Jonathan Morales v. Secretary, Florida Department of Corrections

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15593
Non-Argument Calendar
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D.C. Docket No. 9:12-cv-81318-KLR
JONATHAN MORALES,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 28, 2017)
Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Jonathan Morales appeals the district court’s denial of his pro se 28 U.S.C.
§ 2254 petition. We granted a certificate of appealability on four issues concerning
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defense counsel’s effectiveness under the Sixth Amendment. Upon review, we
affirm the district court’s denial of habeas relief. See Madison v. Comm’r,
Alabama Dep’t of Corr., 851 F.3d 1173, 1182 (11th Cir. 2017) (relief under § 2254
is available when “state court’s decision (1) ‘was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,’ or (2) ‘was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.’”) (quoting 28 U.S.C. § 2254(d)).
After his convictions on two counts of murder, Mr. Morales filed a motion to
set aside the judgment. The trial court rejected his claims as meritless. On appeal,
the Fourth District affirmed per curiam without opinion, see Morales v. State, 92
So. 3d 839 (Fla. 4th DCA 2012), which we also treat as a rejection of Mr. Morales’
claims on the merits. See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348, 1353
(11th Cir. 2012); Wilson v. Warden, Georgia Diagnostic Prison, 834 F.3d 1227,
1231–32 (11th Cir. 2016) (“if the last adjudication does not explain the state
court’s reasoning, the federal court must determine what arguments or theories
supported or . . . could have supported the state court’s decision”). Mr. Morales
then attacked his judgment through a federal § 2254 habeas petition. The district
court denied the petition, and we granted a certificate of appealability on four
claims. This appeal followed.
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Mr. Morales first argues his attorney was ineffective for failing to strike
juror Karen Taylor. A court employee overheard Ms. Taylor questioning why Mr.
Morales would not testify in his defense and admitted to making the comments
when later questioned by the court. Mr. Morales maintains that any reasonable
attorney would have struck the juror because the comments show she could not be
impartial. See Morgan v. Illinois, 504 U.S. 719, 726–727 (1992) (a juror who is
not impartial must be removed for cause); Butts v. GDCP Warden, 850 F.3d 1201,
1213 (11th Cir. 2017) (ineffective assistance claim requires proof that “counsel’s
performance was deficient,” and “that the deficient performance prejudiced the
defense”) (citation and quotation marks omitted). His argument, however, ignores
the subsequent questioning of the juror. During examination, Ms. Taylor
confirmed that she “absolutely” understood Mr. Morales had a right not to testify
and that she “absolutely” could be a fair juror even if Mr. Morales did not testify.
See D.E. 12-3 at 22:15–17; 19–25. This was enough to establish she could be
impartial. See Skilling v. United States, 561 U.S. 358, 398–399 (2010) (“it is
sufficient if the juror can lay aside [her] impression or opinion and render a verdict
based on the evidence presented in court”); Hallford v. Culliver, 458 F.3d 1193,
1204 (11th Cir. 2006) (jurors are presumed to follow the law as instructed by the
trial court). Moreover, both defense counsel and Mr. Morales told the trial court
that they wanted to keep Ms. Taylor on the jury.
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Mr. Morales next argument takes aim at his counsel’s alleged failure to
investigate and call Brandon Hammond as a witness. Mr. Morales was convicted
of two murders that, based on trial testimony, occurred after he and a group of
individuals drove to Mr. Hammond’s home to purchase a large amount of cocaine.
Mr. Morales points to a written statement by Mr. Hammond which states Mr.
Hammond never met Mr. Morales. This testimony, Mr. Morales argues, would
have established his innocence. But the statement is generally consistent with the
witnesses’ trial testimony, which established that another member of the group had
known Mr. Hammond and was the one to go into Mr. Hammond’s home to
purchase cocaine. Under the circumstances, counsel’s failure to call Mr.
Hammond did not constitute ineffective assistance. See Raleigh v. Sec’y, Florida
Dep’t of Corr., 827 F.3d 938, 956 (11th Cir. 2016) (“Which witnesses, if any, to
call, and when to call them, is the epitome of a strategic decision, and it is one that
we will seldom, if ever, second guess.”) (citation and quotation marks omitted);
Nejad v. Attorney Gen., State of Georgia, 830 F.3d 1280, 1290 (11th Cir. 2016)
(“Under Strickland, a defendant is prejudiced by his counsel’s deficient
performance if there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”)
(citation and quotation marks omitted).
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Mr. Morales’ third argument challenges counsel’s failure to object to
statements made by the prosecutor at closing argument, specifically, alleged
statements painting Mr. Morales as “a crew or gang member” hired to commit
murders. Mr. Morales contends the comments were unsupported by the record and
amounted to objectionable prosecutorial misconduct. We disagree. The comments
made by the prosecutor—that Mr. Morales and a group of individuals traveled to
Mr. Hammond’s house to buy cocaine; that the “boss of the drug house” was Mr.
Hammond; that Mr. Hammond “went nuts” when he found out strangers, the
eventual victims, had been brought to the drug house; and that Mr. Morales and his
co-defendant killed their victims “to silence the boys who saw something they
were not supposed to know, where ‘B’ [Mr. Hammond] is, where his drug house
is, where the drugs are”—were all reasonably supported by the record. See Tr.
Tran., D.E. 12-4 at 259:12–260:17; Stephens v. Sec’y, Florida Dep’t of Corr., 678
F.3d 1219, 1227 (11th Cir. 2012) (rejecting ineffective assistance claim where
prosecutor’s comments were not improper).
Finally, Mr. Morales argues his counsel’s alleged cumulative errors deprived
him of a right to a fair trial. We are, however, limited to the issues presented in the
certificate of appealability, see Jordan v. Sec’y Dep’t of Corr., 485 F.3d 1351,
1356 (11th Cir. 2007), and we have rejected all of the claims of error before us.
There are, therefore, no errors to cumulate.
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Accordingly, we affirm the district court’s dismissal of Mr. Morales’ habeas
petition.
AFFIRMED.
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