James Edward Palmer v. Secretary, Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12066
Non-Argument Calendar
____________________
JAMES EDWARD PALMER,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:18-cv-00670-WFJ-JSS
____________________
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2 Opinion of the Court 20-12066
Before J ILL PRYOR , BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
James Palmer, a Florida prisoner proceeding
pro se, appeals
the district court’s denial of his 28 U.S.C. § 2254 habeas corpus pe-
tition, which raised claims concerning his convictions for various
sex offenses and the life sentence he received. Relevant to this ap-
peal, the petition claimed that Palmer’s trial counsel was ineffective
for failing to file a pretrial motion to redact a video statement by
the victim that Palmer and the victim’s father had paid women for
sex (Claim Four); that counsel was ineffective for failing to move
for a mistrial following testimony from the state’s Child Protection
Team interviewer that it was not unusual to see no physical evi-
dence of abuse (Claim Eight); and that counsel was ineffective for
failing to impeach Officer David Lopez with a report indicating that
Palmer had appeared truthful during an interrogation (Claim
Nine). The district court denied Palmer’s § 2254 petition in its en-
tirety, holding, among other things, that Claims Four, Eight and
Nine failed on procedural grounds.
We granted a certificate of appealability (“COA”) on several
issues concerning whether Palmer overcame his procedural default
of Claims Four, Eight and Nine, and, if so, whether he received in-
effective assistance of counsel. On appeal, he argues in relevant
part that: (1) he overcame his procedural default of Claim Four be-
cause the state collateral court failed to make specific findings
about that claim; and (2) under
Martinez v. Ryan, 566 U.S. 1 (2012),
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20-12066 Opinion of the Court 3
he overcame his procedural default of Claims Eight and Nine. Af-
ter careful review, we affirm.
I.
We review the district court’s denial of habeas corpus relief
under 28 U.S.C. § 2254
de novo and any factual findings for clear
error.
Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).
Whether a petitioner has procedurally defaulted a claim is a mixed
question of law and fact that we review
de novo.
Judd v. Haley,
250 F.3d 1308, 1313 (11th Cir. 2001). An ineffective assistance of
counsel claim is a mixed question of law and fact that we also re-
view
de novo. Sims, 155 F.3d at 1304. Our review under § 2254 is
limited to the issues specified in the COA.
Spencer v. Sec’y, Dep’t
of Corr., 609 F.3d 1170, 1180 (11th Cir. 2010).
II.
First, we are unpersuaded by Palmer’s claim that the district
court erred in concluding that he had not overcome his procedural
default of Claim Four. Before bringing a § 2254 action in federal
court, the petitioner must exhaust all state court remedies that are
available for challenging his conviction. 28 U.S.C. § 2254(b), (c).
To exhaust state remedies, the petitioner must have fairly pre-
sented every issue raised in his federal petition to the state’s highest
court, either on direct appeal or on collateral review.
Castille v.
Peoples, 489 U.S. 346, 351 (1989). Procedural default can arise
when the petitioner never raised the claim in state court and it is
obvious that the unexhausted claim would now be procedurally
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4 Opinion of the Court 20-12066
barred in state court.
Bailey v. Nagle, 172 F.3d 1299, 1302–03 (11th
Cir. 1999). In that instance, the federal court must determine
whether any future attempt to exhaust state remedies would be fu-
tile under the state’s procedural default doctrine.
Id. at 1303.
A petitioner who fails to exhaust his claim in state court is
procedurally barred from pursuing that claim on habeas review in
federal court unless he shows either cause for and actual prejudice
from the default, or a fundamental miscarriage of justice from ap-
plying the default.
Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342,
1352–53 (11th Cir. 2012). A petitioner establishes “cause” by show-
ing that an objective factor external to the defense impeded an ef-
fort to properly raise the claim in the state court.
Henderson v.
Campbell, 353 F.3d 880, 892 (11th Cir. 2003). A petitioner estab-
lishes “prejudice” by showing at least a reasonable probability that
the proceeding’s result would have been different.
Id.
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel.
Strickland v. Washington,
466 U.S. 668, 685–86 (1984). The
Strickland test for ineffective-as-
sistance-of-counsel claims requires a defendant to show that: (1)
“his trial counsel’s performance was deficient”; and (2) “trial coun-
sel’s deficient performance prejudiced the defense.”
Rosin v.
United States, 786 F.3d 873, 877 (11th Cir. 2015) (quotations omit-
ted). If the movant fails to establish either prong, the court need
not address the other prong.
Strickland, 466 U.S. at 697.
To prove the deficient performance prong, the prisoner
must show that counsel made errors so serious that he was not
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20-12066 Opinion of the Court 5
functioning as the counsel guaranteed by the Sixth Amendment.
Id. at 687. “Judicial scrutiny of counsel’s performance [is] highly
deferential.”
Id. at 689. “The proper measure of attorney perfor-
mance [is] . . . reasonableness under prevailing professional
norms.”
Id. at 688. To show deficient performance, a defendant
must demonstrate that no competent counsel would have taken
the action that his counsel took.
United States v. Freixas, 332 F.3d
1314, 1319–20 (11th Cir. 2003). There is a strong presumption that
counsel’s conduct fell within the range of reasonable performance.
Strickland, 466 U.S. at 689. Counsel is not incompetent so long as
his approach could be considered sound strategy.
Chandler v.
United States, 218 F.3d 1305, 1314 (11th Cir. 2000).
To prove the prejudice prong, the petitioner “must show
that there is a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been dif-
ferent.”
Strickland, 466 U.S. at 694. A reasonable probability is one
sufficient to undermine confidence in the outcome.
Id. It is not
enough for the petitioner to merely show that the error had some
conceivable effect on the outcome.
Id. at 693.
Here, the district court did not err in rejecting Claim Four -
- that Palmer’s trial counsel was ineffective for failing to file a pre-
trial motion to redact a video statement by the victim -- on proce-
dural grounds. For starters, the claim was procedurally defaulted
because Palmer did not exhaust it by raising it in his post-convic-
tion appeal, and he could not exhaust it now in state court.
See
Peoples, 489 U.S. at 351. Further, Palmer cannot overcome the
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6 Opinion of the Court 20-12066
default because he failed to show cause. He says that he did not
raise the issue to the state appellate court because it may have
lacked jurisdiction to hear the claim after the state post-conviction
trial court did not address it. However, this does not explain why
he did not even attempt to raise the claim in his state appeal, nor
did he attempt to seek relief from the appellate court for the state
post-conviction trial court’s failure to address the claim.
Regardless, even if Palmer had shown cause for failing to ex-
haust Claim Four, he did not show that he was prejudiced. In
Claim Four, Palmer challenged a statement by a victim that, in ad-
dition to the sex offenses Palmer had committed on the victim, the
victim had also seen Palmer and the victim’s father with prostitutes
they had hired. But this statement about prostitution was just a
small part of a long video interview within which the victim re-
counted several instances of abuse by Palmer. Additionally, the
state did not mention the prostitution in its opening or closing ar-
guments. On this record, we can find no reasonable probability
that the statement affected the result of his trial.
See Strickland,
466 U.S. at 694. Accordingly, the district court correctly concluded
that Palmer had not overcome his procedural default of Claim
Four, and we affirm as to this issue.
See Campbell, 353 F.3d at 892.
III.
We also find no merit to Palmer’s claim that the district
court erred in concluding that he had not overcome his procedural
default of Claims Eight and Nine. In
Martinez, the Supreme Court
held that ineffective assistance of counsel, or lack of counsel, during
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20-12066 Opinion of the Court 7
collateral proceedings that provide the first occasion to raise a
claim of ineffective assistance at trial may establish cause for a pris-
oner’s procedural default of a claim of ineffective assistance of trial
counsel. 566 U.S. at 9, 13–14. In these instances, the petitioner
“must also demonstrate that the underlying ineffective-assistance-
of-trial-counsel claim is a substantial one, which is to say that the
[petitioner] must demonstrate that the claim has some merit.”
Id.
at 14. We’ve said that “substantial” has the same meaning as the
standard for issuing a COA, which requires “a substantial showing
of the denial of a constitutional right.”
Hittson v. GDCP Warden,
759 F.3d 1210, 1269 (11th Cir. 2014) (quotations omitted).
For starters, the district court did not err in rejecting Claims
Eighth and Nine on procedural grounds. As Palmer has conceded,
both claims were procedurally defaulted because he did not bring
either claim before the state post-conviction trial court.
See Peo-
ples, 489 U.S. at 351.
As for Claim Eight, the district court properly found that
Palmer had not overcome the default because, even if
Martinez ap-
plies, this claim was not “substantial.” Claim Eight appeared to be
challenging testimony from the state’s Child Protection Team in-
terviewer that it was not unusual to see no physical evidence of
abuse, and a follow-up question from the prosecution -- which was
objected to and never answered -- about the rate of physical recov-
ery after someone was anally abused. To the extent Palmer was
challenging the interviewer’s testimony about whether it was com-
mon to see no injuries in circumstances like the victim’s, her
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8 Opinion of the Court 20-12066
testimony was based on her personal experience with cases she had
been a part of; notably, she was not offering an opinion about
whether injuries were common in these circumstances based on
any medical knowledge she may have had.
See Fla. Stat. § 90.604
(providing that witnesses may testify about matters with which
they have personal knowledge). To the extent Palmer was chal-
lenging the question the state asked the interviewer about how
quickly injuries like those the victim suffered would heal, the court
sustained the objection from Palmer’s attorney before she was able
to answer, so there was no testimony about this on the record. Be-
cause the record makes clear that neither of these issues was “sub-
stantial” for purposes of
Martinez, the district court properly found
that ineffective assistance of counsel did not overcome Palmer’s
procedural default of the claim.
Neither was Claim Nine “substantial.” In that claim, Palmer
argued that counsel was ineffective for failing to impeach Officer
Lopez at trial. Officer Lopez testified that Palmer had been “sweat-
ing profusely” during their interview, “had a very, very dry
mouth,” and had answered a lot of the questions with a question,
which was “a sign of somebody trying to think of an answer.”
Palmer claimed that counsel should have impeached Lopez with a
report from another officer, Detective Terry Roberts, about
Palmer’s demeanor that indicated that he had responded truthfully
to two questions. However, the report -- which offered results
from a computer voice stress exam -- had not been prepared by
Lopez; rather, it was done by another officer and given to Lopez.
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20-12066 Opinion of the Court 9
As a result, it was not a prior inconsistent statement with which
defense counsel could have impeached Officer Lopez’s testimony.
See Fla. Stat. § 90.608 (providing that a party may attack the credi-
bility of a witness using, among other things,
that witness’s prior
inconsistent statement). Moreover, the document only concerned
whether Palmer was truthful about those two questions, not about
whether he was sweating, had a dry mouth, or answered Lopez’s
questions with questions, so it did not directly impeach Lopez’s tes-
timony.
See id. Because Palmer’s trial counsel could not have been
ineffective for failing to use the exam to try to impeach Lopez, this
claim was not “substantial” for purposes of
Martinez. Therefore,
the district court properly found that ineffective assistance of coun-
sel did not overcome Palmer’s procedural default of the claim.
Because Palmer did not properly raise Claims Four, Eight,
and Nine before the state post-conviction court and no exception
applies, they are procedurally defaulted. Accordingly, we affirm.
AFFIRMED.
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