Rosier v. Secretary, DOC et al
Filing
38
OPINION AND ORDER denying 1 Petition for writ of habeas corpus and the case is dismissed with prejudice. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 8/12/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BELAFONTE LOPEZ ROSIER,
Petitioner,
v.
Case No:
2:10-cv-457-Ftm-29UAM
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
_______________________________/
OPINION AND ORDER
Belafonte Lopez Rosier (“Petitioner”) initiated this action
for habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1).
Upon
consideration
of
the
petition,
the
Court
ordered
Respondents to show cause why the relief sought in the petition
should not be granted (Doc. 7).
Thereafter, Respondents filed a
response
compliance
to
the
petition
in
with
this
Court’s
instructions and with the Rules Governing Section 2254 Cases in
the United States District Courts (Doc. 25).
Petitioner filed a
reply to the response (Doc. 32).
Petitioner raises seven claims for relief in his petition.
Petitioner alleges that: (1) the state court erred by failing to
conduct an adequate inquiry at each stage of the proceeding to
ensure that Petitioner wished to continue self-representation;
(2) he was denied due process of law because of an inadequate
charging
information
and
because
of
the
State’s
failure
to
adhere to Florida’s speedy trial provisions; (3) he was denied
his constitutional right to be present at a critical stage of
his trial; (4) the State court lacked jurisdiction or authority
to dispose of his case; (5) the prosecution withheld favorable
evidence in violation of the Fourteenth Amendment; (6) appellate
counsel did not effectively represent him on direct appeal; and
(7) the evidence presented at trial was insufficient to support
a conviction (Doc. 1 at 6-21).
Because this Court can “adequately assess [Petitioner's]
claim
without
further
factual
development,”
an
evidentiary
hearing will not be conducted. Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003).
Upon due consideration of the petition,
the response, the reply, and the state-court record, this Court
concludes that each claim in the petition should be denied.
I.
Background and Procedural History
On
October
29,
2004,
Petitioner
was
charged
by
amended
information with two counts of sexual battery on a child less
than twelve years of age (counts one and five) and four counts
of sexual activity with a child twelve years of age or older by
a person in familial or custodial authority (counts two, three,
four, and six) (Vol. 1 at 54-55).1
1
Unless otherwise noted, references to volume numbers (Vol. __
at __) and exhibits (Ex. __ at __) are to those filed by
Respondents on August 2, 2011 (Doc. 28).
2
After a jury trial, in which Petitioner proceeded pro se,
Petitioner was found guilty of counts one, two, three, five, and
six and acquitted on count four (Vol. 6 at 288, 355-57; Vol. 1
at 167-71). Petitioner was sentenced to life in prison on counts
one
and
five
and
to
concurrent
thirty
year
prison
terms
on
counts two, three, and six (Vol. 2 at 207-13).
Plaintiff
appealed
his
conviction,
and
Florida’s
Second
District Court of Appeal affirmed per curiam (Ex. 4); Rosier v.
State, 969 So. 2d 1031 (Fla. 2d DCA 2007).
Petitioner filed a
motion to correct sentencing error and a supplemental motion to
correct sentencing error (Ex. 14, 15).
(Ex. 20).
The motions were denied
The Second District Court of Appeal affirmed per
curiam (Ex. 23); Rosier v. State, 25 So.3d 1239 (Fla. 2d DCA
2009).
Petitioner
filed
a
state
petition
for
habeas
corpus
relief, raising claims of ineffective assistance of appellate
counsel (Ex. 27).
The Second District Court of Appeal denied
the petition (Ex. 28); Rosier v. State, 979 So. 2d 231 (Fla. 2d
DCA 2008).
Petitioner filed an amended motion pursuant to Florida Rule
of Criminal Procedure 3.850 (“Rule 3.850 motion”) in which he
raised four grounds for relief (Ex. 33). The post-conviction
court denied the motion, and Florida’s Second District Court of
3
Appeal affirmed per curiam (Ex. 36, 39); Rosier v. State, 38
So.3d 145 (Fla. 2d DCA 2010).
The instant Petition was filed in this Court on July 21,
2010 (Doc. 1).
II.
Governing Legal Principles
a.
Standard of Review Under the Antiterrorism Effective
Death Penalty Act (“AEDPA”)
Pursuant to the AEDPA, federal 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.
28 U.S.C. § 2254(d).
A state court’s summary rejection of a
claim, even without explanation, qualifies as an adjudication on
the merits which warrants deference.
Ferguson v. Culliver, 527
F.3d 1144, 1146 (11th Cir. 2008).
“[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. Carey v. Musladin, 549 U.S. 70,
74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
4
A decision is “contrary to” clearly established federal law if
the state court either: (1) applied a rule that contradicts the
governing
law
set
forth
by
Supreme
Court
case
law;
or
(2)
reached a different result from the Supreme Court when faced
with materially indistinguishable facts.
Ward v. Hall, 592 F.3d
1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12,
16 (2003).
A
state
application”
court
of
the
decision
Supreme
involves
Court’s
an
“unreasonable
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 v. Payton, 544 U.S. 133,
134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000) 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.”
234
F.3d
at
unreasonable
531
(quoting
application
Williams,
inquiry
529
U.S.
“requires
at
the
Bottoson,
406).
state
The
court
decision to be more than incorrect or erroneous,” rather, it
must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S.
63, 75 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18;
Ward, 592 F.3d at 1155.
5
Finally, the Supreme Court has clarified that: “a decision
adjudicated
on
the
merits
in
a
state
court
and
based
on
a
factual determination will not be overturned on factual grounds
unless
objectively
unreasonable
in
light
of
the
evidence
presented in the state-court proceeding.” Miller–El v. Cockrell,
537 U.S. 322, 340 (2003) (dictum). When reviewing a claim under
§
2254(d),
a
federal
court
must
bear
in
mind
that
any
“determination of a factual issue made by a State court shall be
presumed to be correct,” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see, e.g., Miller–El, 537
U.S. at 340 (explaining that a federal court can disagree with a
state
court’s
“conclude
the
factual
decision
finding
was
and,
when
unreasonable
guided
or
that
by
AEDPA,
the
factual
premise was incorrect by clear and convincing evidence”).
b.
Standard for Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established
a two-part test for determining whether a convicted person is
entitled
to
ineffective
petitioner
relief
on
assistance.
must
the
ground
466
establish
U.S.
that
that
668,
his
counsel
687-88
counsel’s
rendered
(1984).
performance
A
was
deficient and fell below an objective standard of reasonableness
and that the deficient performance prejudiced the defense. Id.
Because both parts of the Strickland test must be satisfied in
6
order
to
demonstrate
a
violation
of
the
Sixth
Amendment,
a
district court need not address the performance prong if the
petitioner
cannot
meet
the
prejudice
prong,
or
vice
versa.
Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
The focus of inquiry under Strickland's performance prong
is
“reasonableness
Strickland,
466
under
U.S.
prevailing
at
688.
professional
In
reviewing
norms.”
counsel's
performance, a court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
professional assistance.”
Id. at 689.
Indeed, the petitioner
bears the 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). 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,”
applying a “highly deferential” level of judicial scrutiny.
Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland,
466 U.S. at 690). “To state the obvious: the trial lawyers, in
every
case,
different.
could
have
done
something
So, omissions are inevitable.
more
or
something
But, the issue is not
what is possible or ‘what is prudent 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)).
7
As
to
the
prejudice
prong
of
the
Strickland
standard,
Petitioner’s burden to demonstrate prejudice is high. Wellington
v.
Moore,
314
F.3d
1256,
1260
(11th
Cir.
2002).
Prejudice
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.”
Strickland,
466
U.S.
at
687.
That
is,
“[t]he
defendant must show that there is a reasonable probability that,
but
for
counsel’s
unprofessional
errors,
the
result
of
the
proceeding would have been different.” Id. at 694. A reasonable
probability is “a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694.
c.
Exhaustion and Procedural Default
The
AEDPA
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner
has exhausted all means of available relief under state law.
Specifically, the AEDPA provides, in pertinent part:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears
that–
(A) the
applicant
has
exhausted
the
remedies available in the courts of the
State; or
(B)
(i) there is an
available
State
process; or
absence of
corrective
(ii) circumstances
exist
that
render such process ineffective
8
to protect
applicant.
the
rights
of
the
that
the
28 U.S.C. § 2254(b)(1) (2012).
Exhaustion
prisoner
of
state
remedies
requires
state
“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.” Duncan v.
Henry, 513 U.S. 364, 365 (1995)(citing Picard v. Connor, 404
U.S. 270, 275-76 (1971)).
court
of
the
federal
The petitioner must apprise the state
constitutional
issue,
not
just
the
underlying facts of the claim or a similar state law claim.
Snowden
v.
Singletary,
135
F.3d
732
(11th
Cir.
1998).
In
addition, a federal habeas court is precluded from considering
claims that are not exhausted but would clearly be barred if
returned to state court. Coleman v. Thompson, 501 U.S. 722, 735
n.1 (1991) (if a petitioner has failed to exhaust state remedies
and the state court to which the petitioner would be required to
present his claims in order to meet the exhaustion requirement
would
now
find
the
claims
procedurally
barred,
there
is
a
procedural default for federal habeas purposes regardless of the
decision
of
the
last
state
court
to
which
the
petitioner
actually presented his claims). Finally, a federal court must
dismiss those claims or portions of claims that have been denied
on adequate and independent procedural grounds under state law.
9
Coleman, 501 U.S. at 750.
If a petitioner attempts to raise a
claim in a manner not permitted by state procedural rules, he is
barred from pursuing the same claim in federal court. Alderman
v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural
circumstances.
default
will
be
excused
only
in
two
narrow
First, a petitioner may obtain federal review of
a procedurally defaulted claim if he can show both “cause” for
the default and actual “prejudice” resulting from the default.
“To establish cause for procedural default, a petitioner must
demonstrate that some objective factor external to the defense
impeded the effort to raise the claim properly in the state
court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999).
To establish prejudice, a petitioner must show that there is at
least a reasonable probability that the result of the proceeding
would have been different.
Henderson v. Haley, 353 F.3d 880,
892 (11th Cir. 2003).
The second exception, known as the fundamental miscarriage
of
justice,
only
“constitutional
conviction
Carrier,
of
477
occurs
in
violation
one
U.S.
who
is
478,
496
an
has
extraordinary
probably
actually
(1986).
resulted
innocent[.]”
Actual
factual innocence, not legal insufficiency.
States, 523 U.S. 614, 623 (1998).
case,
where
a
in
the
Murray
v.
innocence
means
Bousley v. United
To meet this standard, a
petitioner must “show that it is more likely than not that no
10
reasonable juror would have convicted him” of the underlying
offense.
Schlup
v.
Delo,
513
U.S.
298,
327
(1995).
In
addition, “[t]o be credible, a claim of actual innocence must be
based
on
[new]
reliable
evidence
not
presented
at
trial.”
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
a.
Claim One
Petitioner asserts that he was denied his Fifth and Sixth
Amendment rights to counsel at arraignment, before commencement
of
trial,
and
at
sentencing
(Doc.
1
at
5).
Specifically,
Petitioner argues that he appeared in court for arraignment on
September 29, 2003 without an attorney and that he was not given
notice of the charges against him and did not enter a plea of
guilty or not guilty at that time. Id. Petitioner also asserts
that he was denied the assistance of counsel because the trial
court failed to conduct Faretta2 hearings at each stage of his
criminal proceedings. Id.
2
Faretta v. California, 422 U.S. 806 (1975).
In Faretta, the
Supreme Court of the United States held that criminal defendants
have a constitutional right to refuse counsel and represent
themselves in state criminal proceedings.
Faretta established
the procedures by which a trial court determines whether to
allow a defendant to dispense with counsel and represent
himself.
“It is well-established that a defendant wishing to
waive his right to counsel may do so by invoking his right to
self-representation and confirming his knowing choice through a
11
Respondents
procedurally
argue
that
Claim
defaulted
(Doc
25
at
One
is
12-22).
unexhausted
and
Specifically,
Respondents note that Petitioner did not preserve any claim of
the constitutional denial of counsel at his arraignment (Doc. 25
at
14).
Respondents
further
argue
that
Petitioner
did
not
present the constitutional dimension of his Faretta claim in his
brief on appeal, but rather, argued the claim in terms of state
law only. Id. at 12-15.
Petitioner counters that he could not have presented his
claim of no counsel at arraignment because “he did not uncover
the information until after the deadline of his direct appeal.”
(Doc. 32 at 12).
Petitioner also argues that his appellate
brief’s citation to Faretta v. California “was sufficient to
alert the court that [he] was raising a federal claim regarding
waiver counsel, since Faretta is the leading Supreme Court case
on that issue.” (Doc. 32 at 14).
This Court agrees that Petitioner has not exhausted his
Sixth
Amendment
arraignment.
claim
regarding
the
lack
of
counsel
at
his
Petitioner's argument that he was unaware of this
potential claim for relief in time to present it in state court
does not constitute cause for the default. See Harmon v. Barton,
894 F.2d 1268 (11th Cir. 1990) (ignorance of the law fails to
cooperative dialogue with the court.” United States v. Garey,
540 F.3d 1253, 1257 (11th Cir. 2008) (en banc).
12
establish cause for a procedural default); Toole v. McDonough,
379
F.
App’x
883,
885
n.5
(11th
Cir.
2010)
(rejecting
petitioner’s contention that his pro se status and lack of legal
knowledge
failure
constituted
to
exhaust
an
his
external
claim).
impediment
Moreover,
justifying
contrary
to
his
his
current assertions, at his Faretta hearing, Petitioner indicated
that he had entered his not-guilty plea with the assistance of
counsel and that he had wished to plead not-guilty when he did
so (Vol. VIII at 42-43). Because Petitioner has not exhausted
this portion of Claim One nor presented a factual basis for the
claim’s assertion, the Court will not address the merits of
Petitioner's
argument
that
he
was
denied
the
assistance
of
counsel at his arraignment.3
However,
Claim
One
is
not
completely
unexhausted.
Petitioner's appellant brief referenced Faretta v. California as
the controlling Supreme Court case regarding self-representation
(Ex. 2 at 6). Accordingly, to the extent Claim One is based upon
the state courts’ unreasonable application of Faretta, it will
3
It would be futile to dismiss this case to give Petitioner the
opportunity to exhaust this claim in state court because it
could have and should have been raised on direct appeal. See
Parker v. Dugger, 876 F.2d 1470 (11th Cir. 1989)(where dismissal
to allow exhaustion of unexhausted claims would be futile due to
state procedural bar, claims are considered procedurally barred
in federal court). Florida's state procedural rules precluding a
second direct appeal and the time limitations for bringing an
appeal bar a return to state court to present the claims. See
Fla. R. App. P. 9.110(b). Therefore, Claim One is both
unexhausted and procedurally barred.
13
be addressed on the merits. See Baldwin v. Reese, 541 U.S. 27,
32 (2004) (“A litigant wishing to raise a federal issue can
easily indicate the federal law basis for his claim in a state
court petition or brief, for example, by citing in conjunction
with the claim the federal source of law on which he relies or a
case deciding such a claim on federal grounds, or by simply
labeling the claim ‘federal’”).
Petitioner makes two arguments in his current petition that
may implicate Faretta.
First, Petitioner argues that the State
failed “to conduct adequate Faretta inquiries after [the initial
inquiry] because it failed to renew its offer of counsel to
[Petitioner] at each subsequent stage of the proceeding.” (Doc.
1 at 6).
Next, Petitioner argues that he requested stand-by
counsel to “take over the case” during a pre-trial hearing on
August
29,
2006
and
that
such
a
declaration
should
have
triggered an inquiry into whether Petitioner wished to continue
representing himself (Doc. 1 at 6; Ex. 2 at 9).
Petitioner’s suggestion that the state court was required
to conduct a new Faretta inquiry each time he appeared in court
is not supported by Faretta or any other United States Supreme
Court precedent (Doc. 1 at 5-6). Moreover, Petitioner has not
demonstrated a substantial change in circumstances such that the
state court would have been compelled to reassess its Faretta
determination. See, e.g., United States v. Nunez, 137 F. App'x
14
214, 215–16 (11th Cir. 2005) (“If we were to place upon the
district court an obligation to reassess its Faretta hearing
decision, we would do so only on a showing of a substantial
change in circumstances since the initial hearing. Cf. United
States v. McBride, 362 F.3d 360, 367 (6th Cir. 2004)”).
To
the
extent
Petitioner
now
asserts
that
there
was
a
substantial change in circumstances when he equivocated during a
pre-trial hearing as to whether stand-by counsel should take
over his case, his assertions do not entitle him to relief.
After Petitioner's Faretta inquiry,4 the trial court appointed
public defender Shannon Brown (“Brown”) as Petitioner's stand-by
counsel (Vol. VIII at 30, 41). During a hearing two days before
trial, Petitioner argued a number of motions to the trial court
including a request for the appointment of “co-counsel” which
was
denied
(Vol.
III
at
334-35).
The
court
questioned
Petitioner as to whether he was requesting that Brown completely
take over the case (Vol. III at 336).
Petitioner indicated that
he did not wish for Brown to take over, but wanted her to sit
next
to
him
Petitioner
during
expressed
trial
(Vol.
frustration
III
at
with
337).
the
Subsequently,
court
and
requested that Brown take over (Vol. III at 337, 347).
4
twice
The
Petitioner
does
not
disagree
with
the
state
court’s
determination at the Faretta hearing that he was competent to
and wished to represent himself.4 See Vol. VIII (transcript of
state court hearing on Petitioner's request to represent
himself).
15
court discussed the issue with Brown who stated that it would be
unethical for her to say that she could be ready for trial in
only two days (Vol. III at 348).
The court noted that the trial
would not be continued and told Brown that she needed to get “up
to speed” if Petitioner wished for her to represent him (Vol.
III
at
347).
decision
Petitioner
regarding
was
to
make
representation
Brown’s
instructed
by
the
the
final
morning
of
trial, but Petitioner proceeded to trial pro se with Brown as
stand-by counsel (Vol. III at 348; Vol. IV at 3).
A
criminal
hybrid
defendant
representation
enjoys
where,
as
no
constitutional
here,
the
role
of
right
to
standby
counsel changes upon the defendant's whim. McKaskle v. Wiggins,
465 U.S. 168, 183 (1984). That stand-by counsel may have been
unprepared to take over Petitioner's defense when requested to
do so does not violate the Supreme Court’s decision in Faretta.
The
appointment
of
stand-by
counsel
is
not
a
constitutional
requirement, and “[a] defendant does not have a constitutional
right to choreograph special appearances by counsel.” McKaskle,
465 U.S. at 183; Faretta, 422 U.S. at 834 n.46 (while a trial
court
may
appoint
standby
counsel,
such
a
determination
in
discretionary and not a constitutional requirement). This Court
cannot
Brown’s
conclude
that
Petitioner's
representation
was
a
pre-trial
equivocation
“substantial
change
on
in
circumstances” so as to require a renewed Faretta inquiry at his
16
trial or at sentencing. Nunez, 137 F. App'x at 215.
The state
courts’ rejection of this claim was neither contrary to, nor an
unreasonable application of, clearly established federal law.
Petitioner's
claim
that
he
was
denied
counsel
at
his
arraignment is dismissed as unexhausted and procedurally barred.
The state courts’ adjudication of Petitioner's Faretta claim is
denied
pursuant
to
28
U.S.C.
§
2254(d).
Petitioner
is
not
entitled to relief on Claim One.
b.
Claim Two
Petitioner asserts that he was denied his Sixth Amendment
right to a speedy trial and his Fourteenth Amendment right to
due process because the State violated Florida’s speedy trail
rules (Doc. 1 at 8-9).
Respondents argue that Claim Two was not
properly exhausted because Petitioner did not preserve and then
raise
the
constitutional
appeal (Doc. 25 at 24).
dimension
of
this
ground
on
direct
After review of the record, the Court
agrees that Petitioner has not properly exhausted Claim Two.
In his brief on appeal, Petitioner raised only the issue of
whether the trial court erred by failing to advise him of his
continued
right
to
assistance
of
counsel
after
his
Faretta
hearing (Ex. 2). Although Petitioner raised a speedy trial issue
in a petition for writ of prohibition prior to trial (Ex. 8 at
Ex. C)), he did not raise this ground on direct appeal nor did
17
he argue a federal constitutional claim in the writ.5
Therefore,
the ground is unexhausted and procedurally barred under Florida
law. Fla. R. Crim. P. 3.191; see also Brown v. State, 843 So. 2d
328 (Fla. 1st DCA 2003)(holding that when a writ of prohibition
seeking discharge on speedy trial grounds is denied, the speedy
trial issue can be raised on direct appeal). Petitioner has
shown neither cause excusing the default nor actual prejudice
resulting from the bar. Furthermore, he has not shown that he is
entitled to the fundamental miscarriage of justice exception.
Thus, Claim Two is dismissed as unexhausted and procedurally
barred.
c.
Claim Three
Petitioner alleges that he was denied his constitutional
right to be present at a June 27, 2006 pre-trial hearing and
that appellate counsel was ineffective for failing to raise this
5
Petitioner's petition for writ of prohibition was premised
entirely upon an alleged violation of Florida Rule of Criminal
Procedure 3.191, not the United States Constitution (Ex. 8 at
Ex. C). The Florida speedy trial rule enforces the right to a
speedy trial guaranteed by the Florida Constitution and Florida
statute, not the United States Constitution. Allen v. Dep't of
Corr. Fla., 288 F. App’x 643, 645 n.1 (11th Cir. 2008). To the
extent Petitioner is attempting to raise the same claim
presented in his petition for writ of prohibition, such a claim
presents an issue of purely state law.
Because habeas relief
does not lie to correct errors of state law, were Claim Two not
unexhausted and procedurally barred, it is still not cognizable
on federal habeas review. See Estelle v. McGuire, 502 U.S. 62,
67–68 (1991) (“[I]t is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions.”).
18
issue on direct appeal (Doc. 1 at 10).
Respondents argue that
this ground is unexhausted (Doc. 25 at 27).
Although Petitioner
alleges that he raised this issue in his state habeas petition,
a review of the petition shows otherwise (Ex. 27).
Accordingly,
this claim is unexhausted.
Petitioner
has
not
alleged,
let
alone
demonstrated,
objective cause for his failure to properly raise the claims in
the state courts.6
a
fundamental
Moreover, Petitioner has not established that
miscarriage
of
justice
will
result
from
application of the procedural bar. Florida's two-year statute of
limitation
and
the
state’s
successive
petition
doctrine
bars
Petitioner's returning to state court to present this claim. See
Fla. R. App. P. 9.141. Therefore, Claim Three is dismissed as
unexhausted and procedurally barred.
d. Claim Four
Petitioner claims that the trial court lacked jurisdiction
to
try
and
sentence
him
(Doc.
1
at
13).
Specifically,
Petitioner alleges that: the first charging information filed by
the state was defective because it failed to allege an essential
element of the offense; the prosecution amended the charging
information after the state speedy trial period had lapsed;
6
his
By failing to allege such in his state habeas petition,
Petitioner has also defaulted any argument that ineffective
assistance of appellate counsel was the cause of his procedural
default.
19
trial was not timely commenced after Petitioner filed notice of
expiration
hearing
or
of
speedy
commence
trial;
state
court
within
trial
the
the
speedy
did
not
trial
hold
a
recapture
period; the prosecution failed to object to Petitioner's “sworn
motion to dismiss”; his judgment was entered while a petition
for
writ
nullity;
of
and
prohibition
the
was
charging
still
pending
document
was
and
based
is
only
thus,
a
upon
an
affidavit and report by the police (Doc. 1 at 13-14).
Even
though
Petitioner
raised
these
issues
in
his
Rule
3.850 motion for post-conviction relief, Respondents argue that
Petitioner
has
procedurally
defaulted
this
claim
by
not
preserving and raising it on direct appeal (Doc. 25 at 30).
Indeed, a claim that a Petitioner's speedy trial rights were
violated is properly raised on direct appeal, rather than in
post-conviction collateral proceedings. See Smith v. State, 445
So. 2d 323, 325 (Fla. 1983) (“Issues which either were or could
have been litigated at trial and upon direct appeal are not
cognizable through collateral attack.”). In that regard, Claim
Four
is
unexhausted
and
procedurally
barred.
However,
when
these issues were raised in Petitioner's Rule 3.850 motion, the
post-conviction court addressed them on the merits (Ex. 33).
The state court has therefore, told this Court how the issue
would have been resolved under state law. Herring v. Sec’y,
Dep't of Corr., 397 F.3d 1338, 1355 (11th Cir. 2005)(“It is a
20
‘fundamental principle that state courts are the final arbiters
of state law, and federal habeas courts should not second-guess
them on such matters.’”)(quoting Agan v. Vaughn, 119 F.3d 1538,
1549 (11th Cir. 1997)).7
Even assuming, arguendo, that Claim Four has been exhausted
and can be construed as a due process claim, Petitioner cannot
prevail.
In his memorandum of law in support of his Rule 3.850
motion, Petitioner argued, in terms of state law only, that the
court lacked jurisdiction to hear his case “absent testimony
under oath from material witness(es) administered by a person
duly authorized to administer oaths” and that the court lost
jurisdiction
to
convict
Petitioner
based
upon
violations
Florida’s speedy trial rules (Doc. 33 at 3, 7).8
of
The post-
conviction court denied the claims in a detailed order.
First,
the court determined that the amended information filed against
Petitioner on October 29, 2004 properly charged Petitioner with
the felonies of sexual battery and sexual activity with a child
and that the prosecutor certified that he received testimony
7
To the extent Petitioner argues that the state courts’
rejection of Claim Four was based upon a misapplication of
Florida law, the claim is not cognizable on habeas review. See
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas
corpus relief does not lie for errors of state law.”).
8
Petitioner did not raise a claim in state post-conviction
proceedings alleging that the original information was defective
because it failed to allege an essential element of the offense.
Accordingly,
this
portion
of
Claim
Four
is
completely
unexhausted and will not be addressed by this Court.
21
under oath supporting the charge (Doc. 36 at 2).
post-conviction
speedy
trial
court
addressed
violations
and
Petitioner's
determined
that
Next, the
allegations
the
claims
without merit:
As to the Defendant's claim of a speedy
trial violation, the record conclusively
refutes this allegation. In the Defendant's
motion, he states that neither he nor his
attorney “ever requested a continuance or
waiver of speedy trial within the 175 day
speedy trial time.
However, as the State
points out in its response, the Defendant
did waive his speedy trial rights during
that period and numerous times thereafter.
Specifically, the Defendant was arrested on
August 21, 2003, and at the request of the
Defense, a continuance was granted and
speedy trial rights were waived on December
5, 2003. Speedy Trial was again waived when
the
Defendant
requested
additional
continuances on April 2, 2004, June 4, 2004,
July 28, 2004, September 8, 2004 and October
20, 2004. The amended information was filed
on October 29, 2004.
Subsequently, the
Defense
again
requested
additional
continuances and waived speedy trial rights
on January 5, 2005, February 23, 2005, April
20, 2005, June 22, 2005, August 24, 2005,
September 14, 2005, November 9, 2005, and
March 14, 2006.
The courts of this state
have held that “any express waiver of speedy
trial, whether by defense motion to continue
or otherwise, stands as an ongoing waiver as
to any newly filed information arising out
of the same incident, “even if the charges
are more serious that the previously filed
charges. Atkins v. State, 785 So. 2d 1219,
1220 (Fla. 4th DCA 2001).
Because the
Defendant moved for continuances during the
pendency of both the original and amended
informations, he cannot now claim that he
Speedy Trial rights were violated.
22
of
were
(Ex. 36 at 3-4) (internal citations to record omitted).
Petitioner now argues that the state court’s adjudication
of this claim was based upon an unreasonable determination of
the facts because, even though the clerk’s docket sheet for his
case indicated that Petitioner waived speedy trial on December
5, 2003 (Vol. I at 9), the record evidence is insufficient to
show that he actually waived his speedy trial rights on that
date (Doc. 32 at 18). Federal habeas courts will review a state
court's factual findings only to determine whether they were
unreasonable in light of the evidence presented, 28 U.S.C. §
2254(d)(2), or whether the presumption that they are correct was
rebutted
by
“clear
and
convincing”
evidence,
28
U.S.C.
§
2254(e)(1).
Petitioner has presented no evidence, other than his own
assertions,
determination
during
the
to
rebut
the
post-conviction
that
Petitioner
175-day
speedy
waived
trial
his
period
court’s
speedy
and
reasonable
trail
numerous
rights
times
thereafter. Therefore, he has not shown that the state court’s
adjudication
of
this
claim
was
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the state court proceeding.
Accordingly, in addition to being
dismissed as unexhausted and procedurally barred, Claim Four is
denied pursuant to 28 U.S.C. § 2254(d).
23
e.
Claim Five
Petitioner
Amendment,
helped
the
alleges
that,
prosecution
Petitioner's
case
in
violation
withheld
(Doc.
of
evidence
1
at
the
that
16).
Fourteenth
could
have
Specifically,
Petitioner alleges that the State violated Brady v. Maryland9 by
not: providing the search warrant and probable cause affidavit
listed
on
providing
the
State’s
written
evidence
list
permission
from
and
arrest
the
affidavit;
victim’s
mother
authorizing the police to take possession of DNA evidence for
testing; disclosing the sworn testimony of material witness(es)
relied upon by the prosecution prior to the filing of the felony
information; providing evidence of other crimes charged between
February
23,
2003
and
February
23,
2004;
disclosing
medical
exams, reports, and procedures employed and the medical staff’s
identity; and providing a better address for the victim and
other individuals involved in the case (Doc. 1 at 17).
Petitioner raised this issue in his Rule 3.850 motion, and
the
post-conviction
court
denied
the
claim
as
procedurally
barred from post-conviction review because it should have been
presented on direct appeal (Ex. 36 at 4). A federal habeas court
will not consider a claim where “the last state court rendering
9
Brady v. Maryland, 373 U.S. 83 (1963).
Court held that withholding material
violates due process.
24
In Brady, the Supreme
exculpatory evidence
a judgment in the case clearly and expressly state[d] that its
judgment rests on a state procedural bar.” Parker v. Sec'y,
Dep't of Corr., 331 F.3d 764, 771 (11th Cir. 2003) (quotation
marks and citation omitted).
Under
Florida
law,
a
claim
is
procedurally
barred
from
collateral review if it could have been, but was not, raised on
direct
appeal.
Rule
3.850
of
the
Florida
Rules
of
Criminal
Procedure governs the collateral review process in Florida, and
states that “[t]his rule does not authorize relief on grounds
that could have or should have been raised at trial and, if
properly
preserved,
on
direct
appeal
of
the
judgment
and
sentence.” See also Bates v. Dugger, 604 So. 2d 457, 458 (Fla.
1992) (“Rule 3.850 does not authorize relief based upon grounds
which could have been or should have been raised at trial and,
if properly preserved, on direct appeal.”) (quotation marks and
citation omitted); Smith v. State, 445 So. 2d at 325.
To the extent Petitioner argues that ineffective assistance
of
appellate
counsel
excuses
his
procedural
default,
such
a
claim should have been raised in his state habeas petition, and
it
was
not.10
procedural
In
default,
analyzing
this
whether
Court
10
may
cause
exists
address
an
to
excuse
ineffective
Although Petitioner asserts that he raised this claim,
presumably as an ineffective assistance of appellate counsel
claim, in his state habeas petition (Ex. 27), a review of the
petition reveals that this claim was not raised therein.
25
assistance
of
appellate
established
for
ineffective
assistance
Petitioner's
the
bare
counsel
procedural
of
claim
only
if
cause
is
default
of
the
claim
of
appellate
assertion
that
his
counsel.
Other
appellate
than
counsel
was
responsible for failing to raise the Brady claims on direct
appeal, he has offered no facts to show cause for his failure to
raise
this
claim
in
his
habeas
petition.
Claim
Five
is
dismissed as unexhausted and procedurally barred.
f.
Claim Six
Petitioner alleges that he did not have effective counsel
on
direct
appeal
(Doc.
1
at
18).
Specifically,
Petitioner
raises eight issues that he asserts should have been raised on
direct appeal: (1) he was denied due process of law when standby counsel informed the court that she would not be adequately
prepared to represent Petitioner at trial; (2) stand-by counsel
should have disclosed to the trial court that she and Petitioner
had adverse interests in how his case should be argued; (3) he
had a right to refuse representation of the conflicted attorney;
(4) the trial court erred when it denied Petitioner's speedy
trial motions; (5) the trial court should have determined the
qualifications of the State’s DNA expert outside of the jury’s
presence; (6) the State was required to dismiss the case for
lack of jurisdiction when the record demonstrated that the state
was proceeding on offenses of which Petitioner was not accused;
26
(7)
the
trial
court
abused
its
discretion
in
expediting
Petitioner's case; and (8) the trial court abused its discretion
by denying Petitioner's motion for a judgment of acquittal (Doc.
1
at
18-19).
Petitioner
raised
these
claims
in
his
state
petition for writ of habeas corpus, and the Fifth District Court
of Appeal denied the petition (Ex. 27; Ex. 28).
The proper standard for evaluating a claim of ineffective
assistance of appellate counsel is the Strickland standard. See
Smith v. Robbins, 528 U.S. 259, 285 (2000). The Eleventh Circuit
has
issued
standard
several
with
regard
decisions
interpreting
to
of
claims
ineffective
the
Strickland
assistance
of
appellate counsel and determined that appellate counsel cannot
be deemed ineffective for failing to raise issues “reasonably
considered to be without merit.” United States v. Nyhuis, 211
F.3d 1340, 1344 (11th Cir. 2000) (quoting Alvord v. Wainwright,
725 F.2d 1282, 1291 (11th Cir. 1984)). Additionally, where an
issue is not preserved for appellate review, appellate counsel's
failure to raise the issue is not constitutionally deficient as
it is based on the reasonable conclusion that the appellate
court
will
not
hear
the
issue
on
its
merits.
Atkins
v.
Singletary, 965 F.2d 952, 957 (11th Cir. 1992); Francois v.
Wainwright, 741 F.2d 1275, 1285-86 (11th Cir. 1984). Finally,
Petitioner
must
demonstrate
prejudice
by
showing
that
the
arguments omitted from the appeal were significant enough to
27
have affected the outcome of the appeal. Nyhuis, 211 F.3d at
1344 (citing Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir.
1988)).
Petitioner cannot meet these standards.
Appellate counsel filed a brief on direct appeal raising
the single issue of whether the trial court erred by failing to
advise
Petitioner
of
his
continued
right
to
assistance
of
counsel before the commencement of trial and sentencing (Ex. 2).
Petitioner contends that counsel should have also raised each of
the issues he now raises in Claim Six.11
Petitioner has not
shown that Counsel was objectively unreasonable for failing to
11
In support of this claim for ineffective assistance of
appellate counsel, Petitioner has attached to his petition
correspondence from his appellate counsel, Daniel L. Castillo
(“Counsel”) (Doc. 1 at Ex. D). It is unclear whether any or all
of this correspondence was before the state court that
adjudicated the claim on the merits so that it may be considered
by this Court. Cullen v. Pinholster, 131 S. Ct. 1388, 1400
(2011).
To the extent that Petitioner now presents “new” evidence
that was not presented to the Fifth District Court of Appeals,
such evidence will not be considered by this Court. Id. (“If a
claim has been adjudicated on the merits by a state court, a
federal habeas petitioner must overcome the limitation[s] of §
2254(d)(1) [and (d)(2)] on the record that was before that state
court.”). However, even were the Court to consider the letters,
they do not aid Petitioner. In a letter written in response to
Petitioner's complaint to the Florida Bar (Doc. 1 at Ex. D(2)),
Counsel noted that he had reviewed the record and found only one
meritorious issue to raise on appeal. Counsel also stated that
he had considered the other issues raised by Petitioner, but he
“did not believe that they were meritorious nor were they
properly preserved.” (Doc. 1 at Ex. D(1)). Strategic decisions
by counsel are virtually unassailable. See Strickland, 466 U.S.
at 690 (“[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable.”).
28
raise the omitted issues or that any of the issues would have
been successful on appeal.
As to Petitioner’s claim that appellate counsel should have
argued
that
Petitioner
was
denied
due
process
when
stand-by
counsel indicated that she would be unprepared to go to trial in
two days, it was not unreasonable for Counsel to determine that
such a claim would not succeed on appeal.
Florida law does not
require a court to grant a continuance to a defendant who has
caused
the
shortened
trial
preparation
time
through
his
manipulation of the judicial system and later claims that he is
unprepared to go to trial. Lawson v. State, 884 So. 2d 540, 546
(Fla.
4th
DCA
2004).
Because
Petitioner
caused
stand-by
counsel’s alleged lack of preparation by his insistence that he
proceed
pro
se,
appellate
counsel
was
not
ineffective
for
concluding that this claim lacked merit.
To the extent Petitioner argues that stand-by counsel was
ineffective
because
she
disagreed
with
Petitioner
as
to
the
direction his case should proceed, Petitioner waived any claim
of ineffective assistance of counsel by proceeding pro se. See
Faretta,
422
U.S.
at
834
n.46
(“a
defendant
who
elects
to
represent himself cannot thereafter complain that the quality of
his own defense amounted to a denial of ‘effective assistance of
counsel’”).
demonstrating
Moreover,
that
his
Petitioner
stand-by
29
presents
counsel
was
no
evidence
incompetent
or
unable to effectively assist him as standby counsel.
In fact,
other than a blanket assertion that stand-by counsel’s interests
were adverse to his own, Petitioner has not explained how standby
counsel’s
participation,
or
lack
thereof,
in
his
trial
resulted in prejudice. Consequently, appellate counsel was not
ineffective for concluding that this claim lacked merit.
Petitioner cannot show prejudice from appellate counsel’s
failure to argue his speedy trail claims on direct appeal.
Nor
can Petitioner show prejudice from Petitioner's claim that the
state lacked jurisdiction to proceed on the amended information.
Although
not
considered
by
raised
the
on
direct
appeal,
post-conviction
court
these
were
Petitioner's
in
issues
Rule
3.850 motion and they were determined to be without merit (Ex.
36 at 2-3).
appellate
Accordingly, Petitioner cannot show prejudice from
counsel’s
failure
to
raise
these
claims
on
direct
appeal.
Neither Petitioner’s claim that the trial court should
have determined the qualifications of the State’s DNA expert
outside of the jury’s presence nor his claim that the trial
court
erroneously
allowed
preserved for review.
his
trial
to
be
expedited
were
Petitioner's failure to preserve these
issues bars appellate review unless Petitioner can establish a
“fundamental error.” See Archer v. State, 934 So. 2d 1187, 1205
(Fla.
2006)
(“[A]ppellate
counsel
30
cannot
be
ineffective
for
failing to raise issues not preserved for appeal. [ ] The only
exception to this rule is when the claim involves fundamental
error.”)(internal citations omitted). Fundamental error is error
that “reach[es] down into the validity of the trial itself to
the extent that a verdict of guilty could not have been obtained
without the assistance of the alleged error.” Kilgore v. State,
688 So. 2d 895, 898 (Fla. 1996) (quoting State v. Delva, 575 So.
2d 643, 644-45 (Fla. 1991)).
Petitioner has neither argued, nor explained, how his own
failure to seek qualification of the State’s DNA expert outside
the presence of the jury amounted to fundamental error. Neither
has Petitioner argued or explained how he suffered prejudice
from
his
which
he
trial
presented
Petitioner
“expedited”
numerous
violated
contended
Petitioner
by
the
was
that
his
State.
barred
–
from
particularly
motions
speedy
to
the
trial
Because
they
raising
considering
rights
were
these
trial
not
claims
that
court
were
in
being
preserved,
on
direct
appeal, and appellate counsel was not ineffective for failing to
raise these claims.
Finally, Petitioner’s argument that appellate counsel erred
by not arguing on direct appeal that the trial court abused its
discretion
in
denying
Petitioner's
motion
for
a
judgment
of
acquittal is without merit. Under Florida law, the state trial
court should not grant a Florida Rule of Criminal Procedure
31
3.380 motion for judgment of acquittal unless the evidence is
such
that
no
view
which
the
jury
may
lawfully
take
of
it
favorable to the opposite party can be sustained under the law.
See
Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974). If the
state's evidence creates an inconsistency with the defendant's
theory of innocence, the trial court should deny the motion for
judgment
of
acquittal
and
allow
the
jury
to
resolve
the
inconsistency. Woods v. State, 733 So. 2d 980, 985 (Fla. 1999).
As such, a motion for judgment of acquittal will be denied if
the jury could infer guilt from competent evidence viewed in the
light most favorable to the State.
In
the
instant
case,
sufficient
evidence
of
Plaintiff's
guilt was presented to the jury that, when viewing the evidence
in
the
light
inferred.
most
favorable
to
the
State,
guilt
could
be
The victim testified that, on several occasions when
she was ten and eleven years old, Petitioner would touch his
penis to her vagina and move back and forth (Vol. IV at 150-58).
The
victim
testified
that
when
she
was
twelve
years
old,
Petitioner would touch her vagina with his fingers and that he
would put his penis inside of her (Vol. VI at 158-66). She also
testified that when she was twelve, Petitioner would put his
penis inside her mouth (Vol. IV at 167).
She testified that
when she was thirteen years old, she became pregnant and had an
abortion (Vol. IV at 170-72).
A DNA test was run on the aborted
32
fetus, and the State’s DNA expert testified that Petitioner was
19 million times more likely to be the biological father of the
fetus than a random African American man (Vol. V at 223). The
expert calculated the probability of Petitioner's paternity to
be greater than 99.99 percent. Id.
The
evidence
was
sufficient
to
sustain
the
charges
of
sexual battery on a child under twelve and of sexual activity
with a child by a person with familial or custodial authority.12
Accordingly, the trial court did not abuse its discretion when
it
denied
Petitioner's
motion
for
a
judgment
of
acquittal.
Appellate counsel had no grounds on which to raise this issue on
direct appeal and was not ineffective for failing to do so. Each
sub-claim raised in Claim Six is denied.
g.
Claim Seven
Petitioner asserts that the evidence was insufficient to
support his convictions (Doc. 1 at 21).
When evaluating the
sufficiency of the evidence supporting a criminal conviction,
“the relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
12
Florida Statute § 794.011 defines sexual battery as “oral,
anal, or vaginal penetration by, or union with, the sexual organ
of another or the anal or vaginal penetration of another by any
other object[.]”
Florida Statute § 794.011(8)(b) states that
“[A] person who is in a position of familial or custodial
authority to a person less than 18 years of age and who engages
in any act with that person while the person is 12 years of age
or older but less than 18 years of age which constitutes sexual
battery . . . commits a felony of the first degree[.]”
33
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). “A federal habeas corpus court faced with a record
of historical facts that supports conflicting inferences must
presume—even if it does not affirmatively appear in the record—
that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.” Id. at 326.
After reviewing the evidence in a light most favorable to the
prosecution, the Court concludes that the evidence presented at
trial was sufficient such that a rational trier of fact could
have
found
Petitioner
guilty
beyond
a
reasonable
doubt.
See
discussion supra, Claim Six. Thus, Petitioner is not entitled to
habeas relief on Claim Seven.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.
Certificate of Appealability
Petitioner
appealability.
is
not
entitled
to
a
certificate
of
A prisoner seeking a writ of habeas corpus has
no absolute entitlement to appeal a district court's denial of
his petition. 28 U.S.C. § 2253(c)(1).
Rather, a district court
must first issue a certificate of appealability (COA).
may
issue.
.
.only
if
the
applicant
has
made
a
“A [COA]
substantial
showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make such a showing, Petitioner “must demonstrate
34
that
reasonable
assessment
of
jurists
the
would
find
constitutional
claims
the
district
debatable
court's
or
wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v.
McDaniel,
529
U.S.
473,
presented
were
‘adequate
484
to
(2000)),
deserve
or
that
“the
issues
to
proceed
encouragement
further,’” Miller–El, 537 U.S. at 335–36 (citations omitted).
Petitioner
has
not
made
the
requisite
showing
in
these
circumstances.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus (Doc. 1) filed by
Belafonte Lopez Rosier is DENIED, and this case is DISMISSED
WITH PREJUDICE.
2.
3.
Petitioner is DENIED a Certificate of Appealability.
The Clerk of the Court is directed to enter judgment
accordingly and close this case.
DONE AND ORDERED at Fort Myers, Florida, this
of August, 2013.
SA: OrlP-4 8-9
Copies to: All parties of record
35
12th
day
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