Mark Westley Erwin v. Secretary, Florida Department of Corrections , 568 F. App'x 749 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11278
Non-Argument Calendar
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D.C. Docket No. 3:12-cv-00115-LC-EMT
MARK WESTLEY ERWIN,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 9, 2014)
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
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Mark Erwin, a pro se Florida state prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition, raising numerous issues,
including the denial of his motion for judgment of acquittal with respect to
attempted sexual battery by a person in familial or custodial authority (“count 1”)
and the state court’s decision to limit Erwin’s cross-examination of the minor
involved, R.D.S. On appeal, we issued a certificate of appealability (“COA”) with
respect to the following issues:
(1) Whether the state court acted contrary to federal law when
denying Erwin’s motion for judgment of acquittal that was
based on insufficient evidence with respect to count 1 of the
amended information, to prove the intent-to-penetrate element
of the crime
(2) Whether the state court’s decision was contrary to, or an
unreasonable application of, federal law when it denied Erwin’s
claim that the trial court erred by failing to allow any mention
of the past crimes and conduct of the victim, in order to show
her bias and motive to fabricate the allegations against Erwin
with respect to count 1 of the amended information.
On appeal, Erwin first argues that the state trial court unreasonably denied
his motion for judgment of acquittal because the state presented insufficient
evidence of the intent-to-penetrate element of count 1. Second, Erwin argues that
the state court’s decision, in which it limited his cross-examination of R.D.S. with
respect to her previous sexual relationships and the fact that she had previously
been warned by a judge in a prior criminal proceeding that future inappropriate
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sexual behavior could result in her arrest, violated his rights under the
Confrontation Clause.
We liberally construe pro se pleadings seeking habeas relief. Green v.
Nelson, 595 F.3d 1245, 1254 n.4 (11th Cir. 2010). The scope of the review is
limited to the issues specified in the COA. Murray v. United States, 145 F.3d
1249, 1250-51 (11th Cir. 1998).
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal courts cannot grant federal habeas relief unless the state
court’s decision was (1) contrary to, or an unreasonable application of, clearly
established federal law as defined by Supreme Court precedent or (2) based on an
unreasonable determination of the facts in light of the evidence. 28 U.S.C.
§ 2254(d). We review de novo the district court’s decision, but we “owe deference
to the final state habeas judgment.” Hall v. Thomas, 611 F.3d 1259, 1284 (11th
Cir. 2010). Further, we are “highly deferential” to the district court’s denial of a
§ 2254 petition. Davis v. Jones, 506 F.3d 1325, 1331 (11th Cir. 2007).
“[C]learly established Federal law” means the governing legal principle or
principles set forth by the Supreme Court at the time the state court renders its
decision. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 1172, 155 L.Ed.2d
144 (2003). A state court decision can be “contrary to” established law in two
ways: (1) if the state court arrives at a conclusion opposite to that reached by the
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U.S. Supreme Court on a question of law; or (2) if a state court confronts facts that
are “materially indistinguishable” from relevant Supreme Court precedent, but
arrives at an opposite result from that arrived at by the U.S. Supreme Court.
Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d
389 (2000). A state court decision is an “unreasonable application” of clearly
established law if the state court unreasonably applies the established law to the
facts of a case. Id. at 407, 120 S.Ct. at 1520.
A. Sufficiency of the Evidence of Intent-to-Penetrate for Count 1
The Fourteenth Amendment’s due process guarantee assures that no criminal
conviction shall stand “except upon sufficient proof—defined as evidence
necessary to convince a trier of fact beyond a reasonable doubt of the existence of
every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2787, 2789, 61 L. Ed. 2d 560 (1979). In assessing the sufficiency of the evidence
to support a state court conviction in a habeas proceeding, the relevant question is
“whether, 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.” Id. at 319, 99 S. Ct. at 2789.
To determine whether the Jackson standard has been met, we look to the
essential elements of the crime as defined by state law. Wilcox v. Ford, 813 F.2d
1140, 1143 (11th Cir. 1987). Under Florida law, sexual battery is defined as “. . .
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vaginal penetration of another by any [ ] object . . . ..” Fla. Stat. § 794.011(1)(h).
A person commits the offense of criminal attempt under Florida law if he “attempts
to commit an offense prohibited by law and in such attempt does any act toward
the commission of such offense, but fails in the perpetration or is intercepted or
prevented in the execution thereof.” Fla. Stat. § 777.04(1). An attempt involves
two essential elements: specific intent to commit the crime and an overt act done
towards its commission. Adams v. Murphy, 394 So.2d 411, 413 (Fla. 1981). “The
intent and the act must be such that they would have resulted, except for the
interference of some cause preventing the carrying out of the intent, in the
completed commission of the crime.” Id.The district court correctly concluded that Erwin was not entitled to relief
under § 2254(d)(1). In light of R.D.S.’s testimony that Erwin placed a vibrator on
her vagina, explicit e-mails exchanged between R.D.S. and Erwin prior to the
incident, and a recorded telephone conversation between R.D.S. and Erwin after
the incident, there was sufficient evidence for a rational trier of fact to find that the
intent-to-penetrate element of count 1 was satisfied. See Jackson, 443 U.S. 319, 99
S. Ct. at 2789. Therefore, the state court’s decision was not contrary to federal
law. Accordingly, we affirm the district court’s denial of § 2254 relief with respect
to this issue.
B. Confrontation Clause
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A state court decision is entitled to deference under § 2254(d)(1) even if it
summarily rejected the constitutional claim without explaining its reasons for
doing so. Wright v. Sec’y for Dept. of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002).
The Confrontation Clause of the Sixth Amendment guarantees the right of an
accused in a criminal prosecution to be confronted with the witnesses against him.
Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d
674 (1986). The main purpose is to secure the opportunity for cross-examination,
but a defendant does not have the right to cross-examination in whatever way, and
to whatever extent, he might wish. Id. Trial courts have “wide latitude” to impose
reasonable limitations based upon concerns about, among other things, harassment,
prejudice, confusion of the issues, witness safety, or repetitive or marginally
relevant testimony. Id. The Supreme Court has held that “a criminal defendant
states a violation of the Confrontation Clause by showing that he was prohibited
from engaging in otherwise appropriate cross-examination designed to show a
prototypical form of bias on the part of the witness, and thereby to expose to the
jury the facts from which jurors . . . could appropriately draw inferences relating to
the reliability of the witness.” Id. at 680, 106 S.Ct. at 1436; see also Mills v.
Singletary, 161 F.3d 1273, 1288 (11th Cir. 1998) (“A defendant’s confrontation
rights are satisfied when the cross-examination permitted exposes the jury to facts
sufficient to evaluate the credibility of the witnesses and enables defense counsel
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to establish a record from which he can properly argue that the witness is less than
reliable.”). Defendants must be permitted to engage in cross-examination where a
reasonable jury might receive a significantly different impression of a witness’s
credibility based on the questioning. See Van Arsdall, 475 U.S. at 680, 106 S.Ct.
at 1436.
Since the state court affirmed Erwin’s convictions after he argued that the
trial court’s decision regarding cross-examination violated his rights under the
Confrontation Clause, that decision is an adjudication on the merits that is entitled
to deference under § 2254(d)(1). See Wright, 278 F.3d at 1254. Erwin was able to
elicit testimony from R.D.S. showing her bias or motive to fabricate, and therefore
was able to sufficiently call into question her credibility. The jury would not have
received a significantly different impression of R.D.S.’s credibility by allowing
testimony that she had previously been told by a judge that future inappropriate
sexual conduct could result in arrest. See Van Arsdall, 475 U.S. at 680, 106 S.Ct.
at 1436; Mills, 161 F.3d at 1288. In addition, since there was no indication that
Erwin intended to show that R.D.S. had previously fabricated allegations of
consensual sexual conduct with adult men, evidence of her past consensual sexual
conduct with adult men would be marginally relevant, and precluding this
testimony was a reasonable limitation by the trial court. The state court’s decision
regarding limitation of Erwin’s cross-examination of R.D.S. did not constitute a
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decision contrary to, or an unreasonable application of, federal law. Accordingly,
we affirm the district court’s denial of relief under § 2254(d)(1) with respect to this
issue.
AFFIRMED. 1
1
Erwin’s motion to File Reply Brief Out of Time is GRANTED.
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