Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:11-cv-00827-RBD-DAB.
For Kelvin Leon Reed, Petitioner - Appellee: Thomas A. Burns, Tampa, FL.
Kelvin Leon Reed, Petitioner - Appellee, Pro se, Avon Park, FL.
For Secretary, Florida Department of Corrections, Attorney General, State of Florida, Respondents - Appellants: Carmen F. Corrente, Pam Bondi, Attorney General's Office, Daytona Beach, FL.
Before HULL, MARCUS, and HILL, Circuit Judges. HILL, Circuit Judge, dissenting.
MARCUS, Circuit Judge
Almost a decade ago, Kelvin Leon Reed was convicted of the vehicular homicide of two pedestrians and sentenced to 35 years' imprisonment. Following a postconviction evidentiary hearing, the Florida circuit court rejected Reed's claim that defense counsel had rendered ineffective assistance by failing to investigate and call a witness at trial. The state appellate court summarily affirmed. The federal district court, however, granted habeas relief on this claim. After thorough review, we are constrained to reverse because Reed has not shown that the state court's ruling was contrary to or an unreasonable application of Supreme Court law. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As we see it, the state court had a reasonable basis for concluding that Reed did not suffer prejudice from any claimed deficiency, and thus, we decline to issue the writ.
The essential facts are these. On July 13, 2004, a tragic hit-and-run occurred in Orlando, Florida. While walking home from work at about 2:55 a.m., Michael Harper and Troy Henshaw were struck by a speeding blue Pontiac Sunfire traveling between 77 and 108 miles per hour. As a result of the impact, both victims were hurled over 150 feet and died about half an hour later. Jessica Patterson contacted the police and implicated Reed as the vehicle's driver. Willie Richards, who claimed to be a passenger in the car at the time of the crash, later confirmed Patterson's identification, telling law enforcement officers that Reed drove the Pontiac Sunfire and struck the victims early that morning. When the police arrested Reed at approximately 6:30 a.m., he had a blood alcohol concentration of .14 grams of alcohol per 100 milliliters of blood.
The State charged Reed with two counts of driving under the influence (DUI) manslaughter in violation of Fla. Stat. § 316.193; two counts of vehicular homicide arising out of a failure to render aid or give information in violation of Fla. Stat. § § 782.071 and 316.062; two counts
of leaving the scene of an accident which resulted in death in violation of Fla. Stat. § § 316.062 and 316.027(1)(b); and two counts of driving with a suspended license and causing serious bodily injury or death in violation of Fla. Stat. § 322.34(6).
Reed proceeded to trial in February 2005, during which the State dismissed the leaving-the-scene-of-the-accident counts. Following lengthy deliberations, the jury acquitted Reed of the DUI manslaughter charges. But it remained deadlocked as to the vehicular homicide and driving-with-a-suspended-license counts, resulting in a partial mistrial.
About a month later, Reed was retried on the four remaining counts. The State contended that Reed killed the victims " by running them over at somewhere between 77 and 100 miles an hour." He " [n]ever broke, never tried to avoid the collision[,] . . . [d]idn't stop, [and] didn't try to see if there's anything he could do." Conversely, the defense theory was that Reed was home the night of the collision and was framed. Defense counsel argued that the State's main witnesses -- Richards and Patterson -- lacked all credibility. Moreover, counsel observed, no direct physical evidence linked his client to the " murder weapon," the Pontiac Sunfire.
The same witnesses who testified at Reed's first trial took the stand at the second. First, the State called twenty-one-year-old Richards. He testified that around 2:45 a.m. on July 13, 2004, he drove to his cousin's house in a blue Pontiac Sunfire after getting out of work at an Orlando nightclub. A " crack fiend" had loaned him the car in exchange for forty dollars worth of dope. Richards ran into Reed, a neighborhood friend, on Washington Street. He agreed to allow Reed to use the Sunfire so long as Reed drove him home first. Relevant to this appeal, Richards testified that on the way to his house, they encountered Jarvis Coleman. Reed agreed to give Coleman a ride too. Reed drove recklessly to Coleman's house, ignoring his passengers' advice to slow down. After dropping off Coleman, Reed sped to Richards's home in Pine Hills, still recklessly swerving in and out of lanes.
By Richards's account, the Sunfire careened forward at 110 miles per hour as it approached an intersection on Rio Grande Avenue. Richards noticed one other car traveling in the same direction as the Sunfire, and two pedestrians crossing the road. Reed swerved around the car and drove into the middle of a median in between two lanes of traffic, running over the pedestrians. Richards recalled hearing and feeling a " loud thump." Glass shattered as the left rear window broke. Reed then announced, " I got them, Flip."  Unfazed, Reed continued driving until he reached a Citgo gas station. There he purchased rubbing alcohol, wiped down the driver's side of the vehicle, and attempted to snatch the tag off the car.
" [W]ant[ing] nothing to do with what [had] just happened," Richards walked to the home of Candace Stewart, the mother of his child. Reed left the car at the gas station and followed Richards there. Along the way, Reed threatened Richards: " [I]f we ever got to go to Court I don't know anything and if I do . . . something [will] happen." Stewart and her roommate, Jessica Patterson, were at the apartment when the intoxicated pair arrived. Richards retreated to the master bedroom to see his child. Reed was nervous and sweating, and would not let Richards out of his sight. Patterson and Richards eventually agreed to drive Reed home. Reed first sought to go back to the Citgo gas
station, proclaiming he " wanted to blow the car up." But Patterson refused to stop and drove onto Rio Grande Avenue, which was blocked off with police tape. Reed then informed them that two pedestrians were dead and instructed Patterson to take a different route. After dropping off Reed, Patterson decided to call the police. Richards testified that he had not told Patterson about Reed's accident and cover-up. He speculated that Patterson must have gleaned information about what had happened by speaking with Reed earlier. Patterson met with law enforcement officers at the gas station and subsequently informed Richards that she told the police " everything." Richards then contacted the police too.
On cross-examination, Richards, a two-time convicted felon on probation, conceded that on the night of the hit-and-run, he had consumed two Long Island Iced Teas and some shots of Hennessey. Richards also acknowledged that whenever Stewart was short on rent, he covered it. Moreover, Richards admitted that he feared going to jail on the morning of the collision, and was willing to do whatever he could to avoid incarceration.
Patterson took the stand next. Confirming Richards's version of events, Patterson recounted how around 3:45 a.m. on July 13th, Reed and Richards arrived at her apartment. Patterson knew Richards through her roommate, but she had never met Reed before. Patterson offered that both men seemed nervous, excited, and restless. Richards walked straight into Patterson's bedroom to see his daughter. To Patterson's surprise, Reed followed him. Richards and Reed implored Patterson to take them home, and she finally relented. On the way out the door, Reed asked Patterson three times for rubbing alcohol without explaining why he needed it. She complied.
En route to his home, Reed asked Patterson to drive him to the Citgo gas station. When she stopped, a man walked towards Patterson's car. Reed took off his jacket and hat and declared, " I'm going to blow this mother fucker up." Patterson called Stewart, and Richards got on the telephone to assure Stewart they " were not out [t]here to fight" ; the situation was " far beyond that." Before her passengers could exit the car, Patterson doubled back to Rio Grande Avenue. As they passed a part of the roadway that was blocked off by police tape, Reed muttered, " [M]an, they dead." Notably, according to ...