Guzman v. Secretary, Department of Corrections et al
Filing
19
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 1 is DENIED for the reasons set forth herein. The Clerk is directed to terminate any pending motions, enter judgment accordingly, and CLOSE this file. IT IS FURTHER ORDERED that Petitioner IS NOT entitled to a certificate of appealability and IS NOT entitled to appeal in forma pauperis. Signed by Judge Charlene E. Honeywell on 9/16/2011. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALBERTO GUZMAN,
Petitioner,
vs.
Case No.
2:08-cv-411-FtM-36SPC
SECRETARY,
DEPARTMENT
OF
CORRECTIONS and ATTORNEY GENERAL
STATE OF FLORIDA,
Respondents.
_________________________________/
OPINION AND ORDER
I. Status
Petitioner
Alberto
Guzman
(hereinafter
“Petitioner”
or
“Guzman”) initiated this action by filing a pro se Petition for
Writ of Habeas Corpus (“Petition,” Doc. #1) pursuant to 28 U.S.C.
§ 2254 on April 27, 2008.1
The Petition challenges Petitioner's
April 14, 2003, judgment of conviction for second degree murder
with a firearm entered in the Twentieth Judicial Circuit Court,
Hendry County, Florida (case number H00-184-CF) for which he is
serving a life sentence.
Petition at 1.2
Petitioner's sentence
The Petition was filed in this Court on April 29, 2008;
however, the Court applies the “mailbox rule” and deems a petition
“filed on the date it is delivered to prison authorities for
mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir.
2009).
1
The page numbers referenced within this Order, other than to
the page number referenced in the Exhibits, are to the page of the
identified document as it appears on the Court’s case management
electronic computer filing system. Exhibits are available in paper
2
(continued...)
and conviction were per curiam affirmed on direct appeal.3
Guzman
v. State, Case No. 2D03-2344 (2d DCA 2004); Exh. 3.
The Petition raises the following fourteen grounds (restated)4
for relief:
1.
Trial counsel was ineffective for failing to seek
his removal from the case;
2.
Trial counsel was ineffective for failing to remove
a juror who claimed he could not be fair to Petitioner;
3.
Trial counsel was ineffective for failing to remove
a juror who said police do not lie;
2
(...continued)
format only.
To the extent relevant, the Court will address the other post
conviction motions filed by Petitioner at the time the Court
discusses each of the grounds asserted herein for relief.
3
The Petition does not clearly set forth each of the enumerated
claims. See generally Petition. Instead, the Petition identifies
at least 9 ineffective assistance of trial counsel claims in a
rambling fashion together under "Ground One" in his Petition. Id.
at 4-5. Petitioner then appears to identify two separate claims of
appellate counsel's ineffectiveness in "Ground Two" of his
Petition, Id. at 6, and a virtually similar claim of appellate
counsel's ineffectiveness in "Ground Three" of his Petition. Id.
at 8. Finally, in "Ground Four" of the Petition, Petitioner raises
a Sixth Amendment claim, but fails to identify whether the claim is
based upon trial court error or ineffectiveness of trial counsel.
After thoroughly reviewing the Petition, and Petitioner's postconviction pleadings, the Court agrees that the 13 enumerated
claims identified by Respondent are the only claims arguably
exhausted by Petitioner.
It appears, however, that Petitioner
raises
an
additional
claim
of
trial
counsel's
alleged
ineffectiveness in his Petition that was not addressed by
Respondent - - whether trial counsel was ineffective for failing to
object to improper comments by the prosecutor during closing
argument. In an abundance of caution, and in light of Clisby v.
Jones, 960 F.2d 925 (11th Cir. 1992), the Court sua sponte will
address this additional claim as ground 14. See Petition at 5.
4
-2-
4.
Trial counsel was ineffective for failing to remove
a juror who had a daughter employed in the State
Attorney's Office;
5.
Trial counsel was ineffective
investigate a self defense theory;
for
failing
to
6.
Trial counsel was ineffective for failing to request
that the jury be instructed on penalties/elements of the
crime pursuant to Apprendi and Blakey;
7.
Trial counsel was ineffective for failing to object
to the trial court's misstatement of the law that
sentencing was a consideration for the court only, not
the jury;
8.
Trial counsel was ineffective for failing to object
to the State's request for a departure sentence of life
under the 10-20-life statute;
9.
Cumulative error;
10. Ineffective assistance of appellate counsel for
failing to argue on direct appeal that the trial court
erred in failing to discharge court-appointed counsel
based upon a clear conflict of interest;
11. Ineffective assistance of appellate counsel for
failing to argue on direct appeal that the trial court
erred in failing to conduct a Faretta inquiry to
determine that Petitioner could represent himself at
trial;
12. Ineffective assistance of appellate counsel for
failing to argue that Petitioner was denied the right to
represent himself;
13. Violation of Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), where
Petitioner was sentenced to a life sentence without a
jury finding that Petitioner used a firearm; and,
14. Trial counsel was ineffective for failing to object
to improper comments made by the prosecutor in closing
argument.
See generally Petition.
-3-
Respondent filed a Response to the Petition and addressed
grounds 1-13 identified above (Doc. #13, Response).
Respondent
moves for summary judgment based upon Petitioner's failure to
satisfy his burden under 28 U.S.C. § 2254(d) and (e).
1.
Response at
Respondent filed exhibits (Exhs. 1-21) in support of the
Response, including the two-volume record on direct appeal (Exh 21,
Vols. I-II.).
Petitioner failed to file a reply to the Response,
although twice directed to do so by the Court.
See Docs. #9, #16.
Consequently, the Court deems this matter ripe for review without
the benefit of a reply from Petitioner.
II.
Applicable § 2254 Law
Guzman filed his timely5 Petition after April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Consequently, post-AEDPA law governs this action.
Quarterman, 127 S. Ct. 1654, 1664 (2007);
Abdul-Kabir v.
Penry v. Johnson, 532
U.S. 782, 792 (2001); Davis v. Jones, 506 F.3d 1325, 1331, n.9
(11th Cir. 2007).
Under AEDPA, a federal court's standard of
review "is greatly circumscribed and is highly deferential to the
state courts."
Stewart v. Sec'y Dep't of Corr., 476 F.3d 1193,
Respondent does not address whether the Petition is timely
filed within the one-year federal limitations period set forth in
28 U.S.C. Section 2244(d).
See generally Response.
The Court
independently has determined that, based upon the record of
Guzman's State post-conviction filings, the Petition is timely
filed.
5
-4-
1208 (11th Cir. 2007)(internal quotations and citations omitted).
AEDPA altered the federal court’s role in reviewing state prisoner
applications in order to "prevent federal habeas 'retrials' and to
ensure that state-court convictions are given effect to the extent
possible under law."
Bell v. Cone, 535 U.S. 685, 693 (2002); see
also Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 787
(2011)(internal
quotations
and
citations
omitted)(emphasizing
"[f]ederal habeas review of state conviction frustrates both the
State's sovereign power to punish offenders and their good-faith
attempts to honor constitutional rights.").
Consequently, the
Court applies the following principles of law in evaluating the
claims set forth in the instant Petition.
A.
Exhaustion and Procedural Default
A federal court may only review an issue under § 2254 if
petitioner first afforded the state courts an adequate opportunity
to address that issue.
28 U.S.C. § 2254(b)(1)(A).
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C.
§ 2254(b)(1), thereby giving the State the opportunity to
pass upon and correct alleged violations of its
prisoners' federal rights. To provide the State with the
necessary opportunity, the prisoner must fairly present
his claim in each appropriate state court (including a
state supreme court with powers of discretionary review),
thereby alerting that court to the federal nature of the
claim.
Baldwin v. Reese, 541 U.S. 27, 29 (2004)(internal citations and
quotations omitted.) This imposes a "total exhaustion" requirement
in which all the federal issues must have first been presented to
-5-
the state courts.
Rhines v. Weber, 544 U.S. 269, 274 (2005).
"In
other words, the state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to
a federal court in a habeas petition." O'Sullivan v. Boerckel, 526
U.S. 838, 842 (1999).
See also Henderson v. Campbell, 353 F.3d
880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas
relief cannot raise a federal constitutional claim in federal court
unless
he
first
properly
raised
the
issue
in
the
state
courts.")(quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.
2001));
Duncan
v.
Henry,
513
U.S.
364,
365
(1995)(stating
"exhaustion of state remedies requires that petitioners 'fairly
present federal claims to the state courts in order to give the
State the opportunity to pass upon and correct alleged violations
of its prisoners’ federal rights'"). Additionally, in articulating
a factual basis in support of a claim for relief, a petitioner must
have also alleged the factual predicate to the state court. Kelley
v. Sec'y for Dep't of Corrs., 377 F.3d 1317, 1343–44 (11th Cir.
2004)(noting that petitioners may not present particular factual
instances of ineffective assistance of counsel in their federal
petition if they did not first raise them in the state courts).
"A
claim
is
procedurally
defaulted
if
it
has
not been
exhausted in state court and would now be barred under state
procedural rules."
Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir.
2008). Under the procedural default doctrine, “[i]f the petitioner
-6-
has failed to exhaust state remedies that are no longer available,
that failure is a procedural default which will bar federal habeas
relief, . . . . .”
2001).
Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.
A procedural default for failing to exhaust state court
remedies will only be excused in two narrow circumstances.
First,
a petitioner may obtain federal habeas review of a procedurally
defaulted claim if he shows both “cause” for the default and actual
“prejudice” resulting from the asserted error.
House v. Bell, 547
U.S. 518, 536-37 (2006); Mize v. Hall, 532 F.3d at 1190.
Second,
under exceptional circumstances, a petitioner may obtain federal
habeas review of a procedurally defaulted claim, even without a
showing of cause and prejudice, if such review is necessary to
correct a fundamental miscarriage of justice.
House v. Bell, 547
U.S. 518, 536 (2006); Edwards v. Carpenter, 529 U.S. 446, 451
(2000).
B.
Deference to State Court Decision
Habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court 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.
-7-
28 U.S.C. § 2254(d).
Cullen v. Pinholster, ___ U.S. ___, 131 S.
Ct. 1388, 1398 (2011).
"This is a difficult to meet, and highly
deferential standard for evaluating state-court rulings, which
demands that the state-court decisions be given the benefit of the
doubt." Id. (internal quotations and citations omitted). See also
Harrington v. Richter, 131 S. Ct. at 786 (pointing out that "if [§
2254(d)'s] standard is difficult to meet, that is because it was
meant to be.").
Both the Eleventh Circuit and the Supreme Court broadly
interpret what is meant by an "adjudication on the merits."
Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir. 2011).
a
state
court’s
summary
rejection
of
a
claim,
even
Thus,
without
explanation, qualifies as an adjudication on the merits that
warrants deference by a federal court.
Id;
See also, Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).
Indeed, "unless
the state court clearly states that its decision was based solely
on a state procedural rule [the Court] will presume that the state
court
has
rendered
an
adjudication
on
the
merits
when
the
petitioner's claim 'is the same claim rejected' by the court."
Childers v. Floyd, 642 F.3d at 969 (quoting Early v. Packer, 537
U.S. 3, 8 (2002)).
"A legal principle is 'clearly established' within the meaning
of this provision only when it is embodied in a holding of [the
United States Supreme] Court." Thaler v. Haynes, ___ U.S. ___, 130
S .Ct. 1171, 1173 (2010); see also Carey v. Musladin, 549 U.S. 70,
-8-
74
(2006)(citing
Williams
(2000))(recognizing
v.
Taylor,
529
U.S.
362,
412
“[c]learly established federal law” consists
of the governing legal principles, rather than the dicta, set forth
in the decisions of the United States Supreme Court at the time the
state court issues its decision).
“[T]o be ‘contrary to’ clearly established federal law, the
state court must either (1) apply a rule that contradicts the
governing law set forth by Supreme Court case law, or (2) reach a
different result from the Supreme Court when faced with materially
indistinguishable
facts.”
Ward,
591
F.3d
at
1155
(internal
quotations and citation omitted); Mitchell v. Esparza, 540 U.S. 12,
16 (2003).
A state court decision involves an “unreasonable
application” of the Supreme Court’s precedents if the state court
correctly identifies the governing legal principle but applies it
to
the
facts
of
the
petitioner’s
case
in
an
objectively
unreasonable manner, Brown, 544 U.S. at 134; Bottoson v. Moore, 234
F.3d 526, 531 (11th Cir. 2000), cert. denied, 534 U.S. 956 (2001);
or, “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it
should not apply or unreasonably refuses to extend that principle
to a new context where it should apply.”
Bottoson, 234 F.3d at 531
(quoting Williams, 120 S. Ct. at 1520).
The “unreasonable application” inquiry “requires the state
court decision to be more than incorrect or erroneous”; it must be
“objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-77
-9-
(2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592
F.3d at 1155.
Further, the Supreme Court has recently held that
review "is limited to the record that was before the state court
that adjudicated the claim on the merits."
Cullen, 131 S. Ct. at
1398. Thus, the Court is limited to reviewing only the record that
was before the state court at the time it rendered its order. Id.
C.
Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are reviewed under
the standards established by 28 U.S.C. § 2254(d). Newland v. Hall,
527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA, the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), remains
applicable to the claims of ineffective assistance of counsel
raised in this case.
Newland, 527 F.3d at 1184.
In Strickland,
the Supreme Court established a two-part test to determine whether
a convicted person is entitled to habeas relief on the grounds that
his or her counsel rendered ineffective assistance: (1) whether
counsel’s
objective
representation
standard
of
was
deficient,
i.e.,
reasonableness”
“fell
“under
below
an
prevailing
professional norms,” which requires a showing that “counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment”; and (2) whether
the deficient performance prejudiced the defendant, i.e., there was
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,
which “requires showing that counsel’s errors were so serious as to
-10-
deprive the defendant of a fair trial, a trial whose result is
reliable.”
Strickland, 466 U.S. at 688; see also Bobby Van Hook,
558 U.S. ___, 130 S. Ct. 13, 16 (2009).
review
of
a
deferential."
claim
under
Knowles v.
the
Thus, a habeas court's
Strickland
standard
is
"doubly
Mirzayanze, ___ U.S. ___, 129 S. Ct.
1411, 1420 (2009)(citing Yarborough v. Gentry, 540 U.S. 1, 5-6
(2003)).
"A reasonable probability is a probability sufficient to
undermine confidence in the outcome."
Strickland, at 694.
That
requires a "substantial," not just "conceivable," likelihood of a
different result.
Harrington, 131 S. Ct. at 791.
States may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented,” but “the Federal
Constitution imposes one general requirement: that counsel make
objectively reasonable choices.”
Bobby Van Hook, 130 S. Ct. at 17
(internal quotations and citations omitted).
It is petitioner who
bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable.”
Jones v.
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006), cert. denied sub
nom. Jones v. Allen, 127 S. Ct. 619 (2006).
A court must “judge
the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,” Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466
U.S. at 690), applying a “highly deferential” level of judicial
scrutiny.
Id.
A court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
-11-
professional assistance.”
Strickland, 466 U.S. at 689.
An
attorney is not ineffective for failing to raise or preserve a
meritless issue.
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.),
cert. denied sub nom. Ladd v. Burton, 493 U.S. 842 (1989); United
States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“a lawyer’s
failure to preserve a meritless issue plainly cannot prejudice a
client”). “To state the obvious: the trial lawyers, in every case,
could have done something more or something different.
omissions are inevitable.
or
‘what
is
prudent
So,
But, the issue is not what is possible
or
appropriate,
but
only
what
is
constitutionally compelled.’” Chandler v. United States, 218 F.3d
1305, 1313 (11th Cir. 2000)(quoting Burger v. Kemp, 483 U.S. 776,
794 (1987)).
“In considering the reasonableness of an attorney’s decision
not to raise a particular claim, [a court] must consider ‘all the
circumstances, applying a heavy measure of deference to counsel's
judgments.’”
Eagle, 279 F.3d 926, 940 (11th Cir. 2001) (quoting
Strickland, 466 U.S. at 691).
attorney
performance
requires
“Thus, ‘[a] fair assessment of
that
every
effort
be
made
to
eliminate the distorting effects of hindsight to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at that time.’”
Strickland, 466 U.S. at 689).
Id. (quoting
The reasonableness of counsel’s
assistance is reviewed in light of both the facts and law that
-12-
existed at the time of the challenged conduct.
Chateloin v.
Singletary, 89 F.3d 749, 753 (11th Cir. 1996).
D. Ineffective Assistance of Appellate Counsel
The
Strickland
standard
also
governs
ineffective assistance of appellate counsel.
claims
asserting
To determine whether
Petitioner was prejudiced by his appellate attorney’s failure to
raise a particular issue, the Court “must decide whether the
arguments the [Petitioner] alleges his counsel failed to raise were
significant enough to have affected the outcome of his appeal.”
United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000)
(citing Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir. 1988)),
cert. denied, 531 U.S. 1131 (2001). “If [a court] conclude[s] that
the omitted claim would have had a reasonable probability of
success, then counsel’s performance was necessarily prejudicial
because it affected the outcome of the appeal.”
Eagle v. Linahan,
279 F.3d 926, 943 (11th Cir. 2001)(citing Cross v. United States,
893 F.2d 1287, 1290 (11th Cir. 1990)).
III.
Findings of Fact and Conclusions of Law
This Court has carefully reviewed the record and, for the
reasons set forth below, concludes no evidentiary proceedings are
required in this Court.
475 (2007).
Schriro v. Landrigan, 550 U.S. 465, 474-
Petitioner does not proffer any evidence that would
require an evidentiary hearing, Chandler v. McDonough, 471 F.3d
1360 (11th Cir. 2006), and the Court finds that the pertinent facts
-13-
of the case are fully developed in the record before the Court.
Schriro, 550 U.S. at 475.
At the outset, Petitioner provides no facts in support of any
of the grounds for relief raised in his Petition.
Consequently,
the Court shall construe each of the grounds only to the extent
Petitioner raised the ground for relief in his post conviction
motion and the appeal from the denial therefrom.
Ground 1
In Ground 1, Petitioner contends that his trial counsel,
Assistant Public Defender Richard Sullivan ("Sullivan"), provided
ineffective assistance to him in violation of his 6th Amendment
rights because he failed to request to be removed as counsel due to
a "conflict of interest."
Petition at 4.
identify the type of conflict of interest.
Petitioner does not
Id.
In Petitioner's pro se Rule 3.850 motion, Petitioner claimed
that trial counsel was ineffective for failing "to seek withdrawal
or remove himself after a serious conflict of interest developed
between defendant and the attorney, a long time prior to trial
starting [sic]."
Exh. 11 at 4 (ground one).
The post conviction court denied this claim, finding as
follows:
In ground one, Defendant alleges that counsel was
ineffective for failing "to seek withdrawal or remove
himself after a serious conflict of interest developed
between Defendant and the Attorney a long time prior to
trial." In support of his claim, Defendant states that
his "primary complaint in this issue is that he was
forced to have trial with counsel he did not want." He
-14-
also argues that prior to trial he informed counsel that
"he ought to remove himself because, if not, then
Defendant would write to ask the judge to do such." Two
weeks prior to trial, "a hearing was held to determine if
counsel should be allowed to withdraw from the case," but
the trial court denied withdrawal.
The record reflects that counsel filed a "Motion to
Withdraw" on January 24, 2003 at Defendant's request.
See attached copy of Motion to Withdraw. At the hearing
on the Motion, Defendant was given the opportunity to
directly address the trial court with his concerns
regarding counsel's representation.
He informed the
trial court that he had "no confidence" in counsel and
that counsel "don't got no confidence in himself."
Citing Tucker v. State, 754 So. 2d 89 (Fla. 2d DCA 2000),
the trial court found that a defendant's "general loss of
confidence or trust . . . does not require withdrawal of
counsel." See attached copy of transcript of hearing on
Motion to Withdraw.
Contrary to Defendant's claim, the record reflects that
trial counsel did seek to withdraw in accordance with
Defendant's request by filing a motion to withdraw. The
trial court properly denied the motion after a hearing
because the defendant only alleged a general loss of
confidence in counsel.
Counsel cannot be deemed
ineffective for failing to prevail on an issue raised and
properly rejected by the trial court. Spencer v. State,
842 So. 2d 52 (Fla. 2003). Therefore, because the record
conclusively refutes Defendant's claim, ground one is
denied.
Exh. 13 at pp. 2-3.
The appellate court per curiam affirmed the
trial court's denial of this claim.
Exh. 17; Brown v. State, 987
So.2d 1216 (Fla. 2d DCA 2008). Thus, the State court's decision on
this claim warrants deference under AEDPA.
Here, the State court found that Petitioner's claim was
conclusively refuted by the record.
Indeed, the record reveals
that on January 24, 2003, a hearing was held before the Honorable
G.
Keith
Cary,
the
circuit
judge
-15-
who
was
presiding
over
Petitioner's criminal case.
Exh. 20.
At the inception of the
hearing, Petitioner's counsel, Mr. Sullivan, stated "Mr. Guzman
asked me to file a motion to withdraw as his counsel in the case."
Id. at 3.
Mr. Guzman explained that he has "fired" his first
counsel, Assistant Public Defender Mr. Joe Rinella, and wanted his
second counsel "discharged."
Id. at 4.6
Guzman explained that the
reason he wanted to have counsel discharged is that he lost
confidence in his attorney.
Id. at 6-9. Mr. Sullivan explained to
the trial court that Guzman was referring to their discussion about
Sullivan's opinions of how "the case might actually go at trial" - i.e. "his chances at trial."
not
like
counsel's
Id. at 6.
assessment
of
his
Essentially, Guzman did
case.
Based
upon
the
testimony at the hearing, the trial court denied Sullivan's motion
to withdraw, finding no facts to support the existence of a
conflict of interest.
Id. at 12-13.
As noted above, Petitioner does not provide any explanation as
to how the State court's decision on this claim was contrary to or
involved an unreasonable application of clearly established law, or
was based on an unreasonable determination of the facts, and the
Court finds no grounds otherwise.
Indeed, the post conviction
The record reveals that Mr. Rinella also filed a motion to
withdraw at Petitioner's request but the court determined no legal
grounds existed to grant the motion. The Public Defender's Office
nonetheless agreed with the court's suggestion to reassign the case
to a different lawyer within the office who could "better
communicate with Mr. Guzman." Id. at 5-6.
6
-16-
court
correctly
cited
to
Strickland's
two-prong
test
as
the
controlling federal precedent for evaluating each of Petitioner's
ineffective assistance of counsel claims.
Exh. 13 at 1-2, ¶2.
Further, the record unequivocally evidences that trial counsel
filed a motion to withdraw contrary to Petitioner's assertion. See
Exh. 12, Exh. B.
Consequently, the Court finds that Ground 1 is
without merit because the factual underpinnings of the claim are
disputed by the record.
Grounds 2, 3, and 4
Petitioner faults trial counsel for failing to seek the
removal of: "a juror who claimed he could not be fair," "another
juror [who] said police do not lie," and "a third juror [who] had
a daughter employed in the state attorney's office."
4.
Petition at
Because each of these Grounds involve allegations that counsel
failed to object to allegedly biased jurors, the Court will address
these Grounds together.
Again, Petitioner provides no additional
facts in support of any of these Grounds for relief in the instant
Petition. Petitioner raised each of these claims in his Rule 3.850
motion.
Exh. 11 at 7-10 (ground 2, 3 and 4).
The post conviction court, in denying each of Petitioner's
claims
concerning
counsel's
failure
to
seek
removal
of
allegedly biased jurors, in relevant part, found:
Defendant alleges in ground two that counsel was
ineffective for "failing to remove a juror named Marion
Sparks from being on the jury panel, after this person
indicated during voir dire that he could not be fair or
-17-
the
impartial to Defendant." Specifically, Defendant claims
that Mr. Sparks was "a presumptively bias juror" because
during voir dire Mr. Sparks stated (a) he was a former
"auxiliary police officer for the Lewiston Police
Department;" (b) he "knew a couple of states' witnesses
in this case," including Investigator John Brannaman and
Deputy Robert Feilder, both of the Hendry County
Sheriff's Department; and (c) he knew one of the
alternate jurors, Glen Pridgen because his daughter was
married to Mr. Pridgen's son.
In Jenkins v. State, 824 So. 2d 977, (Fla. 4th DCA 2002),
the
defendant
filed
a
rule
3.850
motion
for
postconviction relief alleging that defense counsel was
ineffective for failing to strike a juror after the juror
stated during voir dire that he would be fair and
impartial, but that he tended to give police officers'
testimony a little more weight. Id. In upholding the
summary denial of the claim, the Fourth District held
that "[b]ecause a defendant must demonstrate prejudice in
a 3.850 proceeding, post-conviction relief based on a
lawyer's incompetence with regard to the composition of
the jury is reserved for a narrow class of cases where
prejudice is apparent from the record, where a biased
juror actually served on the jury."
Id. at 982.
Furthermore, "if a lawyer's 'error' regarding a juror's
qualifications is not so serious as to be the equivalent
of fundamental error, then post-conviction relief is not
appropriate." Id. at 983.
The record reflects that Mr. Sparks stated during voir
dire that in the 1970s he was an "auxiliary police
officer for the Clewiston Police Department."
See
attached copy of trial transcript, volume I, pages 53-54.
[footnote omitted] He also stated that he knew two of the
state's witnesses, Investigator John Brannaman and Deputy
Robert Feilder. See attached copy of trial transcript,
volume I, page 45. When asked whether he believed that
the testimony of Investigator Brannaman and Deputy
Fielder might be more credible than the other witnesses
in the case, Mr. Sparks answered no. See attached copy
of trial transcript, volume I, page 47. He also stated
that he could fairly judge their testimony just like he
would any other witness and that police officer[s] do not
have more credibility to him. See attached copy of trial
transcript, volume I, pages 47, 59. It was also made
clear during voir dire that Mr. Pridgen's son was married
to Mr. Sparks' daughter. However, Mr. Sparks stated it
-18-
would not be a problem working with Mr. Pridgen. See
attached copy of trial transcript, volume I, pages 83-84.
The Court finds that the record does not reflect any bias
on Mr. Sparks' part and prejudice is not apparent from
the record. Therefore, in accordance with Jenkins, 824
So. 2d 977, post conviction relief is not appropriate and
ground two is denied.
Defendant alleges in ground three that counsel was
ineffective for failing to "seek removal of a juror named
Ms. Ernestine Saunders" after she stated that a police
officer should not lie and that there was a special
significance to somebody being a police officer.
Defendant claims that his defense was prejudiced by
having Ms. Saunders serve on his jury because she "would
believe anything a police officer said."
The record reflects that when asked by the prosecutor
during voir dire whether she would give a uniformed
officer's testimony more credibility than another
person's, Ms. Saunders stated "I hope that because he is
an officer he is going to be truthful." See attached
copy of trial transcript, volume I, page 41.
Ms.
Saunders also indicated that she hoped all witnesses
would be truthful, but recognized that any witness could
have a motive to not tell the truth. See attached copy
of trial transcript, volume I, pages 4 2-43.
When
questioned by defense counsel during voir dire, Ms.
Saunders reiterated that a uniformed officer is not
necessarily more credible than another witness, adding
"just because they are an officer, for me whether I think
he is telling the truth or not . . . I just have to use
my judgment, just as if it was a regular person." See
attached copy of trial transcript, volume I, pages 57-59.
The Court finds that the record does not reflect any bias
on Ms. Saunders' part and prejudice is not apparent from
the record. Therefore, in accordance with Jenkins, 824
So. 2d 977, post conviction relief is not appropriate and
ground three is denied.
According to ground four, counsel was ineffective for
failing to seek the removal of Mr. Gary Steigert from the
jury panel after he stated that his daughter-in-law
worked for the State Attorney's Office.
Defendant
alleges that, even though Mr. Steigert said he did not
know the particular prosecutor at trial, "that did not
mean he did not know other state prosecutors or would be
able to make a fair judgment."
-19-
The record reflects that Mr. Steiger stated during voir
dire that his daughter-in-law worked for the State
Attorney's Office, but did not indicate in what capacity.
He further stated that he only saw his daughter-in-law
about once a month and did not know the prosecutor or
recognize Defendant's name. See attached copy of trial
transcript volume I, pages 26-27. The Court finds that
the record does not reflect any bias on Mr. Steigert's
part and prejudice is not apparent from the record.
Therefore, in accordance with Jenkins, 824 So. 2d 977,
post conviction relief is not appropriate and ground four
is denied.
Exh. 13 at 3-6.
The appellate court per curiam affirmed the trial
court's denial of this claim.
Exh. 17.
Thus, the State court's
decision on this claim warrants deference under AEDPA.
As noted above, the post conviction court evaluated each of
Petitioner's ineffective assistance of counsel claims under the
Strickland standard.
Exh. 13 at 1-2, ¶ 2.
entitled to an impartial jury.
Clearly, Petitioner is
Turner v. Murray, 476 U.S. 28, 36
n. 9 (1986) (“The right to an impartial jury is guaranteed by both
the Sixth Amendment . . . and by principles of due process.”).
Nonetheless, the post conviction court's ruling is consistent with
Supreme Court precedent.
In order to prevail on his ineffective
assistance of counsel claim,
Petitioner first must demonstrate
that one of these challenged jurors was actually biased against
him.7
See Smith v. Phillips, 455 U.S. 209, 215 (1981).
In Florida, “[t]he test for determining juror competency is
whether the juror can lay aside any bias or prejudice and render a
verdict solely on the evidence presented and the instructions on
the law given by the court.” Smith v. State, 28 So.3d 838, 859
7
(continued...)
-20-
In the instant matter, any allegation of bias is refuted by
the voir dire of each of the venire member's fitness for jury
service.
See generally Exh. 21, Vol I.
Mr. Steiger admitted that
his daughter-in-law worked at the State Attorney’s Office but he
did not know the prosecutor, and he only sees his daughter-in-law
maybe "once a month."
Id. at 26.
Although Ms. Saunders initially
stated that she hoped that a police officer would be truthful, she
eventually acknowledged that "simply because a person is a police
officer" does not mean "he's going to tell the truth or not tell
the truth."
Id. at 43.
In response to questioning by defense
counsel, Mr. Sparks expressly denied that just because he knew
certain police officers that he did not "feel that their testimony
would be more credible."
Id. at 47.
Instead, Mr. Sparks agreed
that he would "judge their testimony just like [he] would any other
witness." Id. Further, Mr. Sparks admitted that he was previously
an "auxiliary police officer" but acknowledged that it was "back in
the 70s" and he no longer volunteered or even knew who was the
current chief of police.
Id. at 54.
7
(...continued)
(Fla. 2009) (citing Lusk v. State, 446 So.2d 1038, 1041 (Fla.
1984)). See also, Irvin v. Dowd, 366 U.S. 717, 723 (1961) (“[T]o
hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to
rebut the presumption of a prospective juror's impartiality would
be to establish an impossible standard. It is sufficient if the
juror can lay aside his impression or opinion and render a verdict
based on the evidence presented in court.”).
-21-
Petitioner's
characterization
testimony is refuted by the record.
of
the
challenged
jurors'
Instead, the record of voir
dire testimony reveals that none of the challenged jurors were
openly biased. "It is sufficient if the jurors can lay aside their
impressions or opinions and render a verdict based on the evidence
presented in court."
Skillings v. U.S, ___ U.S. ___, 131 S. Ct.
2896, 2925(2010)(internal quotations and citations omitted). Here,
each of the challenged jurors agreed to do that.
See generally
Exh. 21, Vol. I. Consequently, the Court finds that Petitioner has
failed to sustain his burden under § 2254 and denies Grounds, 2, 3
and 4 as without merit.
Ground 5
Petitioner claims that trial counsel was ineffective for
failing
to
investigate
behalf.
Petition at 4.
a
self-defense
theory
on
Petitioner's
Petitioner also claims, however, that the
victim's death "was purely an accident."
Id.
The Petition is
otherwise devoid of any facts in support of Petitioner's theories
that he acted in self-defense or that the shooting was accidental.
See generally Id.
3.850 motion.
court
Petitioner raised a similar claim in his Rule
Exh. 11 at 11 (ground five).
summarily
denied
Petitioner's
The post conviction
claim
of
counsel's
ineffectiveness for failing to advance theories of self-defense or
accidental shooting as follows:
Defendant alleges in ground five that counsel was
ineffective for failing to investigate a self-defense
-22-
theory. Defendant claims he agreed to meet the victim,
his childhood friend, in order to sell the victim some
marijuana. At the meeting, the victim picked up some
baggies of marijuana and started to back away, as though
he were going to steal the marijuana.
Defendant,
concerned the victim was going to run away, told him to
stop. When the victim refused, Defendant pulled out a
gun in order to "scare" him. The victim reached into his
pants as though "going for a gun."
Defendant then
pointed his gun at the victim and it accidentally
discharged. The victim fell to the ground, got up and
ran down an embankment. Defendant then fired a "few
shots" down the embankment to scare the victim into
staying there long enough to give Defendant the chance to
leave. Notably, Defendant does not allege in ground five
any specific actions he believed counsel could have done
in order to investigate a self-defense theory.
The record reflects that Defendant testified at trial
that the victim "grabbed the marijuana and he took a step
back and I felt a vibe as if he was going to strike me
and I reacted." When asked what he thought the victim
was going to do, Defendant clarified that he felt the
victim was going to hit him. He then stated, "I reacted
out of fear and I reached for the gun and pulled it out
and I fired the gun." When asked if there was anything
else he wanted the jury to know about the incident,
Defendant stated that he did not intend to harm the
victim, but reacted out of fear. See attached copy of
trial transcript, volume III, pages 169-171.
Thus,
Defendant testified at trial that he was afraid the
victim might hit him, but he never stated that he was
afraid the victim might have a gun as alleged in his
Motion.
In addition, it appears that after his arrest, Defendant
accompanied law enforcement authorities to the scene of
the crime in order to conduct a re-enactment of the
crime. A videotape of the re-enactment was introduced
into evidence and played for the jury at trial.
See
attached copy of trial transcript, volume III, pages
118-.
According to the trial transcript, Defendant
stated on the video that the victim put his hands in his
pocket, pulled them out, grabbed the drugs and took off
running. See attached copy of trial transcript, volume
111, page 123. Defendant then stated, "[r]ight when he
did that then [inaudible] I pulled a gun quick and I shot
one time." See attached copy of trial transcript, volume
-23-
III, page 124. "[H]e was acting like he was hurt but he
was taking off with my [drugs]." See attached copy of
trial transcript, volume III, page 124. Defendant then
stated that as the victim fled, he continued shooting at
him until he ran out of bullets "because I know he still
got my dope." See attached copy of trial transcript,
volume III, page 124. Thus, in the video re-enactment,
Defendant did not allege that he feared the victim might
have a gun or that the victim might hit him. Finally,
the Court notes that a review of the entire trial
transcript reflects that there were no witnesses to the
shooting other than Defendant.
The Court finds that
there was no available evidence other than Defendant's
testimony, with which to establish a claim of
self-defense and counsel did, in fact, present
Defendant's testimony to the jury at trial. Under the
specific facts of this case, the Court finds as a matter
of law that counsel's performance was not deficient
within the meaning of Strickland, 466 U.S. 668 and ground
five is denied.
Exh. 13 at 6-7.
The appellate court per curiam affirmed the trial court's
denial of this claim.
Exh. 17.
Thus, the State court's decision
on this claim warrants deference under AEDPA.
Florida law requires that a defendant alleging self-defense
demonstrate “a real necessity for taking a life and a situation
causing a reasonably prudent person to believe that danger is
imminent.”
Hunter v. State, 687 So.2d 277, 278 (Fla. 5th DCA
1997). See also Pressley v. State, 395 So.2d 1175, 1177 (Fla. 3d
DCA 1981).
Thus, a person may use deadly force in self-defense if
he or she reasonably believes such force is necessary to prevent
imminent death or great bodily harm.
A person may not, however,
use deadly force without using every available means to avoid
-24-
danger, including retreat. See Weiand v. State, 732 So.2d 1044,
1049 (Fla. 1999).
To
establish
deficient
performance,
a
petitioner
“must
identify the acts or omissions of counsel that are alleged not to
have
been
the
result
of
reasonable
Strickland, 466 U.S. at 690.
professional
judgment.”
In reviewing a claim, “counsel is
strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.”
decision
Id.
not
The Supreme Court recognized that "a particular
to
investigate
must
be
directly
assessed
for
reasonableness in all the circumstances, applying a heavy measure
of deference to counsel's judgment."
Id. at 691.
Indeed, counsel
does not have an absolute duty to investigate a particular defense.
Fugate v. Head,
Chandler).
261 F.3d 1206, 1217 (11th Cir. 2001)(citing
Based on Florida law, Petitioner did not articulate a
factual basis for counsel to either investigate or advance a theory
of self-defense.
Thus, the Court finds that the State court's
denial of this claim was not contrary to clearly established
federal
law,
was
not
an
unreasonable
application
of
clearly
established federal law, or was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Consequently, the Court denies Ground
5 as without merit.
-25-
Grounds 6 and 7
As his sixth ground for relief, Petitioner faults trial
counsel for failing to request a jury
instruction concerning the
"probable
"Apprendi
penalties"
Petition at 5.
as
required
by
and
Blakey."8
As his seventh ground for relief, Petitioner
assigned error to trial counsel for "failing to object to [the]
judge's misstatement of the law where he told the jury their job
was not to consider sentence to be imposed," stating that this
function was for the court.
support of either claim.
Id.
No other facts are provided in
See generally Id.
Petitioner raised both of these claims in his Rule 3.850
motion as grounds eight and ten respectively.
and 19-20.
Exh. 11 at 15-16,
The post conviction court denied Petitioner relief on
both grounds, finding in pertinent part:
Defendant alleges in ground eight that counsel was
ineffective for failing to request that "the jury be told
what penalties could be imposed for a finding of guilt on
the
second
degree
murder
charge,
as
well
as
[manslaughter]."
However, Florida Rule of Criminal
Procedure 3.390 (a) specifically states that "[e]xcept in
capital cases, the judge shall not instruct the jury on
the sentence that may be imposed for the offense for
which the accused is on trial." Counsel cannot be deemed
ineffective for failing to raise a meritless objection.
Accordingly, ground eight is denied on the merits.
Defendant alleges in ground ten that, counsel was
ineffective for failing to object "when the judge
announced his intention to answer a jury question about
the sentences Defendant could receive for either second
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Washington, 542 U.S. 296 (2004).
8
-26-
Blakey v.
degree murder or manslaughter." Defendant argues that,
in response to the jury's question, the judge informed
them that "it is your duty to determine if the defendant
has been proved guilty or not guilty in accord with the
law, it is the judge's duty to determine a proper
sentence if defendant is found guilty." However, as
previously noted in the discussion of ground eight,
Florida Rule of Criminal Procedure 3.390(a) specifically
states that "[e]xcept in capital cases, the judge shall
not instruct the jury on the sentence that may be imposed
for the offense for which the accused is on trial."
Counsel cannot be deemed ineffective for failing to raise
a meritless objection. Accordingly, ground ten is denied
on the merits.
Exh. 13 at 8-9.
The appellate court per curiam affirmed the trial court's
denial of this claim.
Exh. 17.
Thus, the State court's decision
on this claim warrants deference under AEDPA.
The Supreme Court held in Apprendi that “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
In
Blakely, the Supreme Court clarified that the "statutory maximum"
for Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury's verdict or
as admitted by the defendant.
Neither
suggested
by
defendant's
Apprendi
nor
Petitioner
penalty.
-
542 U.S. at 303-05.
Blakely
stand
-
the
that
Instead,
the
for
jury
jury
the
must
must
proposition
determine
find
beyond
a
a
reasonable doubt each factual element that increases a penalty for
a crime.
Here, the verdict returned by the jury found Petitioner
-27-
guilty of "Second Degree Murder With a Firearm."
Exh, 21, Vol. I
at 17. Florida law requires "that the jury need only be instructed
as to the possible penalty when it is faced with the choice of
recommending either the death penalty or life imprisonment." Nixon
v. State, 572 So.2d 1336, 1345 (Fla. 1990). Because Guzman did not
face a potential death sentence if convicted, Petitioner fails to
establish that the State post conviction court's decision was
contrary to clearly established federal law, or was an unreasonable
application of clearly established federal law, or was based on an
unreasonable determination of the facts in light of the evidence
presented in the state court proceedings.
Thus, the Court finds
both Grounds 6 and 7 to be without merit.
Ground 8
Petitioner
claims
trial
counsel
was
ineffective
because
counsel failed to object to the State's request for a departure
sentence of life under Florida's 10-20-life statute.
5.
find
Petition at
Petitioner argues that the jury would have been required to
"guilt[y] with the use of a firearm," but claims "the jury
made no such finding."
Id.
Petitioner raised this claim in his Rule 3.850 motion as
ground eleven. Exh. 11 at 20-21. The post conviction court denied
Petitioner relief as follows:
In ground eleven, Defendant alleges that counsel was
ineffective at the sentencing hearing for failing to
object and argue against the State's recommendation of a
life sentence under the 10-20-Life statute because the
-28-
"special jury verdict form did not show Defendant
committed his crime by shooting with a firearm."
However, the verdict form reflects that the jury found
Defendant "guilty of SECOND DEGREE MURDER WITH A
FIREARM."
See attached copy of verdict form.
Accordingly, the record conclusively refutes Defendant's
factual allegations. Because counsel cannot be deemed
ineffective for failing to raise a meritless issue,
ground eleven is denied.
Exh. 13 at 9-10.
The appellate court per curiam affirmed the trial court's
denial of this claim.
Exh. 17.
Thus, the State court's decision
on this claim warrants deference under AEDPA.
Here, the verdict form is determinative of Petitioner's claim.
Exh.
21,
Vol.
I
at
17.
The
Court
finds
that
the
conclusively refutes Petitioner's factual allegations.
record
The jury
was asked to render their verdict by checking only one of the
following four options:
(a)
(b)
(c)
(d)
The
The
The
The
Id.
defendant
defendant
defendant
defendant
is
is
is
is
guilty of SECOND DEGREE MURDER WITH A FIREARM
guilty of SECOND DEGREE MURDER
guilty of MANSLAUGHTER
not guilty.
If the jury determined that Petitioner was guilty of SECOND
DEGREE MURDER or MANSLAUGHTER (options "b" or "c" above), then the
jury
was
then
required
to
determine
whether
"committed the crime by shooting a firearm."
Id.
the
defendant
The jury found,
beyond a reasonable doubt, that Petitioner was guilty of option "a"
- - SECOND DEGREE MURDER WITH A FIREARM.
Id.
Thus, the jury had
no reason to consider the second question - - whether Petitioner
-29-
"committed the crime by shooting a firearm."
The record refutes
Petitioner's factual allegations in support of his claim.
Based on the foregoing, the Court finds that the State post
conviction court's decision was not contrary to clearly established
federal law, or was not an unreasonable application of clearly
established federal law, or was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings.
Consequently, Ground 8 is denied as
without merit.
Ground 9
Petitioner argues that trial counsel's "cumulative errors"
prejudiced his right to a fair trial.
Petition at 5.
Presumably,
Petitioner refers to Grounds 1-8 previously discussed.
Petitioner raised a cumulative error claim in his Rule 3.850
motion as ground thirteen.
Exh. 13 at 24.
The post conviction
court denied this claim based on the absence of any individual
errors by trial counsel, finding:
Finally, Defendant alleges in ground thirteen that
counsel's "cumulative errors" prejudiced his rights to a
fair trial and due process. Pursuant to Wright v. State,
857 So. 2d 861 (Fla. 2003), a post conviction claim of
cumulative error is without merit where the court has
considered each individual claim and found them to be
without merit. Therefore, having found that each claim
presented in Defendant's Motion lacks merit, the Court
finds no cumulative error occurred and ground thirteen is
denied.
Exh. 13 at 11.
-30-
The appellate court per curiam affirmed the trial court's
denial of this claim.
Exh. 17.
Thus, the State court's decision
on this claim warrants deference under AEDPA.
No Supreme Court authority recognizes ineffective assistance
of counsel “cumulative error” as a separate violation of the
Constitution, or as a separate ground for habeas relief.
See
Lorraine v. Chyle, 9 F.3d 416, 447 (6th Cir.) (“The Supreme Court
has not held that distinct constitutional claims can be cumulated
to grant habeas relief.”), amended on other grounds, 307 F.3d 459
(6th Cir. 2002), cert. denied, 538 U.S. 947 (2003); Forrest v. Fla.
Dep’t of Corr., 342 F. App'x 560, 565 (11th Cir. 2009), cert.
denied, ___ U.S. ___, 129 S. Ct. 932 (2009).
The Supreme Court has
stated that “there is generally no basis for finding a Sixth
Amendment violation unless the accused can show how specific errors
of counsel undermined the reliability of the finding of guilt.”
U.S. v. Cronic, 466 U.S. 648, 659, fn. 26 (1984).
Further, in
Spears v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003), the court
stated, “[b]ecause the sum of various zeroes remains zero, the
claimed prejudicial effect of their trial attorneys’ cumulative
errors does not warrant habeas relief.”
This Court also previously engaged in a claim by claim
analysis set forth in Grounds 1-8 and ultimately found each to be
without merit.
Consequently, Petitioner has not met his burden
under § 2254, and this Ground is denied as without merit.
-31-
Ground 10, 11 and 12
Petitioner raises three grounds of ineffective assistance of
appellate counsel.
First, Petitioner assigns error to appellate
counsel for failing to argue on direct appeal that the trial court
erred in failing to discharge his court-appointed counsel, Mr.
Sullivan, "based upon a clear conflict of interest."
6.
Petition at
Second, Petitioner faults appellate counsel for failing to
claim the trial court erred in not conducting a Faretta9 inquiry to
determine that "Petitioner could represent himself."
Id.
Third,
Petitioner claims ineffectiveness by appellate counsel for failing
to raise on direct appeal that Petitioner had "a right to selfrepresentation."
On
May
officials
The
May
25,
Id. at 8.
2005,
Petitioner
delivered
to
correctional
a State petition for writ of habeas corpus.
25
petition
alleged
counsel
on
direct
Exh. 5.
appeal
was
ineffective on two grounds: (1) failing to raise on direct appeal
that the trial court erred by failing to conduct an adequate Nelson
and Faretta inquiry; and (2) failing to request supplementation of
the record as it pertains to Petitioner's Nelson10 and Faretta
claims.
Id. at 3.
On September 14, 2005, the State appellate
court denied Petitioner's May 25 petition without opinion. Exh. 6.
Faretta v. California, 422 U.S. 806 (1975).
9
Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973)(State law
requiring the court to conduct a hearing if defendant presents
allegations that counsel is ineffective).
10
-32-
On December 26, 2005, Petitioner delivered to correctional
officials a second State petition for writ of habeas corpus.
9.
Exh.
The December 26 petition alleged that appellate counsel was
ineffective for: (1) failing to raise fundamental error by the
trial court for refusing to appoint conflict-free counsel; (2)
fundamental error by the trial court for not allowing Petitioner to
represent himself at trial, and appellate counsel's failure to
fully investigate this issue for direct appeal.
Id. at 2.
On
February 14, 2006, the State appellate court denied Petitioner's
December 26 petition without opinion.
Exh. 10.
The Court finds that Grounds 10, 11 and 12 are exhausted
because arguably Petitioner fairly presented his three ineffective
assistance of appellate counsel claims to the State court.11 Duncan
v. Henry, 513 U.S. 364 at 365.
Further, the Court deems the
appellate court's summary rejection of Petitioner's claims to be an
adjudication on the merits, which warrants deference by this Court.
Ferguson v. Culliver, 527 F. 3d 1146.
Petitioner has a Sixth Amendment right to effective assistance
of counsel both at trial and on direct appeal.
Evitts v. Lucey,
Respondent argues that Petitioner did not exhaust his claim
that appellate counsel was ineffective for failing to argue on
direct appeal that the trial court erred in not discharging counsel
based upon a clear conflict of interest because Petitioner "never
specifically identifies the type of conflict which affected his
case." Response at 22. Although raised as an exhaustion issue,
Respondent is essentially challenging the factual underpinnings in
support of Petitioner's substantive ineffective assistance of
counsel claim.
11
-33-
469 U.S. 387, 396-97 (1985); Smith v. Robbins, 528 U.S. 259, 278
(2000).
While
the
Sixth
Amendment
guarantees
the
right
to
assistance of counsel, it does not give indigent defendants the
unqualified right to the counsel of their choice.
540 F.3d 1253, 1263-64 (11th Cir. 2008).
U.S. v. Garey,
Thus, an indigent
defendant "does not have a right to have a particular lawyer
represent him, nor to demand a different appointed lawyer except
for good cause."
Cir. 1985).
Thomas v. Wainwright, 767 F.2d 738, 742 (11th
Good cause requires a showing of "a fundamental
problem, such as conflict of interest, a complete breakdown in
communication or an irreconcilable conflict which leads to an
apparently unjust verdict."
U.S. v. Garey, 540 F.3d at 1263
(internal quotations and citations omitted).
Nonetheless, "a
general loss of confidence or trust in counsel, standing alone,
does not amount to good cause."
U.S. v. Woodward, 419 F. App'x
969, 970 (11th Cir. 2011)(citing Thomas v. Wainwright, 767 F.2d at
742).
As discussed earlier, the State court denied that appointed
counsel, Mr. Sullivan, and Petitioner had a conflict of interest.
See supra, Ground 1 at 14-17. Thus, appellate counsel did not have
a factual basis on which to raise a substantive claim that the
trial court erred in failing to discharge counsel based on a
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conflict of interest alleged by Petitioner in Ground 10.12
Thus,
Petitioner has not shown that the State appellate court's decisions
denying his State petitions were
federal
law,
established
or
were
federal
an
contrary to clearly established
unreasonable
law,
or
were
application
based
on
an
of
clearly
unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings.
Nor does Petitioner's Faretta claim or his self-representation
claim
fare
any
better.
The
California,
422
U.S.
(1975),
806
Supreme
Court,
determined
in
that
Faretta
a
v.
criminal
defendant, who "clearly and unequivocally declared to the trial
judge
that
he
wanted
to
represent
himself
and
counsel," has a right to self representation.
did
not
want
Id. at 835.
Significantly, Faretta's invocation of his right to counsel was
“clear
and
unequivocal”
and
was
not
disputed
in
the
case.
Consequently, the Court focused on whether Faretta's relinquishment
of “the many traditional benefits associated with the right to
counsel” was made knowingly and intelligently, as explained below:
Nor did appellate counsel have grounds to assert a claim of
trial court error based on trial counsel's ineffectiveness.
Although Petitioner expressed concern about counsel's experience,
pointing out it was counsel's first murder case, Exh. 20 at 9-11,
the trial court heard from both trial counsel and counsel's
supervisor and determined that counsel was competent to handle
Petitioner's case. Id. at 12 (trial court stating that "I am going
to put on the record that I can find no reasonable cause to believe
that Mr. Sullivan is rendering ineffective representation to you,
Mr. Guzman. And I am making that finding at today's hearing.").
12
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Although a defendant need not himself have the skill and
experience of a lawyer in order competently and
intelligently to choose self-representation, he should be
made aware of the dangers and disadvantages of selfrepresentation, so that the record will establish that he
knows what he is doing and his choice is made with eyes
open.
Here,
weeks
before
trial,
Faretta
clearly
and
unequivocally declared to the trial judge that he wanted
to represent himself and did not want counsel. The record
affirmatively shows that Faretta was literate, competent,
and understanding, and that he was voluntarily exercising
his informed free will. The trial judge had warned
Faretta that he thought it was a mistake not to accept
the assistance of counsel, and that Faretta would be
required to follow all the “ground rules” of trial
procedure. We need make no assessment of how well or
poorly Faretta had mastered the intricacies of the
hearsay rule and the California code provisions that
govern challenges of potential jurors on voir dire. For
his technical legal knowledge, as such, was not relevant
to an assessment of his knowing exercise of the right to
defend himself.
In forcing Faretta, under these circumstances, to accept
against his will a state-appointed public defender, the
California courts deprived him of his constitutional
right to conduct his own defense. Accordingly, the
judgment before us is vacated, and the case is remanded
for further proceedings not inconsistent with this opinion.
Id. at 835–36, (internal quotations, citations, and footnotes
omitted).
Thus, the Court determined that a trial court's obligation to
conduct a “Faretta hearing,” at which a defendant is “made aware of
the
dangers
and
disadvantages
of
self-representation[,]”
is
triggered by the defendant's “clear and unequivocal assertion of a
desire to represent himself.” See, Raulerson v. Wainwright, 469
U.S. 966, 969–70 (1984) (Marshall, J. dissenting from denial of
-36-
certiorari).
See also, Stano v. Dugger, 921 F.2d 1125, 1144 (11th
Cir. 1991)( stating “[o]nce the right of self-representation has
been asserted clearly and unequivocally, understandable to the
trial court by the reasonable person standard, then and only then
is that court, under Supreme Court and Eleventh Circuit case law,
required to conduct the requisite inquiry to determine whether the
criminal defendant's decision to represent himself is knowing,
intelligent and voluntary.”); and, Cross v. United States, 893 F.2d
1287, 1290 (11th Cir. 1990) (stating “[i]n recognition of the thin
line that a district court must traverse in evaluating demands to
proceed pro se, and the knowledge that shrewd litigants can exploit
this
difficult
constitutional
area
by
making
ambiguous
self-
representation claims to inject error into the record, this Court
has required an individual to clearly and unequivocally assert the
desire to represent himself.”).
Here, the record reflects that Petitioner did not make a
clear and unequivocal request to proceed pro se.
Indeed, at the
January 23, 2003 hearing, Petitioner unequivocally and repeatedly
stated that he did not want to represent himself when offered the
opportunity by the trial court.
THE COURT: So what I'm going to tell you is that I'm not
going to replace him as your attorney. That means you
don't have the right
to another court-appointed attorney. You do still have
the attorney. If you wish to fire Mr. Sullivan — if you
fire Mr. Sullivan, then you would be representing
yourself until your family got money to hire an attorney.
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THE DEFENDANT: I'm no lawyer. I don't know much about
law, but I know that I -- like I told you, I don't
believe I'm getting a fair
trial.
THE COURT: Well, based on the record and everything I
have in front of me, I think you're getting a very fair
trial.
THE DEFENDANT: All this on the record?
THE COURT: Oh, yeah, that's what that lady here is doing.
So what do you want to do?
You want to represent
yourself?
THE DEFENDANT: I can't represent myself.
much about law.
I don't know
THE COURT: I don't — I mean, I wouldn't advise it either.
I don't think you can either. So you're not going to
fire Mr. Sullivan?
THE DEFENDANT: I want Mr. Sullivan fired.
THE COURT: Well, then you're going to have to represent
yourself.
THE DEFENDANT: I wouldn't know what to do.
lawyer. I don't know how —
I ain't no
THE COURT: Well, then I don't think you want him fired,
then, do you?
THE DEFENDANT: I want him fired.
THE COURT: You're going to represent yourself?
THE DEFENDANT: No, but I want him fired.
THE COURT: Okay. Well, I'm not firing him, so he's not
going to get fired. Do you understand?
THE DEFENDANT: I understand.
THE COURT: Okay. The only way he's going to get fired is
if you fire him and then you represent yourself because
I'm not going to
appoint another lawyer for you. Do you understand that?
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THE DEFENDANT: I understand.
THE COURT: So what are you going to do?
THE DEFENDANT: I want him fired.
THE COURT: You're not listening to me. That's not an
option. Apparently you don't understand me[.] Or do you?
THE DEFENDANT: I understand you clearly.
THE COURT: Okay. What do you want to do?
THE DEFENDANT: I don't want Sullivan on my case.
THE COURT: You going to represent yourself?
THE DEFENDANT: No.
MR. SULLIVAN: Those are your only two choices.
THE COURT: Your choice isn't a choice. That's not one of
the options. There's A and B, and you're picking C.
There isn't any C. Okay. Either he stays on the case or
you fire him and represent yourself; that's two choices.
You don't get a third choice. So what do you want to do?
You've got to decide now.
THE DEFENDANT: I done already said what I wanted.
THE COURT: Okay.
And what is that?
THE DEFENDANT: I want Sullivan fired.
THE COURT: Okay. Well, that's not an option because you
don't want to represent yourself, right?
THE DEFENDANT: You're right.
Exh. 20 at 12-16.
Again, appellate counsel did not have a factual basis to
advance either a claim that the trial court erred in failing to
conduct a Faretta hearing or a claim that Petitioner had a right to
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represent himself at trial.
Indeed, if appellate counsel is not
required to raise all nonfrivolous issues on appeal, Jones v.
Barnes, 463 U.S. 745, 751-54 (1983), appellate counsel certainly is
not
deficient
for
failing
to
raise
nonmeritorous
issues.
Consequently, the Court finds that the State post conviction
court's decision was not contrary to clearly established federal
law, or was not an unreasonable application of clearly established
federal law, or was not based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceedings.
Consequently, Grounds 10, 11 and 12 are denied as
without merit.
Ground 13
Petitioner contends that his life sentence violates Apprendi.
In support, Petitioner states that he was found guilty of "second
degree murder" but "the jury made no finding about the use of a
firearm." Petition at 9.
Thus, Petitioner claims that the State
court incorrectly sentenced him to life.
Id.
Additionally,
Petitioner submits that the Supreme Court in Apprendi "said a jury
must still be told the punishment that could be imposed" upon a
defendant.
Id.
Consequently, Petitioner claims that the trial
court committed error because the trial court told the jury "to
disregard [the] consequences of a verdict," in response to the
jury's question about punishment. Id.
-40-
Assuming arguendo this claim was exhausted and as noted
supra,13 contrary to Petitioner's assertions, the jury did expressly
find that Petitioner committed the murder with a firearm.
Thus,
the factual foundation on which Petitioner's claim is based is
erroneous.
Further, because Guzman's life sentence for second
degree murder, which is a first degree felony in Florida,14 was
enhanced to a life felony due to Guzman's use of a firearm,
pursuant to Florida Statute § 775.087(2)(a)3, did not exceed the
statutory maximum of life imprisonment, there can be no Apprendi
error.
See Jewell v. Crosby, 142 F. App'x 371, 373 (11th Cir.
2005). Finally, Petitioner's reading of the holding in Apprendi is
erroneous.
Consequently, the aforementioned claim is contradicted
by the record and denied as without merit.
Ground 14
As noted supra,15 as a precaution the Court construes the pro
se Petition as raising an additional claim that was not addressed
by Respondent. In particular, Petitioner identifies in his list of
trial counsel's errors, a claim that counsel was ineffective for
The record does not reflect that Petitioner either filed a
Rule 3.800 motion, challenging his sentence as illegal; or, that
Petitioner raised on direct appeal a claim of trial court error
concerning either his sentencing or comments by the trial court in
response to the jury question.
The Court previously discussed
herein the Apprendi issue in the context of Petitioner's
ineffective assistance of trial counsel claim at 27-28.
13
14
See Florida Statute § 782.04; Exh. 21 Vol. I at 8.
15
See footnote 4.
-41-
"failing to object to improper comments made by a prosecutor in
closing arguments."
Petition at 5.
Petitioner states that during
closing, the prosecutor "basically told the jury that petitioner's
testimony was all false and inconsistent with [his] pretrial
statements."
Id.
Petitioner argues that "if such was true," the
prosecutor could have sought to impeach him. Id.
Upon review of the record, the Court finds that Petitioner
failed
to
properly
ineffectiveness.
exhaust
In
this
particular,
claim
of
Petitioner
trial
counsel's
initially
raised
thirteen separate grounds of trial court error in his Rule 3.850
motion, which he filed on April 19, 2005.
See generally Exh. 11.
A claim that counsel was ineffective for failing to object to the
prosecutor's alleged misconduct during closing argument was not
raised by Petition in his initial Rule 3.850 motion. See generally
Id.
On
January 18, 2007, Petitioner placed in correctional
mailing an amended Rule 3.850 motion.
proposed amended
trial
counsel
Exh. 14.
Petitioner's
Rule 3.850 motion contained a new claim -- that
was
ineffective
for
failing
to
object
to
the
prosecutors remarks during closing -- which was not included in
Petitioner's initial Rule 3.850 motion.
Compare Exh. 11 with Exh.
14.
conviction
On
August
28,
2007,
the
post
court
denied
Petitioner's amended Rule 3.850 motion as untimely filed outside of
the two-year time period, citing Lanier v. State, 826 So. 2d 460
(Fla. 1st DCA 2002).
Exh. 15.
Petitioner appealed the denial of
-42-
his amended Rule 3.850 motion at the time he appealed the summary
denial of his initial Rule 3.850 motion, which was issued the same
day.
Exh. 16.
The appellate court per curiam affirmed the trial
court's denial of Petitioner's initial and amended Rule 3.850
claims.
Exh. 17.
Because the last State court rendering a decision found that
Petitioner's amended Rule 3.850 motion, which raised this claim,
was untimely, Ground 14 is not subject to review by this Court and
is
procedurally barred.
Harris v. Reed, 489 U.S. 255, 261-62
(1989); Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991).
Petitioner
does not allege, yet alone demonstrate, cause and prejudice to
excuse this procedural bar.
Further, in light of the evidence
submitted to the jury and a review of the transcript of the trial,
Petitioner cannot demonstrate a fundamental miscarriage of justice.
Thus, the Court dismisses Ground 14 as procedurally barred.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition for Writ of Habeas Corpus (Doc. #1) is
DENIED for the reasons set forth herein.
2.
The Clerk of the Court shall enter judgment accordingly;
terminate any pending motions; and, close this file.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
-43-
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability.
A prisoner seeking to appeal a
district court's final order denying his petition for writ of
habeas corpus has no absolute entitlement to appeal but must obtain
a certificate of appealability ("COA").
Harbison v. Bell, 556 U.S.
28 U.S.C. § 2253(c)(1);
180, 129 S. Ct. 1481, 1485 (2009).
“A
[COA] may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
To make such a showing, petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) or, that “the issues presented
were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Petitioner has
not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Fort Myers, Florida, on this 16th day of
September, 2011.
SA: hmk
Copies: All Parties of Record
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