Michael McGee v. Secretary, Department of Corrections ( 2022 )


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  • USCA11 Case: 21-10710     Date Filed: 06/28/2022   Page: 1 of 10
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-10710
    Non-Argument Calendar
    ____________________
    MICHAEL MCGEE,
    Petitioner-Appellant,
    versus
    SECRETARY, DEPARTMENT OF CORRECTIONS,
    Respondent-Appellee.
    ____________________
    Appeal from the United States District Court
    for the Southern District of Florida
    D.C. Docket No. 1:19-cv-23934-DPG
    ____________________
    USCA11 Case: 21-10710        Date Filed: 06/28/2022     Page: 2 of 10
    2                      Opinion of the Court                 21-10710
    Before WILLIAM PRYOR, Chief Judge, JORDAN and NEWSOM,
    Circuit Judges.
    PER CURIAM:
    Michael McGee, a Florida prisoner, appeals the denial of his
    petition for a writ of habeas corpus. 
    28 U.S.C. § 2254
    . McGee argues
    that the district court erred by denying his petition without a tran-
    script of a pretrial hearing in which the trial court decided to admit
    testimony of a similar uncharged sexual battery McGee commit-
    ted. We affirm.
    A Florida court tried McGee on two counts of sexual battery
    and one count of false imprisonment. K.H. testified that she visited
    a spa inside a Hilton hotel where, over her protestations, McGee
    digitally penetrated her three times while giving her a massage and
    refused to leave until she relinquished her cellular telephone, from
    which he sent himself a text message. Two other women, J.N. and
    E.K., testified that McGee similarly digitally penetrated them dur-
    ing their massages. See Williams v. State, 
    621 So. 2d 413
     (Fla 1993).
    McGee denied touching the genitalia of all three women and stated
    that J.N. returned for a second massage. McGee testified that K.H.
    asked for his telephone number during the massage, that she was
    happy when she left the spa, and that she sent him text messages
    that evening.
    The jury found McGee guilty of the two counts of sexual
    battery and not guilty of false imprisonment. The trial court
    USCA11 Case: 21-10710        Date Filed: 06/28/2022      Page: 3 of 10
    21-10710                Opinion of the Court                         3
    sentenced McGee to consecutive terms of 15 years and five years
    of imprisonment. On direct appeal, the Third District Court of Ap-
    peal summarily affirmed McGee’s convictions and sentence.
    McGee v. State, 
    179 So. 3d 333
     (Fla. Dist. Ct. App. 2015).
    McGee moved for state postconviction relief on the ground
    that his trial counsel, Scott Miller, was ineffective. See Fla. R. Crim
    P. 3.850. McGee alleged that “[t]he Williams rule evidentiary hear-
    ing was not properly argued as counselor refused to present evi-
    dence, witnesses and further instructed [McGee] not to take the
    stand.” McGee alleged that “witnesses . . . aware of some episodes
    of consensual sexual intercourse that took place in the hotel room
    . . . [between he and] E.K.” “was withheld from Williams rule hear-
    ing” and “Hilton Management and Spa Staff were prevented from
    mentioning the sex tape they saw and knew existed.” McGee al-
    leged that Miller failed to confront K.H. with evidence of her rela-
    tionship with McGee, of police approaching them on the beach, of
    a surveillance video recording at the hotel of a romantic interlude,
    of falsely accusing him of sexual battery after her scheme to sue the
    hotel failed, and of a courtroom surveillance recording of them be-
    ing affectionate before his trial.
    The state postconviction court held an evidentiary hearing
    on McGee’s motion. McGee testified that K.H. had “raped” him
    while they were traveling together internationally in a country he
    could not name and that she was able to “influence” a foreign jury
    to find her not guilty as “part of the Me Too movement.” McGee
    stated he did not mention the incident during trial because he
    USCA11 Case: 21-10710        Date Filed: 06/28/2022     Page: 4 of 10
    4                      Opinion of the Court                 21-10710
    “forgot” about it. Miller testified that he subpoenaed the owner and
    employees of the spa to testify at trial, that he found no witnesses
    to counter prosecution witnesses, that he objected to the admission
    of evidence of his client’s prior bad acts, that McGee never dis-
    closed he had a relationship with K.H. or E.K., and that McGee
    never mentioned any video evidence. Miller stated that K.H. had
    an aggressive personality, was dissatisfied with the lackadaisical at-
    titude of the prosecutor’s office, and wanted McGee to receive a
    maximum sentence, so “there was no context where [she] would
    have had any positive interaction with Mr. McGee.” At the conclu-
    sion of the hearing, the state postconviction court found “that
    nothing [McGee] said with respect to his interactions with Mr. Mil-
    ler [wa]s credible,” that McGee’s testimony was “just preposter-
    ous,” and that Miller “did the best that he could, under the circum-
    stance[s] with the Williams rule witnesses and with the evidence at
    trial.”
    “After considering the evidence adduced at trial, [McGee]’s
    pleading, the testimony of Mr. Miller and [McGee]’s statements,”
    the state court denied McGee’s postconviction motion. The state
    court credited Miller’s testimony and rejected McGee’s “attacks
    against Mr. Miller [as] completely unbelievable.” The state court
    highlighted that McGee’s new revelations at the evidentiary hear-
    ing “further underscore[d] his lack of credibility.”
    McGee appealed and argued, for the first time, that Miller
    was ineffective for failing to object during E.K.’s Williams hearing
    and at trial to the admissibility of her testimony because she was
    USCA11 Case: 21-10710        Date Filed: 06/28/2022      Page: 5 of 10
    21-10710                Opinion of the Court                         5
    “caught . . . reading from her computer or iPad [as] she testifie[d]
    of her recountance.” But the Third Circuit Court of Appeals did not
    address McGee’s argument about E.K. McGee v. State, 
    278 So. 3d 257
     (Fla. Dist. Ct. App. 2019). The appellate court affirmed the de-
    nial of postconviction relief on the ground that “the record of [the
    postconviction] evidentiary hearing contain[ed] competent sub-
    stantial evidence to support the trial court’s factual findings and,
    applying a de novo standard, . . . [that there was] no error in the
    trial court’s conclusion that McGee failed to satisfy the prejudice
    prong of Strickland v. Washington, 
    466 U.S. 668
     . . . (1984).”
    McGee, 278 So. 3d at 257.
    McGee moved for rehearing and argued that the appellate
    court “deni[ed] . . . [his] appeal without obtaining, viewing, or fac-
    toring in the entire record of appeal.” The appellate court summar-
    ily denied McGee’s motion. Id.
    McGee filed a petition for a writ of habeas corpus in the dis-
    trict court. See 
    28 U.S.C. § 2254
    . He argued that the state trial court
    erred by admitting evidence of his prior bad acts and that trial coun-
    sel was ineffective in challenging the admissibility of that evidence.
    McGee alleged that “[t]he Williams rule evidentiary hearing was
    not properly argued by trial counsel as he did not present physical
    evidence or eyewitnesses who attested to state[’]s witnesses telling
    them of not being improperly touched or violated in any way.” He
    also alleged that “E.K. was caught by [the state trial court] via sat-
    ellite communication hearing testimony viewing an electronic de-
    vice iPad.” He argued that, “[a]ccording to Florida rule of Court
    USCA11 Case: 21-10710        Date Filed: 06/28/2022      Page: 6 of 10
    6                       Opinion of the Court                 21-10710
    90.613[, which requires a party to produce at a hearing ‘a writing
    or other item to refresh memory while testifying’ or else have ‘the
    testimony of the witness concerning those matters . . . stricken,’
    
    Fla. Stat. § 90.613
    ,] [E.K.] should have been stricken and not al-
    lowed to testify at trial.”
    McGee filed a motion to compel and requested transcripts
    of several hearings, but no Williams hearing. The magistrate judge
    denied McGee’s motion on the ground that the State had to submit
    only “the records that [its] Response relied upon, not all of the rec-
    ords in [McGee]’s entire criminal case.” The magistrate judge
    stated that McGee bore the “burden to provide evidence in support
    of his claims and to ultimately prove his case” and could “not use
    this [federal] case as a fact-finding expedition to search for evidence
    to challenge his state court case.”
    The district court denied McGee’s petition. The district
    court ruled that, “to the extent [McGee] now challenges the appli-
    cation of the Williams Rule, his argument is misplaced because the
    Williams Rule is a state court evidentiary rule not governed by the
    Constitution or laws of the United States.” See 
    id.
     § 2254(a). The
    district court rejected McGee’s argument that admission of the
    bad-acts evidence violated his right to due process because he
    “point[ed] to no decision from the United States Supreme Court
    showing that the use of such evidence [was] unconstitutional.” The
    district court also rejected as “factually inaccurate” McGee’s allega-
    tions that “his trial counsel was deficient during the Williams Rule
    hearing because he did not present witnesses and evidence to
    USCA11 Case: 21-10710          Date Filed: 06/28/2022      Page: 7 of 10
    21-10710                 Opinion of the Court                           7
    impeach the State’s witnesses.” “Ultimately, [the district court
    ruled that McGee] d[id] not provide any legal authority to show
    that the state court’s determination of his ineffective assistance of
    counsel claim was unreasonable based on federal law or the facts
    in light of the evidence presented.” See id. § 2254(d).
    We granted McGee a certificate of appealability to address
    “whether the district court properly applied the deference standard
    in 
    28 U.S.C. § 2254
    (d) in denying [his] claim that his trial counsel
    was ineffective at [E.K.’s] Williams rule hearing, where a transcript
    of . . . the relevant hearing[] is not part of the district court record.”
    We review de novo the denial of McGee’s petition for a writ
    of habeas corpus. Pope v. Sec’y, Fla. Dep’t of Corr., 
    752 F.3d 1254
    ,
    1261 (11th Cir. 2014). McGee must “[s]urmount[] . . . [a] high bar”
    to overcome the presumption that his trial counsel performed ad-
    equately. See Harrington v. Richter, 
    562 U.S. 86
    , 105 (2011). McGee
    must prove that his trial counsel committed an error that was “so
    serious as to deprive [him] of a fair trial.” Strickland, 
    466 U.S. at 687
    . And he also must overcome the “‘doubly deferential’ [standard
    that applies] when, as here, a state court has decided that counsel
    performed adequately.” Dunn v. Reeves, 
    141 S. Ct. 2405
    , 2410
    (2021).
    McGee had to prove his claim of ineffective assistance of trial
    counsel during his state postconviction hearing. “At [the] eviden-
    tiary hearing, [McGee] . . . ha[d] the burden of presenting evidence
    and the burden of proof in support of his . . . motion, unless other-
    wise provided by law.” Fla. R. Crim. P. 3.850(f)(8)(B); see Black v.
    USCA11 Case: 21-10710         Date Filed: 06/28/2022     Page: 8 of 10
    8                       Opinion of the Court                  21-10710
    State, 
    304 So. 3d 45
    , 48 (Fla. Dist. Ct. App. 2020). McGee had to
    present “evidence . . . [to] substantiate” his claim that Miller ig-
    nored or overlooked grounds to impeach or exclude E.K.’s testi-
    mony. Black, 304 So. 3d at 48–49.
    The state postconviction court had no need of a transcript of
    E.K.’s Williams hearing to review McGee’s claim that Miller was
    ineffective. The dispute boiled down to a swearing match between
    McGee and Miller. McGee alleged that Miller should have im-
    peached E.K. with a video recording of her and McGee having con-
    sensual sex, but McGee produced no evidence to substantiate his
    allegation. See id. And Miller testified that McGee never mentioned
    that he had sex with E.K. or that such an incident had been rec-
    orded. See Strickland, 
    466 U.S. at 691
     (“Counsel's actions are usu-
    ally based, quite properly, . . . on information supplied by the de-
    fendant.”). The state court was entitled to credit Miller’s testimony.
    “[S]itting as the fact-finder in [the] postconviction evidentiary hear-
    ing, the trial judge . . . [wa]s free to disbelieve [McGee]’s testimony”
    and to “find [his] testimony incredible or unreliable and, [because]
    otherwise unsupported, [to] hold it d[id] not constitute competent,
    substantial evidence to support [his] claims” that Miller was inef-
    fective. See Morales v. State, 
    308 So. 3d 1093
    , 1098 (Fla. Dist. Ct.
    App. 2020), review denied, No. SC21-145 (Fla. Jan. 4, 2022). Based
    on the claims of ineffectiveness that McGee made in the state court,
    it could “evaluate the claims, weigh them against other evidence in
    the case, and reach a reasoned conclusion about . . . credibility”
    without a transcript of E.K.’s Williams hearing. See 
    id.
    USCA11 Case: 21-10710        Date Filed: 06/28/2022      Page: 9 of 10
    21-10710                Opinion of the Court                         9
    McGee did not allege or present any evidence during his
    state postconviction hearing that Miller should have challenged
    E.K.’s testimony for using a device during her Williams hearing.
    Had McGee alleged or testified that E.K. used a device to supple-
    ment her testimony or had McGee questioned Miller about E.K.’s
    conduct during her Williams hearing, the state court might have
    needed to review the transcript of the pretrial hearing. But a review
    of a transcript of E.K.’s Williams hearing was unnecessary to assess
    Miller’s conduct. And in accordance with state law, the state appel-
    late court refused to consider a claim of ineffective assistance that
    McGee failed to preserve. See Rhodes v. State, 
    986 So. 2d 501
    , 513
    (Fla. 2008) (“To be preserved, the issue or legal argument must be
    raised and ruled on by the trial court.”); Steinhorst v. State, 
    412 So. 2d 332
    , 338 (Fla. 1982) (“[F]or an argument to be cognizable on ap-
    peal, it must be the specific contention asserted as legal ground for
    the . . . motion below.”).
    The district court did not err when it rejected McGee’s claim
    of ineffective assistance of trial counsel without reviewing a tran-
    script of E.K.’s Williams hearing. McGee is entitled to a writ of ha-
    beas corpus only if the state court reached a decision that was “con-
    trary to, or involved an unreasonable application of, clearly estab-
    lished Federal law” or was “based on an unreasonable determina-
    tion of the facts in light of the evidence presented in the State court
    proceeding.” 
    28 U.S.C. § 2254
    (d). “This backward-looking lan-
    guage requires an examination of the state-court decision at the
    time it was made.” Cullen v. Pinholster, 
    563 U.S. 170
    , 182 (2011).
    USCA11 Case: 21-10710       Date Filed: 06/28/2022    Page: 10 of 10
    10                     Opinion of the Court                21-10710
    So “the federal court [could] review [McGee’s] claim [of ineffective
    assistance] based solely on the state-court record . . . .” Shinn v.
    Ramirez, 
    142 S. Ct. 1718
    , 1732 (2022) (citing Pinholster, 
    563 U.S. at 180
    ). The district court did not need a transcript of the Williams
    hearing to evaluate the decision of the state court. See Pope, 752
    F.3d at 1262–63.
    We AFFIRM the denial of McGee’s petition for a writ of ha-
    beas corpus.
    

Document Info

Docket Number: 21-10710

Filed Date: 6/28/2022

Precedential Status: Non-Precedential

Modified Date: 6/28/2022