[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15838 AUG 25, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 9:10-cv-80756-KLR
JOHN DEAN HAMNER,
Petitioner-Appellant,
versus
DEPUTY SECRETARY OF THE FLORIDA
DEPARTMENT OF CORRECTIONS,
Richard D. Davison,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 25, 2011)
Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:
John Dean Hamner appeals the denial of his 28 U.S.C. § 2254 petition for a
writ of habeas corpus. Hamner was convicted of sexual battery, served his thirty-
month sentence and is now on probation. After review, we affirm.
I. BACKGROUND
A. State Court Conviction
In 2003, Hamner was in West Palm Beach, Florida for a company sales
event. That evening, Hamner and coworkers, including the victim, went out for
dinner. During the car ride back to the hotel, the victim, who had been drinking,
said she felt dizzy and slumped over. Hamner and the victim’s boss, Mr. Mosby,
helped the victim to her hotel room and left her in her bed, fully clothed. Shortly
thereafter, Hamner returned alone to the victim’s room. Hamner’s and the victim’s
accounts of what happened next differ.
According to Hamner, he merely wanted to return the victim’s hotel key and
check on her. When Hamner entered the room, the victim seemed fine and made
repeated sexual advances. She asked Hamner to have sex with her and begged
him not to leave. Hamner eventually had sex with her.
The victim, on the other hand, said that she awoke to find she was naked
and Hamner was on top of her. She told Hamner “no” and “stop” and tried to get
away, before hitting her head and blacking out.
2
After Hamner left, the victim called her mother and said she was raped. The
victim’s mother called the hotel’s front desk and asked the hotel manager to check
on her daughter. Using an emergency key, the hotel manager entered the victim’s
room and found her naked and crying hysterically. The hotel manager called 911
and stayed with the victim until the police arrived. Both the hotel manager and the
first responding police officer reported that the victim was intoxicated, slurring her
words and going in and out of consciousness.
B. Direct State Appeal
Following a 2005 trial in a Florida state court, Hamner was convicted of
sexual battery without physical violence, in violation of Florida Statute
§ 794.011(5). Hamner was sentenced to thirty months’ imprisonment followed by
three years of sex offender probation.1
Hamner appealed his conviction and sentence. Among other things,
Hamner challenged the state court’s denial of his request to recross-examine the
victim. The Florida Court of Appeals affirmed. See State v. Hamner, 942 So. 2d
433 (Fla. Dist. Ct. App. 2006). The state appellate court concluded (1) that the
trial court did not err in denying Hamner an opportunity to conduct recross-
1
Because Hamner remains subject to the terms and conditions of his sex offender
probation, he is “in custody” under 28 U.S.C. § 2254(a). See Jones v. Cunningham, 371 U.S.
236, 242-43, 83 S. Ct. 373, 376-77 (1963).
3
examination and, (2) that, even assuming arguendo error occurred, any error was
harmless given multiple witnesses testified the victim was slurring her speech that
night. Id. at 436-37. The Florida Supreme Court denied Hamner’s petition for
discretionary review.
C. Motion for Post-Conviction Relief
Hamner filed a motion for post-conviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, alleging that his trial counsel was ineffective and he
was denied a fair trial due to cumulative error. The state habeas court denied most
of Hamner’s claims without a hearing. However, the state habeas court held an
evidentiary hearing on whether Hamner’s trial counsel was ineffective in failing to
present medical evidence about the victim’s mental and physical condition and
reserved ruling on the cumulative error claim.
At the hearing, Hamner submitted the victim’s hospital records and called
the nurse at the hospital when the victim was admitted. The records and the
nurse’s testimony indicated that at the hospital the victim was agitated and
screaming that she did not want anyone to touch her, that she was 16 and just
about to turn 17 (although she was actually 27) and that she kept “seeing his
4
face.”2 At the hearing, Hamner’s trial counsel and the state prosecutor testified,
among other things, that presenting evidence of the victim’s mental state could
have undermined Hamner’s defense that the victim was lucid and able to consent
during the sexual encounter. Hamner’s trial counsel was concerned that if he
relied too heavily on this evidence, the State might amend the information from a
second degree felony to a first degree felony.
The state prosecutor stated that, although the evidence of the victim’s
mental state would have helped the state’s case, she did not introduce it because
she did not think she needed it. The state prosecutor stressed that Hamner’s
testimony as to what happened did not match the four different versions of events
he offered during the investigation or the other evidence. Specifically, time-
stamped data from the hotel’s electronic door locks established that 26 minutes
after Hamner and Mosby left the victim in her room, the hotel manager and the
first responding officer found the victim incoherent, slurring her words and going
in and out of consciousness. Yet, Hamner testified that the victim was lucid and
actively soliciting sex from him when he reentered her room thirteen minutes
2
The victim was raped when she was a teenager. Hamner suggests the victim may have
been experiencing a “flashback” to that earlier incident at the hospital.
5
earlier. The state prosecutor recalled jurors laughing at Hamner during her cross-
examination, and described Hamner’s testimony as “totally unbelievable.”
The state habeas court concluded that: (1) Hamner did not meet “the
Strickland standard for ineffective assistance of counsel”; and (2) since “the
individual errors [were] without merit, the contention of cumulative error [was]
similarly without merit.” On appeal, the Florida District Court of Appeals
affirmed. See Hamner v. State, 13 So. 3d 529 (Fla. Dist. Ct. App. 2009).
Addressing Hamner’s claim as to the omitted evidence of the victim’s medical
condition, the state appellate court concluded that, even if trial counsel’s
performance was deficient, “no reasonable probability exists that such
performance ultimately prejudiced the defendant.” Id. at 533. The state court
explained that Hamner’s own incredible testimony as to what happened “was his
downfall” and the omitted evidence would not have changed the jury’s verdict. Id.
The Florida Supreme Court denied discretionary review.
D. Section 2254 Petition
Hamner filed this counseled § 2254 petition alleging ineffective assistance
of trial counsel, denial of his Sixth Amendment right to fully cross-examine the
victim and a denial of due process based on cumulative error. As to the ineffective
assistance claims, Hamner alleged that his trial counsel: (1) failed to present
6
evidence relating to the victim’s medical condition at the hospital; (2) failed to
object to hearsay testimony from the victim’s mother, the hotel manager and the
responding police officer as to statements the victim made shortly after the
incident; (3) failed to depose some state witnesses and to attend the deposition of
one of Hamner’s own witnesses and, thus, to prepare an effective examination or
cross examination of these witnesses; and (4) failed to object to the district court’s
jury instructions as to involuntary intoxication.
The district court denied Hamner’s § 2254 petition. Hamner filed a motion
for a certificate of appealability (“COA”) on his ineffective assistance claims, his
Sixth Amendment Confrontation Clause claim, the cumulative error-due process
claim and on whether the district court should have held an evidentiary hearing.
The district court granted Hamner’s motion for a COA.3
II. DISCUSSION
3
The district court’s order failed to specify which issues satisfied the requirements of 28
U.S.C. § 2253(c)(2). We conclude sua sponte that the issues for which Hamner sought
certification merit a COA. See Putman v. Head, 268 F.3d 1223, 1228 (11th Cir. 2001)
(explaining that this Court is not deprived of jurisdiction if the district court fails to identify
issues for appellate review and that we may determine sua sponte which issues warrant a COA).
However, we do not address Hamner’s claim on appeal that the evidence was insufficient
to support his conviction because this claim was not alleged in Hamner’s § 2254 petition.
Further, Hamner did not seek certification of this issue in his counseled motion for a COA or
request in his counseled appeal brief that this Court expand the COA to include this issue.
7
In considering a district court’s denial of a § 2254 habeas petition, we
review findings of fact for clear error and legal determinations de novo. Rhode v.
Hall, 582 F.3d 1273, 1279 (11th Cir. 2009), cert. denied, 130 S. Ct. 3399 (2010).
Like the district court, we are also reviewing the state habeas court’s decision. See
Putman, 268 F.3d at 1240. Under 28 U.S.C. § 2254(d), as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), a federal court may
not grant habeas relief on a state prisoner’s claim that was denied on the merits in
state court unless the state court decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “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).4
A. Ineffective Assistance of Trial Counsel
To prevail on a claim of ineffective assistance, the petitioner 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.
4
Hamner’s appeal brief does not acknowledge AEDPA’s deference requirements.
Instead, Hamner’s brief argues the merits of his claims.
8
2052, 2064 (1984). A court need not address both prongs of the inquiry if the
petitioner makes an insufficient showing on one. Id. at 697, 104 S. Ct. at 2069.
To show deficient performance, the petitioner must demonstrate that
counsel’s performance fell below an objective standard of reasonableness. Id. at
687-88, 104 S. Ct. at 2064. Strickland’s performance prong requires deferential
review, and the court, in assessing the reasonableness of counsel’s performance,
“must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Reed v. Sec’y, Fla. Dep’t of Corrs.,
593 F.3d 1217, 1240 (11th Cir.), cert. denied, 131 S. Ct. 177 (2010) (quotation
marks omitted).
With respect to the prejudice prong, the court asks whether “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.
at 2068. To establish prejudice, the petitioner has the burden to show more than
that the error had “some conceivable effect on the outcome of the proceeding,”
Marquard v. Sec’y Dep’t of Corrs., 429 F.3d 1278, 1305 (11th Cir. 2005)
(quotation marks omitted), and may not rest on “bare allegations of deficient
performance.” Yeck v. Goodwin, 985 F.2d 538, 542 (11th Cir. 1993).
9
Our standard of review is “doubly deferential” when “a Strickland claim [is]
evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance, 556 U.S.
111, ___ , 129 S. Ct. 1411, 1420 (2009). “The question is not whether a federal
court believes the state court’s determination under the Strickland standard was
incorrect but whether that determination was unreasonable – a substantially higher
threshold.” Id. (quotation marks omitted).
Here, Hamner has not shown that the state court’s denial of his ineffective
assistance claims was contrary to, or an unreasonable application of, Strickland or
an unreasonable determination of the facts. First, as to the failure to object to
hearsay testimony, the state court found that these statements would have been
admitted as excited utterances. See Fla. Stat. § 90.803(2) (providing that excited
utterances are not inadmissible hearsay evidence). As such, the state court
reasonably concluded that trial counsel could not be deemed ineffective for failing
to raise a futile hearsay objection. See Card v. Dugger, 911 F.2d 1494, 1520 (11th
Cir. 1990) (“Counsel cannot be labeled ineffective for failing to raise issues which
have no merit.”).5
5
Hamner’s trial counsel raised a hearsay objection to the testimony of the victim’s mother
as to statements the victim made shortly after the incident. The state trial court overruled the
objection and admitted the out-of-court statements as excited utterances. The state habeas court
found that the testimony of the other two witnesses, which recounted statements made by the
victim “a few brief moments after the victim spoke to her mother,” would also have fallen under
the excited utterance exception.
10
Second, as to the failure to depose witnesses, the state court denied this
claim because Hamner either failed to allege the substance of the witnesses’s
potential testimony or, if he did, failed to show how the omission of that testimony
prejudiced Hamner at trial.6 The state court’s conclusion that Hamner failed to
show prejudice was not contrary to, or an unreasonable application of, Strickland.
Strickland places upon the petitioner the burden to establish prejudice except in
the few cases, not applicable here, in which prejudice is presumed. See 466 U.S.
at 693, 104 S. Ct. at 2067.
Similarly, as to the involuntary intoxication jury instruction claim, the state
court concluded that Hamner failed to explain how the instruction prejudiced his
defense. Hamner argues that there was no evidence of involuntary intoxication
and that, by giving this instruction, the state trial court nullified his consent
6
Hamner alleged that Officer Jay Donde testified at his deposition that the victim knew
which room Hamner was staying in and, after the sexual encounter, contacted the front desk
multiple times in an effort to call him. The state court found that Hamner did not show how
Officer Donde’s testimony would have created reasonable doubt in the minds of the jury. The
district court noted that Officer Donde’s potential testimony was cumulative of the testimony of
two other hotel employees that the victim had done this.
Hamner alleged that another witness, Lloyd Walker, who attended dinner with Hamner
and the victim, would have testified that the victim behaved oddly, drank Jack Daniels with no
ice, talked about her boyfriend and told people that everyone there was her boyfriend. The state
court found that Lloyd Walker’s testimony merely corroborated the victim’s own testimony that
at dinner she drank Jack Daniels and talked about her boyfriend.
11
defense. Hamner’s bare allegation does not satisfy his burden to show that trial
counsel’s failure to object to the instruction caused him prejudice.7
The instruction, which told the jury it could consider “[e]vidence of the
victim’s mental incapacity . . . , if any,” did not misstate the law and did not
suggest that such evidence existed.8 (emphasis added.) The victim’s own
testimony, which the jury obviously credited, indicated she voluntarily drank
alcohol at dinner and became intoxicated. Moreover, during closing, Hamner’s
counsel argued that the involuntary intoxication instruction the trial court was
about to give did not apply because there was no evidence of involuntary
consumption of alcohol or drugs and stressed that the victim voluntarily consumed
7
The state habeas court denied this claim because Hamner failed to describe with any
particularity how the instruction prejudiced his defense. Although under Florida law it is
generally error to give a jury instruction that is not supported by the record, it is not per se
reversible error. Instead, it is reversible error only if it is “capable of misleading the jury in such
a way as to prejudice the defendant’s right to a fair trial.” Lewis v. State, 693 So. 2d 1055, 1057
(Fla. Dist. Ct. App. 1997). Thus, the mere fact that Hamner’s trial counsel failed to object to the
instruction does not demonstrate prejudice. Moreover, the victim admitted she voluntarily
consumed alcohol, and we see no prejudice from this instruction.
8
The jury instruction stated:
Evidence of the victim’s mental incapacity or defect, if any, may be
considered in determining whether there was an intelligent, knowing, and voluntary
consent.
Mentally incapacitated means that a person is rendered temporarily incapable
of appraising or controlling his or her conduct due to the influence of a narcotic,
an[a]esthetic or intoxicating substance administered to that person without his or her
consent, or due to any other act committed upon that person without his or her
consent.
12
alcohol. Hamner points to nothing in the record to suggest that the jury
disregarded the “if any’ language of the instruction and presumed the victim was
involuntarily intoxicated at the time of the offense. Therefore, the state court’s
ruling on this claim was not contrary to, or an unreasonable application of,
Strickland.
As for Hamner’s claim regarding the omitted evidence of the victim’s
mental condition at the hospital, the state habeas court concluded that Hamner
failed to show prejudice. Specifically, in light of “the unbelievability of the
defendant’s version of events,” the state habeas court concluded that the omitted
evidence would not have changed the jury’s verdict. Hamner, 13 So. 3d at 533.
Notably, Hamner’s trial counsel was able to elicit information from
witnesses about the victim’s mental health issues and her prior rape. The
defense’s theory of the case, however, did not rely heavily upon these facts.
Instead, the defense argued that the victim intentionally fabricated the rape story
because she feared she would lose her job. Evidence that, at the hospital, the
victim appeared delusional and possibly was having a flashback to the earlier rape
would have undermined that theory.
Moreover, the record bears out the state habeas court’s assessment of
Hamner’s credibility. Although Hamner admitted it was inappropriate for him to
13
have sex with the victim under the circumstances, less than fifteen minutes after
leaving her room, Hamner reentered her room alone and admitted he had sex with
her. Furthermore, Hamner’s story kept changing right up until trial. When
questioned by the police, Hamner initially denied reentering the victim’s room,
later admitted entering her room, but denied having sex with the victim, and
finally admitted having sex. His final version of events at trial did not match any
of his prior statements given to police. At the state habeas court’s evidentiary
hearing, the state prosecutor testified that Hamner’s testimony was so unbelievable
that some jurors laughed during her cross-examination of Hamner.
Hamner’s story at trial was also inconsistent with the other evidence.
Hamner testified that when he entered the victim’s room, she was coherent.
Hamner described a sustained conversation with the victim in which she
repeatedly asked him to have sex with her, told him she was on birth control pills,
discussed her sexual history with him, told him she had a headache and promised
him the best sex he had ever had. Hamner said that, during this conversation, the
victim repeatedly made sexual advances, undressed and attempted to perform oral
sex on him.
Yet, Hamner’s description of the victim did not match the woman the hotel
manager and the police officer found on the floor of the hotel room less than
14
fifteen minutes later. At that time, the victim was intoxicated, barely able to stand
up or communicate, and was slurring her words and slipping in and out of
consciousness.
On this record, we cannot say the state habeas court’s conclusion that
Hamner failed to show prejudice was contrary to, or an unreasonable application
of, Strickland or was an unreasonable determination of the facts.
B. Sixth Amendment Right of Confrontation
Under the Sixth Amendment’s Confrontation Clause, defendants have the
right to cross-examine the government’s witnesses. Delaware v. Van Arsdall, 475
U.S. 673, 678, 106 S. Ct. 1431, 1435 (1986). However, this right is not without
limitation, as the defendant is entitled to only “an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20,
106 S. Ct. 292, 294 (1985).
Accordingly, the state trial court has “wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.” Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435. To
15
establish a Confrontation Clause violation, the defendant must show that he was
“prohibited from engaging in otherwise appropriate cross-examination” and “[a]
reasonable jury might have received a significantly different impression of [the
witness’s] credibility had [the defendant’s] counsel been permitted to pursue his
proposed line of cross-examination.” Id. at 680, 106 S. Ct. at 1436.
Here, the state appellate court’s decision on the Confrontation Clause issue
was not contrary to, or an unreasonable application of, Van Arsdall. On cross-
examination, Hamner was able to question the victim about her claim that she had
said no, specifically focusing on how loud the victim claimed she had spoken.
This information was important to the defense because the victim’s supervisor,
Mosby, was in the room next door and testified that he heard no noise from her
room. On redirect, the state prosecutor explored further the manner in which the
victim said no, and asked if she spoke clearly. The victim admitted that she did
not know how loudly she had spoken and that her words “might have been
slurred.” The state trial court refused Hamner’s request for recross-examination.
The alleged Sixth Amendment violation relates only to Hamner’s desire to
question the victim further about the clarity of her diction when she said no.
Given that the victim herself acknowledged she had been drinking and might have
16
slurred her words, we do not see how further exploration of this admission would
have given a reasonable jury a significantly different impression of her credibility.
Hamner’s testimony was that the victim never said no at all and in fact
repeatedly and coherently asked him to have sex with her. Thus, further
questioning on this point arguably would been detrimental to Hamner’s defense
given that it could have undermined his own credibility and supported the
prosecution’s theory that the victim was in no condition to knowingly consent and
that Hamner took advantage of her. Under the facts and circumstances of this
case, the state court reasonably concluded that the trial court’s refusal to let
Hamner recross-examine the victim on this particular point did not rise to the level
of a Sixth Amendment violation.9
III. CONCLUSION
For all these reasons, we affirm the district court’s denial of Hamner’s
§ 2254 petition.
AFFIRMED.
9
Given that Hamner did not request a hearing, or allege any facts that, if proven, would
have indicated that the state court acted contrary to, or unreasonably applied, federal law, the
district court did not abuse its discretion in denying Hamner’s petition without holding a hearing.
17