Moises E. Bure v. State of Florida

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 22, 2012
• Docket: 11-15277
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 11-15277 ELEVENTH CIRCUIT Non-Argument Calendar JUNE 22, 2012 ________________________ JOHN LEY CLERK D.C. Docket No. 1:10-cv-24322-MGC

MOISES E. BURE,

Petitioner-Appellant,

versus

STATE OF FLORIDA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(June 22, 2012)

Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

On June 10, 2008, in the Circuit Court for Miami-Dade County, Florida, a jury found Moises E. Bure guilty of Unlawful Driving as a Habitual Traffic

Offender, a felony of the third degree, see Fla. Stat. § 322.34(5), and, on

December 11, 2008, the Circuit Court sentenced him to prison for 10 years, with a

five-year mandatory sentence as an habitual offender. See Fla. Stat. § 775.084(4).

He appealed his conviction and sentence, and the District Court of Appeal

affirmed. Bure v. State, 50 So.3d 1145 (Fla. App. 3d Dist. 2010). He is before

this court on an appeal of an order of the United States District Court for the

Southern District of Florida denying his petition for writ of habeas corpus. See 28

U.S.C. § 2254. The District Court granted a certificate of appealability (“COA”)

on three issues: (1) whether Bure’s “conviction is the result of prosecutorial

misconduct in that the prosecutor made improper remarks during closing

argument”; (2) whether “the State failed to provide [Bure] with adequate

discovery”; and (3) whether “the trial court improperly permitted [Bure] to

proceed pro se at trial and sentencing.”

I.

The federal habeas corpus statute, 28 U.S.C. § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and as

interpreted by the United States Supreme Court, limits the power of a federal court

to grant a writ of habeas corpus vacating the conviction of a state prisoner on the

2 ground that the conviction was obtained in violation of the Constitution of the

United States. First, a writ may not issue unless, with certain exceptions, the

prisoner has exhausted his state remedies. See 28 U.S. C. § 2254(b), (c); Cullin v.

Pinholster, ___ U.S. ____, 131 S. Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). The

prisoner exhausts his state remedies by presenting his constitutional claim to the

State courts, to afford them an opportunity to correct any error that may have

occurred. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 888, 130 L.Ed.2d

865 (1995). If the prisoner has done this, and the State courts “adjudicated” his

claim “on the merits,” the writ

shall not be granted . . . unless the adjudication . . .

(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).

The statutory phrase “clearly established Federal law” refers only to “the

holdings, as opposed to the dicta,” of the Supreme Court decisions extant at the

time of the State court adjudication. Williams v. Taylor, 529 U.S. 362, 412, 120 S.

Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). A State court decision is “contrary to”

3 a Supreme Court holding “if the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the state court decides a

case differently than [the Supreme] Court has on a set of materially

indistinguishable facts.” Id. at 412–13, 120 S. Ct. at 1523.1 A State court decision

involves an unreasonable application of a Supreme Court holding if the State court

correctly identifies the holding but unreasonably applies it to the facts of the

prisoner’s case. Id. at 407, 120 S.Ct. at 1520.

An unreasonable application of a Supreme Court holding is different from

an incorrect application of a Supreme Court holding. Harrington v. Richter, 562

U. S. ____, 131 S. Ct. 770, 785, 178 L. Ed.2d 624 (2011) (quoting Williams, 529

U.S. at 410, 120 S. Ct. at 1522). A federal habeas court might consider the State

court’s application of a Supreme Court holding incorrect were it reviewing the

State court’s decision as an appellate court would on direct appeal. But the habeas

court is not conducting such review. AEDPA, having limited the court’s authority

to grant the writ, precludes the court from issuing the writ even when it “concludes

in its independent judgment that the state-court decision applied [the Supreme

1 “When no Supreme Court precedent is on point, . . . a state court’s conclusion cannot be ‘contrary to clearly established Federal law.’” Dombrowski v. Mingo, 543 F.3d 1270, 1274 (11th Cir. 2008) (quoting Washington v. Crosby, 324 F.3d 1263, 1265 (11th Cir. 2003).

4 Court holding] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 25, 123 S. Ct.

357, 360, 154 L. Ed.2d 279 (2002). “[T]he purpose of AEDPA is to ensure that

federal habeas corpus relief functions as a ‘guard against extreme malfunctions in

the state criminal justice systems,’ and not as a means of error correction.” Greene

v. Fisher, ___ U.S. ___, ___, 132 S. Ct. 38, 43–44, 181 L. Ed.2d 336 (2011)

(quoting Harrington, 562 U.S. at ____, 131 S. Ct. at 786).

Section 2254(d)’s “standard for evaluating state-court rulings [is therefore]

highly deferential”, Woodford, 537 U.S. at 24, 123 S. Ct. at 360, and “difficult to

meet,” Harrington, 562 U.S. at ____, 131 S. Ct. a 786; it “demands that state-court

decisions be given the benefit of the doubt.” Woodford, 537 U.S. at 24, 123 S. Ct.

at 360.2 To obtain habeas relief, a state prisoner must show that “there is no

possibility fairminded jurists could disagree that the state court's decision conflicts

with [the Supreme] Court's precedents . . . ., that the state court's ruling . . . was so

lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.”

Harrington, 562 U.S. at ____, 131 S. Ct. at 786. With these principles in hand, we

2 The extent of deference accorded a State court’s decision will depend, in part, on the specificity of the Supreme Court holding the State court applied. If the holding is specific, the range of reasonableness may be narrow. If the holding is general, the range of reasonableness may be broad. Yarrough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 2149, 158 L. Ed.2d 938 (2004).

5 turn to the three issues set out in the COA, considering them in order.

II.

Bure claims that during closing argument, the prosecutor infringed his Fifth

Amendment right to remain silent by improperly commenting on his failure to

testify by reminding the jury that his statements were not evidence.

The Fifth Amendment of the United States Constitution provides that “No

person shall . . . be compelled in any criminal case to be a witness against

himself.” U.S. Const. Amend. V. In United States v. McGarity, we explained

that a prosecutor’s statement is an improper comment on a defendant’s decision to

exercise this right to remain silent if “(1) the statement was manifestly intended to

be a comment on the defendant’s failure to testify; or (2) the statement was of such

a character that a jury would naturally and necessarily take it to be a comment on

the failure of the accused to testify.” 669 F.3d 1218, 1241 (11th Cir. 2012)

(quotations omitted).

In Duncan v. Stynchcombe, 704 F.2d 1213, 1215–16 (11th Cir. 1983), the

prosecutor stated: “There has been no evidence in this case from the defense at all

that [the defendant] Duncan was not in that house on Monday.” Duncan

contended that “the remark was an impermissible reference to his failure to testify,

and that it had the effect of shifting the burden of proof to [him].” We said,

6 It appears more likely that the prosecutor was attempting to point out to the jury the lack of evidence concerning Duncan's whereabouts at the time of the robbery. A comment on the failure of the defense, as opposed to that of the defendant, to counter or explain the testimony presented or evidence introduced is not an infringement of the defendant's fifth amendment privilege. The prosecutor's comment did not shift the burden of proof to Duncan, because any possible prejudice which might otherwise have resulted from the comment was cured by the court's instructions regarding the burden of proof.

Id. (citations omitted).

In Griffin v. California, the prosecutor, in closing argument to the jury,

discussed the defendant’s failure to testify and told the jury that it could consider

the defendant’s failure to take the stand. The Court held that the comments

violated “the Self-Incrimination Clause of the Fifth Amendment.” 380 U.S. 609,

611-13, 85 S.Ct. 1229, 1231-32, 14 L.Ed.2d 106 (1965).

Bure has not shown that the Florida District Court of Appeal, in rejecting

his argument, rendered a decision that is not entitled to ADEPA deference. Bure

represented himself at trial but did not testify. During closing argument, the

prosecutor explained to the jury that it could consider only the evidence that was

presented, not any comments that Bure made while representing himself. Because

the prosecutor’s statements were not such that a jury would necessarily perceive

them as commentary on Bure’s failure to testify, the record did not establish a

Fifth Amendment violation.

7 II.

Bure claims that the State failed to provide him with adequate discovery

pretrial. The Fifth Amendment of the United States Constitution protects a

defendant from the deprivation of his “life, liberty, or property, without due

process of law.” U.S. Const. Amend. V. The Constitution, however, provides no

general right to discovery in criminal cases. Weatherford v. Bursey, 429 U.S. 545,

559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). If the prosecution suppresses

requested evidence favorable to an accused which is material to guilt or

punishment, that suppression violates due process. Brady v. Maryland, 373 U.S.

83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). The prosecution need not

disclose its entire file to the defense, only evidence that would deprive the accused

of a fair trial if it were suppressed. United States v. Bagley, 473 U.S. 667, 675,

105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985). Such evidence is material if “there

is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” Id. at 682, 105 S.Ct. at 3383.

Here, liberally construing Bure’s discovery claim as one invoking due

process rights or Brady, the record shows that he received the documents

concerning his case before trial. Bure did not explain exactly what other

“evidence” should have been disclosed, nor did he explain how the alleged

8 omission deprived him of a fundamentally fair trial or how disclosure would have

resulted in a more favorable outcome at trial.

III.

Bure claims that the Circuit Court improperly permitted him to represent

himself.

The Sixth Amendment grants an accused the right to represent himself at

trial. Faretta v. California, 422 U.S. 806, 819–20, 95 S.Ct. 2525, 2533, 45

L.Ed.2d 562 (1975). Before representing himself, a defendant must make a clear

and unequivocal request to do so and be made aware of the benefits he

relinquishes by doing so. Id. at 835, 95 S.Ct. at 2541. The court must ensure that

he knowingly and intelligently chooses to forego these benefits by making him

aware of the “dangers and disadvantages of self-representation, so that the record

will establish that he knows what he is doing and his choice is made with eyes

open.” Id. (quotation omitted). A court may find a defendant competent to waive

his right to counsel and represent himself if he has a “rational understanding” of

the proceedings. Muhammad v. Sec’y, Dept. of Corr., 554 F.3d 949, 956 (11th

Cir. 2009).

The record shows that the Circuit Court complied with Faretta before

allowing Bure to represent himself. There is nothing in the record that would have

9 put the court on notice that Bure was not competent waive the right to counsel and

represent himself. In short, there is nothing in the record that would support an

argument that the decision to allow Bure to represent himself was contrary to, or

an unreasonable application of, a United States Supreme Court

holding—specifically, Faretta v. California.

The judgment of the District Court is, accordingly,

AFFIRMED.