Michael McGee v. Secretary, Department of Corrections

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[DO NOT PUBLISH]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
____________________
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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
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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
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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
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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
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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
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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.
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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
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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).
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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.