Hawkins v. Secretary, Florida Department of Corrections , 219 F. App'x 904 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 06, 2007
No. 06-13158 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-22922-CV-FAM
CURRY HAWKINS,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 6, 2007)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Curry Hawkins, a Florida prisoner proceeding pro se, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Hawkins
argues that the victim and an eyewitness picked Hawkins’s photograph out of an
overly suggestive out-of-court photo lineup. The lead detective in the case told the
victim afterwards that the witness had chosen the same photograph that the victim
chose. Hawkins’s trial transpired over three-and-one-half years after the crime,
and both the victim and the witness identified Hawkins as the assailant at the trial.
Hawkins contends that his trial counsel was ineffective for failing to file a motion
to suppress both the out-of-court and in-court identifications by the victim and
eyewitness. Trial counsel’s failure to file a motion to suppress prejudiced
Hawkins’s defense because the only evidence linking him to the crime was allowed
in at trial.
We review a district court’s grant or denial of a § 2254 petition de novo,
while we review the court’s factual findings for clear error. Nyland v. Moore, 216
F.3d 1264, 1266 (11th Cir. 2000). Mixed questions of law and fact, including
ineffective assistance of counsel claims, are also reviewed de novo. Sims v.
Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998).
Where a claim was adjudicated on the merits in state court, federal courts
shall not grant habeas relief unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
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determined by the Supreme Court of the United States; or
(2) resulted in a decision that was 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). As separate bases for reviewing state court decisions,
[a] state court decision is “contrary to” clearly established federal law
if either (1) the state court applied a rule that contradicts the governing
law set forth by Supreme Court case law, or (2) when faced with
materially indistinguishable facts, the state court arrived at a result
different from that reached in a Supreme Court case. . . . A state court
conducts an “unreasonable application” of clearly established federal
law if it identifies the correct legal rule from Supreme Court case law
but unreasonably applies that rule to the facts of the petitioner’s case.
An unreasonable application may also occur if a state court
unreasonably extends, or unreasonably declines to extend, a legal
principle from Supreme Court case law to a new context. Notably, an
“unreasonable application” is an “objectively unreasonable”
application.
Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (citations omitted). A state
court’s findings of fact “shall be presumed to be correct” and “[t]he applicant shall
have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1).
When a convicted defendant claims that his counsel’s assistance was
ineffective, the defendant must show that (1) counsel’s performance was deficient,
and (2) the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). “For performance
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to be deficient, it must be established that, in light of all the circumstances,
counsel’s performance was outside the wide range of professional competence.”
Putman, 268 F.3d at 1243. Under the prejudice prong, the defendant must show
“that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at
694, 104 S. Ct. 2068.
Reviewing courts must be highly deferential in reviewing a counsel’s
performance and must utilize the strong presumption that counsel’s performance
was reasonable. Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000)
(en banc). “[B]ecause counsel’s conduct is presumed reasonable, for a petitioner
to show that the conduct was unreasonable, a petitioner must establish that no
competent counsel would have taken the action that his counsel did take.” Id. at
1315. The presumption of reasonable conduct is even stronger when reviewing an
experienced trial counsel’s performance. Id. at 1316. “[T]he defendant must
overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S. Ct.
at 2065 (citation omitted).
“The reasonableness of a counsel’s performance is an objective inquiry.”
Chandler, 218 F.3d at 1315. The test for reasonableness has nothing to do with
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what the best lawyers would have done or even what most good lawyers would
have done. Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). Instead, the
proper inquiry is “whether some reasonable lawyer at the trial could have acted, in
the circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d
1218, 1220 (11th Cir. 1992). “We are not interested in grading lawyers’
performances; we are interested in whether the adversarial process at trial, in fact,
worked adequately. Id. at 1221. The reasonableness of the defense counsel’s
performance is evaluated from counsel’s perspective at the time. Strickland, 466
U.S. at 689, 104 S. Ct. 2065. Further, because counsel’s performance is measured
against an objective standard, the fact that trial counsel admits at a post-conviction
hearing that his trial performance was deficient matters little. Chandler, 218 F.3d
at 1316, n.16.
The improper use of photographs by police may reduce the trustworthiness
of a subsequent lineup or courtroom identification. Simmons v. United States, 390
U.S. 377, 383-84, 88 S. Ct. 967, 971 (1968). “The danger that use of the technique
may result in convictions based on misidentification may be substantially lessened
by a course of cross-examination at trial which exposes to the jury the method’s
potential for error.” Id. at 384, 88 S. Ct. at 971. “[E]ach case must be considered
on its own facts, and . . . convictions based on eyewitness identification at trial
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following a pretrial identification by photograph will be set aside on that ground
only if the photograph identification procedure was so impermissibly suggestive as
to give rise to a very substantial likelihood of irreparable misidentification.” Id.“Where suggestive pretrial confrontations may have created a substantial
likelihood of irreparable misidentification at trial, the core question is whether
under the totality of the circumstances, the in-court identification was reliable.”
Jones v. Newsome, 846 F.2d 62, 64 (11th Cir. 1988). The following factors should
be considered in making that determination: (1) whether the witness had the
opportunity to view the criminal at the time of the crime; (2) the degree of attention
by the witness; (3) the accuracy of the witness’s prior description; (4) the level of
certainty displayed by the witness; and (5) the length of time between the crime
and the identification. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 382
(1972). “While the ultimate conclusion as to the reliability of identification
evidence is a mixed question of law and fact not governed by the Section 2254(d)
presumption, each of the Neil v. Biggers factors is considered an issue of fact
governed by the presumption.” Jones, 846 F.2d at 64.
Here, we conclude from the record that the state court’s decision was not
contrary to clearly established law. First, although the state court did not mention
it by name, it correctly analyzed the case under Strickland as the controlling law
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governing ineffective assistance of counsel claims. Further, Hawkins does not
argue, and the record does not suggest, that the facts of this case are materially
indistinguishable from the facts in Strickland.
Moreover, the state court’s decision, that Hawkins’s counsel was not
deficient, did not involve an unreasonable application of clearly established law,
nor was it objectively unreasonable. Although he believed the out-of-court
identifications were overly suggestive and likely inadmissible, counsel also
believed that the in-court identifications were admissible based on the victim’s and
the witness’s independent recollections of the offender at the time of the crime,
and, therefore, counsel determined that it was Hawkins’s best defense to allow the
out-of-court identifications to come in and then attack the procedures used by the
detective. In determining whether counsel’s decision was reasonable, the state
court correctly analyzed whether the in-court identifications would be reliable and
therefore admissible by applying the factors enumerated in Biggers. After
reviewing the pretrial depositions of the victim and the witness, the state court
found, and the record supports, that (1) both witnesses had a “very good
opportunity to view the perpetrator at the time of the crime,” (2) both witnesses
paid close enough attention that they were able to give a detailed description of the
assailant’s physical characteristics and what he was wearing, (3) prior to the photo
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lineup, both witnesses gave a detailed description to law enforcement, (4) the
witness was “very certain” of his photo identification, and the victim was confident
she could identify the assailant in person, and (5) the identifications were made
within five months of the crime.
The state court’s findings on each of the Biggers factors are entitled to a
presumption of correctness, and Hawkins has not shown that those findings were
clearly erroneous. In addition, the presumption that counsel’s performance was
reasonable was strong in this case because of counsel’s extensive experience in
criminal trials. Based on the totality of circumstances as found by the state court
and viewed by counsel at the time, it cannot be said that there was a very
substantial likelihood of irreparable misidentification that would have led to the
exclusion of the identification evidence. Therefore, because counsel’s decision to
challenge the identification process was not unreasonable under the circumstances,
Hawkins has not overcome the presumption that the action was sound trial
strategy. Further, because Hawkins did not establish that his counsel was deficient
under the first prong of Strickland, it is unnecessary to address the second prong,
namely, whether his counsel’s conduct prejudiced Hawkins’s defense.
Based on the foregoing, Hawkins has not met his burden under 28 U.S.C.
§ 2254(d), and, thus, we affirm the district court's judgment denying Hawkins
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habeas relief.
AFFIRMED.
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