Saincine v. Secretary, Department of Corrections et al
OPINION AND ORDER. The Florida Attorney General is DISMISSED as a named Respondent. The Petition for Writ of Habeas Corpus (Doc. # 1 ) is DENIED for the reasons set forth within. The Clerk of Court shall terminate any pending motions, enter judgment accordingly, and close this case. Signed by Judge Sheri Polster Chappell on 11/19/2014. (SPB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:11-cv-692-FtM-38DNF
DEPARTMENT OF CORRECTIONS
and FLORIDA ATTORNEY
OPINION AND ORDER1
Petitioner Joel Saincine (hereinafter “Petitioner” or “Defendant”) initiated this action
proceeding pro se by filing a timely petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 on December 9, 2011,2 challenging his August 2, 2005 judgment of conviction in
case number 03-cf-5091 entered in the Twentieth Judicial Circuit in Lee County, Florida
(Doc. #1).3 Petitioner is currently serving a ten year sentence, followed by five years of
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Court applies the Amailbox rule@ and deems the Petition Afiled on the date it
was delivered to prison authorities for mailing.@ Alexander v. Sec=y Dep=t of Corr., 523
F.3d 1291, 1294 n.4 (11th Cir. 2008).
jury found Petitioner guilty of attempted sexual battery on a child under the age
Petition at 1. Respondent concedes that the instant petition is timely filed
probation.4 Exh. 26. The petition raises two grounds for relief. Respondent5 filed a
response (Doc. #7) opposing the relief requested in the petition and attached supporting
exhibits consisting of pertinent trial transcripts and postconviction records. Petitioner
filed a reply (Doc. #10). This matter is ripe for review.
I. Applicable § 2254 Law
A. Deferential Review Required By AEDPA
Petitioner filed his petition after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See
Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S. 782,
792 (2001). Consequently, post-AEDPA law governs this action. Abdul-Kabir, 550 U.S.
pursuant to § 2244(d), Response at 8-10; and that the claims are exhausted and are not
procedurally-barred, Response at 4-7. The Court agrees.
states that he is serving a 25-year sentence as a result of this
conviction. Petition at 1. This is not accurate. As noted in State court’s April 13, 2009
order, the state court granted Petitioner’s motion to correct his sentence thereby
amending the 25-year sentence to a ten-year sentence. Exh. 26 at 1.
names two Respondents (the Secretary of the Florida Department of
Corrections and the Florida Attorney General). Petition at 1. Rule 2(a) of the Rules
Governing Section 2254 Cases in the United States District Courts (hereinafter the
“Rules”) provides that applicants in “present custody” seeking habeas relief should name
“the state officer having custody of the applicant as respondent.” The Supreme Court
has made clear that there “is generally only one proper respondent to a given prisoner’s
habeas petition.” Rumsfield v. Padilla, 542 U.S. 426, 435 (2004). This is “the person
with the ability to produce the prisoner’s body before the habeas court.’” Id. at 435-436.
When the petition is incarcerated and challenges his present physical confinement “the
proper respondent is the warden of the facility where the prisoner is being held, not the
attorney general or some other remote supervisory official.” Id. at 436 (citations omitted).
Alternatively, the chief officer in charge of the state penal institution is also recognized as
the proper named respondent. Rule 2(a), Sanders v. Bennet, 148 F.2d 19 (D.C. Cir.
1945). In Florida, the proper respondent in this action is the Secretary of the Florida
Department of Corrections. Therefore, the Florida Attorney General will be dismissed
from this action.
at 246; Penry, 532 U.S. at 792; Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).
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:
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
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). This standard is both mandatory and difficult to meet. White v.
Woodall, 134 S.Ct. 1697, 1702 (2014). 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).
“Clearly 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. White, 134 S.Ct. at 1702; Carey v. Musladin, 549 U.S.
70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
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
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 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.” Bottoson, 234
F.3d at 531 (quoting Williams, 529 U.S. at 406). The unreasonable application inquiry
“requires the state court decision to be more than incorrect or erroneous,” rather, it must
be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation
omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155. Petitioner must show that
the state court's ruling was “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fair-minded
disagreement.” White, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. ___,
131 S.Ct. 770, 786–787 (2011)).
Finally, the Supreme Court has stated 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 statecourt 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. Burt v. Titlow, 134 S.Ct. 10,
15-16 (2013); Miller–El, 537 U.S. at 340 (explaining that a federal court can disagree with
a state court’s factual finding and, when guided by AEDPA, “conclude the decision was
unreasonable or that the factual premise was incorrect by clear and convincing
B. 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 twopart 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
representation was deficient, i.e., “fell below an objective standard of reasonableness”
“under 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 deprive the defendant of a
fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 688; see also Bobby v.
Van Hook, 558 U.S. 4, 8 (2009); Cullen v. Pinholster, 131 S. Ct. at 1403 (2011).
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, 558 U.S. at 9
(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). 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 professional assistance.” Strickland, 466 U.S. at
689. “To state the obvious: the trial lawyers, in every case, could have done something
more or something different. So, omissions are inevitable. 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)).
“Establishing that a state court’s application of Strickland was unreasonable under
§ 2254(d) is all the more difficult.” Mendoza v. Sec’y, Fla. Dep’t of Corr., ____ F.3d
_____, 2014 WL 3747685 (11th Cir. July 31, 2014)(quoting Richter, 131 S.Ct. at 788).
“Where the highly deferential standards mandated by Strickland and AEDPA both apply,
they combine to produce a doubly deferential form of review that asks only whether there
is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
(quoting Downs v. Sec’y, Fla. Dep’t of Corr., 738 F.3d 240, 258 (11th Cir. 2013)). “The
question is not whether a federal court believes the state court’s determination under the
Strickland standard was incorrect but whether that determination was unreasonable—a
substantially higher threshold.” Id. (citing Knowles, 556 U.S. at 123). If there is “any
reasonable argument that counsel satisfied Strickland’s deferential standard,” then a
federal court may not disturb a state court decision denying the claim. Id. (citing Richter,
131 S.Ct. at 788). Finally, it is well established that the Strickland standard applies to
ineffective assistance of counsel claims in the plea bargaining context. Gissendaner v.
Seaboldt, 735 F.3d 1311, 1317 (11th Cir. 2013)(citations omitted).
II. 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. Schriro v. Landrigan,
550 U.S. 465, 127 S. Ct. 1933, 1939-40 (2007). 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 of the case are fully developed in
the record before the Court. Schriro, 550 U.S. at 474; Turner v. Crosby, 339 F.3d 1247,
1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034 (2004).
The petition raises two grounds of ineffective assistance of counsel. Petitioner
first argues that trial counsel rendered ineffective assistance by failing to move to
suppress his incriminatory statements given to law enforcement.
Petition at 5.
Petitioner states that he requested defense counsel file a motion to suppress, but counsel
Petitioner claims that before he gave the incriminatory statements to law
enforcement, he asked the officers if he could speak to an attorney, but his request was
Petitioner asserts that the police officers obtained his incriminatory
statement by using “coercion and trickery.” Id.
Respondent opposes relief on Ground One and argues that the State courts’ denial
of this ground did not result in a decision that was contrary to, or involved an unreasonable
application of, clearly established Supreme Court precedent. Nor were the decisions
based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding. In Reply, Petitioner maintains that his statements were given
in violation of Miranda v. Arizona, 384 U.S. 436 (1966) because he asked twice to speak
to an attorney. Reply at 6-7.
A review of the record reveals that Petitioner raised this claim before the postconviction court as ground one in his post-conviction motion filed pursuant to Florida Rule
of Criminal Procedure 3.850. Exh. 22. After holding an evidentiary hearing, 6 the postconviction court denied Petitioner relief on this claim finding as follows:
In the order granting Petitioner an evidentiary hearing, the
State court noted as follows: Defendant asserts that trial
counsel was ineffective in not attempting to have his
statement made to law enforcement suppressed. The record
reflects that Defendant’s taped statement was published to
the jury. (Trial Transcript, pp. 186-197). According to
Defendant, he was improperly questioned based on Miranda
violations, and the detective “used tricks in a manner that he
know would result in an incriminating process.” Notably,
Defendant raised the same issue in a post-trial, presentencing motion to dismiss counsel, which was denied after
a hearing. In its response, the State refers to Defendant’s
motion to dismiss counsel and the transcript of that hearing
held on August 22, 2005, a copy of which is attached hereto.
At that hearing, trial counsel responded briefly to Defendant’s
allegations. Specifically, as it relates to the actions of law
enforcement officers, trial counsel stated that, “I viewed them
as harmless, as far as being able to base an argument upon
and I viewed them as irrelevant as far as the major issues in
The State characterized trial counsel’s statement as a
statement of “trial strategy,” and urges that this ground be
summarily denied on the basis of trial strategy. However the
Court views trial counsel’s statement as an explanation as to
why he believed that a motion to suppress would lack merit,
not as a statement of “trial strategy.” The State has not
provided any further argument or case law demonstrating that
Defendant claims that his trial counsel was ineffective for
failing to file a timely and adequate motion to suppress any
statement made by Defendant. More specifically, Defendant
asserts that trial counsel was ineffective in not attempting to
have his statement made to law enforcement suppressed.
The record reflects that Defendant’s recorded statement was
published to the jury. (T. 186-197). Defendant testified at the
evidentiary hearing that he requested his trial counsel to
suppress the statements that he made to law enforcement,
that these statements were not made voluntarily, and that the
statements were made after he requested an attorney.
Defendant further testified that after he had been advised of
his Miranda rights, he was in police custody for five hours and
placed in a holding cell where Detective Fischer asked if he
was ready to give a statement, to which Defendant testified
that he asked for an attorney. Defendant testified that the
detective told him that no attorney would come at this hour.
While he was being held in the holding cell, the detective told
him to knock on the cell door if Defendant needed him. After
knocking on the cell door, the detective asked Defendant if he
was ready to give a statement. Defendant testified that he
then replied, “Yeah . . . because I don’t want to stay here any
Trial counsel testified at the evidentiary hearing that he had a
conversation with Defendant and that Defendant sent him
several letters about filing a motion to suppress evidence
regarding his recorded statement to law enforcement. Trial
counsel testified that after reviewing depositions by witnesses
and law enforcement reports, he developed a timeframe built
around the occurrence of the incident and each subsequent
event, which did not correspond with Defendant’s claims.
While trial counsel testified that he did file a motion to
suppress other evidence, he did not feel that a motion to
suppress Defendant’s statements to law enforcement would
be successful and Defendant’s claims regarding how the
statements were procured did not correspond with the
timeline that he developed. Trial counsel further testified that
he had no doubt that a motion to suppress the evidence of
trial counsel was not deficient in opining that a suppression
motion would lack merit.
See Exh. 27.
Defendant’s recorded statements to law enforcement would
be denied and was afraid that if he filed a motion to suppress,
it could interfere with plea negotiations, if necessary, or impact
the outcome of the other motion to suppress that he felt were
more damaging if not suppressed.
As to Ground 1, the court finds that trial counsel’s
performance was not deficient and that the probability of the
outcome of the trial would not have been any different had trial
counsel filed a timely and adequate motion to suppress
statement made by Defendant. Trial counsel testified that he
did not file a motion to suppress Defendant’s recorded
statement to law enforcement after developing a timeline of
events and for strategic purposes. No evidence was offered
to suggest that trial counsel’s defense strategy was
unreasonable. Thus, for the foregoing reasons, Ground 1 is
denied on the merits.
Exh. 28 at 3-4 (emphasis in original). On appeal, the appellate court per curiam affirmed
the post-conviction court’s decision. Exh. 32.
Petitioner has not shown that the State courts= decisions were contrary to or an
unreasonable application of Strickland. Nor has Petitioner shown that the State courts=
decisions involved an unreasonable interpretation of the facts based upon the evidence
presented. The State court based its decision upon testimony from the post-conviction
evidentiary hearing. Defense counsel testified that he decided not to move to suppress
Petitioner’s statements because Petitioner’s allegations regarding the statements did not
match with the timeline of events that counsel developed. Defense counsel believed that
the trial court would have denied the motion to suppress statement and would have
weakened counsel’s motion to suppress other evidence. The State courts’ decisions
were not contrary to Strickland and were in fact a reasonable application of Strickland.
Nor was Petitioner prejudiced by counsel’s failure to move to suppress the statements.
In addition to Petitioner’s incriminatory statements, the jury heard testimony from the
defendant, the victim, her mother, her step-father, and the child protective services
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person. See generally Exh. 2. The jury weighed the credibility of the witnesses and
ultimately convicted Petitioner. Accordingly, Petitioner is denied relief on Ground One.
In Ground Two, Petitioner argues that defense counsel rendered ineffective
assistance because he allowed a juror by the last name Ahren, who had been stricken
for cause, to serve on the jury.
Petition at 7.
Petitioner asserts that had defense
counsel objected and brought this fact to the court’s attention, the Court would have
granted Petitioner a mistrial. Id.
Respondent opposes relief on Ground Two and notes that the facts were
developed by the post-conviction court during an evidentiary hearing. Response at 20.
Defense counsel testified during the evidentiary hearing that juror Ahren was indeed
stricken for cause and seven other people sat on the jury. Id. Respondent notes that
there was a Scrivener’s error in the transcript that was subsequently corrected. Id. at
20-21. In Reply, Petitioner requests that this Court hold an evidentiary hearing. Reply
In denying Petitioner relief on this claim, the post-conviction court found as follows:
Defendant claims that his trial counsel was ineffective in not
objecting and not advising the Court that the jury panel serving
was not the panel that was picked to serve. According to
Defendant, Mr. Ahern and Mr. Walsh were not part of the jury
panel selected, but, after a lunch break, Mr. English and Ms.
Murphy, who were part of the jury panel, had been replaced
by Mr. Ahern and Mr. Walsh.
The Court previously
determined that the record conclusively refutes Defendant’s
claim as it relates to Mr. Walsh, who was not excused and
who was on the jury panel from the beginning. The record
also reflects that Ms. Murphy was the foreperson and signed
the verdict form. However, the Court allowed an evidentiary
hearing for the purpose of giving Defendant the opportunity to
offer evidence demonstrating that Mr. Ahern, having been
previously excused, did later replace Mr. English as a juror,
and that trial counsel was ineffective within the meaning of
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Strickland. The Court notes that on March 16, 2010,
“Reporter’s Supplemental Certificate for Pages 272 and 273
in the Appeal Transcript” was filed as an amendment to
correct an error to the transcript; a copy of which is attached
hereto. This supplement corrects an error in the original
transcript and the record conclusively refutes Defendant’s
claim as it relates to Mr. English who did serve on the jury and
was never replaced by Mr. Ahern. Accordingly, for the
foregoing reasons, Defendant’s Ground 3 is without merit.
Exh. 28 (emphasis in original).
The appellate court per curiam affirmed the post-
conviction court’s decision. Exh. 32.
As previously discussed, no evidentiary hearing is warranted in this case. Supra
The Court finds the State courts= decisions were neither contrary to nor an
unreasonable application of Strickland. And, the State courts= decisions did not involve
an unreasonable interpretation of the facts based upon the evidence presented. The
testimony from the evidentiary hearing revealed that juror Ahern, who was stricken for
cause, did not serve on the jury. The post-conviction court further noted that the record
contained a Scrivener’s error, which was later corrected. Accordingly, defense counsel
had no basis to object because juror Ahern never served on the jury. Accordingly,
Petitioner is denied relief on Ground Two.
ACCORDINGLY, it is hereby
1. The Florida Attorney General is DISMISSED as a named Respondent.
2. The Petition for Writ of Habeas Corpus (Doc. #1) is DENIED for the reasons
set forth herein.
The Clerk of Court shall terminate any pending motions, enter judgment
accordingly, and close this case.
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CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability on either petition. 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”). 28 U.S.C. § 2253(c)(1); Harbison v.
Bell, 556 U.S. 180, 184 (2009). “A [COA] may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 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)(citations and internal quotation marks omitted). 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 19th day of November, 2014.
Copies: All Parties of Record
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