Garrett Sims v. Secretary, Department of Corrections ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15245 MAY 23, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 3:09-cv-00497-HLA-TEM
GARRETT SIMS,
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
________________________
(May 23, 2012)
Before HULL, FAY and ANDERSON, Circuit Judges.
PER CURIAM:
Garrett Sims, a Florida prisoner, pro se appeals the denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus. After review, we affirm.
I. BACKGROUND
After his first trial ended in a mistrial, Sims was convicted in his second
trial. To understand the issue on appeal, we review what happened at both trials.
A. First State Court Trial and Mistrial
In 2001, Sims was charged with two counts of driving under the influence,
causing serious bodily injury, in violation of Florida Statutes § 316.193(3).1 Sims
stopped his pickup truck in the middle of the highway at night. Another vehicle
then struck Sims’s stopped truck, resulting in injuries to the other vehicle’s
occupants.
During the 2003 trial, Roy Welch, a truck driver, testified that on the night
of July 27, 2001, he encountered a pickup truck stopped in the middle of the road
with its lights on. As Welch maneuvered his 18-wheeler around the pickup truck,
he could not see anyone inside the pickup truck or on the side of the road. Welch
1
To convict a person under § 316.193(3), the state must show that, in addition to the
defendant being guilty of the offense of driving under the influence by “driving or in actual
physical control of a vehicle” with a blood-alcohol level of 0.08 or more, the defendant also
“operate[d] a vehicle” and “by reason of such operation” caused or contributed to causing serious
bodily injury to another. See Fla. Stat. § 316.193(1), (3).
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drove to his nearby home and called 911 to advise authorities of the stopped
pickup truck.
Within about fifteen minutes, Welch returned to the stopped pickup truck to
place flashers around it. By that time, another vehicle already had struck the
pickup truck from behind. Welch found Defendant Sims walking around the crash
site and saw beer cans scattered across the road.
Ronald Allen, the driver of the other vehicle, testified that he was driving
with his four-year-old son sleeping next to him. Allen looked down at his son and
then up and saw the pickup truck stopped in the middle of the road, with the driver
slumped over the wheel. Allen applied his brakes, but collided with the rear of the
pickup truck. Allen went through the front windshield, landed in the road and
broke his sternum. His son had a broken leg. A helicopter flew Allen and his son
to the hospital.
Trooper Richard Gill, a Florida Highway Patrolman, responded to the crash
and testified about his investigation. After smelling alcohol on Defendant Sims’s
breath, Trooper Gill administered field sobriety tests, which indicated that Sims
was impaired. Although Trooper Gill did not personally observe Sims driving,
Sims admitted he was driving the truck. Trooper Gill did not observe any visible
injuries on Sims, and Sims told Trooper Gill he was not hurt. Sims also told
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Trooper Gill he was a diabetic, but Sims did not appear to be affected by his
diabetes at the time, only intoxicated. When Trooper Gill asked Sims whether he
needed medical assistance, Sims initially indicated he did not need to go to the
hospital. When Trooper Gill explained that Sims could either be arrested at the
scene or transported to the hospital, Sims elected to go to the hospital. A later
blood test indicated that Sims’s blood alcohol level was .113 or .114, above the
legal limit of .08.
Sims’s defense was that he had not been driving the truck. Sims’s defense
counsel elicited testimony from several witnesses to the aftermath of the
crash—including Welch, Trooper Gill, another trooper and a paramedic—that
Sims was outside the truck and appeared uninjured.
The State sought to introduce Sims’s hospital records indicating that Sims
was injured when he struck his head on the windshield of his pickup truck. The
State subpoened the hospital records to complete its file. Neither the State nor
Sims’s counsel saw the contents of the hospitals records until the records
custodian produced them in court the day of trial. Sims’s counsel objected
because the government had not produced the records during discovery and had
not followed Florida law in obtaining them. However, Sims’s counsel added that
he did “not in any way mean[ ] to suggest that the State was trying to ambush the
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defense . . . .”
The state trial court found that allowing the records to come in “at the last
minute” was “highly prejudicial.” The state trial court refused to admit the records
because they “should have been disclosed” during discovery, and both parties
“should have known about them way before now.” The State asked to “reserve the
right to call it for rebuttal if the defendant puts on evidence that he [was] not in the
vehicle.” The trial court ruled that the records could not be admitted on rebuttal.
The State then indicated that it intended to recall Trooper Gill to testify that,
after the crash, Sims said he was wearing the driver-side seatbelt and was injured
in the crash. The trial court expressed concern about the prosecutor recalling
Trooper Gill to ask questions about injuries documented in the excluded hospital
records. Sims’s counsel objected to Trooper Gill being recalled, stating, “[I]f
they’re inclined to go into that, then I would move for a mistrial. I don’t want to
move for a mistrial at this point in time based on the state of the record. However,
you know, I mean it’s real difficult when you get certain questions and answers
out of witnesses and you proceed along and then all of a sudden there’s going to
be a change.”
The trial court stressed that the hospital records “bring[ ] out things that are
not even close to what’s coming out here on the testimony.” After further
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discussion, the trial court stated that it was going to declare a mistrial. The State
requested permission to speak with Sims’s counsel before the trial court declared a
mistrial. The State’s and Sims’s counsel then had a brief, off-the-record
discussion in the hallway. When they returned, Sims’s counsel stated, “Judge,
we’ll abide by the Court’s ruling I think is the consensus.”
The state trial court then declared a mistrial and discharged the jury. The
trial court agreed to defense counsel’s request to place the case on a sixty-day
calendar so Sims could take depositions.
B. Second State Court Trial
In October 2003, prior to the second trial, Sims’s counsel filed a motion to
dismiss on double jeopardy grounds. The motion argued that the trial court’s sua
sponte declaration of a mistrial barred retrial because Sims did not adopt the
mistrial ruling and jeopardy attached. The State responded that trial counsel’s
statement that Sims would “abide” by the trial court’s ruling amounted to a
consent to the mistrial under Florida law, citing Adkins v. Smith, 205 So. 2d 530,
531 (1967) (finding defense counsel’s statement that he had “nothing to say” on
the state’s proposed motion for a mistrial was consent).
The state trial court denied the motion to dismiss. The trial court stated:
I have gone over this and go back looking at the record and
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remembering what took place. I just felt at that time that the problem
with the record - - the records would have led in if I said they were
coming in, then the defense would have been highly prejudiced. If I
didn’t let them in the state was going to be prejudiced and I felt like
using the language they used here with the totality of the situation and
all it was going on at that particular point in order for justice to be
served that a mistrial needed to be declared and get that discovery and
deal with it and then come back and try the case. So I am going to deny
the motion, Mr. Taylor, and go to trial.
In the second trial, the jury found Sims guilty on both counts. Sims was sentenced
to consecutive terms of 60 months’ and 43 months’ imprisonment.
Sims appealed the convictions, arguing that the trial court had erred in
denying his motion to dismiss because Sims did not consent to the mistrial and the
mistrial was not supported by manifest necessity. The First District Court of
Appeal (“First DCA”) summarily affirmed.
Sims then filed a pro se state petition for habeas corpus relief with the First
DCA, alleging, inter alia, that his trial counsel was ineffective for consenting to
the mistrial. The First DCA denied Sims’s state habeas petition.
C. Rule 3.850 Motion for Post-conviction Relief
In April 2006, Sims filed a pro se motion for post-conviction relief pursuant
to Florida Rule of Criminal Procedure 3.850 in the Circuit Court of the Third
Judicial Circuit of Florida (“3.850 court”). Relevant to this appeal, Sims argued
that his trial counsel was ineffective in consenting to the trial court’s sua sponte
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declaration of a mistrial because there was no manifest necessity for a mistrial and
counsel’s consent deprived Sims of his double jeopardy rights.
The 3.850 court initially denied relief on Sims’s ineffective assistance
claim, but then granted Sims’s motion for rehearing and scheduled an evidentiary
hearing. At the hearing, Sims’s 3.850 counsel stated that trial counsel was unable
to attend. Instead, Sims submitted two letters by trial counsel, which were
admitted in lieu of testimony.
Trial counsel’s first letter, dated October 31, 2003, advised Sims, inter alia,
that he might have an ineffective assistance claim that he may raise in a 3.850
motion. Trial counsel’s letter stated:
That motion would allege, if the facts bear out, that I should have
specifically renewed my objection to a mistrial in the first trial. That
renewal or filing of an objection should have been done once the court
indicated on its own that it was going to declare a mistrial. I knew I had
told the court that I did not want a mistrial, but the record reflects that
it was done before the court entered its order and not after. That issue
may be significant down the road, and in that regard, you would need
another attorney to handle that portion of your case.
The letter also stated that trial counsel was “upset that the jury did not agree with
[Sims’s] version of events,” and admitted that “as is always the case when there is
an unsuccessful trial verdict, this lawyer rehashes and rethinks and second guesses
questions that should have been asked, others that should not have been asked,
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etc.”
Trial counsel’s second letter, dated September 18, 2007, was sent to the
State prosecutor and enclosed the first, October 31, 2003 letter. In the second
letter, trial counsel stated, inter alia, that the October 31, 2003 letter was an
accurate statement of trial counsel’s recollection of what occurred during the first
trial and that trial counsel believed he had “failed” Sims by stating to the trial
court that Sims “would ‘abide’ by the ruling re the mistrial.”
D. Denial of 3.850 Motion
The 3.850 court denied Sims’s ineffective assistance claim. At the outset,
the 3.850 court clarified that it need not determine whether Sims’s counsel had
consented to the mistrial because that question was already decided when
Florida’s First DCA on direct appeal affirmed the trial court’s denial of Sims’s
motion to dismiss. Therefore, the only issue before the 3.850 court was whether,
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), trial
counsel’s consent constituted deficient performance that prejudiced Sims. The
3.850 court concluded that Sims had not shown deficient performance or
prejudice.
As to performance, the 3.850 court found that Sims had not carried his
burden to show that his trial counsel’s “consent to a mistrial was deficient and not
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the product of a sound trial strategy.” The 3.850 court found that trial counsel’s
letter was a second-guessing of himself through hindsight, that Sims had presented
no evidence as to whether the first trial was going favorably or unfavorably at that
point in time and that Sims had not overcome the presumption that trial counsel’s
actions were reasonable, as follows:
This letter serves only to prove that Trial Counsel has rehashed,
rethought, and second guessed his decisions stemming from an
unfavorable trial, which is consistent with his practice after all
unsuccessful trial verdicts. As stated by the Florida Supreme Court, an
attorney’s second guessing himself through the beneficial lens of
hindsight is of little persuasion in those proceedings. Further, this Court
points out that neither party secured the attendance of Trial Counsel to
testify at the evidentiary hearing. Accordingly, there was no evidence
presented regarding whether the trial was progressing favorably or
unfavorably, whether the State had yet proven or not yet proven the
elements of the crime, or whether Trial Counsel’s observations of the
jury led him to believe a favorable verdict was more or less likely.
Without evidence regarding the totality of the circumstances as they
existed, this Court find that the Defendant has not overcome the
presumption that Trial Counsel’s actions were reasonable and effective.
(Citation, quotation marks and footnote omitted).
As to prejudice, the 3.850 court concluded that Sims had not shown that,
absent trial counsel’s consent to the mistrial, the State was barred from retrying
him. The 3.850 court noted that the trial court’s comments, both at the first trial
and at the hearing before the second trial, made clear that the trial judge
considered a mistrial manifestly necessary, whether or not Sims’s counsel
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consented, and that Sims had not called the trial judge to testify to the contrary.
The 3.850 court emphasized that the trial court’s denial of Sims’s motion to
dismiss on double jeopardy grounds was raised on direct appeal and affirmed. The
First DCA affirmed the denial of Sims’s 3.850 motion.
E. Section 2254 Petition
In June 2009, Sims filed his pro se § 2254 petition alleging that: (1) his
second trial violated the Double Jeopardy Clause; and (2) that his trial counsel was
ineffective for consenting to a mistrial at his first trial. The district court denied
Sims’s § 2254 petition. This Court granted a certificate of appealability (“COA”)
on the issue of “[w]hether Sims was denied effective assistance of counsel when
his attorney failed to object after the court sua sponte declared a mistrial.”
II. DISCUSSION
A. Ineffective Assistance of Counsel
To establish constitutionally ineffective assistance, the defendant must show
that (1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To
establish deficient performance, the petitioner must show his counsel’s
performance was objectively unreasonable in light of prevailing professional
norms. Id. at 687-88, 104 S. Ct. at 2064-65. To satisfy Strickland’s prejudice
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prong, the petitioner “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694, 104 S. Ct. at 2068.
Furthermore, a federal court may not grant habeas relief on ineffective
assistance claims that were previously decided in state court, unless the state court
decision was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States”; or (2) “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Section
2254(d) “imposes a highly deferential standard for evaluating state-court rulings . .
. .” Hardy v. Cross, 565 U.S. —, 132 S. Ct. 490, 491 (2011) (quoting Felkner v.
Jackson, 562 U.S. —, 131 S. Ct. 1305, 1307 (2011)).2
Our standard of review is “doubly deferential” when “a Strickland claim [is]
evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S.
111, 123, 129 S. Ct. 1411, 1420 (2009). “The question is not whether a federal
court believes the state court’s determination under the Strickland standard was
2
We review de novo the district court’s determination whether the state court acted
contrary to, or unreasonable applied, clearly established federal law or made an unreasonable
determination of the facts. Reed v. Sec’y, Fla. Dep’t of Corrs., 593 F.3d 1217, 1239 (11th Cir.),
cert. denied, 131 S. Ct. 177 (2010).
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incorrect but whether that determination was unreasonable – a substantially higher
threshold.” Id. (quotation marks omitted).
B. Sims’s Claim
Sims has not shown that the 3.850 court’s denial of his ineffective
assistance of trial counsel claim was contrary to, or an unreasonable application of,
Strickland or based on an unreasonable determination of the facts. Sims claims
that his trial counsel was ineffective for consenting, rather than objecting, to the
district court’s sua sponte declaration of a mistrial in the first trial. Sims’s
ineffective assistance claim rests on the assumption that if his trial counsel had
objected to the mistrial, the state trial court necessarily would have still granted a
mistrial, and Sims then would have prevailed on his subsequent motion to dismiss
on double jeopardy grounds. For several reasons, we cannot say the 3.850 court
unreasonably concluded that Sims had not shown deficient performance or
prejudice.
First, there is no showing that if defense counsel had objected, the state trial
court would have still declared a mistrial to even create a double jeopardy issue.
Second, even if the state trial court still would have declared a mistrial, the
state trial court can properly do so even over a defendant’s objection. In the case
of a mistrial, the double jeopardy bar to a second trial can be lifted either by the
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defendant’s consent to the mistrial or by the trial court’s finding, over the
defendant’s objection, that the mistrial is a “manifest necessity.” Oregon v.
Kennedy, 456 U.S. 667, 671-72, 102 S. Ct. 2083, 2087-88 (1982). When the
defendant does not consent, trial judges still have broad discretion to sua sponte
declare a mistrial “‘whenever, in their opinion, taking all the circumstances into
consideration, there is a manifest necessity for doing so.’” See Renico v. Lett, ___
U.S. ___, 130 S. Ct. 1855, 1863 (2010) (quoting United States v. Perez, 22 U.S. (9
Wheat.) 579, 580 (1824)). The trial court need not make an explicit finding of
manifest necessity or articulate on the record the factors that led to that
conclusion. Id. at 1863-64. “A trial judge properly exercises his discretion to
declare a mistrial if an impartial verdict cannot be reached, or if a verdict of
conviction could be reached but would have to be reversed on appeal due to an
obvious procedural error in the trial.” Illinois v. Somerville, 410 U.S. 458, 464, 93
S. Ct. 1066, 1070 (1973).3
Third, in any event, Sims did not submit any evidence showing that no
reasonable attorney in his trial counsel’s shoes would have consented (or failed to
3
To the extent Sims argues on appeal that the 3.850 court unreasonably applied the
manifest necessity doctrine in analyzing whether the trial court’s denial of his motion to dismiss
violated his double jeopardy rights, this question is not within the scope of the COA. Thus, we
address only trial counsel’s failure to object to the district court’s sua sponte declaration of a
mistrial after a finding of manifest necessity.
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object) to the trial court’s sua sponte mistrial, especially given the strong evidence
against Sims at that point in time. Trial counsel’s correspondence says nothing
about the progress of the trial at that point in time or counsel’s decisionmaking or
counsel’s reasons for abiding by the trial court’s ruling. The letters do not even
admit that trial counsel consented to the mistrial or did so erroneously. Contrary
to Sims’s claim, the letters do not show trial counsel’s ignorance of the legal
standards applicable to double jeopardy and mistrials. As the 3.850 court
explained, these letters amount only to trial counsel’s “rehashing” with the benefit
of hindsight and do not prove that trial counsel’s consent (or failure to object) to
the trial court’s sua sponte declaration of a mistrial was objectively unprofessional
at the point in time it occurred.
Moreover, we know from the record of the first trial that the State had
already presented sufficient evidence from Allen, Welch and Trooper Gill at that
point in time to convict Sims. The jury already had heard that Sims’s truck was
stopped in the middle of the road, that the victim saw someone slumped over the
steering wheel, that Sims was present at the scene and appeared impaired, that
Sims admitted he had been driving and that Sims’s blood-alcohol level still was
above the legal limit over four hours after the crash. The trial, if anything, was not
going favorably for Sims.
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Under these circumstances, Sims simply did not present any evidence to
provide the kind of context that might rebut the presumption of reasonableness.
As such, we cannot say the 3.850 court unreasonably concluded that Sims did not
overcome the “strong presumption” that trial counsel’s conduct fell within the
wide range of reasonable professional assistance and, therefore, that Sims’ did not
carry his burden to show deficient performance.
As to prejudice, the record, if anything, shows that the trial court declared
the mistrial sua sponte primarily based on manifest necessity due to the hospital
records, and not necessarily based on Sims’s consent. As the trial court explained
when it denied Sims’s motion to dismiss, the trial court’s decision to declare a
mistrial was based on the “totality of the situation” and because justice required a
mistrial to allow the parties to obtain “discovery and deal with it and then come
back and try the case.”
For all of these reasons, the 3.850 court did not act contrary to, or
unreasonably apply, Strickland in rejecting Sims’s ineffective assistance of trial
counsel claim.
AFFIRMED.
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