[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10641 ELEVENTH CIRCUIT
SEPTEMBER 28, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 5:06-cv-00048-SPM-MD
JAVIER RAMOS,
lllllllllllllllllllll Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
lllllllllllllllllllll Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 28, 2011)
Before HULL, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Javier Ramos, a Florida state prisoner, appeals, through counsel, the district
court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. The district court granted a certificate of appealability (“COA”) as to the
following five claims: whether Ramos’s counsel, Richmond1, was ineffective for
failing to (1) object to the state medical examiner’s testimony as scientifically
unreliable, speculative, and beyond the medial examiner’s expertise; (2) object to
the use of the state’s computer-generated animation on the basis that the state did
not lay a proper foundation as required by Pierce v. State, 718 So. 2d 806, 809
(Fla. Dist. Ct. App. 1997); (3) hire a forensic expert to rebut the medical
examiner’s testimony; (4) file a motion to suppress Ramos’s post-arrest statement
where counsel testified that he strategically decided not to file such a motion; and
(5) object to the state’s closing argument as being inflammatory and expressing an
opinion as to Ramos’s guilt. We expanded the COA to consider whether the
district court erroneously found that Ramos had not exhausted his claims that the
trial court violated his right to due process when it: (1) admitted the medical
examiner’s testimony, (2) admitted the state’s computer-generated animation, (3)
1
Ramos had two trial attorneys, Harold and Jim Richmond. For ease of discussion, we
refer to trial counsel simply as “Richmond.”
2
denied his motion for a judgment of acquittal, and (4) denied his request for an
“independent acts” jury instruction.
BACKGROUND
Javier Ramos and Joe Clark shared an apartment in Panama City, Florida in
late summer of 1994. Ramos then moved to Miami but returned to Panama City
on October 2, 1994. Before he left Miami, he told a dancer at the exotic dance
club he managed that he had to take care of people in Panama City. When she
asked him if he planned to murder anyone, he said he would if he had to.
While in Panama City, Ramos gave Clark a .22 caliber pistol. Ramos
owned a .38 Beretta. They entered a nightclub called the Show-N-Tail to speak
with Chris McConnell, the manager. It is unclear what happened after they
entered the club—but four men were dead when the shooting ended including
Tony Lands, a maintenance man who was in the club to collect his paycheck.
There were sixteen gunshot wounds among the four men, and each had been shot
twice in the head. Ramos drove Clark to their old apartment and then continued
on to Miami. Ramos was arrested shortly after he arrived in Miami.
Ramos asked for a lawyer in Miami and was not questioned. He was
transported to Panama City in a small plane with police officers from Panama
City. During the ride he was told that Clark cooperated with the police. At
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Panama City headquarters, he again asked for a lawyer but was advised it would
take some time for one to be appointed, so he gave a statement. His statement
indicated that Clark shot two of the men suddenly and without warning. He said
that Clark then unexpectedly shot McConnell. Ramos also stated he shot Lands in
self-defense because Lands appeared suddenly, and he saw Lands move his hands
as if he were reaching for a gun (which Ramos knew Lands carried). Clark and
Ramos were charged with four counts of first degree murder. In a joint trial with
two separate juries, Clark was acquitted on all counts and Ramos was convicted of
first degree murder of Lands, second degree murder of McConnell, and
manslaughter of the other two men. Ramos was sentenced to life imprisonment
for Lands’s murder and lengthy concurrent sentences for the other homicides.
Ramos’s conviction and sentences were affirmed without opinion on direct appeal.
Ramos’s motion for post-conviction relief was denied, and the denial was affirmed
on appeal without opinion. Ramos v. State, No. 04-0672 (Fla. Dist. Ct. App. Sept.
27, 2005). Ramos filed this timely petition for a writ of habeas corpus which the
district court denied. This appeal followed.
DISCUSSION
We review the district court’s denial of a habeas petition de novo and
factual findings for clear error. McNair v. Campbell, 416 F.3d 1291, 1297 (11th
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Cir. 2005). Mixed questions of law and fact, like an ineffective assistance of
counsel claim, are reviewed de novo. Id. Under 28 U.S.C. § 2254(d):
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings 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
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). “[C]learly established Federal law” refers to the “governing
legal principle or principles set forth by the Supreme Court at the time the state
court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S. Ct.
1166, 1172 (2003) citing Williams v. Taylor, 529 U.S. 362, 412 (2000). We
review a petitioner’s claim de novo where the state court “made an unreasonable
factual determination.” Jones v. Walker, 540 F.3d 1277, 1288 (11th Cir. 2008) (en
banc).
I. INEFFECTIVE ASSISTANCE OF COUNSEL
In habeas petitions, state court and district court findings of historical fact
are subject to the presumption of correctness unless clearly erroneous. Collier v.
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Turpin 177 F.3d 1184, 1198 (11th Cir. 1999). Ineffective assistance of counsel is
a mixed question of law and fact, so we review the district court’s determinations
de novo. McNair, 416 F.3d at 1297. To prevail on a claim of ineffective
assistance of counsel, a habeas petitioner must show that: (1) counsel’s
performance was deficient, falling below an objective standard of reasonableness;
and (2) “the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687– 88, 104 S. Ct. 2052, 2064 (1984).
In challenging the sufficiency of counsel’s performance, habeas petitioners
must overcome a strong presumption that counsel was adequate and exercised
reasonable professional judgment when making significant decisions. Id. at 690,
104 S. Ct. at 2066; Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.
2000) (en banc) (citation omitted). Counsel will not be found ineffective if the
approach taken could be considered sound trial strategy. Strickland, 466 U.S. at
1314, 104 S. Ct. at 2065. Courts must approach counsel’s challenged conduct
from the counsel’s perspective at the time. Id. at 689, 104 S. Ct. at 2065.
The prejudice prong requires a showing of reasonable probability that the
outcome would have been different but for counsel’s errors. Id. at 694, 104 S. Ct.
at 2068. For guilt phase claims of ineffective assistance, it is not enough to show
that the error had a “conceivable effect on the outcome”; the error must undermine
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confidence in the outcome and create a reasonable doubt as to whether, without
the challenged error, the fact finder would have found reasonable doubt. Id. at
695, 104 S. Ct. at 2067-68. To make this determination, we review “the totality of
the evidence before the judge or jury.” Id. at 693, 104 S. Ct. at 2069.
To succeed on an ineffective assistance of counsel claim, the defendant
must prove both prongs of the test; a reviewing court need not address the
performance prong of the test if the petitioner cannot meet the prejudice prong and
vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
A.
Ramos first claims that Richmond’s representation was ineffective due to
his failure to object to the medical examiner’s testimony as scientifically
unreliable, speculative, and beyond the medial examiner’s expertise. The medical
examiner testified as to the position of the victims’ bodies when they were shot.
The district court found that the state court’s ruling on this claim was
unreasonable, so we review it de novo. 28 U.S.C. § 2254(d); Jones v. Walker, 540
F.3d at 1288 n.5. We begin our analysis with the prejudice prong of the Strickland
test. Ramos can only prevail if he can prove that Richmond’s proper objection
could have reasonably led to the creation of reasonable doubt in the mind of the
fact finder.
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The decision to admit expert testimony in Florida is left to the trial court’s
discretion and reversed only on a finding of clear error. Terry v. State, 668 So. 2d
954, 960 (Fla. 1996). The court must make two factual determinations prior to
certification of an expert. The court must decide first whether the subject matter is
proper for expert testimony and, second, whether the witness is adequately
qualified to express an opinion in the matter. Id. (citations omitted). Experts may
express opinions on matters in which they have expertise when it is in response to
facts disclosed at or before trial. Id.
Ramos argues that the medical examiner’s use of conditional language in
explaining her theory (“either...or,” “may have,” “could have”) rendered her
testimony unhelpful to the jury. This language presents multiple possibilities for
body location to the jury, which the jury was free to weigh. Juries may weigh the
evidence presented by witnesses, including expert witnesses, based on credibility.
This language does not render the state court’s finding of helpfulness clearly
erroneous.
Ramos next argues that the medical examiner did not have the requisite
expertise to testify as she did. Here, the trial court reviewed the medical
examiner’s record and made a determination that her education, knowledge, skill,
experience, and training qualified her as a forensic pathologist capable of
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expressing opinions on the position of the bodies. This determination is not
clearly erroneous. See Terry, 668 So. 2d at 960–61 (stating that while there may
be a dispute over the weight to be given to a medical examiner’s testimony
regarding a victim’s body position before death, admissibility of such an expert to
testify is within the trial court’s discretion and does not represent a clear showing
of error.).
As a result, Ramos is unable to convince us that, had trial counsel objected
to the medical examiner’s testimony or expertise, the testimony would have been
disallowed. Absent this showing, he does not meet the prejudice prong of the
Strickland test and is therefore not entitled to relief on this ground.
Additionally, while the medical examiner’s testimony damaged Ramos’s
self-defense theory, even without the testimony of the medical examiner there was
sufficient evidence of Ramos’s guilt on which a reasonable jury could base a
guilty conviction. Prior to leaving Miami, Ramos had a conversation with a
dancer at his nightclub who testified that he told her he had to take care of people
in Panama City and would kill if necessary. Ramos testified at trial that he shot
Tony Lands first in the chest, and then again after Lands’s legs buckled in self-
defense. Since Ramos testified, the jury was free to disbelieve his self-defense
argument and to use his testimony as substantive evidence that he shot Lands with
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premeditation. United States v. Williamson, 339 F.3d 1295, 1301 n.14 (11th Cir.
2003) (“[The defendant] testified in her own defense . . . [so] the jury was free to
disbelieve her and use her testimony as substantive evidence proving her guilt.”).
Based on this evidence, there is no reasonable probability that the jury would have
found that Ramos did not shoot Lands with premeditation absent the medical
examiner’s testimony. Accordingly, Ramos is not entitled to relief on this ground.
B.
Ramos next contends that Richmond was ineffective because he failed to
object to the computer-generated animation showing the position of Lands’s body
when he was shot for failure to lay a proper foundation, as required by Pierce v.
State, 718 So. 2d 806 (Fla. Dist. Ct. App. 1997).2 This animation was prepared
using the medical examiner’s testimony. The district court found that the state
court did not properly address the issue raised, so we review the Strickland claim
de novo.
2
Pierce stated that for a court to admit a computer animation, the proponent must
establish that “(1) the opinion evidence [is] helpful to the trier of fact; (2) the witness [is]
qualified as an expert; (3) the opinion evidence [is] applied to evidence offered at trial; and (4)...
the evidence, although technically relevant, [does] not present a substantial danger of unfair
prejudice that outweighs its probative value.” 718 So. 2d at 809 (citation omitted). The
proponent must also “establish that the facts or data on which the expert relied in forming the
opinion expressed by the computer animation are of a type reasonably relied upon by experts in
the subject area”, and that “the computer animation [is] a fair and accurate depiction of that
which it purports to be.” Id.
10
Pierce is not instructive here. It was decided two years after Ramos’s trial,
and the deciding court recognized that the issue was addressed by “no appellate
court in Florida and by few in other jurisdictions.” Pierce, 718 So. 2d at 807.
Attorneys are not required to make arguments based on predictions of how law
will develop. Spaziano v. Singletary 36 F.3d 1028, 1039 (11th Cir. 1994)
(citations and quotation marks omitted). Given this background, Ramos has not
proven that even had the objection been made, the trial court would have excluded
the animation.
Because Ramos fails to prove that his case was prejudiced by Richmond’s
failure to object to the evidence, Ramos is not entitled to habeas relief on this
ground.
C.
Ramos next argues that Richmond was ineffective for failing to hire a
forensic expert. The state court applied Strickland to this issue and found that no
grant of extra time or hiring of other forensic experts would have changed the
outcome of the case.
It is uncontested that the state disclosed the medical examiner who would be
called to testify at trial as a possible witness less than one month before trial.
Through no fault of his own, Richmond was unable to depose this witness and
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learn that her opinions were contrary to the original medical examiner’s opinions
until four days before the trial began. Richmond moved for continuances for
authorization to retain an expert and to prepare a computer animation. His
motions and continuances were denied, and it does not appear from the record
before us that his motion to retain an expert and to prepare a computer animation
was granted.
Richmond’s performance is not deficient merely because it is not perfect.
To prove the performance prong of Strickland, Ramos must prove that no other
competent lawyer would have failed to anticipate the state’s tardy disclosure and
the court’s refusal to grant a continuance. He has not done so. Therefore, the state
court’s ruling was consistent with clearly established federal law and reasonably
determined that Richmond’s failure to hire a forensic expert was dictated by time
and cost restrictions, not by deficient performance. Ramos is not entitled to relief
on this ground.
D.
Ramos argues that Richmond’s decision not to file a motion to suppress his
confession constituted ineffective assistance of counsel. The state court applied
Strickland and determined that Richmond’s decision not to file a motion to
suppress to avoid testimony by the codefendant and to pursue a self-defense claim
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was a reasonable strategic choice and did not constitute ineffective assistance of
counsel. Whether a choice is a tactical one is a question of fact, entitled to a
presumption of correctness. Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th
Cir. 1998). The reasonableness of such a choice is a question of law and subject
to de novo review. Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003).
And, as we have stated, habeas relief is only granted when the trial court’s
decision is contrary to or an objectively unreasonable application of clearly
established federal law. 28 U.S.C. § 2254(d)(1).
The state court found that Richmond’s decision not to file the motion was
tactical. When Richmond made this decision, he had at least two of Ramos’s
codefendant’s statements, he had deposed the firearms expert, he had spent twelve
hours researching the issue and reviewing Ramos’s statement, and he had
determined that Ramos’s position as to who committed the murders was contrary
to his codefendant’s position on the matter. With this information, Richmond
made the decision not to file a motion to suppress. Upon review of the record, we
cannot say that the state court’s application of Strickland was unreasonable in
concluding that Richmond made a reasonable tactical decision not to file the
motion to suppress. Therefore, Ramos is not entitled to relief on this ground.
E.
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Ramos’s final Strickland claim is based on Richmond’s failure to object to
the prosecutor’s closing arguments. The state court held that the prosecutor’s
statements were not improper. As stated above, habeas relief is only granted when
the trial court’s decision is contrary to or an objectively unreasonable application
of clearly established federal law. 28 U.S.C. § 2254(d)(1).
In evaluating prosecutorial indiscretion, the relevant question is “whether
the comments so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181,
106 S. Ct. 2464, 2471 (1986) (citation and quotation marks omitted). A lawyer
may not make “[i]mproper suggestions, insinuations, [or] assertions calculated to
mislead or inflame the jury’s passions” in his closing argument. United States v.
Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009), cert. denied, 131 S. Ct. 413 (2010).
However, improper remarks are harmless error if there is “sufficient independent
evidence of guilt” in the record. Lopez, 590 F.3d at 1256. (citation and quotation
marks omitted).
At various times during the closing argument, the prosecutor stated that
Ramos “shaded his testimony” and “just wants to con you.” He also described the
defense’s case strategy as like a “jigsaw puzzle” where you have to take the pieces
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and “fit them in backwards and upside down and corner wise, etc.” Finally, the
prosecutor stated that Ramos was “guilty, guilty, guilty.”
We cannot say that these statements “infected the trial with unfairness.”
Darden, 477 U.S. at 181, 106 S. Ct. at 2471. Because Ramos testified, the
prosecutor could comment on his testimony. Even without these statements, there
was sufficient evidence to uphold the guilty verdict.3 Thus, the state court’s
application of federal law was neither contrary to clearly stated federal law nor
unreasonable, so Ramos is not entitled to relief on this claim.
II. EXHAUSTION
Findings of exhaustion by the district court in § 2254 cases are mixed
questions of law and fact, and we review them de novo. Mauk v. Lanier, 484 F.3d
1352, 1357 n.3 (11th Cir. 2007).
For a federal court to hear a habeas claim resulting from a state conviction,
the petitioner must first exhaust the remedies available in his state’s courts. 28
U.S.C. § 2254(b)(1)(A). This requirement is not satisfied if the prisoner fails to
raise a federal claim in the state court, see, e.g., Bailey v. Nagle, 172 F.3d 1299,
3
At the time of closing argument, there was (1) testimony that Ramos told an employee he
was going to Panama City to deal with some people, killing them if necessary, (2) Ramos’s
testimony on the stand that he supplied his codefendant with a weapon used in the shooting and
that he shot one of the victims in self-defense, (3) evidence of Ramos’s ownership of one of the
two guns recovered by the police, and (4) identification evidence of Ramos at the scene of the
crime immediately after the murders occurred.
15
1303 (11th Cir. 1999) (per curiam), or fails to raise a claim in terms of federal law,
see, e.g., Gray v. Netherland, 518 U.S. 152, 162–63, 116 S. Ct. 2074, 2081 (1996)
(“[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus
must include reference to a specific federal constitutional guarantee, as well as a
statement of the facts that entitle the petitioner to relief.”). A claim is only
exhausted if it is fairly presented to the state courts, meaning that the same claim
must be brought before both the state and federal courts and presented in such a
way “that a reasonable reader would understand [the] claim’s particular legal basis
and specific factual foundation.” McNair v. Campbell, 416 F.3d 1291, 1302 (11th
Cir. 2005) (citation and quotation marks omitted).
In Baldwin v. Reese, the Supreme Court stated that citing the federal source
of law in conjunction with the state law claim, or citing a case deciding such a
claim on federal grounds, or simply labeling the claim federal is sufficient to fairly
present a claim. 541 U.S. 27, 32, 124 S. Ct. 1347, 1351 (2004). In McNair, we
applied this standard by looking at the underlying purpose of exhaustion—to
“afford the state courts a meaningful opportunity to consider allegations of legal
error without interference from the federal judiciary.” McNair, 416 F.3d at 1302
(citation and quotation marks omitted). Given this purpose, we held that the
Baldwin language discussing adequate means to identify federal issues to the
16
lower state courts was dicta and that a federal issue requires more than a
sprinkling of federal citations, and more than “some makeshift needles in the
haystack of the state court record.” McNair, 416 F.3d at 1303.
Ramos claims that his federal due process rights were violated when the
court (1) admitted the medical examiner’s testimony, (2) admitted the state’s
computer generated animation, (3) denied his motion for a judgment of acquittal,
and (4) denied his request for an “independent acts” jury instruction.
First, Ramos claims denial of due process in the admission of the testimony
of the medical examiner into evidence. In his brief to the District Court of Appeal
of Florida, Ramos made one passing reference to federal law. He stated that “this
evidence was so devastatingly prejudicial that its introduction violated his Florida
and federal constitutional rights to due process and a fair trial and the error was
fundamental and, thus, must be considered by this court even absent objection.”
Nowhere in his argument does he argue federal standards, nor does he include
references to federal case law. While other Circuits have interpreted Baldwin
differently, as Ramos discusses in his brief, we have required more than “needles
in the haystack.” McNair, 416 F.3d at 1303. But see Jackson v. Edwards, 404
F.3d 612, 618–22 (2d Cir. 2005) (focusing on the degree of similarity of the state
law claims and federal law claims in deciding exhaustion for the purpose of
17
habeas). In McNair, we found that a citation to a single federal case in a string of
cases, and a passing reference in the conclusion of an argument to various
amendments of the Constitution did not fairly present the federal issue to the state
court, barring federal habeas review for lack of exhaustion in the state courts. 416
F.3d at 1303-04.
Similarly, here Ramos mentions his federal constitutional rights only in an
opening paragraph. This reference did not fairly present the issue to the state
court, and so it has not been exhausted. Our holding in McNair does not depend
on whether the state and federal standards for each issue were identical, but rather
whether the state court was on notice of the federal claim. Id. at 1304. Here, the
state court was not on notice of the due process claim in his objection to the
admission of evidence, so the issue was not properly exhausted in the state court.
Second, Ramos argues that the admission of the computer-generated
animation violated his due process rights. In his appellate brief in the state court,
he mentioned that the admission of the animation violated his “constitutional right
to a fair trial” and due process rights. Again, his legal argument is confined to
state law and state standards. Applying McNair, Ramos’s brief did not put the
state court on notice of the federal issue, and so he did not exhaust the federal
question in state court and we therefore cannot grant the relief he seeks.
18
Next, Ramos argues that the state did not sufficiently prove his guilt as to
the premeditation of the murder of Lands, and so his motion for acquittal was
improperly denied. Ramos did not address any federal law in this argument,
except for a passing reference to the Constitution. He states “[t]he [circumstantial
evidence] rule implicates a defendant’s Florida and federal constitutional rights to
due process.” These passing references to the Constitution are akin to the
“needles in the haystack” that we explicitly sought to avoid in our interpretation of
Baldwin. McNair, 416 F.3d at 1303. This reference did not properly put the state
court on notice of the federal issue, and so we find that his claim has not been
exhausted by the state courts.
Finally, Ramos argues that the trial court erred in denying his request for an
“independent acts” jury instruction. As with the other three issues, Ramos makes
no reference to federal law other than in the conclusion of his law section, stating
that the failure to issue such an instruction denies “Florida and federal
constitutional rights to due process and a fair trial.” Here again, Ramos failed to
properly exhaust the federal issue in the state court, and so we cannot grant relief.
CONCLUSION
Ramos’s counsel was not constitutionally ineffective, and Ramos failed to
fully exhaust the federal issues in the state courts.
19
AFFIRMED.
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