Opinion
3:21cv1825/MCR/ZCB
11-18-2024
RONALD PERRYMAN, Petitioner, v. RICKY D. DIXON, Respondent.
REPORT AND RECOMMENDATION
Zachary C. Bolitho, United States Magistrate Judge
This is a federal habeas corpus case filed under 28 U.S.C. § 2254. (Doc. 1). Petitioner, Ronald Perryman, is serving three consecutive life sentences in state prison for burglary, kidnapping, and sexual battery. Respondent has answered the petition, and Petitioner has replied. (Doc. 12; Doc. 29). For the reasons below, Petitioner should not receive habeas relief.
The Court believes this matter may be resolved without an evidentiary hearing. Rule 8(a), Rules Governing Section 2254 Cases.
I. Factual Background
On the night of July 15, 2012, Jordon A. heard a knock on her front door. (Doc. 12-3 at 164). Jordon opened the door to a man asking to mow her lawn. (Id. at 166). Jordon told the man that he needed to speak with her roommate. (Id. at 167). The man asked Jordon to write down his contact information. (Id.). Jordon agreed and wrote the man's phone number on a piece of paper. (Id.).
According to Jordon's testimony, the man then grabbed Jordon's neck, forced himself into the house, beat Jordon until she was bloody, and sexually assaulted her. (Id. at 167-70). Next, the man forced Jordon to drive him to a Wells Fargo ATM. (Id. at 170-72). During the car ride, the man digitally penetrated Jordon's vagina without her consent. (Id. at 171-72).
Once at the ATM, the man forced Jordon to give him her debit card. He then withdrew $300 from the ATM. (Id. at 172-73, 178). As the man was withdrawing the money, Jordon ran to another car that had pulled behind them at the ATM. (Id. at 174-75). The occupants of that car called 911. (Id. at 174). Police officers arrived and took a report from Jordon. (Id. at 175). Jordon told them that a piece of paper with the man's phone number was at her house. (Id.).
Officers went to Jordon's house where they found blood smeared on the front door. (Doc. 12-3 at 190). Inside the house they saw a lot of blood on the living room couch. (Id.). The officers also located a piece of paper with a phone number on it, as well as the pen that was used to write the number down. (Id. at 191-92).
Officer Fortenberry of the Pensacola Police Department was the lead investigator. (Doc. 12-4 at 36). Officer Fortenberry reviewed the ATM video footage and was able to obtain a still-shot of the suspect. (Id. at 37). Additionally, Officer Fortenberry obtained from the wireless provider real-time cell site location information (CSLI) for the phone number written on the piece of paper. (Id.). According to the CSLI, the cell phone was located at 57th Avenue and Lillian Highway. (Id.).
Officer Fortenberry and another officer went to that area, which was approximately seven blocks from where Jordon's car was found abandoned. (Id.). Not far from 57th and Lillian, Officer Fortenberry saw a man who looked like the man in the ATM photo. (Id. at 37-38). Officer Fortenberry approached the man and asked to speak with him. (Id. at 38). The man identified himself as Ronald Perryman (Petitioner). (Id.).
Officer Fortenberry asked Petitioner for his cell phone number, and Petitioner provided the same number that was written on the piece of paper. (Id. at 39-40). Officer Fortenberry then arrested Petitioner. (Id. at 40). With Petitioner's consent, Officer Fortenberry collected a buccal swab and clippings from Petitioner's fingernails. (Id. at 42). And Jordon subsequently picked Petitioner out of a photo lineup. (Doc. 12-3 at 17980; Doc. 12-4 at 47-50, 52). The investigation also revealed that DNA found at Jordon's house matched Petitioner. (Doc. 12-4 at 58-59, 67, 7273, 87-89). Forensic testing of Petitioner's fingernail clippings revealed the presence of Jordon's blood. (Id. at 89-90).
Petitioner was charged in state court with burglary of a dwelling with a battery, sexual battery with force (two counts), kidnapping, grand theft auto, and robbery. (Doc. 12-2 at 22-23). He went to trial, and on March 20, 2013, a jury convicted him as charged except for one count of sexual battery. (Doc. 12-2 at 66-67). On that charge, the jury convicted Petitioner of the lesser offense of misdemeanor battery. (Doc. 12-2 at 6667; Docs. 12-3, 12-4). The trial court sentenced Petitioner as a prison releasee reoffender to mandatory life imprisonment on the burglary, kidnapping, and sexual battery charges. (Doc. 12-2 at 90-102; Doc. 12-4 at 187-89). He was sentenced to fifteen years on the robbery charge and five years on the grand theft auto charge, to run consecutively.(Id.).
Petitioner was sentenced to time served on the misdemeanor battery charge. (Doc. 12-4 at 187-88).
II. Procedural History
Petitioner appealed his convictions to the Florida First District Court of Appeal (First DCA), which affirmed on February 24, 2014. (Docs. 12-6, 12-8). Petitioner then filed several unsuccessful applications for state postconviction relief. (Docs. 12-9 through 12-27). Next, Petitioner turned his postconviction efforts to federal court by timely filing the current 28 U.S.C. § 2254 petition. (Doc. 1). The petition seeks relief on two grounds, both of which will be discussed below.
III. Discussion
A. Ground Two: “Ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution.”
In Ground TwoPetitioner claims that his trial counsel performed ineffectively by not moving to suppress the real-time CSLI that was obtained from the wireless provider without a warrant. (Doc. 1 at 11; Doc. 1-1 at 3-4). (Id.). On June 24, 2020, Petitioner presented this claim to the state trial court in his successive Rule 3.850 motion. (Doc. 1 at 1112). The state trial court denied the motion, finding that Petitioner had not met the newly discovered evidence standard as required for Rule 3.850 motions filed more than two years after the date of judgment.(Doc. 12-26 at 45-47). Petitioner appealed, and the First DCA summarily affirmed. (Doc. 12-27 at 2).
For the sake of clarity, the Court will discuss Ground Two first.
Under Florida law, any motion for postconviction relief filed under Rule 3.850 more than two years after final judgment must be based on newly discovered evidence that could not have been found earlier with due diligence. See Fla. R. Crim. P. 3.850(b)(1).
Because the last reasoned opinion on Petitioner's ineffective assistance of counsel claim relied on procedural grounds and did not reach the merits, the Court presumes that the First DCA's summary affirmance rested on the same grounds. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
In his answer to Petitioner's 28 U.S.C. § 2254 petition, Respondent argues that the doctrine of procedural default bars Petitioner's ineffective assistance claim because the state courts denied relief based on an independent and adequate state procedural ground. Respondent is correct for the reasons explained below.
A federal court may not adjudicate a state prisoner's habeas claims when the state courts refused to address those claims on the merits and instead relied on an independent and adequate state procedural ground to deny relief. Maple v. Thomas, 565 U.S. 266, 280 (2012). The Eleventh Circuit uses a three-part test to decide if a state court's ruling was based on an independent and adequate state procedural ground. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). First, the last state court rendering a judgment must “clearly and expressly state that it is relying on state procedural rules to resolve the federal claim without reaching the merits of that claim.” Id. Second, the state court's decision must rest solely on state law grounds, and “may not be intertwined with an interpretation of federal law.” Id. (cleaned up). Third, the state procedural rule must be adequate, meaning that it is not applied in an arbitrary or unprecedented fashion, nor can it be “manifestly unfair in its treatment of the petitioner's federal constitutional claim.” Id. (cleaned up).
All three requirements have been met here. The state trial court clearly stated that it was resolving the claim based on a state procedural requirement-i.e., Fla. R. Crim. P. 3.850(b)(1)'s requirement that postconviction motions filed more than two years after the final judgment must be based on newly discovered evidence. The state trial court's decision was based purely on state law and was not intertwined with an interpretation on federal law. Finally, the state trial court did not apply the procedural rule in an arbitrary or unprecedented fashion. Because all three requirements have been met, the state trial court's ruling was based on an independent and adequate state procedural ground. Thus, Petitioner's claim has been procedurally defaulted. See Kimbrough v. Sec'y, Fla. Dep't of Corr., 809 Fed.Appx. 684, 691 (11th Cir. 2020) (finding habeas claim was procedurally defaulted where state court denied successive postconviction motion on independent and adequate state procedural ground that it was not based on newly discovered evidence); see also Paige v. Inch, 3:18cv450, 2020 WL 6293715, at *3-4 (N.D. Fla. Oct. 9, 2020), adopted by 2020 WL 6290313 (same).
The procedural default may only be excused if Petitioner shows cause for the default and actual prejudice resulting from the alleged constitutional violation. Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1365 (11th Cir. 2020). To show cause, “a petitioner must ordinarily demonstrate some objective factor external to the defense that impeded his effort to raise the claim properly in state court.” Hittson v. GDCP Warden, 759 F.3d 1210, 1260 (11th Cir. 2014). Here, Petitioner has not shown any “objective factor external to the defense” that impaired his ability to raise the ineffective assistance of trial counsel within the time constraints imposed by Fla. R. Crim. P. 3.850. To the extent Petitioner argues that cause exists because he did not learn about the use of real-time CSLI until he later received a police report that had previously been provided to his counsel, the argument is unpersuasive. As the state court noted, the testimony at trial informed Petitioner of law enforcement's use of real-time CSLI to locate him. (Doc. 12-4 at 37). And there is no reason to believe Petitioner could not have obtained the police report earlier through the exercise of reasonable diligence. Because Petitioner has not made a showing of cause, the ineffective assistance of counsel claim raised in Ground Two has been procedurally defaulted.
It bears mentioning that Petitioner's ineffective assistance of counsel claim would also fail on the merits. Petitioner's claim is that his attorney should have filed a motion to suppress because the police obtained realtime CSLI without a warrant in violation of the Fourth Amendment. Petitioner has supported his argument by citing the U.S. Supreme Court's 2018 decision in Carpenter v. United States, 585 U.S. 296 (2018). There are two flaws in Petitioner's argument. First, Carpenter dealt with historical CSLI and not real-time CSLI like that involved here. And the Eleventh Circuit has explained that real-time location monitoring is “easily distinguishable from the historical CSLI data at issue in Carpenter.” United States v. Howard, 858 Fed.Appx. 331, 334 (11th Cir. 2021). Second, Petitioner was convicted in 2013-years before the Supreme Court decided Carpenter. “At the time. . . before Carpenter was decided-there was no reason for the officers to believe there was a reasonable expectation of privacy to such records such that they would need a warrant supported by probable cause to acquire them.” United States v. Green, 981 F.3d 945, 957 (11th Cir. 2020). In fact, prior to Carpenter the Eleventh Circuit had specifically held that no warrant was required to obtain CSLI. See United States v. Davis, 785 F.3d 498, 513 (11th Cir. 2015) (en banc) (holding that obtaining CSLI without a warrant did not violate the Fourth Amendment). Thus, the law as it existed at the time of Petitioner's trial would not have supported a motion to suppress the CSLI. And it is well settled that a “lawyer cannot be deficient for failing to raise a meritless claim.” Freeman v. Atty. Gen., 536 F.3d 1225, 1233 (11th Cir. 2008). Similarly, “reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir. 1994) (cleaned up). Thus, even if Petitioner had not procedurally defaulted this claim, he would not be entitled to habeas relief.
B. Ground One: “Illegal search and seizure: violation of Fourth Amendment to the United States Constitution.”
While in Ground Two Petitioner alleged ineffective assistance because his counsel did not seek suppression of the real-time CSLI, in Ground One Petitioner claims the police violated the Fourth Amendment by obtaining the real-time CSLI without a warrant. Respondent argues that the Fourth Amendment claim is unexhausted and procedurally defaulted. The Court agrees with Respondent for the reasons below.
The exhaustion requirement for § 2254 cases is found in § 2254(b)(1), which provides that an “application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the State.” This means that a “state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is “designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, a petitioner must have “fairly presented” the substance of his federal claim to the state courts. Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012).
In habeas cases involving Florida prisoners, “claims for postconviction relief are exhausted once they are appealed to the state district court of appeal. They need not be appealed to the Florida Supreme Court in order to be considered exhausted for federal habeas purposes.” Barritt v. Sec'y Fla. Dep't of Corr., 968 F.3d 1246, 1249 n.3 (11th Cir. 2020).
A petitioner “fairly” presents the substance of his federal claim when he describes the claim “such that [the state courts] are permitted the opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.” Kelley v. Sec'y Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004) (cleaned up). Exhaustion is not present “merely” because “the federal habeas petitioner has been through the state courts...nor is it sufficient that all the facts necessary to support the claim were before the state courts or that a somewhat similar state- law claim was made.” McNair v. Campbell, 416 F.3d 1291, 1302-07 (11th Cir. 2005) (cleaned up).
A procedural default occurs if the petitioner never presented a claim in state court, and it is obvious that the unexhausted claim would now be procedurally barred due to a state procedural rule. Bailey v. Nagle, 172 F.3d 1299, 1303 (11th Cir. 1999). In this circumstance, the exhaustion requirement and procedural default principles combine to mandate the federal court's dismissal of the claim. Id. at 1303.
Petitioner claims he exhausted the Fourth Amendment claim by presenting it in his successive Rule 3.850 motion. Having reviewed that motion, the Court finds that the motion did not raise a standalone Fourth Amendment claim. Instead, the motion presented only an ineffective assistance of counsel claim based on trial counsel's failure to file a motion to suppress. (Doc. 12-26 at 15-21). A freestanding Fourth Amendment claim is different than a Sixth Amendment ineffective assistance claim based on counsel's failure to seek suppression under the Fourth Amendment. Kimmelman v. Morrison, 477 U.S. 365, 374 & n. 1 (1986) (explaining that a Fourth Amendment claim and a claim that counsel performed ineffectively under the Sixth Amendment by failing to file a motion to suppress are “distinct, both in nature and in the requisite elements of proof”). Respondent is, therefore, correct that Petitioner did not fairly present a Fourth Amendment claim in his successive Rule 3.850 motion.
Respondent is also correct that the general rule in Florida is that Fourth Amendment claims should be raised on direct appeal. See Roberts v. State, 402 So.2d 1343, 1344 (Fla. 1st DCA 1981) (upholding lower court's denial of Fourth Amendment claim presented in a Rule 3.850 postconviction motion because those claims should have been raised on direct appeal); see also Adams v. Sec'y, Dep't of Corr., No. 18-14763-B, 2019 WL 2183801, at *4 (11th Cir. May 15, 2019) (single judge order) (finding that habeas petitioner's Fourth Amendment claim was procedurally barred because he raised it in his Rule 3.850 postconviction motion but “he did not raise the claim at trial or on direct appeal”). Thus, Petitioner should have raised his Fourth Amendment claim on direct appeal.
But Petitioner did not present a Fourth Amendment claim, or any claim for that matter, on direct appeal. (Doc. 12-6). Petitioner's appellate counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), asserting there was no good faith basis to argue that the trial court erred in any respect. (Doc. 12-6). After counsel filed the Anders brief, the First DCA gave Petitioner an opportunity to file a pro se brief. (Doc. 12-7). He elected not to. Petitioner's failure to present the Fourth Amendment claim on direct appeal (or in any postconviction proceeding, for that matter) renders the claim unexhausted. Petitioner may not now return to state court to exhaust the Fourth Amendment claim because Florida law does not allow a second direct appeal. Thus, Petitioner's Fourth Amendment claim has been procedurally defaulted. See Bailey, 172 F.3d at 1303 (explaining that a claim is an unexhausted claim is procedurally defaulted when the unexhausted claim would now be procedurally barred in state court).
As previously mentioned, this Court cannot review a procedurally defaulted claim unless Petitioner shows cause and prejudice. Petitioner argues, as he did in Ground Two, that the procedural default was caused by trial counsel's failure to provide him with all the discovery materials, including the supplemental police report. For the reasons discussed above in connection with Ground Two, Petitioner's argument lacks merit and is insufficient to establish cause.
Similarly lacking merit is Petitioner's prejudice argument. “To establish prejudice, a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different.” Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (cleaned up). Petitioner has not made that showing here. As explained in footnote six above, there is no reasonable probability that the result of Petitioner's trial would have been different because there is no reasonable probability that a motion to suppress the real-time CSLI would have succeeded. Petitioner's reliance on the Supreme Court's decision in Carpenter is misplaced because that decision addressed historical CSLI, whereas the CSLI in this case was real-time. See Howard, 858 Fed.Appx. at 334 (“We find the circumstances of this- involving the real-time GPS monitoring of a vehicle traveling on public roads-easily distinguishable from the historical CSLI data at issue in Carpenter.”).
And even if Carpenter had addressed real-time CSLI, the result would remain the same in this case. That is so because the Supreme Court's 2018 decision in Carpenter-announcing a new rule of criminal procedure-does not apply retroactively to cases on federal collateral review. See Bowers v. United States, No. 20-14094-G. 2021 WL 1750854, at *2 (11th Cir. Apr. 2, 2021) (single judge order) (explaining that Carpenter does not apply retroactively to cases on collateral review); see also Edwards v. Vannoy, 593 U.S. 255, 258 (2021) (“This Court has repeatedly stated that a decision announcing a new rule of criminal procedure ordinarily does not apply retroactively on federal collateral review.”).
Because Petitioner failed to exhaust his Fourth Amendment claim and state rules of procedure would prevent him from raising the claim in state court today, the claim has been procedurally defaulted. See Duncan v. Fla. Dep't of Corr., 717 F.Supp.3d 1178, 1187-88 (N.D. Fla. 2024) (“Because state procedural rules would prevent Petitioner from returning to state court to exhaust Grounds Five through Eight, they have been procedurally defaulted.”). Petitioner has not established cause and prejudice to excuse the default. Accordingly, Petitioner is not entitled to habeas relief on Ground One.
Even if the claim had not been procedurally defaulted, Petitioner would not have been entitled to relief because of Stone v. Powell, 428 U.S. 465 (1976). Under Stone, if the “State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 482. In the Eleventh Circuit, “[a]n opportunity for full and fair litigation means just that: an opportunity. If a state provides the processes whereby a defendant can obtain full and fair litigation of a fourth amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.” Caver v. State of Ala., 577 F.2d 1188, 1192 (5th Cir. 1978); see also Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (holding that decisions of the former U.S. Court of Appeals for the Fifth Circuit issued prior to September 30, 1981, are binding precedent in the Eleventh Circuit). Here, Petitioner has not provided the Court with any reason to believe that Florida law and procedure did not provide processes under which Petitioner had the opportunity to raise and fully litigate his Fourth Amendment claim. And “Stone v. Powell precludes federal habeas corpus consideration of [the Fourth Amendment claim] whether or not [Petitioner] avail[ed] himself of that opportunity.” Caver, 577 F.2d at 1193. Although the rule of Stone v. Powell does not preclude a Sixth Amendment claim that counsel was ineffective for failing to file a Fourth Amendment suppression motion (like that in Ground Two of Petitioner's habeas petition), it does bar a standalone Fourth Amendment claim (like that in Ground One of Petitioner's habeas petition). See generally Canady v. Harrison, 188 Fed.Appx. 951, 953-54 (11th Cir. 2006) (explaining that Stone v. Powell does not bar an ineffective assistance of counsel claim for failure to file a Fourth Amendment suppression motion, but it does bar a standalone Fourth Amendment claim). Because Petitioner is attempting to raise a Fourth Amendment claim in a federal habeas proceeding, and he had an opportunity to litigate that claim (even though he did not litigate it) in the state courts, the rule of Stone v. Powell precludes habeas review of the Fourth Amendment claim.
IV. Conclusion
For the reasons above, Petitioner's § 2254 petition should be denied. V. Certificate of appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. 28 U.S.C. § 2254 Rule 11(b).
“Section 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.'” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting § 2253(c)(2)). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court's resolution of his [or her] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'” Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-El, 537 U.S. at 327). Petitioner cannot make that showing in this case. Therefore, the undersigned recommends denying a certificate of appealability.
The second sentence of Rule 11(a) provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” Thus, if either party wishes to submit arguments on the issue of a certificate of appealability that party may do so in an objection to this report and recommendation.
Accordingly, it is respectfully RECOMMENDED that:
1. The petition for writ of habeas corpus (Doc. 1) be DENIED.
2. That a certificate of appealability be DENIED.
Notice to the Parties
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.