Anguiano v. Crews et al
Filing
24
OPINION AND ORDER The Florida Attorney General is DISMISSED as a named Respondent. Denying re: 1 Petition for writ of habeas corpus and this case is dismissed with prejudice. Signed by Judge Sheri Polster Chappell on 3/10/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ERIC ANGUIANO,
Petitioner,
v.
Case No: 2:13-cv-830-FtM-38MRM
MICHAEL D. CREWS and FLORIDA
ATTORNEY GENERAL,
Respondents.1
/
OPINION AND ORDER2
This matter comes before the Court upon a pro se petition for habeas corpus relief
filed pursuant to 28 U.S.C. § 2254 by Eric Anguiano (“Petitioner”) (Doc. 1, filed November
25, 2013). Petitioner, a prisoner of the Florida Department of Corrections, attacks the
convictions entered by the Twentieth Judicial Circuit Court in and for Lee County, Florida
for discharging a firearm from a vehicle and attempted second-degree murder with a
1
When the petitioner 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.”
Rumsfeld v. Padilla, 542 U.S. 426, 436 (2004) (citations omitted). 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.
2
Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other
documents or Web sites. These hyperlinks are provided only for users’ convenience.
Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees.
By allowing hyperlinks to other Web sites, this court does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on their
Web sites. Likewise, the court has no agreements with any of these third parties or their
Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.
firearm (Doc. 1 at 1). Respondent filed a response to the petition (Doc. 12). Petitioner
filed a reply (Doc. 19), and the petition is now ripe for review.
Petitioner raises seven claims in his petition.
Upon due consideration of the
pleadings and the state court record, the Court concludes that each claim must be
dismissed or denied. Because the petition may be resolved on the basis of the record,
an evidentiary hearing is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474
(2007) (if the record refutes the factual allegations in the petition or otherwise precludes
habeas relief, a district court is not required to hold an evidentiary hearing).
I.
Background3
On June 13, 2008, the State of Florida charged Petitioner with discharging a
firearm from a vehicle, in violation of Florida Statute § 790.15(2) (count one) and
attempted second degree murder with great bodily harm, in violation of Florida Statute §§
782.04, 777.011, and 775.087(2)(a)(3) (count two) (Ex. 1). A jury convicted Petitioner of
both counts as charged (Ex. 2; Ex. 3). He was sentenced to concurrent terms of nine
years in prison on count one and twenty-five years in prison on count two (Ex. 4; Ex. 5).
Florida’s Second District Court of Appeal affirmed Petitioner’s convictions and sentences
without a written opinion (Ex. 8); Anguiano v. State, 17 So. 3d 294 (Fla. 2d DCA 2009).
On January 20, 2010, Petitioner filed a state petition for writ of habeas corpus in
which he raised one claim of ineffective assistance of appellate counsel (Ex. 9). Florida’s
Second District Court of Appeals denied the petition on May 11. 2010 (Ex. 10).
3
Unless indicated otherwise, citations to exhibits are to those filed by Respondent
on June 12, 2014 (Doc. 14). Citations to the trial transcript, located in exhibit three, will
be cited as (T. at __).
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On November 17, 2010, Petitioner filed a motion for post-conviction relief pursuant
to Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 motion”) (Ex. 11).
The post-conviction court denied two of the claims raised in the Rule 3.850 motion (Ex.
14). After holding an evidentiary hearing on the third claim (Ex. 15), the post-conviction
court denied the motion (Ex. 16). The denial of the third claim was affirmed by Florida’s
Second District Court of Appeal (Ex. 19); Anguiano v. State, 123 So. 3d 566 (Fla. 2d DCA
2013).
Petitioner signed the instant 28 U.S.C. § 2254 petition on November 20, 2013
(Doc. 1).
II.
a.
Governing Legal Principles
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). 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). Notably, a state
court’s violation of state law is not sufficient to show that a petitioner is in custody in
violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
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Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“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 issued 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)). That said, the
Supreme Court has also explained that “the lack of a Supreme Court decision on nearly
identical facts does not by itself mean that there is no clearly established federal law,
since ‘a general standard’ from [the Supreme Court’s] cases can supply such law.”
Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004)).
State courts “must reasonably apply the rules ‘squarely
established’ by [the Supreme] Court’s holdings to the facts of each case.” White, 134 S.
Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point, habeas relief is only
appropriate if the state court decision was “contrary to, or an unreasonable application
of,” that federal law. 29 U.S.C. § 2254(d)(1).
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 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
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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 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 fairminded disagreement.” White,
134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, “it is
not an unreasonable application of clearly established Federal law for a state court to
decline to apply a specific legal rule that has not been squarely established by [the
Supreme] Court.” Knowles, 556 U.S. at 122.
Finally, 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); Burt v. Titlow, 134 S. Ct. 10,
15 (2013) (“[A] state-court factual determination is not unreasonable merely because the
federal habeas court would have reached a different conclusion in the first instance.”)
(quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).
b.
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 relief on the ground that his counsel
rendered ineffective assistance. 466 U.S. 668, 687-88 (1984).
A petitioner must
establish that counsel’s performance was deficient and fell below an objective standard
of reasonableness and that the deficient performance prejudiced the defense. Id. This
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is a “doubly deferential” standard of review that gives both the state court and the
petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011)).
The focus of inquiry under Strickland’s performance prong is “reasonableness
under prevailing professional norms.” Strickland, 466 U.S. at 688-89.
In reviewing
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 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,”
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).
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
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granting habeas relief unless a petitioner has exhausted all means of available relief
under state law. Exhaustion of state remedies requires that the state prisoner “fairly
presen[t] 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)).
The petitioner must apprise the state court of the federal 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. 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 default will be excused only in two narrow circumstances. 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 a procedural default, a petitioner must demonstrate that some objective factor
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external to the defense impeded the effort to raise the claim properly in state court.” Wright
v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999) (internal quotation marks omitted). 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 absent the error complained
of in his petition. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003).
The second exception, known as the fundamental miscarriage of justice, only
occurs in an extraordinary case, where a “constitutional violation has probably resulted in
the conviction of one who is actually innocent[.]” Murray v. Carrier, 477 U.S. 478, 47980 (1986). Actual innocence means factual innocence, not legal insufficiency. Bousley
v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must
“show that it is more likely than not that no 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
The facts in this case involve a drive-by shooting from a car in which Petitioner
was a passenger. During the shooting, a pedestrian was shot and seriously injured. At
trial, Petitioner argued that the car’s driver and back-seat passenger were the actual
shooters and that he merely ducked down in his seat to avoid the gunfire.
Petitioner raises the following seven claims in his habeas petition: (1) the trial
court erred by not granting Petitioner’s motion for a judgment of acquittal when there was
a reasonable hypothesis of innocence; (2) the trial court erred by allowing the prosecutor
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to act as an expert during closing arguments; (3) the trial court erred in allowing the State
to present fingerprint evidence of non-secretors; (4) appellate counsel was ineffective for
failing to argue on appeal that the trial court erred by giving the principal instruction; (5)
trial counsel (“Counsel”) was ineffective for failing to adequately object to the trial court’s
reading of principal instruction; (6) Counsel was ineffective for failing to call Petitioner’s
doctor as a defense witness at trial to testify that Petitioner was physically incapable of
shooting a gun; and (7) Counsel was ineffective for failing to object to the prosecutor’s
improper arguments during closing (Doc. 1 at 5-17). Each claim will be addressed
separately.
a.
Claim One
Petitioner asserts that the trial court erred by refusing to grant Petitioner’s motion
for a judgment of acquittal when there was a reasonable hypothesis of innocence. (Doc.
1 at 5).
Specifically, he claims that evidence was presented at trial of a back-seat
passenger who actually shot the victim while he (Petitioner) ducked down to protect
himself. Id. at 6. Petitioner claims that the only time he (Petitioner) was directly observed
with a gun in his hand was when he threw the guns out of the car window after the
shooting and that his handling of the guns explained the presence of gun-shot residue on
his hands. Id. Petitioner argues that “there is a reasonable hypotheses of innocence that
Petitioner was present in the vehicle but was not involved in the shooting. Wherefore,
the trial court erred in denying Petitioner’s motion for a judgment of acquittal.” Id.
Petitioner raised this claim on direct appeal where he argued, in terms of state law
only, that “[t]he trial court should grant a judgment of acquittal in circumstantial evidence
cases if the State fails to present evidence from which the jury can exclude every
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reasonable hypothesis except that of guilt.” (Ex. 6 at 17) (citing State v. Law. 559 So. 2d
187, 188 (Fla. 1989)). Respondent argues that this claim is unexhausted (Doc. 12 at 8).
Respondent notes:
When petitioner’s trial counsel moved for a judgment of
acquittal, he did not alert the trial court that he was challenging
the state’s proof on constitutional grounds.
Moreover,
petitioner’s arguments on direct appeal did not fairly present
the appellate court the constitutional dimension of his
argument as to the sufficiency of the evidence. Petitioner did
not label his issue as a federal claim and did not cite the
United States Constitution or a case resting on constitutional
grounds in support of his issue. His issue was advanced at
trial and on appeal in state law terms, which did not suffice to
exhaust a federal question.
(Doc. 12 at 8).
A review of Petitioner’s brief on appeal shows that he framed his claim and
argument in terms of state law only without making reference to the United States
Constitution, federal law, or even federal cases (Ex. 6). For a habeas petitioner to fairly
present a federal claim to state courts:
It is not sufficient merely that the federal habeas petitioner has
been through the state courts . . . nor is it sufficient that all the
facts necessary to support the claim were before the state
courts or that a somewhat similar state-law claim was made.
Rather, in order to ensure that state courts have the first
opportunity to hear all claims, federal courts have required a
state prisoner to present the state courts with the same claim
he urges upon the federal courts. While we do not require a
verbatim restatement of the claims brought in state court, we
do require that a petitioner presented his claims to the state
court such that a reasonable reader would understand each
claim’s particular legal basis and specific factual foundation.
McNair v. Campbell, 416 F.3d 1291, 1302–03 (11th Cir. 2005) (emphasis added) (internal
citations and quotations omitted). As part of such a showing, the claim presented to the
state courts “must include reference to a specific federal constitutional guarantee, as well
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as a statement of the facts that entitle the petitioner to relief.” Reedman v. Thomas, 305
F. App’x 544, 545 (11th Cir. 2008) (internal citation omitted).
Petitioner’s failure to
apprise the state courts of the constitutional nature of this claim leaves it unexhausted on
federal habeas review. 28 U.S.C. § 2254(b)(1).4
In his reply, Petitioner concedes that Claim One is unexhausted, but faults
appellate counsel for failing to exhaust it for federal review (Doc. 19 at 1). Although
ineffective assistance of appellate counsel can operate to provide cause for the
procedural default of a claim of trial court error, Petitioner must have first exhausted the
underlying ineffective assistance of appellate counsel claim, which he did not do. See
Edwards v. Carpenter, 529 U.S. 446, 450-51 (2000) (concluding that a federal habeas
court is barred from considering a procedurally defaulted ineffective assistance of counsel
claim as cause for procedural default of another claim); Hill v. Jones, 81 F.3d 1015, 1029–
31 (11th Cir. 1996) (noting that the Supreme Court’s jurisprudence on procedural default
dictates that procedurally defaulted claims of ineffective assistance cannot serve as
cause to excuse a default of a second claim). Nor has Petitioner presented new, reliable
evidence to support an actual innocence claim. Schlup v. Delo, 513 U.S. 298, 324 (1995).
Consequently, the ineffective assistance of appellate counsel claim, raised for the first
time in Petitioner’s reply (Doc. 19), does not satisfy the cause and prejudice, or
4
Notably, although Petitioner now claims that the state court’s denial of this claim
“was contrary to clearly established federal law” and is “based on showing that there was
a denial of a constitutional right,” the argument supporting the instant claim is also
presented solely in terms of state law (Doc. 1 at 5-6). To the extent Petitioner urges that
the trial court erred under Florida law when it denied his motion for a judgment of acquittal,
such argument is not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S.
62, 67 (1991) (“We have stated many times that ‘federal habeas corpus relief does not lie
for errors of state law.’”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).
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fundamental miscarriage of justice exceptions required to overcome the procedural
default of Claim One. Florida’s procedural rules and time limitations preclude a second
direct appeal. Fla. R. App. P. 9.140(b)(3) (defendant wishing to appeal a final judgment
must do so within “30 days following rendition of a written order”). Consequently, Claim
One is procedurally barred and cannot be considered by this Court.
Even had Claim One been properly exhausted, Petitioner is not entitled to federal
habeas corpus relief. See 28 U.S.C. § 2254 (b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State”). The Due Process Clause of
the Fourteenth Amendment requires the state to prove each element of the offense
charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315 (1979).
Under Jackson, federal courts must look to state law for the substantive elements of the
offense, but to federal law for the determination of whether the evidence was sufficient
under the Due Process Clause. Coleman v. Johnson, 566 U.S. 650 (2012). Notably,
unlike Florida the Florida standard, the federal sufficiency of the evidence standard, set
forth in Jackson does not include a requirement that cases turning on circumstantial
evidence exclude every reasonable hypothesis of innocence. See United States v.
Herrera, 931 F.2d 761, 763 (11th Cir. 1991) (evidence need not exclude every reasonable
hypothesis of innocence or be wholly inconsistent with every conclusion except that of
guilt, provided that a reasonable trier of fact could find that the evidence established guilt
beyond a reasonable doubt) (citations omitted). For federal due process review, “[t]he
[only] relevant question is whether after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
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crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.
Under Florida law, shooting from a vehicle in violation of section 790.15(2) requires
proof of two elements: (1) the defendant knowingly and willfully discharged a firearm from
a vehicle; and (2) the discharge occurred within 1000 feet of any person. Fla. Stat. §
790.15(2) (2009). Second-degree murder is “[t]he unlawful killing of a human being,
when perpetrated by any act imminently dangerous to another and evincing a depraved
mind regardless of human life, although without any premeditated design to effect the
death of any particular individual.” § 782.04(2), Fla. Stat. (2009). Within this context:
[a]n act is imminently dangerous to another and evinces a
“depraved mind” if it is an act or series of acts that: (1) a
person of ordinary judgment would know is reasonably certain
to kill or do serious bodily injury to another; and (2) is done
from ill will, hatred, spite or an evil intent; and (3) is of such a
nature that the act itself indicates an indifference to human
life.
Antoine v. State, 138 So. 3d 1064, 1072 (Fla. 4th DCA 2014) (quoting Wiley v. State, 60
So. 3d 588, 591 (Fla. 4th DCA 2011)). Evidence was presented at trial that: multiple
gunshots originated from the driver’s side of the car in which Petitioner was riding (T. at
277); the victim identified Petitioner as the person in the front passenger seat when she
was shot (T. at 83-84, 142); Petitioner lied to the police and claimed that he was not in
the vehicle when the victim was shot (T. at 188); Petitioner threw the two guns, positively
identified as those involved in the shooting, from the vehicle (T. at 281); gunshot residue
was found on Petitioner’s hands (T. at 248); spent shell casings were found on the front
passenger floorboard of the car in which Petitioner was riding (T. at 147, 155); and
photographs taken of the driver’s seat headrest demonstrated that the bullets were fired
from the front passenger seat (T. at 221). Given this evidence, a rational trier of fact
could have found the essential elements of discharging a firearm from a vehicle and
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attempted second-degree murder with a firearm beyond a reasonable doubt. Therefore,
in addition to being unexhausted, Claim One is denied on the merits.
b.
Claim Two and Claim Seven
In Claim Two, Petitioner argues that the trial court erred when it allowed the
prosecutor to act as an expert during closing argument (Doc. 1 at 7). Specifically, he
asserts that the prosecutor acted as a ballistics expert to speculate about the trajectory
of the bullet inside the car. Id. at 8. In Claim Seven, Petitioner asserts that Counsel was
ineffective for failing to object to the prosecutor’s statements. Id. at 21. Petitioner does
not identify the specific comments made by the state attorney that comprise this claim,
but he raised Claim Two in his brief on direct appeal (Ex. 6), and identified the following
prosecutor statements as demonstrating error:
We know, that the defendant is in a wheelchair, and we know
that that means he has limited mobility. But I submit to you
that that’s the reason the shooting was so sloppy.
And if you look at the picture of the headrest you can see the
angle that they’re coming from. They’re not coming from the
back seat. They are coming from the passenger seat.
If you take a good look at these photographs, it suggests that
it came from somebody who was sitting in the front passenger
seat, and we know who that was. We know it was the
defendant.
(Ex. 6 at 24) (internal citations to the trial transcript omitted). Florida’s Second District
Court of Appeal denied this claim without a written opinion (Ex. 8).
In his brief on direct appeal, Petitioner framed his arguments on direct appeal in
terms of state law only (Ex. 6).5 Petitioner’s failure to apprise the state courts of the
5
Petitioner also relies only on his state-law arguments in the instant petition.
Other than a conclusory statement that “the [trial court’s] ruling was contrary to clearly
established federal law,” he does not direct this Court to a single federal case or statute
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constitutional nature of this claim leaves it unexhausted on federal habeas review. See
discussion supra Claim One. Petitioner concedes that he did not exhaust Claim Two for
federal review (Doc. 19 at 1), but faults appellate counsel for failing to do so. Again,
Petitioner did not exhaust any underlying ineffective assistance of appellate counsel claim
on this issue. See discussion supra Claim One. Nor has Petitioner presented new,
reliable evidence to support an actual innocence claim. Consequently, for the same
reasons set forth in Claim One, supra, Claim Two is unexhausted and procedurally barred
and cannot be considered by this Court.
Petitioner raised Claim Seven in his Rule 3.850 motion, and the post-conviction
court denied the claim in a reasoned opinion, noting that, “[d]uring closing arguments, a
prosecutor may point out inferences that can be reasonably drawn from the evidence”
and that “[a]ll of the [prosecutor’s] inferences and conclusions were reasonable in light of
the evidence presented at trial” (Ex. 14 at 5-6). Petitioner did not appeal the postconviction court’s denial of this claim, and as a result, it is also unexhausted.6
that would have precluded the state attorney’s closing argument.
6
Pursuant to Rule 9.141(b)(3) of the Florida Rules of Appellate Procedure, failure
to fully brief and argue points on appeal after receiving an evidentiary hearing on a Rule
3.850 motion, constitutes a waiver of those claims. See, e.g., Leonard v. Wainwright, 601
F.2d 807, 808 (5th Cir. 1979) (Florida prisoner must appeal denial of Rule 3.850 relief to
exhaust remedies); Cortes v. Gladish, 216 F. App’x 897, 899-900 (11th Cir. 2007)
(recognizing that when a petitioner receives an evidentiary hearing on his Rule 3.850
motion, his failure to address issues in his appellate brief waives those issues); Coolen v.
State, 696 So. 2d 738, 742 n.2 (Fla. 1997) (Failure to fully brief and argue points on appeal
constitutes a waiver of these claims.); Cunningham v. State, 131 So. 3d 793, 795 (Fla. 2d
DCA 2012) (explaining that as of October 2010, “[i]f any ground is resolved after an
evidentiary hearing, we require the appellant to process the appeal under rule
9.141(b)(3).”). Petitioner concedes that Claim Seven is unexhausted (Doc. 19 at 1). He
has not suggested any cause for his failure to exhaust this claim (other than ineffective
assistance of appellate counsel), nor has he demonstrated the applicability of the actual
innocence exception. See discussion supra Claim One.
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However, even assuming arguendo that Claims Two and Seven were exhausted
and that Claim Two raises a federal due process claim, Petitioner is not entitled to federal
habeas corpus relief because the prosecutor’s remarks were fair comment on the
evidence. See Parker v. Head, 244 F.3d 831, 838 (11th Cir. 2001) (“The reversal of a
conviction or sentence is warranted when improper comments by a prosecutor have ‘so
infected the trial with unfairness as to make the resulting conviction a denial of due
process.’”) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
In Ruiz v. State, the Florida Supreme Court noted that “the role of counsel in
closing argument is to assist the jury in analyzing [the] evidence, not to obscure the jury’s
view with personal opinion, emotion, and nonrecord evidence[.]” 743 So. 2d 1, 4 (Fla.
1999). The Ruiz court explained that “[t]he assistance permitted includes counsel’s right
to state his contention as to the conclusions that the jury should draw from the evidence.”
Id. (citing United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978)). The Florida
Supreme Court has further stated that “[t]he proper exercise of closing argument is to
review the evidence and to explicate those inferences which may reasonably be drawn
from the evidence.” Robinson v. State, 610 So.2d 1288, 1290 (Fla. 1992) (quoting
Bertolotti v. State, 476 So.2d 130, 134 (Fla. 1985)).
During Petitioner’s trial, testimony was heard from crime scene technician Donna
Mansell (T. at 216-24).
Mansell took photographs of the crime scene, including the
inside of the car from which the shooting occurred. Id. at 218. She testified that seven
bullet holes were present on or in the car, and that each appeared to have originated from
inside the car. Id. at 220. As to the bullet holes in the headrest, she was questioned by
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the state prosecutor as follows:
Q.
Okay. What are those photographs of?
A.
This is the headrest of the driver’s front seat which has
holes in it on the top part of it.
Q.
All right. And did you make any observations about
the headrest?
A.
Yes, I did.
Q.
Can you tell the jury what those were?
A.
What it shows, it shows the bullet coming from the
passenger side of the vehicle towards the outside of
the headrest of the driver’s seat. The reason I looked
at this is because of the material facing outwards of the
holes, so this is what I observed when I was
photographing.
Q.
And the holes that face – the stuffing is coming out of,
that’s closest to what window?
A.
To the driver’s side window.
(T. at 221). During closing argument, the prosecutor reviewed Mansell’s testimony and
urged that the photographs of the bullet holes showed that the bullets originated from
inside the car and “stated her contention” that the bullets had come from the passenger
seat. This is allowed under Florida law. 7 Accordingly, the trail court did not err by
The post-conviction court in its order on Petitioner’s Rule 3.850 motion and the appellate
court, by affirming his conviction on direct appeal, determined that the prosecutor’s
statements were allowed under Florida law. Accordingly, Petitioner cannot demonstrate
prejudice from Counsel’s failure to object to the prosecutor’s closing argument because
the state courts have already told us how this issue would have been resolved had
Counsel raised the objection suggested in the instant habeas petition. An objection would
have been overruled. It is “a ‘fundamental principle that state courts are the final arbiters
of state law, and federal habeas courts should not second-guess them on such matters.’”
Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1355 (11th Cir. 2005) (quoting Agan v.
Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)).
7
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allowing the prosecutor’s comments, and in addition to being unexhausted, Claim Two is
denied on the merits.
Moreover, Petitioner cannot satisfy Strickland’s performance
prong on Claim Seven because, based on Ruiz and Robinson, reasonable competent
defense counsel could have concluded that she had no grounds on which to object to the
prosecutor’s statements. See Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir.
2000) (“[B]ecause counsel's conduct is presumed reasonable, for a petitioner to show
that the conduct was unreasonable, a petitioner must establish that no competent counsel
would have taken the action that his counsel did take.”). In addition to being subject to
dismissal as unexhausted, Claim Seven is denied on the merits.
c.
Claim Three
Petitioner asserts that the trial court erred by allowing the state to present
“fingerprint evidence regarding non-secretors.” (Doc. 1 at 9). Specifically, he asserts that
the State, over Counsel’s objection, was allowed to “present evidence that prints might
not be present on the gun if [Petitioner] is a non-secretor” (Ex. 6 at 26). Petitioner notes
that no evidence was presented at trial that he is a non-secretor. Id. Petitioner raised
this claim on direct appeal where he argued that the court had erred under state law when
it admitted this evidence. The brief on appeal did not refer to the United States
Constitution or to a due process violation. Id.
Petitioner admits that Claim Three is unexhausted, but faults appellate counsel for
failing to raise the constitutional nature of this claim on direct appeal (Doc. 19 at 1).
Again, Petitioner did not exhaust any underlying ineffective assistance of appellate
counsel claim. Nor has Petitioner presented new, reliable evidence to support an actual
innocence claim. Consequently, the ineffective assistance of appellate counsel claim,
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raised for the first time in Petitioner’s reply, does not satisfy the cause and prejudice, or
fundamental miscarriage of justice exceptions necessary to overcome the procedural
default of Claim Three. See discussion supra Claim One. Consequently, Claim Three is
unexhausted and procedurally barred and cannot be considered by this Court.
Even assuming that Claim Three was exhausted and raises a due process claim,
Petitioner is not entitled to habeas relief. Generally, federal courts do not review a state
court’s application of state rules of evidence or procedure. See Estelle, 502 U.S. at 67–
68 (“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions.”); McCullough v. Singletary, 967 F.2d 530, 535–
36 (11th Cir. 1992) (“State courts are the ultimate expositors of their own state’s laws,
and federal courts entertaining petitions for writs of habeas corpus are bound by the
construction placed on a state’s criminal statutes by the courts of the state except in
extreme cases.”). However, a federal court may grant habeas relief where the error rises
to the level of a constitutional violation by “result[ing] in a denial of fundamental fairness.”
Dickson v. Wainwright, 683 F.2d 348, 350 (11th Cir. 1982) (citing Anderson v. Maggio,
555 F.2d 447, 451 (5th Cir. 1977)). Furthermore, “the erroneous admission of prejudicial
evidence can justify habeas corpus relief if it is ‘material in the sense of a crucial, critical,
highly significant factor.’” Id. (quoting Hills v. Henderson, 529 F.2d 397, 401 (5th Cir.
1976)).
In the instant case, Counsel made a motion in limine to exclude any opinion
testimony from the crime scene investigator as to why there might be no fingerprints on
the guns found at the crime scene (T. at 207). The prosecutor argued that Counsel
should not be allowed to argue to the jury that there were no prints on the guns (and
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hence, Petitioner must not have touched them) without the state being allowed to present
alternate theories as to why that could be. Id. at 208. The judge denied Counsel’s motion
in limine “as long as there’s first, testimony that fingerprints were attempted to be taken.”
Id. at 211-12.
During the state’s case, crime scene investigator Donna Mansell was asked about
the guns collected from the crime scene:
Q.
Do you know if any fingerprints came back to those
guns?
A.
No, there were not.
Q.
Do you know of any reasons why prints might not be
found on a gun?
A.
There’s a number of reasons. A non-secretor.
Q.
What’s a non-secretor?
A.
Someone who doesn’t leave prints. There’s the
surface of the weapon – rough surfaces are harder to
lift a print. Maybe more than one person touched the
weapon. You know, overlay. So what you look for as
far as comparison – or evaluation, are latents of value
in that case. And the possibility of them wiping them
off.
(T. at 222). On cross-examination, Mansell admitted that the report from the Florida
Department of Law Enforcement stated that “no latent prints of value” were found on the
guns, rather than no prints at all (T. at 223-24).
Given that no identifiable prints were found on the guns, and given that Petitioner
was observed handling at least one of the guns as it was thrown from the car in which he
was riding, Mansell’s brief testimony about non-secretors did not tend to prove or disprove
that Petitioner handled the guns at issue. Accordingly, the testimony was not a “crucial,
critical, highly significant factor” in Petitioner’s conviction, and the state court’s denial of
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this claim did not violate due process. In addition to being unexhausted, Claim One is
denied on the merits. 28 U.S.C. § 2254(d).
d.
Claim Four and Claim Five
In Claim Five, Petitioner asserts that Counsel was ineffective for failing to object to
the trial court’s reading of the principal instruction on the basis that there was no
evidentiary basis for the instruction, and it misled and confused the jury (Doc. 1 at 12).8
Although Petitioner admits that Counsel objected to the instruction during the charging
conference, he urges that Counsel “should have been more articulate” and “nowhere in
the record does it show that Petitioner participated or that he intended the crime be
committed[.]” Id. at 13. In Claim Four, Petitioner asserts that appellate counsel was
ineffective for failing to raise this claim on direct appeal (Doc. 1 at 11).
Petitioner raised Claim Five in his Rule 3.850 motion (Ex. 11). The post-conviction
court denied the claim on the ground that Counsel had objected to the principal instruction
8
The principal instruction reads:
If the defendant helped another person or persons commit a
crime, the defendant is a principal and must be treated as if
he had done all the things the other person or persons did if:
1.
the defendant had a conscious intent that the criminal
act be done and
2.
the defendant did some act or said some word which
was intended to and which did incite, cause,
encourage, assist, or advise the other person or
persons to actually commit the crime.
To be a principal, the defendant does not have to be present
when the crime is committed.
Fla. Std. J.I. (criminal) 3.5(a). This instruction was read to the jury by the trial court (T. at
376-77).
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(Ex. 14). The post-conviction court recognized that Petitioner asserted that Counsel
“used the wrong reasoning in objecting the principal instruction,” but determined:
Defendant has “cherry-picked” certain parts of defense
counsel’s argument to make it seem as if counsel’s “basis” for
objecting to the jury instruction was other than lack of
evidence; however, as the record shows, the grounds
Defendant cites to as to why counsel objected are actually
smaller facets of counsel’s overall argument of lack of
evidence.
(Ex. 14 at 3). Petitioner did not appeal the post-conviction court’s denial of this claim,
and as a result, it is unexhausted for habeas review. See discussion supra Claim Seven,
note 6.
However, even if Petitioner had exhausted Claim Five, it would not merit federal
habeas corpus relief. As recognized by the post-conviction court, Counsel strenuously
argued during the charging conference that the principal instruction should not be read
because: (1) the state had prosecuted Petitioner on the theory that he was the actual
shooter, not as a principal; and (2) the only evidence presented at trial was that Petitioner
was the actual shooter (T. at 306-16). The prosecutor countered Counsel’s argument by
noting that defense evidence had been offered from which the jury could conclude that
Petitioner acted as a principal in the crime. Id. at 313.
The prosecutor stated that
“Counsel put on a witness saying that it was the other guy [who] was shooting, but again,
[Petitioner] was getting rid of the gun for him, and that he was in the car and they could
find that he was involved in that shooting.” Id.
Counsel’s objection to the principal
instruction was overruled. Id.
Given that Counsel objected to the principal instruction on the very grounds
Petitioner now urges, he has not satisfied Strickland’s performance prong. Moreover,
Petitioner was convicted as the actual shooter, not on a principal theory. The jury found
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him guilty of attempted second degree murder with specific findings that he possessed
and discharged a firearm and inflicted great bodily harm on the victim as a result (Ex. 3).
Accordingly, Petitioner cannot demonstrate prejudice from Counsel’s alleged failure to
present a “more articulate” argument on the principal instruction. In addition to being
unexhausted, Claim Five fails to satisfy either Strickland ineffective assistance prong and
is denied on the merits.
Claim Four also fails on the merits. A review of the record demonstrates that the
principal instruction was properly read to the jury. Under Florida law, it is generally error
to instruct the jury on principals where there is no evidence to support an aiding and
abetting theory of guilt. See Alvarez v. State, 15 So.3d 738, 748 (Fla. 4th DCA 2009);
McGriff v. State, 12 So.3d 894, 895 (Fla. 1st DCA 2009); Masaka v. State, 4 So.3d 1274,
1284 (Fla. 2d DCA 2009); Thomas v. State, 617 So.2d 1128, 1128 (Fla. 3d DCA 1993).
A conviction for aiding and abetting requires the State to prove: (1) the defendant’s intent
that the crime be committed; and (2) the defendant’s performance of some act to assist
in the commission of the crime. See § 777.011, Fla. Stat. (1995); Staten v. State, 519
So.2d 622, 624 (Fla. 1988).
In this case, testimony was presented at trial that Petitioner was in the car with two
other people when the shooting occurred, and he was observed tossing two guns from
the car (T. at 83-84,139).
Reasonable competent appellate counsel could have
concluded that the evidence was sufficient to support an instruction on the principal theory
of guilt. Therefore, Claim Four fails to satisfy Strickland’s performance prong, and does
not warrant federal habeas corpus relief. See Diaz v. Sec’y, Fla. Dep’t of Corr., 402 F. 3d
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1136, 1145 (11th Cir. 2005) (“[N]onmeritorious claims that are not raised on appeal do
not constitute ineffective assistance of counsel.”).
e.
Claim Six
Petitioner asserts that Counsel was ineffective for failing to call Dr. Monserrate,
Petitioner’s doctor, as a defense witness (Doc. 1 at 14). Petitioner asserts that Dr.
Monserrate may have testified that Petitioner was incapable of firing the gun because of
his physical limitations.9 Id. Petitioner raised this claim in his Rule 3.850 motion, and an
evidentiary hearing was held (Ex. 15). Afterwards, the post-conviction court denied the
claim on Strickland’s prejudice prong, specifically noting that Dr. Monserrate testified at
the evidentiary hearing that “Defendant was sufficiently able to use his left hand, and it
was his professional opinion, one he stated he would have given at the original trial had
he been called, that Defendant could have fired the gun.” (Ex. 16 at 5). The postconviction court’s rejection of Claim Six was affirmed by Florida’s Second District Court
of Appeal (Ex. 19).
Petitioner does not explain how the state courts’ rejection of Claim Six was contrary
to Strickland or based upon an unreasonable determination of the facts. When asked at
the evidentiary hearing as to whether Petitioner was capable of pulling the trigger with his
left hand, Dr. Monserrate stated that “[i]t could have been possible” and agreed that, had
he been called to testify at Petitioner’s trial, his opinion would not have differed (Ex. 15 at
71).
Petitioner now urges that Dr. Monserrate’s statement “does not mean that
[Petitioner] did or was capable of doing it” and that “the jury should have been able to
9
Petitioner urges that he had injuries to his left arm at the time of the shooting and
is paralyzed from the chest down (Doc. 1 at 15).
- 24 -
decide after hearing Dr. Monserrate if Petitioner was capable of firing the gun that shot
the victim.” (Doc. 1 at 15).
Petitioner misunderstands his burden under Strickland.
“Strickland places the burden on the defendant, not the State, to show a ‘reasonable
probability’ that the result would have been different” if Counsel had performed as
Petitioner now asserts she should have. Wong v. Belmontes, 558 U.S. 15, 27 (2009)
(quoting Strickland, 466 U.S. at 694). In the instant case, Petitioner does not show that
the outcome of his trial would have differed if Dr. Monserrate had testified; rather, he
urges that the jury may have disbelieved Dr. Monserrate’s testimony had Counsel called
him to testify, and therefore, Counsel should have done so (Doc. 1 at 15). In other words,
Petitioner relies on mere speculation to support his claim of Strickland prejudice.
Petitioner’s circular argument is insufficient to demonstrate entitlement to federal habeas
relief, and Claim Six is denied pursuant to 28 U.S.C. § 2254(d).
Any of Petitioner’s allegations not specifically addressed herein have been found
to be without merit.
IV.
Certificate of Appealability10
Petitioner is not entitled to a certificate of appealability. 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”).
“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
10
Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts, the “district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” Id. As this Court has determined
that Petitioner is not entitled to habeas corpus relief, it must now consider whether
Petitioner is entitled to a certificate of appealability.
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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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)),
or that “the issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller–El, 537 U.S. at 335–36. 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 hereby ORDERED AND ADJUDGED as follows:
1.
The Florida Attorney General is DISMISSED as a named Respondent.
2.
The 28 U.S.C. § 2254 petition for habeas corpus relief filed by Eric Anguiano
is DENIED, and this case is dismissed with prejudice.
3.
Petitioner is DENIED a certificate of appealability.
4.
The Clerk of Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
DONE and ORDERED in Fort Myers, Florida on this 10th day of March, 2017.
SA: OrlP-4
Copies: Eric Anguiano
Counsel of Record
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