A15/1912).
In a second interview, Rhodes indicated that he was with Crazy Angel and waited in a car when Crazy Angel killed her at the Sunset Motel. (A15/1924). In another statement Rhodes said he witnessed Angel strangling her and Karen was not fighting. (A16/2012). In yet another version, Rhodes claimed he did not learn about the murder until Kermit Villeneuve later told him he killed Karen.
Rhodes admitted lying to the officers. (A16/2013-2014). Rhodes also claimed to be present when Kermit attacked her. (A16/2019-2022). Rhodes offered to tell Detective Porter how the victim died if he would promise that Rhodes would spend the rest of his life in a mental facility and told the detective he would not get the truth out of him until he was convicted. (A15/1956-1957). Rhodes described himself as a vampire who preyed upon others. (A15/1956).
At the Pinellas County jail, Rhodes told cellmate Edward Cottrell that he had gone with a girl named Karen to the Sunset Fort Harrison Hotel which was being torn down; that he tried to get into her pants and she resisted; that he choked her and hit her head with a board and hid her body in some rubbish under some carpet. (A16/2032-2033). Rhodes told inmate John Bennett that he had "bruised more than a grape, but they can't prove it." (A16/2060). Rhodes told cellmate Michael Guy Allen that he was partying with a girl and tried to break her neck. (A16/2080-2081). An FDLE expert opined that Rhodes was the author of the document allowing him to use the victim's automobile which purportedly was signed by the victim. (A16/2104-2109). The expert opined that the signature on the document was not the victim's.
FBI Agent Michael Malone testified in Rhodes' first trial at the guilt phase. (A15/1862-1880). He compared known hair samples from Rhodes and samples from the victim. (A15/1865). After explaining the three-part examination of hairs using three different microscopes (A15/1866-1870), Malone testified that unknown hairs were compared against the hairs of Rhodes and hairs of the victim. The results were that all of the unknown hairs from the victim or the area where the victim was found were either her hairs or were hair fragments that could not be associated with anyone. He stated that hairs from the victim's hands were her hairs. (A15/1873). Based on his training and learning, Malone testified that in the death throes, people have a tendency to grab their own hair. (A15/1876-1877). On cross-examination, Malone agreed with defense counsel that the "bottom line" was there were no other hairs than the victim's hair. (A15/1879). Thus, in essence, the Malone testimony was non-inculpatory to Rhodes, i.e., Malone did not testify (and still does not) that any of the hair evidence he examined belonged to Rhodes. The State's evidence connecting Rhodes to the homicide came from elsewhere.
Just as there is no Brady violation, since the Malone error in testimony about the hair in the victim's left hand was not exculpatory nor suppressed by the State and did not result in prejudice to Rhodes, there is no Giglio violation. The prosecutor did not know of any false testimony and Malone's amended testimony — that the hair in the victim's left hand was not suitable for comparison — was not material and could not have affected the jury verdict at the guilt phase.
At the postconviction evidentiary hearing, Malone testified that upon review of his prior testimony he noticed an inaccuracy. Whereas the prior testimony was that the hairs in both of the victim's hands were hers, the correct statement should have been that the hairs from her right hand matched the victim's, but that the hair in her left hand was not suitable for comparison. (E8/1245-1246). The report was correct; Malone changed nothing in the report-his testimony was simply inaccurate at that point. (E8/1246). Malone testified that he examined all of the hairs in the victim's hands — and with the exception of one hair in one hand — they were all microscopically matched to the victim. The hairs did not come from or match Rhodes' hair. (E8/1249, 1275-1276).
While Malone admitted — and the record reflects — that Malone was mistaken and had erred in testifying at trial that hairs in both hands of the victim belonged to her, rather than that the hair in the left hand was unsuitable for comparison, that admission does not constitute false testimony or error under Giglio, so as to warrant relief in a collateral challenge. In Ventura v. Attorney General, State of Florida, 419 F.3d 1269, 1276-1277 (11th Cir. 2005) the Court explained:
Giglio error is a species of Brady error that occurs when "the undisclosed evidence demonstrates that the prosecution's case included perjured testimony and that the prosecution knew, or should have known, of the perjury." United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).
* * *
The origins of the Giglio doctrine lie in the Supreme Court's decision in Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959), which held that a prosecutor's failure to correct false testimony by the principal state witness that he had received no promise of consideration in return for his testimony violated the defendant's Fourteenth Amendment due process rights and required a reversal of the judgment of conviction. The Court explained that "it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Id. at 269 (citing Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935)).
Merely because a witness errs or is mistaken in his testimony of course does not mean that the witness has given false or perjured testimony. See United States v. Bailey, 123 F.3d 1381, 1395-1396 (11th Cir. 1997) ("Instead of showing perjury, we conclude that Bailey has demonstrated nothing more than a memory lapse, unintentional error, or oversight by Agent Hudson."); Maharaj v. State, 778 So. 2d 944, 956 (Fla. 2000); United States v. Michael, 17 F.3d 1383, 1385 (11th Cir. 1994) ("It is entirely plausible that Agent Dyer's recollection of what transpired at the IHOP was incorrect. We refuse to impute knowledge of falsity to the prosecutor where a key government witness' testimony is in conflict with another's statement or testimony."); United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989).
In the present case, it is correct to say that Agent Malone acknowledged making an erroneous statement in his testimony, but it is incorrect to assert that he knowingly gave false testimony and such an assertion is unsupported by the record at the state court evidentiary hearing. The Florida state court's ruling was clearly supported by fact-specific findings and application of Florida law to Rhodes' case cannot show that the state court's fact-specific decisions were either contrary to, or an unreasonable application of, federal law.
Rhodes' claim that the prosecutor must be deemed responsible for Agent Malone's erroneous trial testimony about the hair-in-the-left-hand misstatement under the theory that law enforcement actions are imputed to the prosecutor is meritless. The federal courts have declined to impute the knowledge of improper testimony from state expert witnesses to the prosecutor. In Smith v. Massey, 235 F.3d 1259 (10th Cir. 2000), the court explained that chemist Ede overstated his qualifications as a blood spatter expert in certain regards and the court accepted the assertion that his testimony regarding this specific aspect of his training and qualifications was false for purposes of analysis under Napue v. Illinois, 360 U.S. 264 (1959). Additionally, many of Ede's explanations of blood spatter analysis in general and most of his specific conclusions were scientifically inaccurate. The court noted, however, that it was unclear whether the scientific inaccuracies were the result of negligence, recklessness or intentional misconduct on the part of Ede and because "there is a dearth of case law applying Napue in the context of allegedly false expert testimony," the court would assume, without deciding, that the scientific inaccuracies qualify as "false" statements for purposes of Napue.
Turning to the question of whether the prosecution knew Ede's testimony was false, the court declined to accept the argument that as an agent [of the prosecution] Ede's decision to provide inaccurate testimony should be imputed to the prosecution. The court noted that the Supreme Court has not directly addressed the issue. See Briscoe v. LaHue, 460 U.S. 325, 326 n. 1 (1983) ("The Court has held that the prosecutor's knowing use of perjured testimony violates due process, but has not held that the false testimony of a police officer in itself violates constitutional rights."). The Smith Court acknowledged a split among the circuits and the Fifth and Tenth Circuits have refused to impute the knowledge of a law enforcement officer to the prosecution where there has been an alleged Napue violation, citing Smith v. Sec'y of New Mexico Dep't of Corrections, 50 F.3d 801, 831 (10th Cir. 1995) and Koch v. Puckett, 907 F.2d 524, 531 (5th Cir. 1990). Smith v. Massey, at 1272.
In Rhodes' case, there was no testimony or any other competent substantial evidence introduced that would support a finding that the prosecutor knew that any false or perjurious testimony of Malone or anyone else was submitted to the jury. Rhodes hypothesizes that the prosecutor, in selecting the exhibits to be entered into evidence, chose those which would have the most impact — that is, the "wads" of hair. Rhodes ignores the prosecutor's explanation below that he inadvertently omitted the slides from the Sheriff's Office and that the material mentioned by Deputy Clerk Kraft included debris found around the body. (E10/1608-1610). While Rhodes speculates that the State chose to introduce exhibits not on glass slides for the "greatest impact," there is no testimony supporting this speculation and there is no evidence of willful prosecutorial conduct to rebut the explanations that the prosecutor inadvertently omitted the slides that were at the sheriff's office.
Rhodes also argues that the hair contained in State's Exhibit 10B (Q10) was blond whereas the victim's hair was brown. (E10/1604-1605). The trial court noted that people can have blond, brown or gray hair at one time (and collateral counsel agreed) (E10/1615). Notably, Rhodes did not make any inquiry of Agent Malone on this point when he testified-preferring instead to allow the court look at the exhibits. Rhodes also argued that Malone's error on State Exhibit 13 (Q13) as to the victim's left hand demonstrated another motive for Malone to give false testimony, i.e., that the State Exhibit 10B (Q10) hair from the victim's right hand was blond and that Malone claimed it was unsuitable for comparison. However, Malone did not testify that State Exhibit 10B (Q10) hair from the right hand was unsuitable for comparison; rather, he testified it was indistinguishable from the victim's hair. (E8/1275).
Rhodes also argued in state court that Malone knowingly gave false testimony at trial because Exhibit 10B (Q10) was in a round plastic container although Malone had examined the hairs after they were put on glass slides. However, Malone's trial testimony explained that when hair samples came to his office, the hairs had to be removed from the containers and placed on glass slides.
The Q exhibits were compared against the known samples of Rhodes and the victim. (A15/1872-1873). Deputy Clerk Kraft described Exhibit 10 (Q10) as a composite of hair from the victim's right hand — a small plastic bag containing hair and dirt and a plastic container of hair. (E10/1584, 1598-1599). Rhodes argues that Malone gave false testimony because Exhibit 10B (Q10) was in a plastic container rather than on a glass slide that Malone used for his examination. There is no major inconsistency here. Malone testified at trial and at the postconviction evidentiary that the technicians prepare the material for review putting the hairs in plastic containers and on glass slides. (A15/1872; R8, 1233). That a portion of the hair from the plastic containers was put on a glass slide for Malone's review does not demonstrate that the hair in the plastic container was not of the same material Malone reviewed.
Rhodes also argued below that since there was a clump or wad of hair in the exhibit bags, Malone did not examine them because they were not on a glass slide. However, Malone explained at the evidentiary hearing that technicians remove the samples from the package sent by the Sheriff's Department, process them in scraping rooms and place them on glass slides for his review. (E8/1231-1233). Malone stated that he reviewed all the hairs on the slides and indicated there were about sixty-three hairs examined. (E8/1234, 1251). Agent Malone presumably was referring to the hair processed by his technicians and placed on slides for microscopic review rather than the large amount of debris that was available — and which the trial court apparently considered in making the conclusion that not all hairs were examined.
Rhodes also argued in state postconviction that there were several other errors Malone made. Rhodes complains that Malone's bench notes reflect that a portion of Q1, Q2, Q4, Q5 and Q9 were not suitable for comparison, but Malone testified at trial:
All of the unknown hairs from the victim or the area where the victim was found turned out to be either her hairs or they were hairs that were basically no good. They were just hair fragments and they couldn't be associated to anybody. So, again, the bottom line as far as the hair from the victim or area where she was found is that there were no foreign hairs at all.
(A15/1873)
* * *
Q. You indicated that all the hairs found that were given to you from combing around the victim's body were the victim's hairs or not able to be identified, is that correct?
A. That is correct. Yes.
Q. What would make a hair not be able to be identified?
A. If you were dealing with either a damaged hair or a hair fragment and you weren't able to find fifteen characteristics that I alluded to earlier, then basically the hair is just no good. You can't make any type of assumption about the hair. You can't eliminate it. You can't eliminate somebody, you can't associate anybody.
(A15/1877).
Defense counsel on cross-examination succinctly noted the non-inculpatory nature of Malone's testimony and quickly obtained an acknowledgment that the witness [Malone] "can't shed any light on this at all." (A15/1879).
Rhodes also complained that the trial court disallowed his impeaching Malone with the report of the Inspector General. The proffer submitted at the postconviction evidentiary hearing conclusively demonstrates that Rhodes is not entitled to relief on this claim. Rhodes acknowledged to the trial court that the OIG (Office of Inspector General) report did not refer to this case or the methods Malone used in this case. (E8/1255-1256). Rhodes represented to the trial court that the testimony of Dr. Whitehurst, an explosives expert, would "talk about" whether the method Malone used in Rhodes' case was beyond Malone's expertise. (E8/1256-1261). The trial court ruled that Rhodes could not challenge Malone's credibility or method — by reference to unrelated cases; there had to be a specific reference to Rhodes' case or the method used in Rhodes' case. (E8/1262-1263). In a proffer, Malone described the criticism of him in the 1997 report pertaining to his involvement in the Alcee Hastings case. (E8/1264-1267). No disciplinary action of any kind was taken by the Inspector General or the FBI. (E8/1268-1270).
Whitehurst subsequently testified by telephone. Whitehurst was not at the FBI lab when Malone worked on this case, had no expertise on hair and fibers and had no opinion on Malone. (E8/1337-1338).
FBI Agent Malone acknowledged that he was in error about the hair found in the victim's left hand and the state courts correctly denied all postconviction relief based on Rhodes' Brady and Giglio/newly discovered evidence claim. The state postconviction court and Florida Supreme Court addressed, and rejected, Rhodes' Brady/Giglio claims in fact-specific detail.
This Court notes that in Guzman v. Sec. Dep't of Corr., 698 F. Supp.2d 1317, 1330 (M.D. Fla. 2010), citing Bell v. Haley, 437 F. Supp. 2d 1278, 1307 (M.D. Ala. 2005), the federal district court found that "although Detective Sylvester testified that she did not disclose the true facts to the prosecution, her knowledge of this evidence was imputed to the prosecutor." Thus the Court must determine whether the false testimony was material.
The Guzman Court further found that for Giglio purposes, a falsehood is deemed to be material if "there is any reasonable likelihood that the false testimony could have affected the judgment," citing Ferguson v. Sec. Dep't of Corr., 580 F.3d 1183, 1208 (11th Cir. 2009). This standard of materiality is equivalent to the Chapman v. California, 386 U.S. 18, 24 (1967) "harmless beyond a reasonable doubt" standard. See Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir. 2008).
Rhodes has failed to meet his burden to show that "there is any reasonable likelihood that the false testimony [of Malone] could have affected the judgment." Furthermore, neither Guzman nor Bell are United State Supreme Court cases.
Rhodes has failed to demonstrate that the state courts' rulings resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Ground one does not warrant habeas corpus relief.
GROUND TWO
Mr. Rhodes was denied a fair trial when the trial court failed to exclude the testimony of FBI Agent Michael Malone when he testified outside his area of expertise in violation of his Sixth, Eighth and Fourteenth Amendment rights to the United States Constitution.
Rhodes' claim in state court (which did not raise a federal constitutional claim) was:
The trial court below erred in admitting testimony of F.B.I. Special Agent Michael Malone that was outside the area of his expertise as an expert in hair and fiber analysis.
Rhodes raised this claim on direct appeal as a matter of state law. See, Initial Brief of Appellant, App. Ex. 24, Issue V at pages 34-36.
In his appellate brief, Rhodes alleged:
Michael Malone, special agent with the F.B.I., testified at the guilt phase of Richard Rhodes' trial. (R 1862-1880) He was accepted as an expert in the field of hair and fiber analysis. (R 1864) Among other things, Malone testified that hairs found in the victim's hands were her own hair. (P. 1873) He went on to say that probably 99 out of 100 times, hairs found in the hands of a murder victim belong to the victim. (R 1874) When the prosecutor asked the reason for this, Malone was permitted to testify, over defense objections', that "in the death throes, the moment before death, people have a tendency to grab their own hair." (R 1876-1877) The source of Malone's knowledge was something a medical examiner told him during the course of Malone's training. (R 1875-1876)
In Buchman v. Seaboard Coast Line Railroad Company, 381 So.2d 229 (Fla. 1980) this Court noted two elements to be considered relative to the admission of expert testimony: (1) The subject about which the expert will testify must be beyond the common understanding of the average layman. (2) The expert witness must have such knowledge as will probably aid the trier of facts in its search for the truth. See also § 90.702, Fla. Stat. (1985). Malone's testimony failed at least the second part of this test. The only source of his "knowledge" was hearsay from an anonymous medical examiner; it was not within the scope of his expertise as an expert in hair and fiber analysis. Nor was his testimony relevant to any issue in this cause. It added nothing to the search for truth at Rhodes' trial.
In Fisher v. State, 361 So.2d 203 (Fla.1st DCA 1978) and Wright v. State, 348 So.2d 26 (Fla.1st DCA 1977) convictions were reversed where expert witnesses were permitted to give testimony that was beyond their competence to give. It should also be noted that even if otherwise admissible, expert testimony must be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, mis leading the jury, or needless presentation of cumulative evidence. § 90.403, Fla. Stat. (1985).
Kruse v. State, 483 So.2d 1383 (Fla.4th DCA 1986). Whatever utility Malone's testimony might have had was far outweighed by its tendency to confuse issues and prejudice the jury against Rhodes.
Malone's testimony as to Karen Nieradka pulling her own hair out during death throes was emphasized by the prosecutor in his final argument to the jury both at the guilt phase (R 2040) and at the penalty phase. (R 2705-2706) He argued it to the court at the sentencing hearing as a reason for imposing the ultimate punishment upon Richard Rhodes. (R 2943-2944) And, notably, Judge Hansel used the hair pulling in finding the aggravating circumstance of especially heinous, atrocious, or cruel, as evidence of the pain and mental anguish Karen Nieradka must have suffered. (R 2959, 2985, A1) Undoubtedly, the jurors must have considered that pain and anguish, seeing Karen Nieradka in death throes in the mind's eye while deliberating Richard Rhodes' guilt. A needless, prejudicial element was injected into the proceedings. Rhodes must be granted a new trial.
(See, Initial Brief of Appellant, App. Ex. 24, Issue V at pages 34-36).
In his reply to the response to the federal habeas petition, Rhodes claims that he raised a federal constitutional issue in his appellate brief because the brief cited to Kruse v. State, 483 So. 2d 1383 (Fla. 4th DCA 1986), and Kruse cites Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). This Court disagrees. The reference to Frye in Kruse reads as follows:
In Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983), Judge Ervin discussed the evolution in Florida decisions, from a rigid test of admissibility of evidence relating to new scientific procedures, to the more generous relevancy standard contained in the evidence code. Id. at 85-90; see also Fay v. Mincey, 454 So.2d 587, 593-94 (Fla. 2d DCA 1984), and Hawthorne v. State, 470 So.2d 770 (Fla. 1st DCA 1985) (Ervin, J., concurring in part and dissenting in part). The more rigid standard evolved from the decision in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923), which barred the admission of the results of a lie detector test because the test had not been generally accepted by the scientific community. Hence, the requirement of general acceptance was imposed. As Judge Ervin noted in his partial dissent in Hawthorne, the evidence code contains no reference to general acceptance in regard to the receipt of expert opinion evidence.
With some qualification, we believe the relevancy approach set out in the evidence code is the appropriate standard for determining the admissibility of expert testimony on child sexual abuse. The statutory relevancy standard also comports with the holdings of the Florida Supreme Court in the area of expert testimony. The court has stated that while trial courts have broad discretion in determining the range of subjects on which an expert may testify, such testimony should usually be received only where the disputed issue for which the evidence is offered, is beyond the ordinary understanding of the jury. Johnson v. State, 393 So.2d 1069, 1072 (Fla. 1980). This view is consistent with the first requirement of section 90.702, that the opinion evidence be helpful to the trier of fact, as well as the provisions of section 90.403, that the danger of prejudice may outweigh the value of the evidence.483 So. 2d at 1384-1385.
Merely citing to Kruse did not alert the state court that Rhodes was raising a federal constitutional claim. Nowhere in this appellate brief did Rhodes alert the state court to the fact that he was raising a federal constitutional issue. An issue that was not properly presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, i.e., procedurally barred from federal review. O'Sullivan, 526 U.S. at 839-40, 848. However, a petitioner may obtain federal review of his claim if the state procedural rule is applied in an "arbitrary or unprecedented fashion," Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001), or in a manifestly unfair manner. Ford v. Georgia, 498 U.S. 411, 424-25 (1991); Upshaw v. Singletary, 70 F.3d 576, 579 (11th Cir. 1995).
To overcome a procedural default, the petitioner must show cause and prejudice or a fundamental miscarriage of justice in order for the federal habeas court to reach the merits of a claim. Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1990), rev'd on other grounds, 498 U.S. 308 (1991).
"For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Lack of counsel or ignorance of available procedures is not enough to establish cause. Tower, 7 F.3d at 210. To satisfy the miscarriage of justice exception, the petitioner must show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 327. Further:
a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires [a] petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.Id.
Rhodes has not shown cause and prejudice to overcome the procedural default and has not shown that manifest injustice will occur if this Court does not address this claim.
Merits of the Claim
Rhodes alleges that, on appeal, the Florida Supreme Court only listed this claim [ground two] and "did not address the merits." (Doc. 14 at page 14). This assertion is misleading and incorrect. Footnote 2 of the Florida Supreme Court's opinion on direct appeal, Rhodes v. State, 547 So. 2d 1201 (Fla. 1989), stated "[t]he remaining nine issues concerning the guilt phase, which we find to be without merit, are: . . . (5) the trial court's error in allowing testimony of an FBI agent that was allegedly outside the agent's area of expertise . . ." Rhodes, 547 So. 2d at 1203, at n. 2. Thus, ground two was denied as without merit by the Florida Supreme Court. Under AEDPA, a state court does not have to cite the Supreme Court precedent, or even be aware of it, so long as neither its reasoning nor its result contradicts Supreme Court precedent. Early v. Parker, 537 U.S. 3, 8 (2002); Mitchell v. Esparza, 124 S.Ct. at 10; Parker v. Secy of Dept. of Corrections, 331 F.3d 764, 775-76 (11th Cir. 2003).
Rhodes cites to Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009). (Doc. 14 at pages 14-15). However, any reliance on a purported new rule is barred under Teague v. Lane, 489 U.S. 288 (1989). Rhodes also cites to the original sentencing proceeding; however, that death sentence was reversed on direct appeal. (Doc. 13 at page 23).
In state postconviction, Rhodes also included a "throes of death" sub-claim based on the testimony of Agent Malone. The trial court denied this sub-claim as follows:
The Defendant also argues that Agent Malone's testimony affected the jury's verdict at sentencing because the jury was under the impression that the victim died an extremely painful death, ripping out her own hair in the "throes of death." However, as previously noted, the Defendant has not shown that the hair belonged to anyone besides the victim, [sic] therefore he has not shown that Agent Malone's conclusions were ultimately incorrect or that the jury would have returned a recommendation of life imprisonment absent this testimony. Furthermore, the court did not consider the manner of death as an aggravating factor when it imposed the death sentence, and the Defendant has not shown that Agent Malone's testimony affected the ultimate sentence imposed at the second sentencing trial. The Defendant has therefore failed to demonstrate that the discovery of Agent Malone's false testimony rises to the level of newly discovered evidence entitling the Defendant to a new guilt phase trial or sentencing trial.
(E6/1022),
On direct appeal, the Florida Supreme Court rejected the state law claim as meritless and Agent Malone has not receded from his trial testimony on this point. (E8/1247-1248). Further, as noted above, Rhodes "has not shown that Agent Malone's testimony affected the ultimate sentence imposed at the second sentencing trial." Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Ground two does not warrant habeas relief.
GROUND THREE
Mr. Rhodes received ineffective assistance of counsel at Re-sentencing when his counsel failed to investigate or prepare his mitigation case prior to trial in violation of Wiggins v. Smith.
Rhodes alleges that resentencing counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984) and its progeny. (Doc. 13 at 25-45; Doc. 14 at 15-27). Rhodes' ineffective assistance of counsel penalty phase claim was raised in his postconviction motion to vacate and on postconviction appeal. The Florida Supreme Court affirmed the denial of postconviction relief at Rhodes v. State, 986 So.2d 501, 504 (Fla. 2008).
For the following reasons, Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
In denying relief ruling on Rhodes' motion to vacate in its November 13, 2003 order, the trial court stated:
The Defendant alleges in Claim II of his motion that he was denied the effective assistance of counsel at the penalty phase because sentencing counsel failed to adequately investigate and prepare additional mitigating evidence at resentencing. To prevail on a claim that defense counsel provided ineffective assistance, a defendant must demonstrate specific acts or omissions of counsel that are "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant also must demonstrate prejudice by "show[ing] 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." Id. at 694, 104 S.Ct. 2052.
The Defendant argues there was a "wealth" of mitigation that his attorney never presented to the jury because an inadequate investigation failed to discover it. The Defendant specifically argues that his attorney should have had more witnesses present during the sentencing trial to testify about his childhood. The Defendant lists numerous instances of physical, mental and sexual abuse suffered as a child and he argues that there were witnesses available that could have provided proof of these instances of neglect and abuse. The Defendant argues that if his trial attorney brought these specific instances of abuse and neglect to the jury's attention, there is a reasonable probability that the jury would have returned a recommendation of life instead of death.
While the Defendant's motion lists numerous examples of specific instances that could have been presented to the jury to support mitigation and provides the names of witnesses that would have testified accordingly, the Defendant fails to demonstrate that counsel should have known these witnesses were available and would have provided beneficial testimony.
At the evidentiary hearing, sentencing counsel testified that he asked the Defendant to give him a list of potential witnesses. The Defendant gave the Defendant the names of people that were involved in the prison ministries program, Mary Vailes, the Defendant's grandmother, and two of the Defendant's half-brothers. Prior to resentencing, the Defendant complained to the court that counsel had not contacted witnesses on his behalf. Counsel testified at the evidentiary hearing that during an in-camera hearing on this matter, the Defendant told him he wanted Don Betterly, and James Rhodes contacted. These are the only names of potential witnesses given to sentencing counsel prior to the sentencing trial, as far as this court has been made aware.
Of these witnesses, counsel spoke with Mr. Betterly but decided not to have this witness testify at the sentencing trial because Mr. Betterly told counsel that the Defendant was manipulative and a liar. Counsel stated that it would have been disastrous to have this witness testify. Regarding the prison ministry witnesses, counsel testified that he did not want these witnesses to testify because he did not want the jury to learn that the Defendant was previously sentenced to death.
The decision not to contact these witnesses was clearly a tactical decision made by sentencing counsel. Strategic decisions do not constitute ineffective assistance if alternative courses have been considered and rejected. Henry v. State, 2003 WL 22304623, 28 Fla. L. Weekly S753, S755 (Fla. Oct. 9, 2003). A reasonable, strategic decision is based on informed judgment. Id. Counsel clearly made an informed strategic decision to not call Mr. Betterly or the prison ministry witnesses and such a decision is not to be second-guessed on collateral attack. See Buford v. State, 492 So. 2d 355, 359 (Fla. 1986).
There has been mention of the Defendant's half-brothers serving in the military overseas, but there has been no evidence presented as to what their testimony would have been if called to testify. Accordingly, the Defendant has not shown he was prejudiced by counsel's failure to contact these two witnesses. Odom v. State, 770 So. 2d 195 (Fla. 2d DCA 2000).
Counsel contacted James Rhodes on the Defendant's behalf, and this witness did testify at the sentencing trial. Counsel attempted to contact Mary Vailes, the Defendant's grandmother, but he was unsuccessful in doing so. However, counsel testified at the evidentiary hearing that he asked Dr. Taylor to contact Ms. Vailes as part of the background investigation into mitigating evidence. Dr. Taylor was able to contact Ms. Vailes and, through Dr. Taylor's analysis of the Defendant's mental condition, her statements and input were presented to the jury. Even though counsel did not personally speak with Mary Vailes or have her testify directly before the jury, her knowledge of the Defendant's childhood was brought to the jury's attention and the Defendant has not demonstrated a reasonable probability that her live testimony would have changed the jury's verdict.
In the Defendant's motion, he lists several other witnesses that he believes sentencing counsel should have called to testify. These witnesses are: Catherine Broussard, Helen Greco, Eileen Meis, Kenneth Rhodes and Lorraine Armstrong. Three of these witnesses, Meis, Rhodes and Armstrong, testified at the evidentiary hearing and provided specific details of the Defendant's childhood and living conditions. The other two witnesses were contacted by investigators hired by the Defendant for purposes of this motion. These witnesses stated that they were available to testify at trial and would have testified if they were asked.
While the names of these witnesses may have appeared in the Defendant's records, there was no testimony presented showing that the Defendant told his attorney he wanted these witnesses contacted on his behalf. Furthermore, there is no indication that anything in the Defendant's records would have alerted a reasonable attorney that these people should have been contacted.
The Defendant argues that counsel should have investigated these witnesses because their names appeared somewhere in the Defendant's medical reports, prison reports or in previous trial counsel's trial file. However, the Defendant fails to demonstrate that a reasonable attorney in sentencing counsel's position should have been aware that these witnesses had favorable testimony and would have testified on the Defendant's behalf. The only way counsel could have determined whether these three people were potential witnesses was to contact each and every person listed in the records to determine what possible testimony they may be willing to provide. None of these witnesses testified at the Defendant's original sentencing hearing and there is no indication that the Defendant's original trial attorney considered these people as possible defense witnesses.
This court agrees with the Defendant's argument that a defense attorney representing a defendant in a capital penalty phase "has a duty to conduct a reasonable investigation." However, this court finds that it is simply not reasonable for an attorney to attempt to ascertain the identity and relationship of each and every person named in a defendant's records, attempt to determine if that person is living, attempt to locate and contact that witness, and finally, determine if that person would be able to provide favorable testimony. Sentencing counsel's task was made even more difficult in this case given the fact that the Defendant grew up in a migrant farming community in California and he had not been in contact with these witnesses in many years.[FN1]
[FN1] Kenneth Rhodes testified that he forgot Richard Rhodes was his brother until contacted for purposes of this motion.
Even though counsel did not investigate each person listed in the Defendant's medical records, counsel conducted a reasonable investigation into mitigation given the information provided. Compare Wiggins v. Smith, U.S. ___, ___, 123 S.Ct. 2527, 2538, 156 L.Ed.2d 471 (2003) (finding counsel's decision "to abandon their investigation at an unreasonable juncture ma[dej a fully informed decision with respect to sentencing strategy impossible").
The Defendant's reliance on Washington v. State, 219 F.3d 620, 632 (7th Cir. 2000) is misplaced because resentencing counsel here never informed the Defendant he was responsible for contacting his witnesses. The fact that counsel stated he believed the Defendant was the "captain of the ship" does not indicate that he told the Defendant he would have to locate and contact any witnesses himself. Resentencing counsel simply asked for a list of any witnesses the Defendant wanted him to contact on his behalf. Where a defendant fails to provide a list of potential witnesses to his attorney, that defendant is not allowed to later complain that those witnesses were not contacted on his behalf. See Thomas v. State, 838 So. 2d 535, 540 (Fla. 2003); Carroll v. State, 815 So. 2d 601, 614 (Fla. 2002); Cherry v. State, 781 So. 2d 1040, 1050 (Fla. 2000).
As noted numerous times by the Defendant in his motion and closing argument, the Defendant complained to the court prior to the sentencing trial that his attorney had not contacted witnesses. An in-camera hearing was held on this issue and resentencing counsel then contacted two witnesses. There is no indication that the Defendant ever gave counsel the names of any other witnesses other than Don Betterley and James Rhodes even though he clearly had the opportunity and desire to call witnesses on his behalf. Therefore, on the authority of Cherry and Carroll, this court finds that counsel's actions were not deficient and the first prong of Strickland has not been satisfied.
Even assuming, arguendo, that counsel's performance was deficient and a reasonable attorney would have contacted these witnesses, the Defendant has not shown that he was prejudiced by this alleged deficiency. At the 1992 sentencing trial, the jury heard evidence of the Defendant's childhood and considered it as mitigation. The Defendant's brother, James Rhodes, testified at the sentencing trial and told the jury that he and his brother were abandoned at a very early age, they suffered from malnutrition and they went long periods with no adult supervision. This witness also testified that the Defendant spent roughly five years in the Napa State Hospital psychiatric ward and he testified that his father was an alcoholic. Furthermore, James Rhodes confirmed that the Defendant complained as a teenager that he had been sexually abused.
Doctor Donald Taylor also testified at the 1992 sentencing trial and informed the jury that the Defendant had been physically and sexually abused before he was five years old, he was abandoned at the age of five and spent the next three years in and out of foster homes. Dr. Taylor testified that the Defendant then lived with his father for the next two years and he was continually sexually and physically abused until he was permanently removed from the home. Dr. Taylor testified that previous psychological testing revealed that as early as ten years old, the Defendant was diagnosed as being severely mentally disturbed. The Defendant's childhood and adolescent medical records were entered into evidence for the jury to consider. Dr. Taylor confirmed that the Defendant's mental condition was misdiagnosed by the doctors at the NAPA State Hospital and furthermore that the Defendant had been mistreated by doctors at the hospital. The jury learned that the Defendant's father was incarcerated at least three times and his mother was incarcerated once. Dr. Taylor also stated that early tests had predicted that the Defendant would grow up to have aggressive tendencies if he did not receive proper treatment and he stated that this was the worst case of child abuse he had ever seen.
At the evidentiary hearing, Kenneth Rhodes, Eileen Meis and Lorraine Armstrong testified and provided information about the Defendant's childhood. This court does not discount the testimony of these witnesses, and notes that their testimony provided graphic details of the Defendant's childhood. However, the jury was made aware that the Defendant was abused, misdiagnosed and neglected, and was able to consider this information prior to reaching its verdict. As evidenced by this court's order imposing the death sentence, it is clear that this court certainly considered the Defendant's abusive upbringing as a mitigator. While the additional witnesses listed by the Defendant may have been able to provide specific examples of mistreatment, their testimony would have only served to re-enforce the testimony of Dr. Taylor and James Rhodes.
The Defendant in his closing argument alleges that counsel's alleged deficiency goes to the weight this court assigned these mitigators. However, this Court's March 20, 1992 Order on Findings in Support of Sentence of Death demonstrates that all of the mitigating factors the Defendant alleges were not properly presented were in fact considered by the court. The court therefore finds that these witnesses would have provided only cumulative testimony and therefore the Defendant has not demonstrated prejudice. See Gaskin v. State, 822 So.2d 1243, 1250 (Fla. 2002).
The Defendant's claim that counsel failed to adequately prepare Dr. Taylor is conclusory and facially insufficient. The Defendant alleges that Dr. Taylor would have been better prepared for cross-examination had counsel given Dr. Taylor more documentation and information. However, the Defendant fails to show what specific information would have changed the doctor's testimony and how the testimony would have been different. He therefore fails to demonstrate that the outcome of the trial would have been different. Accordingly, the Defendant has failed to demonstrate prejudice in such a manner that would entitle him to a new trial.
(E6/1013-1020).
The Florida Supreme Court affirmed the trial court's denial of relief on this claim following the evidentiary hearing in Rhodes v. State, 986 So. 2d 501 (Fla. 2008):
Rhodes next argues that his resentencing counsel failed to fully investigate or prepare his mitigation. Specifically, Rhodes contends counsel failed to locate and call witnesses who would have testified about Rhodes' abusive childhood. [FN5] Although we recognize that "the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated," and that attorneys have a "strict duty to conduct a reasonable investigation of a defendant's background for possible mitigating evidence," Davis v. State, 875 So. 2d 359, 369 (Fla. 2003) (quoting State v. Lewis, 838 So.2d 1102, 1113 (Fla. 2002), and Ragsdale v. State, 798 So. 2d 713, 716 (Fla. 2001)), we find Rhodes' claim is without merit.
[FN5] Rhodes also vaguely argues that counsel was ineffective for failing to "file motions challenging the statutory aggravators," and for failing to challenge the constitutionality of Florida's death penalty. However, Rhodes neither alleges upon what ground counsel should have challenged the State's evidence in aggravation nor upon what basis Florida's death penalty is unconstitutional. We cannot find counsel ineffective absent specific allegations of overt acts or omissions. See Gore v. State, 964 So.2d 1257, 1277 (Fla. 2007) (citing Freeman v. State, 761 So.2d 1055, 1069 (Fla. 2000)) ("The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.")
To prevail on a claim of ineffective assistance of counsel, Rhodes must show: (1) that his counsel's performance was deficient-i.e., unreasonable under prevailing professional norms; and (2) that the deficiency prejudiced the defense-i.e., that it undermines confidence in the outcome of the trial by creating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Valle v. State, 778 So.2d 960, 965-66 (Fla. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Here, a determination of whether counsel was ineffective requires an examination not only of counsel's alleged failure to investigate and present possibly mitigating evidence, but the reasons for doing so. See Rose v. State, 675 So.2d 567, 571 (Fla. 1996); see also Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052)). Moreover, Rhodes must demonstrate that counsel's performance actually deprived the defendant of a reliable penalty phase proceeding. Rutherford v. State, 727 So.2d 216, 223 (Fla. 1998).
Rhodes contends that resentencing counsel was deficient for failing to call several family members and Lorraine Armstrong, a nurse at the state hospital where Rhodes resided for a portion of his youth. Rhodes contends that sufficient evidence of childhood abuse would have resulted in substantial mitigation and the imposition of a life sentence. The circuit court concluded that Rhodes proved neither deficient performance nor prejudice. We agree.
At resentencing, counsel called Dr. Donald Taylor and James Rhodes. After examining and evaluating Rhodes, Dr. Taylor concluded that Rhodes "is probably the most severely abused and neglected person that I've ever come across." Dr. Taylor explained that Rhodes was born to two migrant workers, who both physically and sexually abused him when he was under the age of five. When Rhodes was five years old, his parents abandoned him and his two brothers. From that point on, Rhodes resided in several different foster and boys' homes. When he was about nine, Rhodes was returned to his father, who again physically and sexually abused him. At age ten, he was permanently removed from his father's home. Two years later, he was placed in the psychiatric unit at Napa State Hospital, where he stayed until he was eighteen.
Dr. Taylor opined that Rhodes was severely emotionally disturbed and that during the commission of the first-degree murder, he was under the influence of extreme mental or emotional disturbance. Dr. Taylor also opined that at the time of the offense Rhodes was under duress and his ability to conform his conduct to the requirements of the law was substantially impaired.
Rhodes' brother James corroborated much of Dr. Taylor's testimony and relayed a first-hand account of his and Rhodes' upbringing. Specifically, James testified that his parents were alcoholics and abandoned them when they were young. James characterized his mother as "a very sick woman;" James testified that six years before his testimony, his mother visited him and "the first thing she wanted to do was go to bed with him." James also testified that Rhodes confided in him that he had been sexually abused. James explained that as kids they suffered from malnutrition and went very long periods without adult supervision. James recounted that Rhodes spent roughly five years in Napa State Hospital's psychiatric ward, and after being institutionalized Rhodes did not communicate well with others and exhibited social difficulties. James opined that Rhodes' upbringing had a lot to do with his current situation.
Based on this testimony, the resentencing court found that Rhodes' capacity "to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired." As support, the trial court stated:
The Defendant's background is a laundry list of experiences that almost predicate a life of crime and violence. He was abandoned at a young age by both his parents, although he later spent some time with his natural father. He was certainly neglected and there was some evidence that he had been sexually abused. As a child he was hyperactive and diagnosed as having a character disorder. He grew up in various foster homes. There was little or no stability to his existence since he would cause such problems in the household that he would have to be removed. During his youth there was a history, reflected in the records introduced at the Penalty Phase, of killing animals, sexual play with children, and compulsive lying. Unable to coexist in the home of his father and stepmother, or foster homes, the Defendant was eventually placed in Napa State Hospital in California. There he remained from the time he was twelve until he turned eighteen.
The court also considered as nonstatutory mitigation the fact that Rhodes was abandoned, had an abnormal family life, and was never deinstitutionalized for more than a few months at a time.
At the evidentiary hearing below, Rhodes' postconviction counsel presented three witnesses to demonstrate other evidence that could have been offered during the penalty phase: Eileen Meis, Lorraine Armstrong, and Kenneth Rhodes. Although this additional testimony presented greater detail about Rhodes' abusive childhood, it contributed virtually nothing new and was cumulative of the testimony presented during the second penalty phase. See Gudinas v. State, 816 So.2d 1095, 1105-06 (Fla. 2002) (finding that trial counsel was not ineffective for failing to present mitigation evidence cumulative to that presented at the penalty phase).
Notwithstanding the cumulative nature of the testimony, we review whether resentencing counsel was deficient in failing to present the additional witness testimony. In analyzing whether counsel was deficient in failing to investigate and present mitigating evidence, we first determine "whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel." Gudinas, 816 So.2d at 1104 (quoting Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988)). If counsel's failure to present the mitigating evidence was an oversight, and not a tactical decision, "then a harmlessness review must be made to determine if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thus, it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted." Id. (quoting Middleton, 849 F.2d at 493).
Rhodes contends that resentencing counsel should have investigated the additional witnesses mentioned above because their names appeared somewhere in his medical records. While it is true that these witnesses' names were scattered throughout Rhodes' voluminous records, there was no testimony demonstrating that Rhodes told resentencing counsel that he wanted these witnesses contacted. Strickland, 466 U.S. at 691, 104 S.Ct. 2052 ("The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."). Moreover, as the postconviction court noted, none of these witnesses testified at Rhodes' first sentencing hearing and there is no indication that Rhodes' original trial counsel considered the above people as possible defense witnesses.
Therefore, we agree with the trial court's conclusion that "it is simply not reasonable for an attorney to attempt to ascertain the identity and relationship of each and every person named in defendant's records, attempt to determine if that person is living, attempt to locate and contact that witness, and finally, determine if that person would be able to provide favorable testimony."
Moreover, resentencing counsel made a strategic choice not to call other identified witnesses. For example, counsel testified that he refrained from calling prison ministry personnel because he did not want the jury to realize that Rhodes had previously been sentenced to death. [FN6] See Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000) ("Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions.") (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight. . . .")).
[FN6] Counsel decided not to call other witnesses for various practical reasons. For instance, Rhodes' two half-brothers were not contacted because they were serving in Operation Desert Shield and stationed in Saudi Arabia. Also, resentencing counsel was unable to contact Rhodes' grandmother, Mary Vailes; however, Dr. Taylor, Rhodes' psychiatrist, contacted her and her statements were presented to the jury through his testimony.
Even if we were to find counsel's conduct deficient, Rhodes cannot demonstrate prejudice. Any testimony the additional witnesses would have provided would have been cumulative to that provided by the witnesses at resentencing. As discussed above, trial counsel are not ineffective for failing to present cumulative evidence. See Marquard v. State, 850 So.2d 417, 429-30 (Fla. 2002) ("[C]ounsel is not required to present cumulative evidence."). Moreover, the cumulative mitigation testimony would not have outweighed the State's evidence in aggravation. See, e.g., Bell v. State, 965 So.2d 48 (Fla. 2007) (finding that the defendant did not demonstrate the prejudice prong because the unpresented penalty phase testimony could not have countered the quantity and quality of the aggravating evidence); see also Gaskin v. State, 737 So.2d 509, 516 n. 14 (Fla. 1999) ("Prejudice, in the context of penalty phase errors, is shown where, absent the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different or the deficiencies substantially impair confidence in the outcome of the proceedings."). The additional testimony would only have added to the mitigation already found. Even if given more weight, the mitigation would not outweigh the three strong aggravators: (1) Rhodes committed the murder while on parole; (2) Rhodes was previously convicted of a violent felony; and (3) the murder was committed while Rhodes was engaged in the commission of an attempted sexual battery.Rhodes, 986 So. 2d at 509-513. Rhodes asserts that the state courts allegedly misinterpreted Strickland and Wiggins. (Doc. 14 at 15; 17) However, the state courts correctly identified the standards of Strickland v. Washington, 466 U.S. 668 (1984) and Wiggins v. Smith, 539 U.S. 510, 521 (2003) and correctly applied them to this case. See, Rhodes v. State, 986 So. 2d 501, 510 (Fla. 2008). In addition, Rhodes' reliance on the ABA guidelines is misplaced. (Doc. 14 at 17) The ABA guidelines are useful as "guides" to reasonableness. See Bobby v. Van Hook, 130 S.Ct. 13, 16 (2009). As Justice Alito's concurring opinion noted, "the ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership."
To establish deficient performance, a defendant must show that his counsel's representation fell below an objective standard of reasonableness in light of prevailing professional norms at the time the representation took place. Cummings v. Secretary for the Dept. of Corrections, 2009 WL 4452816, 22 (11th Cir. 2009) (citing Bobby v. Van Hook, 558 U.S. ___, 130 S.Ct. 13, 16, ___ L.Ed.2d ___ (2009) (quoting Strickland, 466 U.S. at 688). The test for reasonableness is whether counsel's conduct fell "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. In judging the reasonableness of counsel's performance, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled. Chandler v. United States 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quotation marks omitted). [T]he Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices. Van Hook, 130 S.Ct. at 17. Courts "indulge [a] strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment." Chandler, 218 F.3d at 1314. This presumption is even stronger when trial counsel is experienced. Id. at 1316.
As further emphasized in Cummings, 2009 WL 4452816:
To satisfy the prejudice prong, 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." Porter v. McCollum, 558 U.S. ___, 130 S.Ct. 447, 452, ___ L.Ed.2d ___ (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. To determine whether the defendant has shown prejudice, we consider all the available mitigation evidence, whether adduced at trial or during postconviction proceedings. Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 1515, 146 L.Ed.2d 389 (2000). In cases, like this one, where the defendant is challenging his death sentence, "the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.
Attorney Swisher, an experienced capital defense litigator, had received the files from the previous defense team (Andringa and Denhardt), reviewed the testimony of witnesses in Rhodes' prior trial, contacted Dr. Taylor to testify, read through Dr. Merin's prior testimony, and talked to Rhodes. He also had the assistance of co-counsel Daryl Flanagan. (E9/1350-1358, 1384-1389). Swisher was aware of Rhodes' step-brothers in the Marines; was aware that non-statutory mitigation included everything; and, prior to presenting the testimony of mental health expert Dr. Taylor, presented him with a thick stack of background information material. (E9/1359-1361). Swisher spoke telephonically with Dr. Afield before the resentencing hearing; he tried unsuccessfully to contact Rhodes' grandmother Mary Vails; but Dr. Taylor was able to talk to her. (E9/1365-1366). Swisher intended to establish the statutory mental mitigators through Dr. Taylor, the records and the use of Dr. Afield's prior testimony through Dr. Taylor and/or Dr. Merin. Swisher wanted the jury to know of the horrible time Rhodes had growing up. (E9/1367-1368).
Attorney Swisher did not think there was a problem until February 11, 1992, when Rhodes complained to the judge that he wanted his lawyer to contact James Rhodes and Don Betterly. (B11/1205/1240) (E9/1369-1372). Swisher presented the testimony of James Rhodes which corroborated what Rhodes told him regarding his childhood and what Dr. Taylor would say. Swisher spoke to Mr. Betterly and decided not to call him as a witness because Betterly said Rhodes was manipulative and a liar. When he communicated this to Rhodes, Rhodes responded that he thought he would say that because Betterly sexually abused him. (E9/1372-1373). Originally, counsel did not intend to enter the medical records and other background materials. Swisher intended to have Dr. Taylor testify about the records. However, since Betterly did not corroborate the information Rhodes had given at the in-camera hearing, Swisher entered the records to show that Rhodes was not making up facts about his past life. (E9/1374-1376).
Swisher did not think Rhodes provided the name of Betterly or his brother prior to February 11, 1992. They were "last minute things" and Swisher recalled feeling that he was being set up. (E9/1377). Swisher was aware of the allegations that Rhodes and his brothers were sexually assaulted and that his childhood experience was horrible. (R9, 1379-1380). Rhodes did not provide the names of his brothers James or Kenny prior to the in-camera hearing on February 11 and 12, 1992.
Swisher did know about step-brothers in the military in Europe. After talking to Betterly, Swisher thought it would have been "disastrous" to use Betterly as a witness. (E9/1385-1386). Swisher was aware that in the first penalty phase, prior counsel had used Dr. Afield and Janet Folts. Swisher did not feel it would be useful to use prior unsuccessful witnesses and he did not want the jury to hear that Rhodes was on death row. (E9/1387-1388). Rhodes had input on the decision of not calling inmates or people from the prison ministry. Swisher's records and those he received from Andringa were subsequently given to Rhodes' girlfriend at Rhodes' request. (E9/1388-1390).
The Postconviction Court's Decision
The postconviction court determined that Rhodes failed to demonstrate that counsel should have known that unpresented witnesses were available and would have provided beneficial testimony. Resentencing counsel Swisher testified that he asked Rhodes to give him a list of potential witnesses and Rhodes gave the names of people involved in the prison ministries program, his grandmother Mary Vails, and two half-brothers. Swisher also testified that prior to the resentencing proceeding during an in-camera hearing, Rhodes stated that he wanted counsel to contact Don Betterly and James Rhodes. Those were the only names provided by Rhodes to counsel prior to resentencing. Defense counsel spoke with Mr. Betterly but decided not to have him testify as Betterly told counsel that Rhodes was manipulative and a liar. Swisher testified that it would have been disastrous to have Betterly testify. As to the prison ministry witnesses, Swisher testified that he did not want to use them because he did not want the jury to learn that Rhodes was previously sentenced to death. (E6/1014-1015). The postconviction court found that attorney Swisher "made an informed strategic decision to not call Mr. Betterly or the prison ministry witnesses" and such a reasonable strategic decision was not subject to second-guessing on collateral attack. (E6/1015). The trial court credited the testimony of resentencing counsel Swisher that Rhodes furnished the names of people involved in the prison ministries program, grandmother Mary Vails and two half-brothers; that at the in-camera hearing Rhodes wanted Don Betterly and his brother James contacted and "[t]hese are the only names of potential witnesses given to sentencing counsel prior to the sentencing trial, as far as this court has been made aware." (E6/1015). Counsel's decision not to use Betterly (who would have been "disastrous") and to use Dr. Afield's views through other witnesses and not to use prison ministry or death row inmates as witnesses was a deliberate trial strategy.
As to the half-brothers serving in the military overseas, "there has been no evidence presented as to what their testimony would have been if called to testify." (E6/1015). Accordingly, no prejudice was shown by trial counsel's failure to contact these two witnesses.
Resentencing counsel presented the testimony of James Rhodes at the resentencing trial; attempted to contact Rhodes' grandmother, Mary Vails, but was unsuccessful, but asked Dr. Taylor to contact her. Dr. Taylor did contact Vails as part of the background investigation into mitigating evidence and through Dr. Taylor's analysis, her statements and input were presented to the jury. The trial court concluded that Rhodes had not demonstrated a reasonable probability that Vails' live testimony would have yielded a different result. (E6/1015-1016).
Rhodes faults the state court's reference to three witnesses — Eileen Mease, Kenneth Rhodes, and Lorraine Armstrong as incomplete; however, those were the three witnesses who testified at the evidentiary hearing and provided specific details of Rhodes' childhood. There was no testimony presented showing that Rhodes informed his counsel he wanted these witnesses contacted, nor is there anything in the record that would have alerted a reasonable attorney that these people should have been contacted. (E6/1016). Counsel's task was made even more difficult since Rhodes grew up in a migrant farming community in California and he had not been in contact with these witnesses in many years. (Kenneth Rhodes testified that he forgot Richard Rhodes was his brother until contacted for purposes of this motion.) Counsel conducted a reasonable investigation into mitigation given the information he was provided. (E6/1017). Consequently, Rhodes failed to establish that he satisfied the first-deficiency-prong of Strickland.
Essentially, Rhodes' claim in state court — that resentencing counsel rendered ineffective assistance, rested on the dubious proposition that attorney Swisher should have found and used another brother, Kenny (although Rhodes did not mention him, and Kenny did not even know Richard Rhodes was alive at the time) instead of using brother James — whom Rhodes wanted and who did testify about their horrific upbringing. However, even if Swisher had discovered Kenny, he could not have used both Kenny and James; whatever value each may have provided alone, the jury undoubtedly would not have embraced the discordant view of Kenny (James tried to kill me) and James (Richard tried to kill Kenny and Kenny admittedly called himself a "nut"). (E7/1084). In addition, the remaining witnesses who had known Rhodes in California provided inconsequential or cumulative testimony. Lorraine Armstrong, a nurse at Napa State Hospital, described Rhodes as compliant and not troublesome; she presumably was unaware of any abuse or mistreatment there. Eileen Mease [Meis] described Rhodes' father and discussed the physical abuse of the children about which James Rhodes and Dr. Taylor previously testified at penalty phase.
As the Supreme Court recently reiterated in Bobby v. Van Hook, 130 S.Ct. 13, 19 (2009), "[d]espite all the mitigating evidence the defense did present, Van Hook and the Court of Appeals fault his counsel for failing to find more" What his counsel did discover, the argument goes, gave them "reason to suspect that much worse details existed," and that suspicion should have prompted them to interview other family member-his stepsister, two uncles, and two aunts-as well as a psychiatrist who once treated his mother, all of whom "could have helped his counsel narrate the true story of Van Hook's childhood experiences." 560 F.3d at 528, reversed by Bobby v. Van Hook, 130 S.Ct. 13 (2009). But there comes a point at which evidence from more distant relatives can reasonably be expected to be only cumulative, and the search for it distractive from more important duties. Bobby v. Van Hook, 130 S.Ct. at 19.
The state courts further concluded that even assuming deficient performance, no prejudice was shown by the alleged deficiency. Rhodes' brother, James Rhodes, testified at the penalty phase and told the jury that he and his brother were abandoned at a very early age, they suffered from malnutrition and went long periods with no adult supervision. He also testified that Rhodes spent approximately five years in the Napa State Hospital psychiatric ward and that his father was an alcoholic and he confirmed that Rhodes complained as a teenager that he had been sexually abused. (E6/1018).
Additionally, Dr. Donald Taylor testified at the resentencing penalty phase and informed the jury that Rhodes had been physically and sexually abused before he was five years old, was abandoned at the age of five and spent the next three years in and out of foster homes. Dr. Taylor testified that Rhodes lived with his father for the next two years and was continually sexually and physically abused until he was permanently removed from the home. Dr. Taylor testified that previous psychological testing revealed that as early as ten years of age, Rhodes was diagnosed as being severely mentally disturbed; his childhood and adolescent medical records were entered into evidence for the jury to consider. Dr. Taylor confirmed that Rhodes' mental condition was misdiagnosed by the doctors at the Napa State Hospital and that Rhodes had been mistreated by doctors at the hospital. The jury learned that Rhodes' father was incarcerated at least three times and his mother was incarcerated once. Dr. Taylor also stated that early tests had predicted Rhodes would grow up to have aggressive tendencies if he did not receive proper treatment and stated that this was the worst case of child abuse he had ever seen. (E6/1018-1019). In short, "the jury was made aware that the Defendant was abused, misdiagnosed and neglected, and was able to consider this information prior to reaching its verdict." (E6/1019).
Finally, that resentencing counsel Swisher acted as an able and effective advocate is confirmed by the trial court's Order and Findings in Support of Death Sentence in March 1992. (B6/488-491). The court found Rhodes' age of thirty to be a mitigating factor. The court also found the statutory "mental mitigator" that Rhodes' capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Concerning this and other aspects of Rhodes' character, the sentencing court explained:
2. The capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. This mitigating circumstance was established and considered by this court.
The Defendant's background is a laundry list of experiences that almost predicted a life of crime and violence. He was abandoned at a young age by both his parents, although he later spent some time with his natural father. He was certainly neglected, and there was some evidence that he had been sexually abused. As a child he was hyperactive and diagnosed as having a character disorder. He grew up in various foster homes. There was little or no stability to his existence since he would cause such problems within the household that he would have to be removed. During his youth there was a history, reflected in the records introduced at the Penalty Phase, of killing animals, sexual play with other children, and compulsive lying. Unable to coexist in the home of his father and stepmother, or foster homes, the Defendant was eventually placed in Napa State Hospital in California. There he remained from the time he was twelve until he turned eighteen.
Upon his release from the Napa State Hospital, he lived for a time with a Don Betterley, an Activity Specialist at the Hospital who had apparently taken an interest in him. At the time of the Defendant's imprisonment in Oregon, Mr. Betterely submitted a confidential questionnaire to the Oregon State Correctional Institution that provided a great deal of insight into the Defendant. His opinion of the Defendant mirrors that of the various psychiatrists and other mental health professionals who have examined him over the years. These include Dr. Donald Taylor and Sidney Merin, PhD., both of whom testified at the second Penalty Phase.
Dr. Taylor, a psychiatrist, was of the opinion that the Defendant was severely emotionally disturbed. Significantly, he did not find that the Defendant was schizophrenic, as he had been diagnosed in California as a youth. His opinion was more consistent with the diagnosis of a personality disorder, which was reflected on the Defendant's discharge summary from Napa State Hospital in 1970.
Dr. Merin also confirmed the diagnosis of a personality disorder.
Finally, the anecdotal evidence provided by the testimony of the Defendant's brother, James Rhodes, is consistent with the opinions of the professionals who have examined him.
3. Any other aspect of the Defendant's character or record and any other circumstance of the offense. The Court has considered the following non statutory mitigating circumstances.
a. As a child, the defendant was abandoned by his parents. This fact was established and considered by the court.
b. The social welfare system of California was never able to adequately place the Defendant in a social environment that could address his needs as a child. The Defendant has spent the majority of his life in institutions, from the time he was at least twelve. From the Napa State Hospital, to the prison systems of Oregon and Nevada, the Defendant was never de-institutionalized for more than a few months at a time. As a result, the Defendant never experienced a family life that could be considered normal. These facts were established and considered by the court.
(B6/489-490).
As in Bobby v. Van Hook, this is not a case in which the defendant's counsel failed to act while potentially powerful mitigating evidence stared him in the face, cf. Wiggins, 539 U.S. at 525, or would have been apparent from documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-393, 125 S.Ct. 2456 (2005). It is instead a case, like Strickland itself, in which defense counsel's "decision not to seek more" mitigating evidence from the defendant's background "than was already in hand" fell "well within the range of professionally reasonable judgments." 466 U.S. at 699. Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Ground three does not warrant habeas relief.
GROUNDS FOUR AND FIVE Ground Four
Mr. Rhodes' jury was improperly instructed on the in the course of an attempted sexual battery aggravating factor when the crime had not been charged nor found by the jury and no evidence supported the aggravator in violation of Espinosa v. Florida, Stringer v. Black, Maynard v. Cartwright and the Sixth and Fourteenth Amendments to the United States Constitution.
Ground Five
Mr. Rhodes was denied effective assistance of counsel when his Re-sentencing attorney failed to object to the trial court giving the attempted sexual battery jury instruction and failing to ensure that the trial court gave the complete and correct instruction in violation of Mr. Rhodes' Sixth and Fourteenth Amendment rights to the United States Constitution.
On direct appeal following his resentencing, Rhodes raised a jury instruction claim in his initial brief, challenging the sufficiency of the evidence to support the use of the jury instruction and the trial court's finding of the aggravating factor of "during the course of an attempted sexual battery." See, App. B-12, Initial Brief of Appellant, SC Case No. 79,627, Issue V at pages 80-84.
On Rhodes' resentencing appeal, Rhodes v. State, 638 So. 2d 920 (Fla. 1994), the Florida Supreme Court found sufficient evidence to support the jury instruction and the trial court's finding of this aggravating factor. The Florida Supreme Court ruled:
We also find that there was sufficient evidence that the murder was committed during an attempted sexual battery to justify the giving of the jury instruction and to support the trial court's finding of this aggravating factor. The victim's body was found clad in only a brassiere, which was up around the victim's neck. Most of the various stories told by Rhodes suggested some form of sexual activity had taken place during his encounter with the victim. Specifically, Rhodes told several witnesses that the victim resisted his sexual advances. On the same basic evidence, this aggravating factor was upheld in Rhodes' original appeal. Rhodes v. State, 547 So. 2d 1201, 1207-08 (Fla. 1989).Rhodes, 638 So. 2d at 926-927.
In ground four, Rhodes alleges that the jury instruction was defective for failing to include the element of "consent." (Doc. 13 at 47-49; Doc. 14 at 27-29) However, since this "consent" sub-claim was not raised either at Rhodes' resentencing nor on his resentencing direct appeal, it is procedurally barred. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497 (1977); Coleman. Rhodes has not shown cause and prejudice to overcome the procedural bar and has not shown that a manifest injustice will occur if this Court does not address this claim.
In postconviction, Rhodes raised a jury instruction claim based on the failure to instruct the jury on the element of consent and a derivative IAC/resentencing counsel claim. The trial court applied a procedural bar to the underlying jury instruction claim and found that the IAC claim failed to meet the two-pronged test for relief under Strickland. As the postconviction court explained:
Claim III
The Defendant alleges that the trial court failed to properly instruct the jury at resentencing on the consent element of sexual battery or attempted sexual battery. The State concedes that the jury instruction on sexual battery and attempted sexual battery, which was given in conjunction with the instruction on the aggravating circumstance of the murder being "committed while he was engaged in the commission, or an attempt to commit the crime of sexual battery", did not include the element of consent. Defendant further alleges that the failure of trial counsel to raise or preserve the issue constitutes ineffective assistance. Although issues concerning jury instructions are procedurally barred if not raised on direct appeal, the Court must address the Defendant's ineffectiveness of counsel claim. The incomplete jury instruction in the Defendant's sentencing proceeding was related to the collateral offense of sexual battery as the same was included in the "in the course of a sexual battery" aggravator. The absence of the element of lack of consent in the jury instruction for this aggravator did not create a reasonable probability that the jury's recommendation would have been different. It is difficult to conceive that the jury considered a murder committed during a consensual sexual encounter as an aggravating circumstance, and certainly the reference in the given instruction to the "crime of sexual battery" strongly presumes a lack of consent on the part of the victim. The Court therefore finds that the Defendant has failed to meet the requirements of the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984) and this claim is summarily denied.
(E4/471).
On postconviction appeal, Rhodes v. State, 986 So. 2d at 514, the Florida Supreme Court affirmed the trial court's summary denial of Rhodes' IAC/resentencing counsel claim and stated:
Rhodes argues that the trial court improperly denied him an evidentiary hearing on several claims of ineffective assistance of guilt phase and resentencing counsel. [FN7] We conclude that the trial court was correct in summarily denying these claims either because the record refutes the allegations; because, assuming the facts are true, Rhodes cannot demonstrate any deficiency on the part of counsel; or because, again assuming the facts are true, any deficiency is insufficient to undermine our confidence in the outcome. [FN8]
FN7. Rhodes argues that trial counsel was ineffective during the guilt phase because he (1) failed to properly preserve his objection during jury selection; (2) failed to impeach a State witness; (3) failed to object to improper testimony by detectives; and (4) failed to object to testimony from Dr. William Ross Maples, a forensic anthropologist. Rhodes contends that resentencing counsel was ineffective for failing to (1) adequately challenge the trial testimony of the jailhouse informants; and (2) object to jury instruction error.Rhodes, 986 So.2d at 514.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Rhodes claim in ground four that the jury instruction complaint based on the failure to include "consent" was not raised at trial and on direct appeal and, therefore, the claim is procedurally barred. See, Sykes, Coleman. Furthermore, the Florida Supreme Court has held that the elements of an underlying felony do not have to be explained with the same particularity required if that felony were the primary offense charged. Hitchcock v. State, 578 So. 2d 685, 692 (Fla. 1990), vacated on other grounds, 505 U.S. 1215 (1992). To the extent that Rhodes challenges the sufficiency of the evidence to support this aggravating factor, his perfunctory citation to the federal constitution on his resentencing appeal is insufficient to fairly preserve any federal constitutional claim. See, App. B-12, Initial Brief of Appellant, SC 79,627 at Issue V, page 84; See also, McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005) (citing Coleman, 501 U.S. at 735 n. 1). Accordingly, the assertion of any federal constitutional claim on federal habeas review is procedurally barred.
Furthermore, assuming that any federal constitutional claim was fairly presented on Rhodes' resentencing appeal, to determine whether a state court's application of its constitutionally adequate aggravating circumstance was so erroneous as to constitute a violation of the federal constitution, federal courts must apply the "rational factfinder" standard of review enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Pursuant to Jackson, federal habeas courts may not grant relief on such claims if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319. The trial court correctly found the presence of this aggravating factor in his sentencing order, which stated:
This capital felony was committed while the Defendant was engaged in the commission of an attempted sexual battery. This aggravating circumstance was established beyond a reasonable doubt. During the Guilt Phase of this Defendant's trial, as well as the two Penalty Phases, evidence was introduced establishing that the victim's body was nude when discovered, with only her bra around her neck. In addition, virtually all of the varied stories told by the Defendant in his statements to investigators suggest some form of sexual activity in connection with her death. Although the condition of the victim's body was too deteriorated to determine if sexual activity occurred, this Court concurs with the Florida Supreme Court in finding that "there was sufficient evidence of attempted sexual battery to support this aggravating factor." Rhodes v. State, 547 So.2d 1201 (Fla. 1989).
(B6/489)
In addition to the testimony of Detective Steve Porter and Medical Examiner, Dr. Wood, that the victim's body was found without any clothing except for a brassiere (B 9/874, 942-43), Rhodes confessed to cellmate Michael Allen that he had been out drinking with the girl he was alleged to have killed; that they had had sex; she fought him and he got scratches all over him. (A16/2080-81). Similarly, jail inmate Edward Cottrell testified:
And he wanted to show her the hotel and then evidently they were at the hotel and he tried to get into her pants, so to speak, make love to her, whatever, and she resisted and evidently it happened twice. So the second time to what I gather she hit him or something like that and he hit her back and choked her and hit her in the head in the neck with a board.
(A16/2033)
* * *
Q. But did he ever say he ever did it for any other reason [than wanting to have sex with her]?
A. No.
(A16/2035)
* * *
Q. Did he mention whether or not there was a struggle and anything about her?
A. He said that she resisted when he tried to get in her pants.
Q. Did he say whether or not she put up a fight?
A. Yeah. He did.
(A16/2036)
The Florida Supreme Court ruled, on two separate occasions, that there was sufficient evidence that the murder was committed during an attempted sexual battery. Rhodes, 638 So. 2d at 926-927 (direct appeal); Rhodes, 547 So. 2d at 1207-08 (resentencing appeal). As the Florida Supreme Court summarized on Rhodes' resentencing appeal:
We also find that there was sufficient evidence that the murder was committed during an attempted sexual battery to justify the giving of the jury instruction and to support the trial court's finding of this aggravating factor. The victim's body was found clad in only a brassiere, which was up around the victim's neck. Most of the various stories told by Rhodes suggested some form of sexual activity had taken place during his encounter with the victim. Specifically, Rhodes told several witnesses that the victim resisted his sexual advances. On the same basic evidence, this aggravating factor was upheld in Rhodes' original appeal. 547 So.2d at 1207-08Rhodes, 638 So.2d at 926-927.
Applying the Jackson standard, and giving due deference to the state court's unrebutted findings of fact, see 28 U.S.C. § 2254(e), a rational fact-finder certainly could have found, and undeniably did find, that the killing was committed during the course of an attempted sexual battery.
As to habeas ground five, the IAC claim, the postconviction court correctly found that Rhodes failed to meet the requirements of the two-pronged test of Strickland. (E4/471). As the trial court emphasized, "[t]he absence of the element of lack of consent in the jury instruction for this aggravator did not create a reasonable probability that the jury's recommendation would have been different. It is difficult to conceive that the jury considered a murder committed during a consensual sexual encounter as an aggravating circumstance, and certainly the reference in the given instruction to the `crime of sexual battery' strongly presumes a lack of consent on the part of the victim." (E4/471).
On postconviction appeal, the Florida Supreme Court affirmed the trial court's summary denial and stated:
Rhodes argues that the trial court improperly denied him an evidentiary hearing on several claims of ineffective assistance of guilt phase and resentencing counsel. [FN7] We conclude that the trial court was correct in summarily denying these claims either because the record refutes the allegations; because, assuming the facts are true, Rhodes cannot demonstrate any deficiency on the part of counsel; or because, again assuming the facts are true, any deficiency is insufficient to undermine our confidence in the outcome.[FN8] (footnotes omitted).Rhodes, 986 So. 2d at 513-514; See also, Walls v. McNeil, 2009 WL 3187066, 84 (N.D. Fla. 2009) (stating, "[a]s to the jury instructions regarding the prior violent felony and engaged in the commission of a burglary or kidnapping aggravators, because defense counsel failed to object to the jury instruction, the issue was not preserved for appeal, and thus was procedurally barred from review. See Francois v. Wainwright, 741 F.2d at 1285. . . . Finally, because the state court found the record supported the existence of the aggravators, Petitioner cannot establish the prejudice prong of Strickland. Therefore, Petitioner is entitled to no habeas relief on this claim.").
The state courts' determination is neither contrary to, nor an unreasonable application of, clearly established federal law. Nothing in the record suggests that the state courts' factual findings were unreasonable and Petitioner has failed to rebut the presumption of correctness accorded the state court's factual findings.
Accordingly, grounds four and five do not warrant habeas relief.
GROUND SIX
Mr. Rhodes was denied effective assistance of counsel when Re-sentencing counsel failed to object to or investigate the unavailability of three jailhouse informants whose testimony was then read into the record by the prosecution. Defense counsel's acquiescence to this tactic by the prosecution was ineffective in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
Ground six has no merit. In essence, Rhodes alleges a claim of ineffective assistance of resentencing counsel in failing to challenge the unavailability of three jailhouse informants and the resulting admission of their prior testimony at the second penalty phase. (Doc. 13 at 53-62; Doc. 14 at 32-34). In addition, Rhodes asserts that the inmates were allegedly "state agents." (Doc. 13 at 53-61; Doc. 14 at 32-33).
In his postconviction motion, Rhodes raised an IAC/guilt phase counsel claim based on the testimony of the jailhouse informants as alleged state agents. Rhodes' postconviction complaint involved the assertion that Duranseau was a state agent and the improper use of his testimony at the guilt phase in the first trial when Rhodes was represented by trial counsel, Mr. Andringa. See Postconviction Claim XVIII, E-1/111-124; Claim XX, E-1/126-128; and Amended Motion Claim XVIII, E-2/342-345; State's Response to Motion to Vacate, E-3/413-415, 416-418. Therefore, Rhodes' IAC/ resentencing counsel claim, based on the alleged state agent theory, is procedurally barred.
In addition, the only "state agent" claim which was fairly presented on direct appeal involved inmate Cottrell. Therefore, the remaining "state agent" claims are procedurally barred.
Presentation of Claim in State Court:
At the time of Rhodes' second penalty phase in Pinellas County, two of the inmates were incarcerated out of state and a third inmate was incarcerated in the Daytona Beach area. On resentencing appeal, the Florida Supreme Court found that defense counsel acquiesced in the trial court's decision to admit the prior testimony of three inmates who testified at Rhodes' original trial. Rhodes v. State, 638 So. 2d 920, 925 (Fla. 1994). On Rhodes' resentencing appeal, Rhodes, 638 So. 2d 920 at 925, the Florida Supreme Court denied Rhodes' challenge to the admission of the prior testimony of the "unavailable" inmate witnesses and ruled:
Although defense counsel raised an initial objection to the admission of the prior testimony of the three former cellmates who testified at the original trial, he appears to have acquiesced in the trial court's decision to admit the testimony. Before the testimony was read to the jury, defense counsel raised the issue of whether the "jailhouse snitches" were truly unavailable for purposes of Florida Rule of Criminal Procedure 3.640(b), which addresses the admission of former testimony at a new trial. [FN5] Counsel raised the issue "for the record," but also expressly left the determination up to the court. The prosecutor then represented to the court that all three witnesses were in prison. Defense counsel agreed to allow the State's "unavailability" witness to testify after the prior testimony was read to the jury.
[FN5] Florida Rule of Criminal Procedure 3.640(b) provides:
The testimony given during the former trial may not be read in evidence at the new trial unless it is that of a witness who at the time of the new trial is absent from the state, mentally incompetent to be a witness, physically unable to appear and testify, or dead, in which event the evidence of such witness on the former trial may be read in evidence at the new trial as the same was taken and transcribed by the court reporter. Before the introduction of the evidence of an absent witness, the party introducing the evidence must show due diligence in attempting to procure the attendance of witnesses at the trial and must show that the witness is not absent by consent or connivance of that party.
When called to testify concerning the whereabouts of the three former witnesses, Joy Walker told the court that the three men were in various prisons, one in Daytona Beach and two in other states. When asked by defense counsel whether any attempts were made to have the prisoners appear at the current proceedings, Ms. Walker stated that she was not aware of any. After cross-examining Ms. Walker, defense counsel appears to have acquiesced in the court's decision to admit the testimony because no further argument was presented on the issue.Rhodes, 638 So. 2d at 924-925.
On direct appeal, Rhodes challenged the admission of his statements to inmate Edward Cottrell and alleged that Cottrell was a "state agent." (A-24, Issue II, Initial Brief of Appellant, SC 67,842 at pages 22-26). On direct appeal, Rhodes, 547 So.2d at 1203, fn. 2, the Florida Supreme Court found this Issue (2) — the failure to suppress statements made by Rhodes to a fellow inmate — to be without merit and denied this claim without further elaboration. Rhodes did not assert that the other inmates were alleged state agents. Therefore, this sub-claim is procedurally barred.
In his postconviction motion, Rhodes argued in claims XVIII and XX that there had been a Brady violation and the State knowingly presented false testimony of inmate Harvey Duranseau — and that trial counsel failed to bring the alleged fact of Duranseau being an alleged "state agent" to the court's attention. The trial court denied these claims as follows:
Claim XVIII and Amended Claim XVIII
Defendant's original Motion to Vacate claims that the State withheld Brady evidence, although specific reference to such evidence is not cited. That portion of the Claim must therefore be denied, as it is not supported by the record or any specific allegation of fact.
The Defendant next alleges that he was denied his rights under the fifth, sixth, and eighth amendments by the State's use of Defendant's fellow inmates as witnesses during the guilt phase of his trial. The Defendant contends that these witnesses were State agents and obtained statements from him in violation of his Fifth Amendment right to remain silent and in derogation of his Sixth Amendment right to have counsel present when he was interrogated. The testimony of all three inmate witnesses was objected to at trial and the issue was preserved and addressed by Defendant's initial appeal. (Exhibit "J"). This claim is now procedurally barred and is therefore denied.
The Defendant's Amended Motion to Vacate cites "current" case law to argue that the trial court's ruling regarding the admission of the inmate testimony was improper. However, the case cited by Defendant's counsel is no longer "current", having been specifically reversed in U.S. v. Lowery, 166 F.3d 1119 (11th Cir. Feb. 3, 1999). The Defendant has failed to demonstrate any prosecutorial misconduct nor has he demonstrated any failure of trial counsel that could constitute ineffective assistance regarding this issue and this Claim must therefore be summarily denied.
* * *
Claim XX
The Defendant claims that the State knowingly presented false testimony from witness Harvey Duranseau, a fellow inmate of the Defendant's while the Defendant was in the Citrus County Jail. The Defendant's assertion is based on statements made by Mr. Duranseau during cross-examination as a State witness when he was questioned about two letters that he wrote to the Defendant. The letters contained assertions that statements Mr. Duranseau had made to the police were false and coerced. On redirect examination, Duranseau testified that the assertions of falsity and coercion made in the letters were themselves false and part of an attempt to gain more information from the Defendant. The Defendant suggests that these portions of the trial record demonstrate a deliberate effort by the State to present knowingly false testimony. In addition, the claim persists in referring to Mr. Duranseau as a state agent, thereby invoking the argument regarding the Fifth and Sixth Amendments that was previously addressed in Claim XVIII. Finally, the Defendant claims that his trial counsel's failure to bring these matters "to the court's attention" constitutes ineffective assistance for which an evidentiary hearing should be required.
The Defendant's argument has no merit. As Defendant's reference to the trial record demonstrates, the entire issue of Mr. Duranseau's statements was placed before the jury by Defendant's own counsel during cross-examination. (Exhibit G). The jury was fully aware of the contradictory nature of his testimony and was given the opportunity to judge the credibility of Mr. Duranseau and the truthfulness of his statements through the adversarial process. Indeed, Defendant's counsel may well have been ineffective if he had not explored this area during cross-examination. As for whether or not Duranseau was a state agent, the court has addressed this matter in Claim XVIII and found that the issue was raised by Defendant's trial counsel, ruled upon by the trial court and preserved and argued during the initial appeal. Defendant has failed to suggest the existence of any additional evidence to support the allegation of state agency. The claim must therefore be summarily denied.
(E4/477-479).
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. As to the IAC/guilt phase claim, the postconviction court specifically found that the testimony of all three inmate witnesses was objected to at trial and raised on Rhodes' initial appeal and Rhodes failed to demonstrate any failure of counsel that could constitute ineffective assistance. The state court correctly found that Rhodes could not demonstrate any deficiency on the part of trial counsel.
To establish deficient performance, a defendant must show that his counsel's representation fell "below an objective standard of reasonableness in light of prevailing professional norms" at the time the representation took place. Bobby v. Van Hook, 558 U.S. ___, 130 S.Ct. 13, 16 (2009) (quoting Strickland, 466 U.S. at 688). The test for reasonableness is whether counsel's conduct fell outside the wide range of professionally competent assistance. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. In judging the reasonableness of counsel's performance, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled. Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc) (quotation marks omitted). "[T]he Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices. Van Hook, 130 S.Ct. at 17 (quotation marks omitted). Courts indulge [a] strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment. Chandler, 218 F.3d at 1314 (brackets and quotation marks omitted). This presumption is even stronger when trial counsel is experienced. Id. at 1316.
In postconviction, the complaint raised before the trial court involved the assertion that Duranseau was a state agent and the use of his testimony at the guilt phase in the first trial when Rhodes was represented by trial counsel, Mr. Andringa. See Postconviction Claim XVIII, E-1/111-124; Claim XX, E-1/126-128; and Amended Motion Claim XVIII, E-2/342-345; State's Response to Motion to Vacate, E-3/413-415, 416-418. Rhodes did not present the claim that he raised for the first time on his postconviction appeal and attempts to renew here — that resentencing counsel Swisher allegedly rendered ineffective assistance of counsel during the second penalty phase regarding the testimony of the jailhouse witnesses as alleged state agents. Nor did Rhodes argue at the Huff hearing the claim that resentencing counsel was ineffective for failing to urge the cellmates were allegedly "state agents."
Rhodes' IAC/resentencing counsel claim was not fairly presented in his postconviction motion and it is now procedurally barred. See Kelley v. Secretary for Dept. of Corrections, 377 F.3d 1317, 1348 (11th Cir. 2004) (ruling ineffective assistance sub-claim was not merely a clarified rendition of an exhausted claim, but a new claim altogether and applying procedural bar to unexhausted IAC sub-claim).
On postconviction appeal, the Florida Supreme Court affirmed the trial court's summary denial of Rhodes' IAC claims and stated:
Rhodes argues that the trial court improperly denied him an evidentiary hearing on several claims of ineffective assistance of guilt phase and resentencing counsel.[FN7] We conclude that the trial court was correct in summarily denying these claims either because the record refutes the allegations; because, assuming the facts are true, Rhodes cannot demonstrate any deficiency on the part of counsel; or because, again assuming the facts are true, any deficiency is insufficient to undermine our confidence in the outcome.[FN8] (footnote 8 omitted)
[FN7] . . . Rhodes contends that resentencing counsel was ineffective for failing to (1) adequately challenge the trial testimony of the jailhouse informants . . .Rhodes, 986 So. 2d at 513-514.
The only IAC/penalty phase counsel claim even arguably preserved involved the alleged failure to challenge the unavailability of the inmate witnesses. However, the record shows that, at the time of resentencing, two of the inmates were out of state and, thus, clearly met the criteria for unavailability and trial counsel made a strategic decision to defer to the trial court. In light of trial counsel's contemporaneous decision, Rhodes failed to demonstrate any deficiency of counsel and resulting prejudice under Strickland.
As to the alleged "state agent" claim, Rhodes' inculpatory statements were the subject of a motion to suppress hearing prior to trial. (A21/2832 — 2879). At the motion to suppress hearing, Cottrell testified that after hearing several inculpatory statements by Rhodes, he approached prison officials who referred a detective to him. Cottrell testified that the detective (Detective Porter) did not offer him a deal or ask him to get any more information. Porter expressly stated in response Cottrell's query as to whether Porter wanted him to get any more information, that Porter could not tell Cottrell to do that because it would make him an agent of the State.
Detective Porter testified consistent with Cottrell's testimony. Porter told Cottrell that he could not ask him to get any information from Rhodes because that would make him an agent of the State. He also testified that he refused Cottrell's request not to be transferred away from Rhodes. Both Cottrell and Porter agreed that Cottrell was not promised anything and was not asked to get any further information.
On direct appeal, Rhodes argued that because Cottrell believed he would be rewarded and because he was not expressly told not to talk to Rhodes, that Cottrell became an agent of the State when he took it upon himself to talk to Rhodes about the case. Rhodes relied primarily on Maine v. Moulton, 474 U.S. 159 (1985) and United States v. Henry, 447 U.S. 264 (1980). In analyzing whether the government had impermissibly "deliberately elicited" the information from Henry through its informant, 447 U.S. at 272, the Supreme Court focused upon certain elements of the government/informant relationship: the government's initial contacting of the witness, known to have a history as a paid informant; its subsequent instructions to "be alert" to the defendant's statements; and the "contingency" arrangement providing for the witness's compensation. These elements indicated an orchestrated plan reflective of the government's intentions to set the stage for an interference with Henry's right to counsel.
In Moulton, the Supreme Court found that the state had "knowingly circumvented Moulton's right to have counsel present at a confrontation between Moulton and a police agent," 106 S.Ct. at 490, and so violated the defendant's Sixth Amendment rights. In Moulton, the individual acting as a government agent, Colson, was no mere cellmate of Moulton's. Rather, he was a co-defendant, facing trial on the same charges as Moulton, and apparently aligned with Moulton against the state in the adversarial process. Upon reaching an agreement with the authorities, Colson used his position to uncover incriminating evidence which legitimately lay beyond the authorities' reach.
Although Colson originally approached the police, it was the latter who conceived and set into motion, although with Colson's consent, the violations of Moulton's rights that followed. The authorities first placed a recording device on Colson's telephone, with instructions to activate the device upon receiving anonymous phone threats or calls from Moulton. By this means, three conversations were recorded between Colson and Moulton. In the third conversation, Moulton asked Colson to set aside an entire day so that the two of them could meet and plan their defense. The authorities then obtained Colson's consent to be equipped with the body wire transmitter to monitor and record the meeting. Although the police acknowledged at trial their awareness that the two were meeting to discuss the charges on which they both have been indicted, Colson was instructed "not to attempt to question [Moulton), just be himself in the conversation." 106 S.Ct. at 481. At the meeting, the two discussed and planned their alibi, and so necessarily detailed the commission of various crimes. Through joking and pretentions of forgetfulness, Colson induced Moulton to repeatedly incriminate himself. Upon the admission into evidence of several portions of this tape, Moulton was convicted.
In Henry, a crucial element of the state's intentional creation of a situation likely to induce Henry to make incriminating statements involved its initially contact of the agent and its subsequent instructions to "be alert" to Henry's statements. The focus of the alleged Henry violation was essentially whether the inmate had been deliberately placed in Petitioner's cell and directed to elicit incriminating statements. Henry does not impose on the police an affirmative duty to tell an informer to stop talking and not approach them again nor does it require that informers be segregated from the rest of a jail's population. In Kuhlmann v. Wilson, 477 U.S. 436 (1986), the United States Supreme Court held:
As our recent examination of this Sixth Amendment issue in Moulton makes clear, the primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since "the Sixth Amendment is not violated whenever — by luck or happenstance — the state obtains incriminating statements from the accused after the right to counsel has attached," 474 U.S., at ___ citing United States v. Henry, supra does not make out a violation simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks.
Both Cottrell and Porter agreed that Cottrell was not promised anything and was not asked to get any further information. Furthermore, the state did not attempt to keep Cottrell near Rhodes to gain information, and there was no secret interrogation by investigatory techniques that were the equivalent of direct police interrogation. The state courts' decision is not contrary to, nor an unreasonable application of, controlling Supreme Court precedent.
On direct appeal, Rhodes also challenged the admission of his statements to inmate Michael Allen. See, App. A-24, Initial Brief of Appellant, Issue III, SC Case No. 67,842 at pages 27-30. However, Rhodes relied exclusively on state case law and his perfunctory citation to the federal constitution (A24 at page 29) is insufficient to fairly present any federal constitutional claim. See McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005). Accordingly, any newly alleged federal constitutional claim, based on inmate Allen, is procedurally barred.
Ground six does not warrant habeas corpus relief.
GROUND SEVEN
Mr. Rhodes was denied effective assistance of counsel at the penalty phase of his trial when defense counsel failed to ensure that he received a proper mental health evaluation under Ake v. Oklahoma. The defense failed to investigate and present potential mitigation, that could have the made the difference in life or death. This violated Mr. Rhodes' Sixth and Fourteenth Amendment rights to the United States Constitution.
In support, Rhodes alleges:
Trial counsel moved for and obtained a confidential mental health evaluation of Rhodes. However, the mental health expert in this case, Dr. Afield, failed to render a competent, appropriate evaluation of Rhodes. He did a number of tests and read materials provided by trial counsel, and determined that Rhodes was sane at the time of the homicide. Consequently, Dr. Afield only testified at the penalty phase.
Rhodes has been incapable of making intelligent choices or refraining from acting out his negative impulses. These conditions however, are not the result of conscious volitional decisions. Rhodes needed a carefully structured, nurturing environment in which to learn right from wrong but never received it. When he was 9, Rhodes was diagnosed as having brain damage. This condition, combined with a complete lack of parental care and failure of any mental health facility to render an accurate diagnosis and treatment, precluded any possibility that Rhodes would learn right from wrong. Today, Rhodes is severely disabled.
Dr. Afield, the expert retained by trial counsel, failed to perform a competent evaluation. No sufficient psychiatric evaluation of his state of mind was performed; consequently, no accurate diagnosis was rendered. Had an accurate diagnosis been rendered, counsel would have been compelled to present a defense of not guilty by reason of insanity, and there is a reasonable probability that the outcome would have been different.
In the context of diagnosis, exercise of the proper "level of care skill, and treatment" requires adherence to the procedures that are deemed necessary to render an accurate diagnosis. The sub-standard evaluation of Rhodes resulted in an inaccurate diagnosis; therefore, the inquiry focused upon the acceptable methods of diagnosis of a person presenting symptoms that include violent and antisocial behavior.
Rhodes received a substandard mental health evaluation. The expert failed to obtain a sufficient patient history, failed to obtain an adequate medical evaluation, and failed to conduct or obtain a sufficient neuropsychiatric examination. Consequently, Rhodes was misdiagnosed. Had a professionally competent mental health evaluation been performed, Rhodes would have been found incompetent to proceed to trial, incompetent at the time he made statements to the police, and insane at the time of the offense.
The jury knew nothing of Rhodes' mental problems as they pertained to the guilt innocence phase of Rhodes' capital trial. Substantial compelling evidence of Rhodes' severe mental handicaps existed, but counsel failed to investigate. Rhodes is severely mentally handicapped, but the evidence was not presented because counsel failed to investigate.
Presentation of Claims in State Court
Rhodes raised an IAC/ Ake v. Oklahoma claim in his state postconviction motion and the trial court summarily denied relief in its March 13, 2000 order as follows:
Claim XI and XV
In both of these claims, the Defendant alleges that he failed to receive the benefit of an adequate mental health evaluation and that his counsel was ineffective in obtaining the said evaluation and in not providing the evaluator with sufficient information to properly assess the Defendant. Contrary to the allegations contained in these claims, adequate evidence of the Defendant's medical, psychological and social history was provided to the experts who testified regarding his mental condition. There is no basis in the record, or in any other evidence suggested in the Defendant's motion, that would provide the basis for a defense of insanity. Therefore, the failure to call Dr. Afield during the guilt phase of the trial cannot be said to have reflected any ineffective assistance of counsel at that stage. Indeed, as the State points out in its response to the Defendant's motion, the Defendant insisted on a defense of innocence.
Defendant has failed to specifically allege the existence of evidence outside the record in this case that creates a reasonable probability that the outcome of his sentencing phase would have been altered. Indeed, the jury was specifically informed of the Defendant's mental and social background, his intelligence quotient and education. (Exhibit "E."). The bare allegation of an inadequate evaluation is not sufficient to require an evidentiary hearing when the record conclusively rebuts that allegation. This Court finds that these claims have no merit and should be summarily denied.
(E4/475-476).
The trial court denied Rhodes' IAC/penalty phase counsel claim (postconviction claim II) following an evidentiary hearing. (E6/1013-1020). The Florida Supreme Court addressed the IAC/penalty phase counsel claim on postconviction appeal and this claim is addressed in detail in habeas ground three above.
The Florida Supreme Court also affirmed the trial court's summary denial of postconviction relief in Rhodes v. State, 986 So. 2d 501 (Fla. 2008):
Rhodes argues that the trial court improperly denied him an evidentiary hearing on several claims of ineffective assistance of guilt phase and resentencing counsel. [FN7] We conclude that the trial court was correct in summarily denying these claims either because the record refutes the allegations; because, assuming the facts are true, Rhodes cannot demonstrate any deficiency on the part of counsel; or because, again assuming the facts are true, any deficiency is insufficient to undermine our confidence in the outcome. [FN8]
FN7. Rhodes argues that trial counsel was ineffective during the guilt phase because he (1) failed to properly preserve his objection during jury selection; (2) failed to impeach a State witness; (3) failed to object to improper testimony by detectives; and (4) failed to object to testimony from Dr. William Ross Maples, a forensic anthropologist. Rhodes contends that resentencing counsel was ineffective for failing to (1) adequately challenge the trial testimony of the jailhouse informants; and (2) object to jury instruction error.Rhodes, 986 So. 2d at 514.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
The trial court found that even assuming, arguendo, deficient performance, no prejudice was shown by the alleged deficiency. The jury was aware of Rhodes' mental health and abusive background. Petitioner's brother, James Rhodes, testified at the penalty phase and told the jury that he and his brother were abandoned at a very early age, they suffered from malnutrition and went long periods with no adult supervision. He also testified that Petitioner spent approximately five years in the Napa State Hospital psychiatric ward and that his father was an alcoholic and he confirmed that Rhodes complained as a teenager that he had been sexually abused. (E6/1018).
Additionally, Dr. Donald Taylor testified at the resentencing penalty phase and informed the jury that Rhodes had been physically and sexually abused before he was five years old, was abandoned at the age of five and spent the next three years in and out of foster homes. Dr. Taylor testified that Rhodes lived with his father for the next two years and was continually sexually and physically abused until he was permanently removed from the home. Dr. Taylor testified that previous psychological testing revealed that as early as ten years old, Petitioner was diagnosed as being severely mentally disturbed; his childhood and adolescent medical records were entered into evidence for the jury to consider. Dr. Taylor confirmed that Petitioner's mental condition was misdiagnosed by the doctors at the Napa State Hospital and that Rhodes had been mistreated by doctors at the hospital. The jury learned that Rhodes' father was incarcerated at least three times and his mother was incarcerated once. Dr. Taylor also stated that early tests had predicted that Rhodes would grow up to have aggressive tendencies if he did not receive proper treatment and this was the worst case of child abuse that Dr. Taylor had ever seen. (E6/1018-1019). As the postconviction court found, "the jury was made aware that the Defendant was abused, misdiagnosed and neglected, and was able to consider this information prior to reaching its verdict." (E6/1019).
Because the state courts' rejection of these claims was not contrary to, or an unreasonable application of, clearly established United States Supreme Court precedent, Rhodes is entitled to no relief. Under the AEDPA, the standard of review "is `greatly circumscribed and highly deferential to the state courts.'" Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002); see Stewart v. Sec. Dept. of Corrections, 476 F.3d 1193, 1208 (11th Cir. 2007). Pursuant to 28 U.S.C. § 2254(d), habeas relief is available only in cases where the claims were adjudicated on the merits and the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law" or "was based on an unreasonable determination of the facts in light of the evidence presented in state court." Crowe v. Hall, 490 F.3d 840, 844 (11th Cir. 2007), cert. den'd, ___ U.S. ___, 128 S.Ct. 2053, (2008).
Here, the trial court denied the IAC claims as without merit. (E4/475-476; 1013-1020). Even where a state court denies an application for postconviction relief without a written opinion, that decision constitutes an "adjudication on the merits," and is entitled to the same deference as if the state court had entered written findings to support its decision. See Wright v. Sec. of Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002). An attorney's performance must be viewed with deference and not for "what is prudent or appropriate, but only what is constitutionally compelled." Hardwick v. Crosby, 320 F.3d 1127, 1161 (11th Cir. 2003) (citing Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)) (en banc). The federal court's role in reviewing IAC claims is not to "grade a lawyer's performance; instead, [the court] determine[s] only whether a lawyer's performance was within the wide range of professionally competent assistance." Van Poyck v. Florida Dep't of Corrs., 290 F.3d 1318, 1322 (11th Cir. 2002), cert. den'd, 537 U.S. 812 (2002) (quoting Strickland, 466 U.S. at 690).
To have been prejudiced, Rhodes must show that his counsel's deficient performance prejudiced the defense by demonstrating "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." Strickland, 466 U.S. at 687, 688, 694. "When a defendant challenges a death sentence . . ., the question is whether there is reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695. On this record, evaluating the evidence presented at trial and resentencing and assessing the evidence presented in postconviction, Rhodes failed to demonstrate both a deficiency of counsel and resulting prejudice under Strickland. Giving the state courts a high level of deference under AEDPA, the conclusion reached by both the trial court and the Florida Supreme Court was not contrary to, nor an unreasonable application of, federal law.
Ground seven does not warrant habeas corpus relief.
GROUND EIGHT
Mr. Rhodes was denied effective assistance of trial counsel at guilt phase in violation of his Sixth and Fourteenth Amendment rights.
Rhodes alleges that trial counsel was ineffective during the guilt phase. (Doc. 13 at 67-73; Doc. 14 at 37-39). Rhodes IAC/guilt phase counsel claim was raised in his postconviction motion and the trial court addressed and disposed of Rhodes' claim that guilt phase counsel rendered ineffective assistance in Claim VI of its order finding:
a.) Defendant claims that his counsel was ineffective regarding jury selection when the State, during selection of alternate jurors, moved to backstrike a member of the panel already accepted but unsworn. This resulted in an objection and motion for mistrial from Defendant's counsel, which was properly denied. The issue was preserved and was addressed on the initial direct appeal. The Defendant has been unable to demonstrate any prejudice resulting from this event. Defendant's motion contains some speculation regarding possible alternate scenarios in the selection process, but the motion fails to demonstrate that a juror that was unacceptable to the Defendant served on the jury. This portion of the claim has no merit, does not require an evidentiary hearing and is summarily denied.
b.) Defendant claims that his counsel was ineffective for failing to investigate and later failing to impeach witness Margaret Tucker regarding the date on which the Defendant arrived late for work. Although the work records of the Defendant which were presented at the first sentencing hearing reflected that he was late on February 24, 1984, there is no showing that Mrs. Tucker could be impeached regarding that issue. Her testimony was that she believed that the Defendant was late for work on a Friday in late February. (Exhibit "A"). Defendant has failed to allege any facts that would demonstrate a deficient performance on the part of his trial counsel regarding this issue and it too should be summarily denied.
c.) Defendant claims that counsel was ineffective in failing to object to testimony at trial regarding the voluntary nature of Defendant's statements. There is reference to an apparent discrepancy in the testimony of Detective Porter regarding this issue between the statement given at trial and the one that was given during the pretrial motion to suppress. The State, in its response, has satisfied the Court that there is in fact no discrepancy in testimony but an error in the transcript of the testimony at the motion to suppress. (Exhibit "B"). In addition, the Defendant has failed to demonstrate the existence of any good faith objection to the voluntary nature of his statements or that he suffered any prejudice as a result of counsel's failure to object to their introduction. This portion of the claim has no merit and should be summarily denied.
d.) Defendant claims that his counsel was ineffective regarding a failure to request a curative instruction regarding some testimony relating to irrelevant collateral crimes. In fact, trial counsel objected to the testimony and moved for a mistrial, which was denied. (Exhibit "C") The issue was preserved and raised for review in the direct appeal. State v. Rhodes, 547 So.2d 1201, 1203 n2. (Fla. 1989). The Defendant has failed to demonstrate that counsel's performance in this regard was deficient and further has failed to demonstrate any resulting prejudice. In fact, the trial judge's suggestion that a curative instruction would only call further attention to the improper testimony was correct. This claim has no merit and should be summarily denied.
e.) Defendant claims that his trial counsel was ineffective for failing to object to testimony from Dr. William Ross Maples, a forensic anthropologist who was called by the State to testify regarding the cause of death of the victim. The apparent basis of objection to the testimony is relevance. However it appears that the testimony was very relevant to the State's burden of proof regarding corpus delecti. (Exhibit "D"). That being the case, it is apparent that the Defendant is unable to demonstrate any prejudice from the absence of an improper objection. The claim has no merit and should be summarily denied.
The matters contained in this claim do not individually or cumulatively demonstrate a deficient performance on the part of Defendant's trial counsel and the claim should be summarily denied.
(E4/472-474).
The Florida Supreme Court affirmed the trial court's denial of 3.851 relief in Rhodes v. State, 986 So. 2d 501 (Fla. 2008). On postconviction appeal, the Florida Supreme Court stated:
Rhodes argues that the trial court improperly denied him an evidentiary hearing on several claims of ineffective assistance of guilt phase and resentencing counsel. [FN7] We conclude that the trial court was correct in summarily denying these claims either because the record refutes the allegations; because, assuming the facts are true, Rhodes cannot demonstrate any deficiency on the part of counsel; or because, again assuming the facts are true, any deficiency is insufficient to undermine our confidence in the outcome. [FN8]
FN7. Rhodes argues that trial counsel was ineffective during the guilt phase because he (1) failed to properly preserve his objection during jury selection; (2) failed to impeach a State witness; (3) failed to object to improper testimony by detectives; and (4) failed to object to testimony from Dr. William Ross Maples, a forensic anthropologist. . . .Rhodes, 986 So.2d at 514.
Applying a high level of deference, the conclusion reached by both the trial court and the Florida Supreme Court was not contrary to nor an unreasonable application of federal law. To have been prejudiced, Rhodes must show that his counsel's deficient performance prejudiced the defense by demonstrating "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland, 466 U.S. at 687, 688, 694. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689, and Rhodes bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms. Strickland, 466 U.S. at 688-89. Rhodes has not argued that clear and convincing evidence contradicts any of the state court's fact-findings and they stand unchallenged. See, 28 U.S.C. § 2254(e)(1); Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001). In view of the trial court's detailed and fact-specific rejection of the Petitioner's IAC claims, Rhodes has not established that the state courts "applied Strickland to the facts of his case in an objectively unreasonable manner" when it rejected his claims of ineffective assistance of counsel. Bell v. Cone, 535 U.S. 685, 699 (2002).
Ground eight does not warrant habeas corpus relief.
GROUND NINE
The State's use of misleading testimony and improper argument violated the constitutional rights of Mr. Rhodes under the Sixth, Eighth and Fourteenth Amendments. Mr. Rhodes' counsel was ineffective for failing to object to the State's improper conduct. Mr. Rhodes was denied a proper adversarial testing.
Rhodes alleges several sub-claims: (1) prosecutorial misconduct (during closing argument at the guilt phase and on resentencing during voir dire and allegedly diminishing the jury's sense of responsibility); (2) the State allegedly "presented false and misleading testimony" at trial (based on the guilt phase testimony of FBI Agent Malone and inmate Duranseau); (3) jail inmates allegedly became "state agents"; (4) resentencing counsel was ineffective in failing to investigate or subpoena one of Rhodes' former cellmates, Duranseau; and (5) it was error to admit the rebuttal testimony of Richard Nieradka during the guilt phase. (Doc. 13 at 75-81; Doc. 14 at 39-42).
Presentation of Claims in State Court:
Rhodes challenged the use of his conversations with two of his fellow inmates (Cottrell and Allen) on direct appeal. These claims were found to be meritless by the Florida Supreme Court. Rhodes v. State, 547 So. 2d 1201 (Fla. 1989).
As to the alleged prosecutorial misconduct during closing, Rhodes raised this issue on direct appeal and the Florida Supreme Court found error, if any, harmless in Rhodes v. State, 547 So. 2d 1201 (Fla. 1989):
Rhodes argues that several remarks made by the prosecution during closing argument of the guilt phase were prejudicial, and thus his motions for mistrial should have been granted. We held in State v. Murray, 443 So.2d 955, 956 (Fla. 1984), that prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless." While some of the comments made by the prosecutor were objectionable, we do not find the remarks compromised the fairness of the trial proceedings. Under the totality of the circumstances of this case, the remarks were harmless, and no mistrial was warranted.Rhodes, 547 So. 2d at 1203.
Rhodes raised a Brady/Giglio claim in his state postconviction motion and postconviction appeal and this issue has been previously addressed in habeas ground one above. In addition, the trial court denied the postconviction claim based on inmate Duranseau as follows:
Claim XX
The Defendant claims that the State knowingly presented false testimony from witness Harvey Duranseau, a fellow inmate of the Defendant's while the Defendant was in the Citrus County Jail. The Defendant's assertion is based on statements made by Mr. Duranseau during cross-examination as a State witness when he was questioned about two letters that he wrote to the Defendant. The letters contained assertions that statements Mr. Duranseau had made to the police were false and coerced. On redirect examination, Duranseau testified that the assertions of falsity and coercion made in the letters were themselves false and part of an attempt to gain more information from the Defendant. The Defendant suggests that these portions of the trial record demonstrate a deliberate effort by the State to present knowingly false testimony. In addition, the claim persists in referring to Mr. Duranseau as a state agent, thereby invoking the argument regarding the Fifth and Sixth Amendments that was previously addressed in Claim XVIII. Finally, the Defendant claims that his trial counsel's failure to bring these matters "to the court's attention" constitutes ineffective assistance for which an evidentiary hearing should be required.
The Defendant's argument has no merit. As Defendant's reference to the trial record demonstrates, the entire issue of Mr. Duranseau's statements was placed before the jury by Defendant's own counsel during cross-examination. (Exhibit G). The jury was fully aware of the contradictory nature of his testimony and was given the opportunity to judge the credibility of Mr. Duranseau and the truthfulness of his statements through the adversarial process. Indeed, Defendant's counsel may well have been ineffective if he had not explored this area during cross-examination. As for whether or not Duranseau was a state agent, the court has addressed this matter in Claim XVIII and found that the issue was raised by Defendant's trial counsel, ruled upon by the trial court and preserved and argued during the initial appeal. Defendant has failed to suggest the existence of any additional evidence to support the allegation of state agency. The claim must therefore be summarily denied.
(E4/477-479)
On resentencing appeal, Rhodes alleged a Caldwell violation based on the prosecutor's comments. App. B-12, Initial Brief of Appellant, SC 79,627 at Issue IV, pages 73-76. On resentencing appeal, Rhodes v. State, 638 So. 2d 920, 926 (Fla. 1994), the Florida Supreme Court found Rhodes' Caldwell claim "that the jury's role in the sentencing process was improperly diminished by the prosecutor during voir dire and by the court in its instructions was not preserved by contemporaneous objection. . . . Moreover, Rhodes' jury was instructed that its recommendation would be given great weight."
Rhodes also renewed a claim of allegedly "improper closing arguments" in his postconviction motion and the trial court denied relief in its March 13, 2000 order as follows:
Claim XXIV
The Defendant claims that the cumulative effect of multiple instances of improper closing argument by the State resulted in depriving him of his right to a fair trial and accordingly, due process. This claim has no merit.
Defendant cites four instances of alleged improper argument by the State to support his claim. The first two examples were properly objected to and were, in fact, raised in the Defendant's direct appeal. The second two examples of alleged improper argument consisted of the following:
a. A description of the concept of circumstantial evidence that analogized it to the strands of a rope or the webbing of a net. Defendant claims that this analogy argues a lesser standard of proof than beyond a reasonable doubt and was therefore improper. Upon review of the analogy in the context of the entire State closing argument, the court finds that it was not misleading and that the concept of the burden of proof for circumstantial evidence was not improperly argued. No objection was made to this argument, and none was warranted.
b. References to the testimony of Agent Malone and Richard Nieradka that were allegedly improperly admitted at trial. Defendant claims that since the testimony of Agent Malone should not have been admitted regarding his opinion of why the victim's hair was found in her hands (see Amended Claim XXI), it was improper for the State to refer to his opinions in closing argument. Richard Nieradka's testimony was alleged to have been irrelevant to the issue of the Defendant's guilt and therefore reference to his testimony in closing was claimed to have been misleading and confusing to the jury. Neither of the references in the State's argument were objectionable. The issue of Agent Malone's testimony was one of the subjects of the Defendant's direct appeal and it was found to be without merit. (Exhibit "J"); State v. Rhodes, 547 So.2d 1201, 1203 n2. (Fla. 1989). Therefore, reference to his testimony in closing was not improper, nor was trial counsel ineffective in failing to object. Likewise, the references to the testimony of Richard Nieradka were not improper and could not have misled or confused the jury.
Finally, even if these last two State arguments about which the Defendant complains were in fact objectionable, the lack of an objection by trial counsel did not deny the Defendant the right to raise them as the subject of his direct appeal. Knight v. State, 721 So.2d 287, 294 (Fla. 1987); Robinson v. State, 707 So.2d 688, 697-700 n. 18 (Fla. 1998). These claims have no merit and are not the proper subject of a post conviction motion. This claim should be summarily denied.
On appeal of the denial of 3.851 relief, the Florida Supreme Court affirmed the trial court's summary denial:
Rhodes argues that the trial court improperly denied him an evidentiary hearing on several claims of ineffective assistance of guilt phase and resentencing counsel. [FN7] We conclude that the trial court was correct in summarily denying these claims either because the record refutes the allegations; because, assuming the facts are true, Rhodes cannot demonstrate any deficiency on the part of counsel; or because, again assuming the facts are true, any deficiency is insufficient to undermine our confidence in the outcome.[FN8] (footnote 8 omitted).
[FN7] . . . Rhodes contends that resentencing counsel was ineffective for failing to (1) adequately challenge the trial testimony of the jailhouse informants . . .Rhodes, 986 So. 2d at 513-514.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Ground nine of Rhodes' habeas petition (Doc. 13 at 75-78) includes arguments which substantially overlap other habeas grounds; for example, the IAC and Brady/Giglio claims regarding FBI Agent Malone. This order has previously addressed Rhodes' IAC and Brady/Giglio claims.
On direct appeal, Rhodes challenged two comments made by the prosecutor during the guilt phase closing. This issue was raised solely as a matter of state law and no federal constitutional claim was presented. See, App. A-24, Initial Brief of Appellant, SC 67,842 at Issue IX, pages 48. Accordingly, any newly alleged federal claim is procedurally barred. In addition, any alleged sentencing complaint based on the prosecutor's comments at the original guilt phase is rendered moot by virtue of the fact that a new sentencing hearing was granted on direct appeal. Therefore, Rhodes' continued citations to the original guilt phase and penalty phase are irrelevant to the second penalty phase. (Doc. 13 at 77-78; 80-81).
Rhodes' rebuttal claim (based on witness Richard Nieradka) was raised on direct appeal solely as a matter of state law. See, App. A-24, Initial Brief of Appellant, Issue VIII at pages 42-45. Therefore, any alleged federal constitutional claim is procedurally barred.
Any alleged Caldwell claim is procedurally barred and also without merit, as the Florida Supreme Court found on resentencing appeal. Rhodes v. State, 638 So. 2d at 926
Furthermore, the state courts correctly denied relief on Rhodes' prosecutor comment claim. The first guilt phase comment was made by the prosecutor when he stated, "Don't let that admitted murderer walk out of here." The second comment came when he attempted to analogize the facts of the case to the book,Looking For Mr. Goodbar. The defense objected to both and moved for a mistrial for both. The evidence established that Rhodes was guilty as charged and Rhodes was not prejudiced by the prosecutor's comments. Specifically, the first comment ("Don't let that admitted murderer walk out of here.") was a proper comment on the evidence. Rhodes admitted to Michael Allen, Edward Cottrell, Harvey Duranseau and to John Bennett that he had committed murder. Thus, the prosecutor was entitled to make this comment based on his view of the evidence. The trial court properly found it to be a proper view of the evidence and overruled defense objection. (A18/2426).
The second challenged comment (Looking For Mr.Goodbar) was also proper. It was not a comment on facts not in evidence. Rather, it was an analogy to literature used to illustrate the facts of the case. The use of the illustration here was especially pertinent because of Rhodes' own reference to the book. Margaret Tucker, a co-worker of Rhodes at the "Clearwater Sun" newspaper testified that Rhodes said his girlfriend had been strangled in a lumber yard "off of" Sunset Point Road. Rhodes told Tucker that his girlfriend "shouldn't have been looking for Mr. Goodbar." Tucker then testified as to what the book was about. (A13/1581-1583). The trial court overruled defense objections to the comment, but, nevertheless asked the prosecutor to limit his analogy and not go into the facts of the book. On direct appeal, Rhodes v. State, 547 So. 2d at 1203, the Florida Supreme Court found that the prosecutor's remarks were harmless error and stated:
Rhodes argues that several remarks made by the prosecution during closing argument of the guilt phase were prejudicial, and thus his motions for mistrial should have been granted. We held in State v. Murray, 443 So.2d 955, 956 (Fla. 1984), that "prosecutorial error alone does not warrant automatic reversal of a conviction unless the errors involved are so basic to a fair trial that they can never be treated as harmless." While some of the comments made by the prosecutor were objectionable, we do not find the remarks compromised the fairness of the trial proceedings. Under the totality of the circumstances of this case, the remarks were harmless, and no mistrial was warranted.Rhodes, 547 So.2d at 1203.
Rhodes has not shown that the state court rulings deprived him of a fundamentally fair trial. Rhodes has failed to establish that the alleged error by the trial court had a "substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 622, 113 S.Ct. 1710 (1993).
Ground nine does not warrant habeas corpus relief.
GROUND TEN
Florida's capital sentencing statute is unconstitutional on its face and as applied in this case because it fails to prevent arbitrary and capricious application of the death penalty and violates the Eighth Amendment guarantee prohibiting cruel and unusual punishment.
Rhodes alleges that Florida's capital sentencing scheme is unconstitutional and he also asserts a perfunctory lethal injection/cruel and unusual punishment sub-claim. (Doc. 13 at 83-84; Doc. 14 at 42-43). Rhodes admits that he did not raise ground ten on direct appeal following resentencing. (Doc. 13 at page 84). Issues which could have been raised on direct appeal cannot be raised in a later motion for postconviction relief. Kennedy v. State, 547 So.2d 912 (Fla. 1989). Challenges to the constitutionality of Florida's death penalty scheme should be raised at trial and on direct appeal. See, Allen, 854 So. 2d at 1258 (citing Arbelaez v. State, 775 So. 2d 909, 919 (Fla. 2000)). A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts. Wainwright v. Sykes, 433 U.S. 72 (1977). Rhodes' alleged constitutional challenge was cognizable at trial and direct appeal and is now procedurally barred. Coleman.
Rhodes attempted to revive a defaulted constitutional challenge to Florida's capital sentencing scheme in postconviction as Issue XXVII. The trial court denied the claim as procedurally barred:
Claim XXVII
The Defendant claims that Florida's capital sentencing statute is unconstitutional on its face and as applied. This claim is procedurally barred as it was subject to direct appeal. Hall v. State, 742 So.2d 225 (Fla. 1999). This claim should be summarily denied.
(E4/483)
Thereafter, on postconviction appeal, the Florida Supreme Court stated:
Rhodes also lists several claims, denied below, that he recognizes have been rejected in other death penalty cases, and concedes are being presented for preservation purposes only. See Sireci v. State, 773 So.2d 34, 41 n. 14 (2000) (directing petitioners wishing to raise claims solely for the purpose of preserving them to designate the issues as such, noting that "[w]e will consider the issues preserved for review in the event of a change in the law if counsel so indicates by grouping these claims under an appropriately entitled heading and providing a description of the substance"). Rhodes submits the following claims for preservation: . . . (4) Claim XXVII, jurors received inadequate guidance on the aggravating factors and Florida's statute is unconstitutionally vague . . .Rhodes, 986 So. 2d at 514, fn. 8.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Rhodes' challenge to the constitutionality of Florida's capital sentencing scheme is procedurally barred. Rhodes' effort to "preserve" this claim on postconviction appeal is unavailing since he may not defeat his prior procedural defaults by impermissibly attempting to revive them in an unavailable vehicle. As the trial court found, any challenge to the constitutionality of Florida's capital sentencing statute, postconviction claim XXVII, is procedurally barred. (E4/483); see also, Allen v. McNeil, 2009 WL 856017 (S.D. Fla. 2009) (denying similar constitutional challenge as procedurally barred). Rhodes has failed to demonstrate that the state court's rejection of his postconviction claim was inconsistent with any decision from the United States Supreme Court or was an unreasonable application of any such precedent.
Rhodes' cruel and unusual punishment lethal injection sub-claim was not timely raised in state court, is procedurally barred and subject to dismissal on multiple grounds. As the Northern District Court explained in Hertz v. McNeil, 2009 WL 3161813 (N.D. Fla. 2009):
In Petitioner's final claim for relief, he alleges that Florida's method of execution by lethal injection violates the Eighth Amendment's prohibition against cruel and unusual punishment. This claim will be denied for the foregoing reasons. The Supreme Court has held that this type of claim properly can be brought only under 42 U.S.C. § 1983 and the Prison Litigation Reform Act, not in this habeas proceeding. See Hill v. McDonough, 547 U.S. 573, 583-84, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (holding an inmate's challenge to the method of execution is cognizable under section 1983). See Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006). In Hutcherson, the Eleventh Circuit Court of Appeals stated:
[t]he line of demarcation between a § 1983 civil rights action and a § 2254 habeas claim is based on the effect of the claim on the inmate's conviction and/or sentence. When an inmate challenges the "circumstances of his confinement" but not the validity of his conviction and/or sentence, then the claim is properly raised in a civil rights action under § 1983. Hill, 126 S.Ct. at 2101. However, when an inmate raises any challenge to the "lawfulness of confinement or [the] particulars affecting its duration," his claim falls solely within "the province of habeas corpus" under § 2254.
Id. at 754. Petitioner is alleging that Florida's three-drug method of lethal injection will cause him unnecessary pain and suffering. This challenge goes strictly to the circumstances of his confinement, not the lawfulness of his confinement or its duration.
Additionally, Petitioner failed to raise this issue in either the direct appeal of his conviction and sentence or in his postconviction proceeding in state court. Therefore, even if his claim were cognizable in this habeas proceeding, it is procedurally barred from federal habeas review. . . .
* * *
Because Petitioner has not exhausted this claim in state court and because he is barred by state procedural rules from exhausting the substance of his claims, procedural default exists for purposes of federal habeas review. See Coleman v. Thompson, supra. Additionally, the Florida Supreme Court has consistently rejected this type of challenge to its protocols regarding the three-drug method of execution. See Lightbourne v. McCollum, 969 So.2d 326, 349-53 (per curiam) (Fla. 2007), cert. denied, ___ U.S. ___, 128 S.Ct. 2485, 171 L.Ed.2d 777 (2008); Ventura v. State, 2 So. 3d 194, 198-201 (Fla. 2009).
Finally, while not pled with specificity, Petitioner attacks the constitutionality of Florida's use of the three-drug protocol method of execution by lethal injection stating that execution by this method "causes prolonged, extreme, pain and suffering to the person being executed." (Doc. 1 at 33). This claim has been foreclosed by Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), in which the Supreme Court upheld a similar three-drug lethal injection protocol as not constituting cruel and unusual punishment under the Eighth Amendment. Furthermore, revisions to Florida's lethal injection protocols provide additional safeguards. See Baze, 128 S.Ct. at 1570-71 (Ginsburg, J., dissenting) (noting that Florida has adopted safeguards for protection not found in Kentucky's protocols by taking measures to assess an inmate's consciousness). Therefore, Petitioner is not entitled to relief on this claim in this proceeding.Hertz, 2009 WL 3161813, 34-37.
Rhodes' claim that Section 921.141, Florida Statutes is unconstitutional because it improperly regulates practice and procedure of the court is without merit. See Looney v. State, 803 So. 2d 656 (Fla. 2001) (citing Burns v. State, 699 So. 2d 646, 653 (Fla. 1997). In Burns, the Court stated:
In support of his claim that this evidence was improperly admitted, Burns makes several arguments that previously have been rejected. We have rejected Burns' contention that the admission of victim impact evidence pursuant to section 921.141(7), Florida Statutes (1993), violates the prohibition against ex post facto laws. Archer v. State, 673 So.2d 17, 21 (Fla.), cert. denied, 519 U.S. 876, 117 S.Ct. 197, 136 L.Ed.2d 134 (1996); Windom v. State, 656 So.2d 432, 439 (Fla.), cert. denied, 516 U.S. 1012, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995). We have also repeatedly upheld section 921.141 against claims that the capital sentencing statute improperly regulates practice and procedure. See Vaught v. State , 410 So.2d 147, 149 (Fla. 1982); Booker v. State , 397 So.2d 910 (Fla.), cert. denied , 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); see also Maxwell v. State, 657 So.2d 1157 (Fla. 1995) (approving on basis of Windom district court decision which recognizes that section 921.141 does not intrude upon this Court's rule-making authority).699 So. 2d at 653 (e.s.).
Finally, Florida's capital sentencing procedure has not been found to be unconstitutional. In Sumner v. Shuman, 483 U.S. 66, 73-74 (1987), the Court found:
Those five opinions, reflecting the views of the only Members of the Court to vote in support of all five judgments, drew a critical line between post-Furman statutes that could survive constitutional scrutiny and those that could not. In the three cases upholding the guided-discretion statutes, the opinions emphasized the fact that those capital schemes permitted the sentencing authority to consider relevant mitigating circumstances pertaining to the offense and a range of factors about the defendant as an individual. See Gregg v. Georgia, 428 U.S., at 197, 206, 96 S.Ct., at 2936, 2940; Proffitt v. Florida , 428 U.S., at 251-252, 96 S.Ct., at 2966; Jurek v. Texas, 428 U.S., at 270-271, 96 S.Ct., at 2955-56.
The Petitioner in Miller v. State, 926 So. 2d 1243, 1259-1260 (Fla. 2006) raised essentially the same claims that Rhodes raises in ground ten related to the constitutionality of Florida capital sentencing procedure:
Miller makes additional contentions: Florida's capital sentencing statute fails to provide a necessary standard for determining that aggravating circumstances "outweigh" mitigating factors, does not define "sufficient aggravating circumstances," and does not sufficiently define each of the aggravating circumstances; Florida's capital sentencing procedure does not have the independent reweighing of aggravating and mitigating circumstances required by Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); the aggravating circumstances have been applied in a vague and inconsistent manner and juries have received unconstitutionally vague instructions; and Florida law violates the Eighth Amendment in creating a presumption of death if a single aggravating circumstance is found, which occurs in every case of felony murder and nearly every premeditated murder.
The Miller Court addressed Miller's claims on the merits:
Miller's claims are also without merit. Miller argues that Florida's capital felony sentencing statute is unconstitutional because every person who is convicted of first-degree felony murder automatically qualifies for the aggravating circumstance of commission during the course of an enumerated felony. This Court has rejected the argument that Florida's capital sentencing scheme is unconstitutional because it provides for an automatic aggravating circumstance and neither "narrow[s] the class of persons eligible for the death penalty" nor "reasonably justif[ies] the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Parker v. State, 873 So.2d 270, 286 n. 12 (Fla. 2004) (alterations in original) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)); see Blanco v. State, 706 So.2d 7, 11 (Fla. 1997). As this Court pointed out in Blanco, this claim is meritless:
Eligibility for this aggravating circumstance is not automatic: The list of enumerated felonies in the provision defining felony murder is larger than the list of enumerated felonies in the provision defining the aggravating circumstance of commission during the course of an enumerated felony.
Id. at 11 (footnote omitted); see also Francis v. State, 808 So.2d 110, 136 (Fla. 2001).
Miller's other claims have previously been held to be meritless. See Proffitt v. Florida, 428 U.S. 242, 255-56, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (upholding constitutionality of Florida's death penalty statute against multiple challenges, including challenge based on vagueness and overbreadth of aggravating and mitigating circumstances and the lack of guidance for the jury in weighing such factors); Lugo v. State, 845 So.2d 74, 119 (Fla. 2003) (reiterating that this Court has "rejected the claim that the death penalty system is unconstitutional as being arbitrary and capricious because it fails to limit the class of persons eligible for the death penalty"); Freeman v. State, 761 So.2d 1055, 1067 (Fla. 2000) (rejecting as meritless the argument that the same felony underlying a felony murder conviction "cannot be used as an aggravating factor"); Fotopoulos v. State, 608 So.2d 784, 794 n. 7 (Fla. 1992) (rejecting as meritless claim regarding the lack of an independent reweighing of aggravating and mitigating factors).
Likewise, Rhodes' claims have no merit.
Ground ten does not warrant habeas corpus relief.
GROUND ELEVEN
Mr. Rhodes is innocent of first degree murder and he is innocent of the death sentence under Sawyer v. Whitley, 112 S. Ct. 2514 (1992).
Rhodes alleges that he is innocent of first degree murder and innocent of the death sentence. (Doc. 13 at 86-87; Doc. 14 at 43-44) This claim is procedurally barred, not cognizable and without merit.
Presentation of Claim in State Court
Rhodes admits that he did not raise habeas ground eleven on direct appeal or direct appeal following his resentencing. (Doc. 13 at page 87). Therefore, it is procedurally barred. Instead, he raised this hybrid claim in his postconviction motion as separate claims XVII and XXVIII. The trial court summarily denied them as follows:
Claim XVII
The Defendant claims he is innocent of First Degree Murder and innocent of the death penalty. He alleges no facts supporting this claim. No evidentiary hearing is required and this claim should be summarily denied.
(E4/477).
Claim XXVIII
The Defendant claims he is innocent of the death penalty. He initially suggests that he is innocent because there are insufficient aggravating circumstances to support a death sentence under Florida law. That portion of his claim is refuted by the Florida Supreme Court's decision in Rhodes v. State, 638 So.2d 920 (Fla. 1994), which reviewed the aggravating and mitigating circumstances and affirmed the imposition of the death penalty. Defendant claims that the jury was given unconstitutionally vague instructions on aggravating circumstances and that there was insufficient evidence to support the aggravating circumstance that the murder was committed during the course of a sexual battery. Neither of these claims has merit. The jury instructions have previously been found to be constitutional, and the Florida Supreme Court has previously found that there was sufficient evidence to support the aggravating circumstance complained of. State v. Rhodes, 638 So.2d 920 (Fla. 1994).
The Defendant claims that his sentence of death is disproportionate as a further basis of this claim. This issue was previously raised in the Defendant's direct appeal and rejected. Rhodes, 638 So.2d at 927. This claim has no merit and should be summarily denied.
(E4/483).
On postconviction appeal, the Florida Supreme Court stated:
Rhodes also lists several claims, denied below, that he recognizes have been rejected in other death penalty cases, and concedes are being presented for preservation purposes only. See Sireci v. State, 773 So.2d 34, 41 n. 14 (2000) (directing petitioners wishing to raise claims solely for the purpose of preserving them to designate the issues as such, noting that "[w]e will consider the issues preserved for review in the event of a change in the law if counsel so indicates by grouping these claims under an appropriately entitled heading and providing a description of the substance"). Rhodes submits the following claims for preservation: . . . (2) Claims XVII and XXVIII, Rhodes is innocent of first-degree murder and the death penalty . . .Rhodes, 986 So. 2d at 514 fn. 8.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Rhodes' claims — that he is innocent of murder and the death penalty — are procedurally barred. (E4/477; 483). Rhodes may not defeat his procedural defaults by impermissibly attempting to revive them. Furthermore, in this case, as in Hannon v. Secretary, Department of Corrections, 622 F.Supp.2d 1169, 1225 (M.D.Fla. 2007), any claim that petitioner is "innocent" of the death penalty fails because multiple valid aggravating circumstances support Rhodes' death sentence. Under Sawyer v. Whitley, 505 U.S. 333, 348 (1992), Rhodes cannot show that "no reasonable juror would have found him eligible for the death penalty." See also, In re Provenzano, 215 F.3d 1233 (11th Cir. 2000); Sibley v. Culliver, 377 F.3d 1196, 1205-1206 (11th Cir. 2004). To the extent Rhodes attempts to interject an alleged proportionality claim (Doc. 14 at 44), it is procedurally barred and fails to present any issue of federal constitutional magnitude. Proportionality is not a federal constitutional right. See Pulley v. Harris, 465 U.S. 37, 43 (1984).
Finally, even if Rhodes asserts a claim of "actual" innocence, it is inconsistent with his claim of insanity and even if a freestanding claim of actual innocence were cognizable, which, a habeas petitioner attempting to establish "actual innocence" must meet a high standard. Bousley v. United States, 523 U.S. 614 (1998); see also House v. Bell, 547 U.S. 518 (2006). A petitioner must demonstrate that "in light of all the evidence, `it is more likely than not that no reasonable juror would have convicted him.'" Bousley, at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995)). To be credible, a claim of actual innocence requires the petitioner to "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup v. Delo, 513 U.S. at 324. The evidence must undermine confidence in the outcome of the trial. Id. at 316. Rhodes has not alleged any new reliable evidence to support a claim of actual innocence. Rhodes merely repeats the procedurally barred and insufficiently pled claims from state postconviction. The state courts' determinations are not in conflict with clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Ground eleven does not warrant habeas corpus relief.
GROUND TWELVE
The introduction of nonstatutory aggravating factors perverted Mr. Rhodes' Resentencing [sic] that it resulted in the arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments of the United States Constitution.
Rhodes admits that he did not raise this ground on his resentencing appeal. (Doc. 13 at 90). Although Rhodes' initial brief on resentencing did include a "non-statutory aggravating circumstance" claim, the grounds raised on direct appeal were different from those now asserted in ground twelve. Compare, App. B-12, Initial Brief of Appellant (SC 79,627), Issue IV, at pages 76-79 and habeas ground twelve (Doc. 13 at 88-89; Doc. 14 at 44-46). Accordingly, this claim is procedurally barred.
Rhodes sought to resurrect this claim as part of postconviction Claims XXV and XXVI in his Rule 3.850/3.851 motion to vacate. The trial court denied these claims as procedurally barred:
Claim XXV
The Defendant claims that the State introduced nonstatutory aggravating factors before the jury in his second penalty phase trial, which resulted in the arbitrary and capricious imposition of the death penalty, and that trial counsel was ineffective by failing to object. The State, in its response to the Defendant's motion, has provided citations to the record that refute the substantive allegations of the Defendant's claim. Regardless however, this claim is procedurally barred, as it was the subject of the Defendant's second direct appeal. Rhodes v. State, 638 So.2d 920, 923-924 (Fla. 1994). This claim must therefore be summarily be denied.
(E4/482)
Claim XXVI
The Defendant claims that he was denied a fundamentally fair trial in his second sentencing phase hearing as a result of the State suggesting to the jury during voir dire that the law required it to recommend a sentence of death. The remarks complained of in this claim were also included as a portion of Claim XXXV. These questions and remarks by the State were not improper or legally impermissible. In addition, this claim is procedurally barred as it was subject to review upon direct appeal. This claim should be summarily denied.
(E4/482)
On postconviction appeal, the Florida Supreme Court stated:
Rhodes also lists several claims, denied below, that he recognizes have been rejected in other death penalty cases, and concedes are being presented for preservation purposes only. See Sireci v. State, 773 So.2d 34, 41 n. 14 (2000) (directing petitioners wishing to raise claims solely for the purpose of preserving them to designate the issues as such, noting that "[w]e will consider the issues preserved for review in the event of a change in the law if counsel so indicates by grouping these claims under an appropriately entitled heading and providing a description of the substance.). Rhodes submits the following claims for preservation: . . . (25) that the introduction of nonstatutory aggravating factors before the jury during resentencing resulted in the arbitrary and capricious imposition of the death penalty . . .Rhodes, 986 So. 2d at 514, fn. 8.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
This habeas claim is procedurally barred. Rhodes' attempt to "preserve" this claim is unavailing since Rhodes may not defeat his prior procedural defaults by impermissibly attempting to revive them in an unavailable vehicle. The trial court correctly denied relief (E4/482) as procedurally barred and meritless. Rhodes failed to demonstrate cause and prejudice to overcome the procedural default. See Wainwright v. Sykes, 433 U.S. 72 (1997). Furthermore, the prosecutor did not introduce any non-statutory aggravating factor and the sentencing court did not rely on any improper, non-statutory aggravating factor. On resentencing, the trial judge found three aggravating factors: 1) Rhodes committed the murder while on parole; 2) Rhodes was previously convicted of a violent felony; and 3) the murder was committed while Rhodes was engaged in the commission of an attempted sexual battery. These factors were affirmed on appeal. Rhodes, 638 So.2d at 923, fn. 1; §§ 921.141(5)(a), (b), (d), Fla. Stat. (1991).
Rhodes' "non-statutory aggravator" claim is procedurally barred. Furthermore, Rhodes failed to demonstrate that the state court's ruling "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law" or "was based on an unreasonable determination of the facts in light of the evidence presented in state court."
Ground twelve does not warrant habeas relief.
GROUND THIRTEEN
Mr. Rhodes was denied a reliable trial and sentence, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, when the jury's role was diminished in violation of Caldwell v. Mississippi.
Rhodes alleges that in light of Ring v. Arizona, 536 U.S. 584 (2002), Florida's standard penalty phase jury instructions are no longer valid under the United States Supreme Court's holding in Caldwell v. Mississippi, 472 U.S. 320 (1985). (See Doc. 13 at 91; Doc. 14 at 46-48)
This hybrid claim is procedurally barred on multiple grounds.
Presentation of Claims in State Court:
Rhodes' Caldwell claim was not preserved at trial. Rhodes raised a Caldwell claim on direct appeal following resentencing, Rhodes v. State, 638 So. 2d 920 (Fla. 1994), and the Florida Supreme Court applied a procedural bar and also found that the jury was instructed that its recommendation would be given great weight. As the Florida Supreme Court explained:
Rhodes' Caldwell [FN7] claim that the jury's role in the sentencing process was improperly diminished by the prosecutor during voir dire and by the court in its instructions was not preserved by contemporaneous objection. Combs v. State, 525 So.2d 853, 856 (Fla. 1988); Jackson v. State, 522 So.2d 802, 809 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 153 (1988). Moreover, Rhodes' jury was instructed that its recommendation would be given great weight.
[FN7] Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).Rhodes, 638 So. 2d at 926.
In postconviction, Rhodes raised a Caldwell claim as Claim XXX in his postconviction motion which the trial court summarily denied:
Claim XXX
The Defendant claims that the sentencing jury was misled by comments and instructions that unconstitutionally and inaccurately diluted the jury's sense of responsibility towards sentencing. This claim was raised as Issue IV of the Defendant's direct appeal and rejected by the Florida Supreme Court. State v. Rhodes, 638 So.2d 920 (Fla. 1994). Since it has already been determined that the substantive claim has no merit, there can be no claim for ineffective assistance for failure to object. This claim has no merit and should be summarily denied.
(E4/484).
On postconviction appeal, the Florida Supreme Court stated:
Rhodes also lists several claims, denied below, that he recognizes have been rejected in other death penalty cases, and concedes are being presented for preservation purposes only. See Sireci v. State, 773 So.2d 34, 41 n. 14 (2000) (directing petitioners wishing to raise claims solely for the purpose of preserving them to designate the issues as such, noting that "[w]e will consider the issues preserved for review in the event of a change in the law if counsel so indicates by grouping these claims under an appropriately entitled heading and providing a description of the substance"). Rhodes submits the following claims for preservation: (1) Claim XXX, failure to object to various comments and arguments by the State on the ground that they diminished the jurors' sense of responsibility, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) . . .Rhodes, 986 So. 2d at 514 fn. 8.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
An issue that was not properly presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally barred from federal review. O'Sullivan, 526 U.S. at 839-40, 848. A claim is also procedurally defaulted if it was presented in state court and rejected on the independent and adequate state ground of procedural bar or default. See Coleman v. Thompson, 501 U.S. 722, 734-35 and n. 1 (1991).
Rhodes now raises an argument based on Ring v. Arizona, 536 U.S. 584 (2002) and alleges that he raised this claim on his postconviction appeal in SC04-31. (Doc. 13 at pages 91-92). However, Rhodes' initial brief on postconviction appeal did not cite to Ring (E19) and Rhodes' Caldwell claim remains procedurally barred. On postconviction appeal, Rhodes listed a string cite of issues without any supporting argument. Rhodes' effort to "preserve" such claims is unavailing since Rhodes may not defeat his prior procedural defaults by impermissibly attempting to revive them. Rhodes' Caldwell claim is procedurally barred. (E4/483).
Furthermore, any purported reliance on Ring v. Arizona, 536 U.S. 584 (2002) is barred under Teague because Rhodes' convictions and sentences were final when Ring issued. Schriro v. Summerlin, 542 U.S. 348, 358 (2004). Finally, as noted in Allen v. McNeil, 2009 WL 856017, 32-33 (S.D. Fla. 2009):
The Schiro Court held that the Supreme Court's decision in Ring v. Arizona was properly classified as procedural rather than substantive, and thus did not apply retroactively to a death penalty case already final on direct review, and Ring v. Arizona did not announce a watershed rule of criminal procedure.
Caldwell held it was constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that responsibility for determining appropriateness of defendant's death rests elsewhere. However, `to establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Davis, 119 F.3d at 1482 (11th Cir. 1997). Therefore, "references to and descriptions of the jury's sentencing verdict in this case as an advisory one, as a recommendation to the judge, and of the judge as the final sentencing authority are not error under Caldwell." Davis, 119 F.3d at 1482.
Rhodes has failed to establish that the state court's ruling "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law" or "was based on an unreasonable determination of the facts" in light of the evidence presented in state court.
Ground thirteen does not warrant habeas corpus relief.
GROUND FOURTEEN
The trial court erred in admitting inflammatory demonstrative evidence, color photographs and a color videotape of the victim that were cumulative, irrelevant and inflamed the jury, denying Mr. Rhodes a constitutional right to a fair trial.
This claim, based on state law, is procedurally barred and also without merit.
Presentation of Claim in State Court:
On direct appeal, Rhodes raised a claim regarding the admission of color photographs and color videotape under state law. (A24, Issue IV, pages 31-33). Rhodes did not challenge the use of the human skeleton at trial. (See, A-24, Issue IV, pages 31-33). Therefore, this sub-claim is procedurally barred. In addition, Rhodes' claim was based on state law and the Florida Supreme Court found this claim was without merit and did not warrant discussion. Rhodes, 547 So. 2d at 1203 n. 2.
Rhodes sought to reinstate this issue as claim X in his postconviction motion. The trial court denied this claim as procedurally barred in its November 12, 2003 order denying relief and stated:
Claim X
The Defendant claims prejudice as a result of the introduction into evidence of a video and photographs at trial. Defendant readily admits that his counsel properly objected to the introduction of this evidence. In fact, this issue was specifically addressed in the Defendant's appeal and is therefore barred from consideration in this proceeding. State v. Rhodes, 547 So. 2d 1201, 1203 n2. (Fla. 1989). To the extent that Defendant alleges ineffective assistance of appellate counsel, the claim is only reviewable in the appellate court. Gaskin, 737 So.2d at 513 n. 8. No evidentiary hearing regarding these matters is needed or appropriate and this claim should be summarily denied.
(E4/475).
On appeal following the denial of postconviction relief, the Florida Supreme Court stated:
Rhodes also lists several claims, denied below, that he recognizes have been rejected in other death penalty cases, and concedes are being presented for preservation purposes only. See Sireci v. State, 773 So.2d 34, 41 n. 14 (2000) (directing petitioners wishing to raise claims solely for the purpose of preserving them to designate the issues as such, noting that "[w]e will consider the issues preserved for review in the event of a change in the law if counsel so indicates by grouping these claims under an appropriately entitled heading and providing a description of the substance"). Rhodes submits the following claims for preservation: (6) Claim X, the State improperly introduced gruesome and prejudicial photographs, videos and a skeleton at trial . . .Rhodes, 986 So. 2d at 514 fn. 8.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Rhodes' effort to "preserve" his "inflammatory evidence" claim in postconviction is unavailing since Rhodes may not defeat his prior procedural defaults by impermissibly attempting to revive them. The trial court correctly denied relief on postconviction claim X as procedurally barred. (E4/475).
Moreover, on direct appeal, Rhodes' claim of gruesome photographs was raised as a matter of state law, with only a perfunctory conclusion citing to the federal constitution. (A-24, Initial Brief of Appellant, at 31-33). Therefore, any newly alleged federal constitutional claim is procedurally barred. See, McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005).
"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, alleged evidentiary errors in the admission of photographs, which are matters of state law, ordinarily will not support habeas relief. Instead, for an evidentiary error to warrant habeas relief, the admission of the evidence must have rendered the proceeding fundamentally unfair. Alleged erroneously admitted evidence deprives a defendant of fundamental fairness only if it was a crucial, critical, highly significant factor in the defendant's conviction. "The introduction of graphic photographic evidence rarely renders a proceeding fundamentally unfair." Jacobs v. Singletary, 952 F.2d 1282, 1296 (11th Cir. 1992). In this case, the photographs and videotape explained the testimony of the witnesses and Rhodes has not demonstrated how their admission adversely affected his trial.
During the guilt phase, the state introduced photographs and video tapes of the victim's body in the rubble at the Wyoming Antelope Club. There were also photographs of the victim's severed leg and color photographs of the victim on the medical examiner's table. On direct appeal, Rhodes claimed that the introduction of both the photographs and the videotape was cumulative and prejudicial and could have served only to arouse the jurors' emotions. Rhodes also claimed that introduction of photographs of Karen Nieradka's corpse at the medical examiner's office was irrelevant.
Under Florida law, the test of admissibility of photographs is relevancy and not necessity. As the State argued on direct appeal, photographs are admissible where they assist the medical examiner in explaining to the jury the nature and manner in which the wounds were inflicted. Bush v. State, 461 So.2d 936 (Fla. 1984). In addition, the photographs and videotapes taken at the Wyoming Antelope Club were relevant to show where the body was found and what kind of condition the body was in at the time it was found. The video added to the photographs by giving a three dimensional view of the location and exactly what was detailed in digging Karen's body out of the debris in order to take the other photographs of it. It indicated what kind of material was on top of the body. It was important for the jury to understand how deeply the body was buried in all of the debris. This was to dispel any notion that the jury might have that the killing did not take place at the Fort Harrison Sunset Hotel, instead of at the Wyoming Antelope Club where the body was found. The trial court found the videotape was admissible and noted that it did not appear to be bloody or colored in any sense. The trial court found that there was no prejudice to the defendant in the admission of these tapes. (A13/l498).
Florida law is well-established that admission of photographic evidence is within the trial court's discretion and a court's ruling will not be disturbed on appeal unless there is a clear showing of abuse. Wilson v. State, 436 So.2d 908 (Fla. 1983). The photographs of the victim's body at the scene were relevant to the ability of the medical examiner to determine the cause of death, by showing the condition of the body. (A13/l515) Further, the trial court noted that the addition of the photographs would be beneficial to the jury in that they could take them with them during their deliberations. (A13/1517).
On direct appeal, Rhodes appeared to concede that either the videotape or the photographs would have been admissible; Rhodes challenged the admission of both as cumulative. (A-24, Initial Brief of Appellant, at 32) Each piece of evidence served its own purpose. The videotape by depicting a three dimensional view of what was actually involved in withdrawing the body from the berm, and the photographs by showing a close up condition of the body. This evidence was not cumulative and was relevant to the material issue at hand.
As for the admission of photographs of Karen Nieradka's body at the medical examiner's office, the issues of whether the photographs were cumulative or whether they were inadmissible because they showed the body photographed away from the scene are routine issues basic to a determination of relevancy and not issues arising from any exceptional nature of the proffered evidence. The photographs were relevant to show the condition of the body before the autopsy. The medical examiner, Dr. Wood, testified as to what they depicted. The photographs were used to show the way the hands were packed and a technician testified as to some of the items that were taken from the victim's hands. The photographs showed the jury the way the evidence was preserved. Therefore, the photographs were relevant and properly admitted. See Henderson v. State, 463 So. 2d 196, 200 (Fla. 1985) (introduction of photographs depicting victims' partially decomposed bodies not error); Mills v. State, 462 So. 2d 1075, 1080 (Fla. 1985) (no error in admitting photographs of skeletal remains of the victim); Straight v. State, 397 So.2d 903, 910 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981).
This claim involves state law evidentiary rulings. "Federal habeas corpus relief based on evidentiary rulings will not be granted unless it goes to the fundamental fairness of the trial." McCoy v. Newsome, 953 F.2d 1252, 1265 (11th Cir. 1992); see also Tejada v. Dugger, 941 F.2d 1551, 1560 (11th Cir. 1991) ("[w]e review questions of state law in federal habeas proceedings only to determine whether the alleged errors were so critical or important to the outcome of the trial to render `the entire trial fundamentally unfair.'").
In this case, as in Grossman v. Crosby, 359 F.Supp.2d 1233, 1276-1277 (M.D. Fla. 2005), affirmed, Grossman v. McDonough, 466 F.3d 1325 (11th Cir. 2006), Rhodes has failed to demonstrate that the state courts' rejection of this claim relied on erroneous facts, or applied established federal law in a manner that was contrary to or objectively unreasonable in light of Supreme Court precedent. Like Grossman, Rhodes has not cited a Supreme Court case that reached the claim that he presents and any possible constitutional error would be harmless under Brecht. As this Court explained in Grossman:
. . . The Florida Supreme Court is the final arbiter of Florida law; federal courts must respect that law absent a constitutional violation. A federal habeas court may not issue the writ on the basis of a state's interpretation of its own laws and rules, absent extreme circumstances. Pulley, 465 U.S. at 42, 104 S.Ct. 871. No such circumstances have been demonstrated in this case.
The Florida Supreme Court's finding of relevancy is consistent with other Florida cases. See Henderson v. State, 463 So.2d 196, 200 (Fla. 1985) (introduction into evidence of photographs depicting victims' partially decomposed bodies not error); Mills v. State, 462 So.2d 1075, 1080 (Fla. 1985) (no error in admitting photographs of the skeletal remains of the victim); Straight v. State, 397 So.2d 903, 910 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981); Foster v. State, 369 So.2d 928, 930 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979).
Grossman has failed to demonstrate that the state courts' rejection of this claim relied on erroneous facts, or applied established federal law in a manner that was contrary to or objectively unreasonable in light of United States Supreme Court precedent. He has not cited a United States Supreme Court case that even reached the issue he raises. Furthermore, any possible constitutional error would be harmless under Brecht. Therefore, no habeas relief is warranted on ground thirteen.Grossman, 359 F.Supp.2d at 1276-1277.
Rhodes has not shown that the state court evidentiary rulings deprived him of a fundamentally fair trial. Rhodes has failed to establish that the alleged error by the trial court had a ".substantial and injurious effect or influence in determining the jury's verdict." See Brecht v. Abrahamson, 507 U.S. 619, 622, 113 S.Ct. 1710 (1993).
Ground fourteen does not warrant habeas corpus relief.
GROUND FIFTEEN
The trial court erred in admitting irrelevant evidence of collateral crimes, which tended to prove Mr. Rhodes' propensity to commit crime. (See Doc. 13 at 97; Doc. 14 at 50).
Ground fifteen involves an evidentiary ruling under state law and any newly-asserted federal constitutional claim is procedurally barred. Moreover, Rhodes has not cited to any Supreme Court precedent nor identified any cognizable basis for relief under the AEDPA.
Presentation of Claim in State Court:
At trial, Detective Steve Porter of the Pinellas County Sheriff's Department testified, among other things, to statements made by Richard Rhodes when he was interviewed on March 26, 1984. (A15/1893-1912) Porter testified:
At that point he made a statement he says, I know you can't prove I did it. I studied forensic lobotomy in prison. Too much time has elapsed for you to prove that I did it.
(A15/1911-1912)
Defense counsel objected and moved for a mistrial on the ground that the reference to prison was an improper reference to collateral crimes. (A15/1912-1917). Rhodes did not present any federal constitutional claim at trial. (A15/1912-1920) Therefore, any purported federal constitutional claim is procedurally barred.
Rhodes has failed to demonstrate that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law and/or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
On direct appeal, Rhodes argued that his statement — that he "studied forensic lobotomy in prison" — suggested his guilt of a collateral crime, was not relevant to any issue in the case, and should not have been admitted. (App. A-24, Initial Brief of Appellant, Issue VI, at pages 37-39). On direct appeal, Rhodes relied on state case law. (App. A-24, Issue VI, at pages 38-39). The last paragraph of Rhodes' argument included a perfunctory statement that Rhodes' "rights to due process and a fair trial were denied by the testimony of Detective Porter. Amends. V, VI, XIV, U. S. Const. " (App. A-24 at page 39). However, a federal constitutional claim was not presented at trial, Wainwright v. Sykes, and the perfunctory conclusion in Rhodes' initial brief was inadequate to fairly present any federal constitutional claim. Any newly alleged federal constitutional claim is procedurally barred. See McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005) (In his initial brief before the state court, the petitioner in McNair cited one federal case in a string citation containing other state cases and in a closing paragraph in his argument that extraneous materials were considered by the jury during deliberations stated that there was a violation of his rights "protected by the Fifth, Sixth, Eighth[,] and Fourteenth Amendments to the United States Constitution, the Alabama Constitution[,] and Alabama law." McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005). The Eleventh Circuit found these references to federal law were not sufficient to meet the fair presentment requirement and noted that it was important that the petitioner had never mentioned the federal standards regarding extraneous materials in his brief, but relied on state law for his arguments. McNair, 416 F.3d at 1302-03.
On direct appeal, the Florida Supreme Court found the "collateral crimes" evidence claim without merit and did not warrant discussion. Rhodes, 547 So. 2d at 1203, n. 2.
This state evidentiary ruling claim involves only a matter of state law and is not cognizable on federal habeas review. Furthermore, Rhodes' federal habeas petition and supporting memorandum fail to allege any basis for relief under the AEDPA. Neither Rhodes' habeas petition (Doc. 13 at page 97) nor his supporting memorandum of law (Doc. 14 at page 50) identify any Supreme Court precedent and Rhodes has failed to demonstrate that the state court's rejection of his claim was inconsistent with any decision from the United States Supreme Court or was an unreasonable application of any such precedent.
The trial court sustained the defense objection and trial counsel strategically declined a curative instruction. Under well-settled Florida law, all relevant evidence is admissible even if it tends to establish that the accused is guilty of a crime other than that for which he is currently standing trial. Williams v. State, 110 So.2d 654 (Fla. 1959). As the State argued on direct appeal, the evidence was relevant because it helped to establish guilty knowledge on Rhodes' part. Florida law has long recognized the relevance of this type of evidence even though it may also establish that the accused is guilty of some currently uncharged crime. See, e.g., Mankiewicz v. State, 114 So. 2d 684 (Fla. 1959); Straight v. State, 397 So. 2d 903 (Fla. 1981).
Rhodes' statement was relevant as it showed guilty knowledge and planning. After murdering Karen Nieradka, Rhodes took the time to wrap Karen Nieradka's body in old carpeting in order to prevent, or at least delay, the discovery of the body. Rhodes' statement showed that he knew that if he could delay the discovery of the victim's body that the State's ability to prove the case would be severely hindered. Although Rhodes' statement was admissible and its probative value sufficiently outweighed its prejudicial value, the defense objection was sustained by the trial court. While a curative instruction was not given in the instant case, it was not given at the request of defense counsel. Both trial counsel and the presiding judge felt that this remark did not warrant a curative instruction because the emphasis had been placed on the fact that Rhodes had studied forensic lobotomy, not the fact that he been in prison. Thus, in light of the particular facts of this case, the curative instruction would only have emphasized the remark to the jury.
Because of defense counsel's tactical decision, the jury was not instructed to disregard the statement and the statement was not ordered stricken from the record. On direct appeal, Rhodes claimed that because the trial court failed to do so, prejudice resulted despite the fact that the objection was sustained. Since trial counsel strategically declined a curative instruction, Rhodes could not be heard to complain about the failure to give a curative instruction.
Additionally, as the trial court noted, this statement is not prejudicial because the average layman does not know the difference between prison and jail; therefore, the jury could have concluded that Rhodes learned this while he was in jail in Citrus County prior to being arrested for the murder of Karen Nieradka. Alternatively, the jury could have concluded that during the course of Rhodes' education he studied forensic lobotomy in a prison; not necessarily as an inmate. Further, the point of this statement was not that Rhodes was in prison, but that he had expected that his hiding of the victim's body, delaying discovery, had precluded the state from proving that he was the murderer. Under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1993), constitutional error will be considered harmless in a habeas proceeding unless the error had substantial and injurious effect or influence on the verdict or sentence. Rhodes has failed to demonstrate that the state court's rejection of his claim was inconsistent with any decision from the United States Supreme Court or was an unreasonable application of any such precedent.
Ground fifteen does not warrant habeas corpus relief.
Accordingly, the Court orders:
That Rhodes' petition is denied. The Clerk is directed to enter judgment against Rhodes and to close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
The Court declines to issue a certificate of appealability pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts because Petitioner has failed to make a substantial showing of the denial of a constitutional right as required by 28 U.S.C. § 2253(c)(2). Because Petitioner is not entitled to a certificate of appealability, Petitioner is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on September 30, 2010.