Wayne Edward Driggers v. Secretary, Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 30, 2020
• Docket: 18-15223
• Status: Unpublished

Opinion

USCA11 Case: 18-15223 Date Filed: 10/30/2020 Page: 1 of 11

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15223 Non-Argument Calendar ________________________

D.C. Docket No. 5:16-cv-00063-WTH-PRL

WAYNE EDWARD DRIGGERS,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

________________________

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

(October 30, 2020)

Before LUCK, FAY, and EDMONDSON, Circuit Judges. USCA11 Case: 18-15223 Date Filed: 10/30/2020 Page: 2 of 11

PER CURIAM:

Wayne Driggers, a Florida prisoner proceeding pro se, 1 appeals the district

court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Driggers

seeks to vacate his 2012 Florida convictions for attempted sexual battery of a child

under 12 years’ old and for lewd and lascivious exhibition. No reversible error has

been shown; we affirm. 2

Driggers was found guilty after a jury trial. The state court sentenced

Driggers to a total of 35 years’ imprisonment. Driggers’s convictions and sentence

were affirmed on direct appeal. See Driggers v. Florida, 121 So.3d 1058 (Fla.

Dist. Ct. App. 2013) (unpublished table decision).

Driggers filed a state habeas petition challenging his convictions and

sentence. The state habeas court denied Driggers relief after conducting an

evidentiary hearing. The state appellate court affirmed. See Driggers v. Florida,

179 So.3d 336 (Fla. Dist. Ct. App. 2015) (unpublished table decision).

1 We construe liberally pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

2 Driggers’s motion to file a reply brief out of time is GRANTED. 2 USCA11 Case: 18-15223 Date Filed: 10/30/2020 Page: 3 of 11

Driggers timely filed this federal habeas petition. The district court

dismissed the petition on the merits. We granted a certificate of appealability on

this issue: “Whether the district court erred by denying Claims 1 and 4 of Mr.

Driggers’s 28 U.S.C. § 2254 habeas corpus petition, after determining that he

failed to show that the state court’s rejection of those claims was contrary to, or an

unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984).”

When reviewing the district court’s denial of a section 2254 habeas petition,

“we review questions of law and mixed questions of law and fact de novo, and

findings of fact for clear error.” Rambaran v. Sec’y, Dep’t of Corr., 821 F.3d

1325, 1330 (11th Cir. 2016).

Under 28 U.S.C. § 2254, when the merits of a habeas claim have been

already adjudicated in state court, our review is highly deferential to the state court.

Crowe v. Hall, 490 F.3d 840, 844 (11th Cir. 2007). To obtain habeas relief,

Driggers must show that the state court’s ruling “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or . . . was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” See 28 U.S.C. § 2254(d); Crowe, 490 F.3d at 844. Moreover, the

state court’s findings of fact “shall be presumed to be correct” and the habeas

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petitioner bears “the burden of rebutting the presumption of correctness by clear

and convincing evidence.” See 28 U.S.C. § 2254(e)(1).

When -- as in this case -- the state appellate court affirms without an

opinion, we “‘look through’ the unexplained decision to the last related state-court

decision that does provide a relevant rationale,” and “presume that the unexplained

decision adopted the same reasoning.” See Wilson v. Sellers, 138 S. Ct. 1188,

1192 (2018).

To prevail on a claim of ineffective assistance of counsel, a section 2254

petitioner must show that (1) his lawyer’s performance was deficient and that (2)

he suffered prejudice as a result of that deficient performance. Strickland v.

Washington, 466 U.S. 668, 687 (1984).

Under the first part of Strickland, the petitioner “must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 687-88.

Our review of counsel’s performance is “highly deferential”: a “strong

presumption” exists that “counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689.

To show prejudice under Strickland, a petitioner “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

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proceeding would have been different.” Id. at 694. A “reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

When the deferential standard for judging a lawyer’s performance is

“combined with the extra layer of deference that § 2254 provides, the result is

double deference and the question becomes whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Evans v. Sec’y,

Fla. Dep’t of Corr., 699 F.3d 1249, 1268 (11th Cir. 2012) (quotations omitted).

“Double deference is doubly difficult for a petitioner to overcome, and it will be a

rare case in which an ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal habeas proceeding.” Id.

Applying the deferential standards under section 2254 and Strickland, we

now consider whether the state habeas court acted “contrary to” clearly established

federal law or relied on an unreasonable determination of the facts when it rejected

Driggers’s ineffective-assistance-of-counsel arguments asserted in Claims 1 and 4.

Claim 1:

In Claim 1, Driggers alleged that his trial lawyer (M.J.) rendered ineffective

assistance by failing to present evidence at trial that Driggers had “obvious” and

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“impossible to miss” tattoos on his penis. Driggers says this evidence would have

undermined the victim’s credibility because the victim testified at trial that she had

seen Driggers’s penis on multiple occasions but that she had never seen tattoos on

his penis.

The state habeas court denied relief on this ground. The state court held an

evidentiary hearing during which M.J. testified that -- in preparation for trial -- he

hired a private investigator to photograph Driggers’s tattoos. By the time of trial,

M.J. had the photographs, had disclosed the photographs to the state, and had listed

the private investigator as a potential witness.

M.J. also testified, however, that he believed that admitting the photographs

into evidence would be “extremely offensive” to the jury. M.J. said he discussed

the offensive nature of the photographs with Driggers and with Driggers’s brother

and that Driggers agreed not to admit the photographs.

The state habeas court concluded that not introducing the tattoo evidence

“was clearly a strategic decision” made by M.J. and that Driggers had failed to

show that “no competent attorney would have made the same decision.” Given

other evidence of Driggers’s guilt, the state court also determined that Driggers had

failed to show that the introduction of the tattoo evidence would have altered the

outcome of the trial.

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We review under a “clear and convincing evidence standard” the state

court’s factual determination that M.J.’s decision not to introduce the tattoo

evidence was one of strategy. See Kimbrough v. Sec’y, Fla. Dep’t of Corr., 565

F.3d 796, 804 (11th Cir. 2009). We review de novo the state court’s legal

conclusion about whether M.J.’s tactical decision was reasonable. See id. We

have recognized that “[i]t is especially difficult to succeed with an ineffective

assistance claim questioning the strategic decision to trial counsel who [was]

informed of the available evidence.” Nance v. Warden, Ga. Diagnostic Prison, 922

F.3d 1298, 1302 (11th Cir. 2019).

The record supports the state habeas court’s conclusion that M.J. made a

reasonable strategic decision not to introduce the photographs or testimony about

Driggers’s penis tattoos. M.J. had taken the necessary steps to investigate and to

introduce the tattoo evidence but decided -- after considering the available

evidence and discussing the issue with Driggers -- that the photographs would be

unduly offensive to the jury. We have said that decisions about what issues to

pursue and what witnesses to call during trial “are, without a doubt, strategic.” See

Nance, 922 F.3d at 1302-03. M.J. also believed the photographs and testimony of

the private investigator would have little impeachment value absent evidence

establishing that the tattoos had in fact been present at the time of the charged

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offenses. M.J.’s professional assessment that the offensive nature of the tattoo

evidence outweighed the evidence’s potential beneficial value was not objectively

unreasonable.

On this record, we cannot say that the state habeas court’s ruling on Claim 1

was contrary to or an unreasonable application of clearly established law or based

on an unreasonable determination of the facts.

Claim 4:

In Claim 4, Driggers alleged that his trial lawyer performed deficiently by

failing to inform him adequately about his right to testify on his own behalf.

The state habeas court denied this ground for relief. At the evidentiary

hearing, Driggers testified that M.J. never discussed with him whether he should

testify in his own defense. M.J. testified that he could not recall specifically

discussing this issue with Driggers. But M.J. testified that he “always” talks with

his clients -- both before trial and during trial -- about whether they wanted to

testify and about the advantages and disadvantages of taking the stand. M.J. said

he would have discussed with Driggers the likely difficulty Driggers would have

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answering questions about both the victim’s testimony and the testimony of a

second witness about an earlier similar incident involving Driggers.

The state habeas court said that “[a]lthough [M.J.] had no independent

recollection of the conversation, his testimony was unwavering that he would have

discussed these matters with the defendant.” To the extent Driggers’s testimony

conflicted with M.J.’s testimony, the state habeas court found that M.J.’s testimony

was more credible: a finding based on the state judge’s observations during the

evidentiary hearing of each witness’s demeanor and memory.

In the alternative, the state habeas court also determined that -- even if it

found Driggers credible and accepted Driggers’s testimony as true -- Driggers

failed to demonstrate prejudice under Strickland. The state court described

Driggers as having testified during the evidentiary hearing that “had he been

informed of his rights concerning testifying at trial, he did not know if he would

have testified or not; rather, he could have made an informed decision.” Based on

this testimony and other evidence of Driggers’s guilt, the state habeas court

concluded that Driggers could not show a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”

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The state habeas court’s decision was neither contrary to or an unreasonable

application of Strickland or based on an unreasonable determination of the facts.

Even assuming (without deciding) that M.J. performed deficiently and failed to

advise Driggers of his right to testify, Driggers has demonstrated no reasonable

probability that -- but for that error -- he would have been found not guilty.

To prove prejudice, Driggers would have to show two critical components:

(1) that he would in fact have testified in his own defense had he been informed

adequately about his right to do so, and (2) that his proposed testimony would have

altered the outcome of the trial. In the light of Driggers’s sworn testimony that he

was unsure whether or not he would have testified, Driggers cannot satisfy his

burden of showing prejudice.

Nor has Driggers shown a reasonable probability that his proposed

testimony -- describing his penis tattoo and asserting that the tattoo was present

before he met the victim -- would have altered the outcome of the trial. Driggers

says his proposed testimony would have damaged the victim’s credibility. But the

record shows that M.J. did challenge the victim’s credibility by introducing

evidence that the victim had given conflicting statements to authorities, used

language not consistent with her age, and reported Driggers’s conduct only after

she got in trouble with her parent. Moreover, Driggers’s proposed testimony

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would not have rebutted the victim’s testimony describing the details of Driggers’s

offense conduct or called into question the non-victim witness testimony that

Driggers had engaged in similar conduct with her.

Because Driggers failed to demonstrate that he was prejudiced by M.J.’s

purportedly deficient performance, he is unentitled to habeas relief on this claim.

The district court committed no error by determining that the state habeas

court applied reasonably the Strickland standard. We affirm the denial of

Driggers’s 28 U.S.C. § 2254 petition.

AFFIRMED.