Jaceta Anya Streeter v. United States , 335 F. App'x 859 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 30, 2009
No. 08-13621 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 07-01170-CV-J-25-MCR, 05-00104-CR-J-2
JACETA ANYA STREETER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 30, 2009)
Before DUBINA, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Jaceta Anya Streeter, a federal prisoner proceeding pro se, appeals the
district court’s denial of her 28 U.S.C. § 2255 motion to vacate her convictions and
sentence. We granted a Certificate of Appealability (“COA”) on two issues:
(1) whether the district court erred in finding that trial counsel was not ineffective
for failing to introduce Streeter’s school attendance records into evidence, and
(2) whether the district court erred in finding that trial counsel was not ineffective
for failing to call John Blocker to testify. As to the first issue, Streeter argues that
her trial attorney failed to obtain her school attendance records and to use them to
impeach the Government’s key witnesses, who had testified that she was with them
at the time they cashed the fraudulent checks. As to the second issue, Streeter
argues that her trial attorney failed to call Blocker to testify, as she believes that
Blocker would have been unable to identify her and therefore would have
impeached the same Government key witnesses’ testimony that Blocker had
introduced them to her.
I.
In April 2005, a grand jury returned a nineteen-count indictment against
Streeter and Sabrina Williams, charging them with (1) conspiracy to present
counterfeit checks in violation of 18 U.S.C. §§ 371 and 514 (Count 1); and (2)
passing, uttering, and presenting counterfeit checks in violation of 18 U.S.C. §§ 2
2
and 514 (Counts 2-19).1 Williams pled guilty pursuant to a plea agreement, but
Streeter pled not guilty and proceeded to trial. According to Streeter’s co-
conspirators that testified at trial, the check-cashing scheme worked as follows:
Williams printed checks from her computer and Streeter recruited persons to cash
them at banks, paying each participant a small portion of the proceeds from each
cashed check and splitting the remainder between them. Of particular relevance
here, Robert Stone and Donna Harmon, brother and sister and two of the co-
conspirators, testified that a woman that they knew only as “Tiffany,” allegedly
referring to Streeter, went with them to the bank to cash six checks on Friday,
January 21, 2005, and Monday, January 24, 2005, between approximately 11:00
a.m. and 12:30 p.m. Blocker introduced via telephone Stone and Harmon to
Streeter.
On November 17, 2005, the jury returned a verdict of guilty on six counts
(Counts 12-15, 18-19)2 and not guilty on ten other counts (Counts 2-11).3 The
district court sentenced Streeter to eighty-four months imprisonment to be
followed by sixty months supervised release. We affirmed her conviction and
1
The indictment included each fraudulent check as a separate count.
2
Counts 12-15 and 18-19, for which the jury convicted Streeter, all stemmed from
checks cashed by Stone and Harmon on January 21, 2005 and January 24, 2005.
3
The Government voluntarily dismissed Counts 16 and 17 and the jury failed to reach a
verdict as to Count 1, which the Government subsequently voluntarily dismissed.
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sentence on direct appeal. See United States v. Streeter, 209 F. App’x 909 (11th
Cir. 2006) (per curiam). At the same sentencing proceeding, the district court
revoked Streeter’s supervised release for her previous federal convictions and
sentenced her to twenty-four months imprisonment, to run consecutively to her
eighty-four month imprisonment term. We affirmed the district court’s revocation
of supervised release and the accompanying sentence as well. See United States v.
Streeter, 214 F. App’x 894 (11th Cir. 2007) (per curiam).
On December 11, 2007, Streeter, proceeding pro se, filed a motion to vacate,
set aside, or correct her sentence pursuant to § 2255, arguing, inter alia, that her
trial counsel rendered ineffective assistance of counsel by (1) failing to introduce
her school attendance records, and (2) failing to call Blocker to testify. The district
court denied her motion, reasoning that she failed to demonstrate deficient
performance or resulting prejudice. Streeter appealed.
II.
In a 28 U.S.C. § 2255 proceeding, we review the district court’s findings of
fact for clear error and its legal conclusions de novo. Devine v. United States, 520
F.3d 1286, 1287 (11th Cir. 2008) (per curiam). “A claim of ineffective assistance
of counsel is a mixed question of law and fact that we review de novo.” Id.
In Strickland v. Washington, the Supreme Court set out a two-part inquiry
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for ineffective assistance of counsel claims. 466 U.S. 668, 687 (1984). First,
Strickland’s “performance prong requires a petitioner to establish that counsel
performed outside the wide range of reasonable professional assistance and made
errors so serious that he failed to function as the kind of counsel guaranteed by the
Sixth Amendment.” Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.
2004). We evaluate reasonableness by applying the objective standard of
“‘reasonableness under prevailing professional norms.’” Chandler v. United
States, 218 F.3d 1305, 1315 n.15 (11th Cir. 2000) (en banc) (quoting Strickland,
466 U.S. at 688). Strickland’s “prejudice prong requires a petitioner to
demonstrate that seriously deficient performance of his attorney prejudiced the
defense.” Butcher, 368 F.3d at 1293 (citation omitted). This requires a “show[ing]
that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Chandler, 218 F.3d at
1312-13 (internal quotation marks and citation omitted). “In making this
determination, a court hearing an ineffectiveness claim must consider the totality of
the evidence before the judge or jury.” Strickland, 466 U.S. at 695; see id. at 696
(providing that “a verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with overwhelming record
support”).
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A person seeking relief under § 2255 based on ineffective assistance of
counsel must succeed on both prongs of the Strickland test. Butcher, 368 F.3d at
1293. “As a result, once a court decides that one of the requisite showings has not
been made it need not decide whether the other one has been.” Id. (citing
Strickland, 466 U.S. at 697 (providing that “there is no reason for a court deciding
an ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one”)).
III.
We will address the two certified issues in turn.
A.
Streeter argues that her trial counsel rendered ineffective assistance of
counsel by failing to obtain and use as impeachment evidence attendance records
from her school, which, according to her, rebuts testimony from Stone and Harmon
that she was with them at the time (between 11:00 a.m. and 12:30 p.m. on January
21, 2005 and January 24, 2005, respectively) that they cashed the checks.
Assuming arguendo that her trial attorney rendered deficient performance in
failing to obtain her school attendance records and using them to impeach the
Government’s key witnesses, Streeter’s claim nevertheless fails because she cannot
“demonstrate that seriously deficient performance of h[er] attorney prejudiced the
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defense.” Butcher, 368 F.3d at 1293. First, Streeter testified in her own defense at
trial that her school kept attendance and that she was there “regularly” from 8:30
a.m. until noon, Monday through Friday. See United States v. Brown, 53 F.3d 312,
314 (11th Cir. 1995) (noting that “a statement by a defendant, if disbelieved by the
jury, may be considered as substantive evidence of the defendant’s guilt”). As
such, Streeter testified under oath that she “regularly” attended school during the
same time that she allegedly assisted in cashing checks, according to Stone and
Harmon. The jury, however, was free to disbelieve her. Moreover, in his cross-
examination of Stone, Streeter’s trial counsel specifically referenced the school
attendance records.4 Lastly, in addition to Stone’s and Harmon’s testimony, the
jury’s verdict enjoys “overwhelming record support” based on evidence presented
by the Government at trial, including (1) the testimony of Williams, Streeter’s co-
4
The relevant exchange between Streeter’s counsel and Stone on cross-examination
consisted of the following:
Q: If [Streeter] produces such a thing as attendance records during
her own testimony that she was not at the bank but across town in a
class doing something totally different, do you have any objection to
that?
...
Q: Would you have any explanation for anything such as that?
A: No, I don’t.
See Transcript, vol. 1, at 90:35-91:6.
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defendant, who testified as to her involvement and guilt;5 (2) the testimony of
Donna Dowdell, Streeter’s cell mate at Nassau County jail, who testified as to
Streeter’s admissions regarding her involvement and guilt;6 (3) the recorded
telephone conversations between Streeter and Stone; and (4) the cellular telephone
records establishing that Streeter and Stone exchanged telephone calls on January
21, 2005 and January 24, 2005, immediately before and after Stone and Harmon
cashed the checks. Accordingly, Streeter has failed to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Chandler, 218 F.3d at 1312-13 (internal
quotation marks omitted).
B.
Streeter argues that her trial counsel rendered ineffective assistance of
counsel by failing to call Blocker to testify who, according to her, would have
would have been unable to identify her and therefore would have impeached the
5
See Transcript, vol. 1, at 28:6-17 (testifying that Streeter picked up the co-conspirators
who cashed the checks from the banks and Williams watched to ensure that no one was
following the co-conspirators as they left the bank).
6
See Transcript, vol. 2, at 82:23-83:8; 84:7-18 (testifying that Streeter admitted her
involvement with Williams in recruiting persons to go to the bank and cash checks that they
counterfeited and further testifying that one of the co-conspirators included a “sister and
brother”).
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witnesses’ testimony that Blocker had introduced them to her.7
Streeter must prove the unreasonableness of counsel’s performance by a
preponderance of the evidence. Id. at 1313. Judicial review of counsel’s
performance is highly deferential, and the courts apply a “‘strong presumption’
that counsel’s performance was reasonable and that counsel ‘made all significant
decisions in the exercise of reasonable professional judgment.’” Id. at 1314
(quoting Strickland, 466 U.S. at 689-90). “[W]here the record is incomplete or
unclear about [counsel]’s actions, we will presume that he did what he should have
done, and that he exercised reasonable professional judgment.” Id. at 1314 n.15
(alteration in original). To overcome the presumption, the movant “must establish
that no competent counsel would have taken the action that [her] counsel did take.”
Id. at 1315.
An attorney has a duty to conduct reasonable investigations or to make a
reasonable decision that renders a particular investigation unnecessary. Strickland,
466 U.S. at 691. “[T]here is no absolute duty to investigate particular facts or a
certain line of defense, although a complete failure to investigate may constitute
deficient performance of counsel in certain circumstances.” Fugate v. Head, 261
F.3d 1206, 1217 (11th Cir. 2001). Counsel does not render ineffective assistance
7
The district court did not specifically address Streeter’s ineffective assistance of counsel
claim as to her trial counsel’s failure to call Blocker.
9
by deciding “not to pursue a particular line of defense without substantial
investigation[,] so long as the decision was reasonable under the circumstances.”
Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir. 1989) (per curiam). “Ineffective
assistance . . . will not be found merely because other testimony might have been
elicited from those who testified,” but failure to impeach the key prosecution
witness can rise to the level of ineffective assistance under certain circumstances.
See Fugate, 261 F.3d at 1219-20 (internal quotations marks and citation omitted).
In a habeas petition alleging ineffective assistance of counsel, mere speculation
that missing witnesses would have been helpful is insufficient to meet the
petitioner’s burden of proof. Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir.
2001).
In support of her claim, Streeter merely provides her subjective belief that
Blocker would not have been able to identify her in the courtroom. She failed to
offer an affidavit from Blocker setting forth his potential testimony, and she failed
to otherwise make any specific factual allegations indicating that Blocker’s
testimony would have contradicted Stone’s and Harmon’s assertions that he
introduced them to Streeter via a telephone call. Because Streeter’s mere
“speculation that [Blocker] would have been helpful” would not have been
sufficient to support her claim, see id. at 1187, and because she gave no indication
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of specific facts that would have borne out her theory, the district court did not err
in denying her claim, see Devine, 520 F.3d at 1287.
IV.
Based on the foregoing, we affirm the district court’s order denying
Streeter’s § 2255 motion.
AFFIRMED.
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