Delgado v. Secretary, DOC et al

Filing 20

OPINION AND ORDER re: denying 1 Petition for writ of habeas corpus. The Florida Attorney General is dismissed from this action. Signed by Judge Sheri Polster Chappell on 3/1/2017. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ISAAC DELGADO,
Petitioner,
v.

Case No: 2:14-cv-42-FtM-38MRM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents.
/
OPINION AND ORDER1
I. Status
Petitioner Isaac Delgado (hereinafter “Petitioner,” “Delgado,” or “Defendant”)
initiated this action proceeding pro se by filing a timely 28 U.S.C. § 2254 petition for writ
of habeas corpus (Doc. #1, “Petition”) and Memorandum of Law (Doc. #1, pp. 11-19,
“Memorandum”) challenging his judgment and conviction of aggravated battery with a
deadly weapon entered in the Twentieth Judicial Circuit Court in Collier County, Florida.
The Petition raises four grounds of ineffective assistance of counsel.

1

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.

Respondent2 filed a Response (Doc. #14, Response) opposing all grounds and
attached supporting exhibits (Doc. #16, Exhs. 1-19) comprising the record on direct
appeal and postconviction pleadings. Inter alia, Respondent argues that Petitioner has
not satisfied 28 U.S.C. § 2254(d) (1)-(2).3 Petitioner filed a Reply (Doc. #17).
For the reasons that follow, the Court concludes that Petitioner is not entitled to
habeas relief and the Petition must be denied. Because the Petition can be resolved on
the basis of the record, an evidentiary hearing is not warranted. Schriro v. Landrigan,
550 U.S. 465, 473-474 (2007) (finding 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).
II. Background and Pertinent Procedural History
Petitioner was charged by Information with aggravated battery causing great harm
and aggravated battery with a firearm.4 Exh. 1, Vol. I at 20. Proceeding to trial on an

2

Rule 2(a) of the Rules Governing Section 2254 Cases in United States District
Courts 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.
In this case, the proper Respondent is the Secretary of the Florida Department of
Corrections. The Florida Attorney General is dismissed from this action.

3

Respondent submits that Petitioner timely filed the Petition. See Response at

4

The January 23, 2008 Information contained the following counts:

4-6.

1. On or about June 20, 2007 in Collier County, Florida,
[Delgado] did unlawfully commit a battery upon Samuel
Guerrero, by actually and intentionally touching or striking
said person against said person’s will, and in committing said

-2-

amended information that consolidated the two charges into one, Exh. 1, Vol. II at 3, the
jury returned a guilty of aggravated battery with a deadly weapon, Exh. 1, Vol. I at 97.
Petitioner was sentenced to a thirty-year term of imprisonment with a minimummandatory term of twenty-five years. Petition at 1; Exh. 1, Vol. I at 100. The appellate
court per curiam affirmed without a written decision on July 26, 2010. Delgado v. State,
30 So. 3d 499 (Fla. 2d DCA 2010) [table].
Petitioner, through collateral counsel, moved for postconviction relief under Florida
Rule of Criminal Procedure 3.850.

Exh. 7.

The postconviction court dismissed

Petitioner’s motion in part and permitted leave to amend the first ground.

Exh. 8.

Upon reviewing Petitioner’s supplemental motion and the state’s response, the
postconviction court entered an order summarily denying Petitioner’s Rule 3.850 motion.
Exh. 11. With the assistance of counsel, Petitioner appealed, Exh. 15, and the appellate
court entered an order per curiam affirming the postconviction court’s decision, Delgado
v. State, 2012 WL 8469507 (Fla. 2d DCA 2012)[table](Exh. 16). Mandate issued on

battery did intentionally or knowingly cause great bodily harm,
permanent disability, or permanent disfigurement to the said
Samuel Guerrero, and during the course of committing said
battery against Samuel Guerrero did actually possess and
discharge a firearm and as a result of the discharge, great
bodily harm was inflicted upon Samuel Guerrero, contrary to
Florida Statute 784.045; 775.087.
2. On or about June 20, 2007 in Collier County, Florida,
[Delgado] did unlawfully commit a battery upon Samuel
Guerrero, by actually and intentionally touching or striking
said person against said person’s will, and in committing said
battery did use a deadly weapon, to-wit: a firearm, and during
the course of committing said battery against Samuel
Guerrero did actually possess and discharge a firearm,
contrary to Florida Statute 784.045; 775.087.

-3-

September 20, 2013. Petitioner then initiated the instant pro se federal habeas corpus
petition on January 27, 2014, raising four grounds for relief.
III. 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).
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.
at 246; Penry, 532 U.S. at 792; Davis v. Jones, 506 F.3d 1325, 1331, n.9 (11th Cir. 2007).
Under the deferential review standard, 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). Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “This is a difficult
to meet, and highly deferential standard for evaluating state-court rulings, which demands
that the state-court decisions be given the benefit of the doubt.” Id. (internal quotations
and citations omitted). See also Harrington v. Richter, 562 U.S. 86, 102 (2011) (pointing
out that “if [§ 2254(d)’s] standard is difficult to meet, that is because it was meant to be.”).
Both the Eleventh Circuit and the Supreme Court broadly interpret what is meant
by an “adjudication on the merits.” Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir.
2011). A state court’s summary rejection of a claim, even without explanation, qualifies

-4-

as an adjudication on the merits that warrants deference by a federal court. Id.; see also
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Indeed, “unless the state
court clearly states that its decision was based solely on a state procedural rule [the Court]
will presume that the state court has rendered an adjudication on the merits when the
petitioner’s claim ‘is the same claim rejected’ by the court.” Childers v. Floyd, 642 F.3d
at 969 (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).
“A legal principle is ‘clearly established’ within the meaning of this provision only
when it is embodied in a holding of [the United States Supreme] Court.”

Thaler v.

Haynes, 559 U.S. 43, 47 (2010); see also Carey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)) (recognizing “[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). “A state court decision involves an unreasonable application of federal law
when it identifies the correct legal rule from Supreme Court case law but unreasonably
applies that rule to the facts of the petitioner's case, or when it unreasonably extends, or
unreasonably declines to extend, a legal principle from Supreme Court case law to a new
context.” Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012)
(internal quotations and citations omitted). The “unreasonable application” inquiry
requires the Court to conduct the two-step analysis set forth in Harrington v. Richter, 562
U.S. at 86. First, the Court determines what arguments or theories support the state
court decision; and second, the Court must determine whether “fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior”
Supreme Court decision. Id. (citations omitted). Whether a court errs in determining

-5-

facts “is even more deferential than under a clearly erroneous standard of review.”
Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005).

The Court presumes the

findings of fact to be correct, and petitioner bears the burden of rebutting the presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Federal Claim Must Be Exhausted in State Court
Ordinarily, a state prisoner seeking federal habeas relief must first “‘exhaus[t] the
remedies available in the courts of the State,’ 28 U.S.C. § 2254(b)(1)(A), thereby affording
those courts ‘the first opportunity to address the correct alleged violations of [the]
prisoner’s federal rights.’” Walker v. Martin, 562 U.S. 307, 316 (2011) (quoting Coleman
v. Thompson, 501 U.S. 722, 731 (1991)). This imposes a “total exhaustion” requirement
in which all of the federal issues must have first been presented to the state courts.
Rhines v. Weber, 544 U.S. 269, 274 (2005). “Exhaustion requires that state prisoners
must give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established appellate review process. That
is, to properly exhaust a claim, the petitioner must fairly present every issue raised in his
federal petition to the state's highest court, either on direct appeal or on collateral review.”
Mason v. Allen, 605 F.3d 1114, 1119 (11th Cir. 2010) (citing O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999) and Castile v. Peoples, 489 U.S. 346, 351 (1989)).
To fairly present a claim, a petitioner must present the same federal claim to the
state court he urges the federal court to consider.

A mere citation to the federal

constitution in a state court proceeding is insufficient for purposes of exhaustion.
Anderson v. Harless, 459 U.S. 4, 7 (1983). A state law claim that “is merely similar to
the federal habeas claim is insufficient to satisfy the fairly presented requirement.”

-6-

Duncan v. Henry, 513 U.S. 364, 366 (1995)(per curiam). “‘[T]he exhaustion doctrine
requires a habeas applicant to do more than scatter some makeshift needles in the
haystack of the state court record.’” McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir.
2005) (quoting Kelley v. Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004)).
“The teeth of the exhaustion requirement comes from its handmaiden, the
procedural default doctrine.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001), cert.
denied, 534 U.S. 1136 (2002). Under the procedural default doctrine, “[i]f the petitioner
has failed to exhaust state remedies that are no longer available, that failure is a
procedural default which will bar federal habeas relief. . . .” Smith, 256 F.3d at 1138. A
procedural default for failing to exhaust state court remedies will only be excused in two
narrow circumstances.

First, a petitioner may obtain federal habeas review of a

procedurally defaulted claim if he shows both “cause” for the default and actual “prejudice”
resulting from the asserted error. House v. Bell, 547 U.S. 518, 536-37 (2006); Mize v.
Hall, 532 F.3d 1184, 1190 (11th Cir. 2008).
Second, under exceptional circumstances, a petitioner may obtain federal habeas
review of a procedurally defaulted claim, even without a showing of cause and prejudice,
if such a review is necessary to correct a fundamental miscarriage of justice. House,
547 U.S. at 536; Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
C. Ineffective Assistance of Counsel Claims
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 in Strickland v. Washington, 466 U.S. 668 (1984),

-7-

remains applicable to the claims of ineffective assistance of counsel raised in this case.
Newland, 527 F.3d at 1184. In Strickland, the Supreme Court established a two-part test
to determine whether a convicted person is entitled to habeas relief on the grounds that
his or her counsel rendered ineffective assistance: (1) whether counsel’s 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 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

-8-

within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at
689. An attorney is not ineffective for failing to raise or preserve a meritless issue. Ladd
v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989); United States v. Winfield, 960 F.2d 970,
974 (11th Cir. 1992) (“a lawyer’s failure to preserve a meritless issue plainly cannot
prejudice a client”). “To state the obvious: the trial lawyers, in every case, could have
done something more or something different. 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)).
IV. Findings of Fact and Conclusions of Law
The Petition raises these four grounds:
Ground One- Ineffective assistance of counsel for failure to
call available alibi witnesses to corroborate alibi defense;
Ground Two- Ineffective assistance of counsel for failure to
explore the possibility of a plea deal;
Ground Three- Ineffective assistance of counsel for failure to
obtain and submit exculpatory evidence that would support
alibi defense and could impeach state witness;
Ground Four- Ineffective assistance of counsel for failure to
object and move for a curative instruction on prejudicial
comments.
See generally Petition. The Court will address each ground in turn.
A. Ground One
Petitioner argues that his defense counsel rendered ineffective assistance by
failing to call alibi witnesses. Petition at 4.

Petitioner explains that his aunt, Maria

Garcia, was an alibi witness who testified at trial that Petitioner was attending a graduation
party at her home when the crime occurred. Id. Petitioner explains that Maria Garcia

-9-

provided his defense attorney a list of witnesses who attended her party, but his defense
attorney failed to call them. Id. (citing Exh. A).
In Response, Respondent initially asserts that portions of this claim are
unexhausted and procedurally defaulted. Specifically, Respondent notes that to the
extent Petitioner faults defense counsel for not repeatedly trying to contact the proposed
witnesses, or for failing to move for a continuance of trial to do so, Petitioner failed to raise
such claims before the state courts, and is now procedurally barred under Florida’s twoyear time limit for filing a Rule 3.850 and its successive bar.

Response at 17-18.

Respondent further argues the postconviction court’s decision denying Petitioner relief on
this claim was reasonable because defense counsel explained that she received the list
of witnesses two weeks before the start of trial and contacted them by phone. None of
the witnesses returned defense counsel’s phone call and she had no mailing addresses.
Id. at 18-19.
The Court finds Ground One is exhausted to the extent Petitioner raised the claim
that counsel should have called other alibi witnesses provided by his aunt as his first claim
for relief in his Rule 3.850 motion and appealed the adverse result. Exh. 7 at 7-10 (initial
Rule 3.850 motion); Exh. 9 (Supplemental Rule 3.850); Exh. 16 (appeal). To the extent
Petitioner for the first time faults his counsel for not moving for a continuance, such claims
are not exhausted and are now procedurally defaulted. Nor does Petitioner show cause,
prejudice, or a fundamental miscarriage of justice to overcome the procedural default of
this portion of the claim.
The Court now turns to address the portions of Ground One that Petitioner
exhausted by filing a Rule 3.850 in the postconviction court. In denying Petitioner relief

- 10 -

on Ground One, the postconviction court reviewed the law set forth in Strickland, and
determined that the record refuted Petitioner’s claims that counsel did not attempt to
contact the list of alibi witnesses provided by Petitioner’s Aunt Maria. Exh. 11 at 3.
Specifically, the postconviction court found:
In his amended Ground One, Defendant asserts that trial
counsel was ineffective for failing to investigate or call nine
alibi witnesses to testify at trial. A defendant claiming
ineffective assistance of counsel for failing to interview or call
witnesses must allege: 1) the identity of the witnesses, 2) the
substance of their testimony, and 3) how Defendant was
prejudiced, and 4) whether the witnesses were available to
testify. Spera v. State, 971 So. 2d 754, 756 (Fla. 2007)
(citing Nelson v. State, 875 So. 2d 579, 584 (Fla. 2004)). In
his amended motion, Defendant identifies the witnesses, the
substance of their testimony, how Defendant was prejudiced,
and that the witnesses were available to testify. However,
the record reflects that these witnesses were addressed in
open court and prior to the commencement of trial. (T. 14-18).
According to trial counsel, the witnesses were unavailable at
the time of trial to testify because she could not obtain their
addresses and were not told of their identities until
approximately two weeks before trial. (T. 14-15).
Accordingly, the claims asserts by Defendant in Ground 1 are
without merit and conclusively refuted by the record.
Exh. 11 at 4. The appellate court per curiam affirmed the postconviction court’s order.
Exh. 16.
The Court finds that the State court’s denial of postconviction relief did not result
in a decision that was “contrary to, or involved an unreasonable application of” Strickland,
or “in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented” in the State court. Here, Petitioner satisfied neither the deficient
performance, nor prejudice prongs of Strickland considering the record refuted
Petitioner’s claim. Defense counsel explained in open court that merely two weeks
before the start of trial, she received the list of alibi witnesses comprising other people

- 11 -

who attended Petitioner’s Aunt’s graduation party for her son. Nevertheless, defense
counsel stated that she called every phone number provided for the witnesses, but none
returned her phone call, and none provided her with an address; so none were available
witnesses. The postconviction court’s factual determination is entitled to deference and
the record shows the determination was not an unreasonable application of the facts.
Further, this Court notes Ms. Garcia testified that Petitioner attended her son’s graduation
party, although admittedly she couldn’t remember when the party she planned for her
son’s graduation took place. Thus, Petitioner also cannot show prejudice required under
Strickland because Petitioner has not shown how failing to have these additional
witnesses who attended the graduation party prejudiced him after his Aunt’s testimony.
Petitioner is denied relief on Ground One.
B. Ground Two
Petitioner argues defense counsel rendered ineffective assistance for failing to
explore the possibility of a plea with the prosecutor.

Petition at 6.

In Response,

Respondent argues Ground Two is unexhausted and procedurally defaulted because
Petitioner did not appeal the denial of this claim raised in his Rule 3.850 postconviction
motion. Response at 23-24. Recognizing that the Court of Appeals for the Eleventh
Circuit has found that a petitioner need not file an appeal of each specific claim when the
lower court issues a summary denial, Respondent in the alternative addresses the merits.
Id. at 23-25. Respondent argues that the Court must deny Ground Two because the
State courts’ decision rejecting the claim was not contrary to or an unreasonable
application of Strickland, nor was it an unreasonable determination of the facts. Id. at
25-25.

- 12 -

This Court need not decide whether Petitioner exhausted Ground Two.
Notwithstanding Petitioner’s possible failure to exhaust the claim by failing to specifically
enumerate the ground on appeal from the summary denial, the Court may deny the merits
of the claim. See 28 U.S.C. § 2254(b)(2) (stating “[a]n application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of an applicant to exhaust
the remedies available in state court.”); Exh. 15.
Petitioner raised Ground Two in his Rule 3.850 motion filed in the postconviction
The postconviction court cited Strickland and denied Petitioner’s claim.

court.

Specifically, the postconviction court found:
A review of Florida Rule of Criminal Procedure 3.171 reveals
that neither the State nor defense counsel is required to enter
into plea negotiations. See Fla. R. Crim. P. 3.171. A review
of discussions in open court prior to trial reveals that no plea
negotiations transpired between the State and defense, and
both trial counsel and Defendant stated on the record that the
defense was not interested in pursuing a plea offer with the
State (T. 18-19). Defendant’s claim that trial counsel was
ineffective for failing to explore the possibility of a plea deal
with the State is based on pure speculation and cannot
support a claim of ineffective assistance of counsel. Jones
v. State, 845 So. 2d 55, 64 (Fla. 2003) (postconviction relief
cannot be based on speculative assertions).
Exh. 11 at 4. The appellate court per curiam affirmed the postconviction court’s order.
Exh. 16.
The Court finds that the State court’s denial of postconviction relief did not result
in a decision that was “contrary to, or involved an unreasonable application of” Strickland,
or “in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented” in the State court. Here, Petitioner satisfied neither the deficient
performance nor prejudice prongs of Strickland, because the record clearly refused

- 13 -

Petitioner’s claim and showed that neither defense counsel, nor Petitioner, were
interested in discussing a plea with the State. Petitioner is denied relief on Ground Two.
C. Ground Three
Petitioner argues defense counsel rendered ineffective assistance of counsel for
failing to call Enedelia Garcia, who is Petitioner’s mother, as an exculpatory witness.
Petition at 7. Petitioner explains that Enedelia Garcia could have provided photographic
evidence from her cellphone depicting him at his aunt’s graduation party when the crime
occurred. Petition at 7.
In Response, Respondent points out that Enedlia Garcia testified at trial and
specifically recognized that the photographs from her cellphone did not confirm the date
on which the photographs were taken. Response at 27. Thus, Respondent argues
Petitioner cannot show defense counsel’s performance was deficient because such
photographic evidence did not exist. Id.
The Court finds Ground Three is exhausted to the extent Petitioner raised this
claim as his third claim for relief in his Rule 3.850 motion and appealed the adverse result
thereafter. Exh. 7 at 11 (initial Rule 3.850 motion); Exh. 9 (Supplemental Rule 3.850);
Exh. 15 at 13 (appeal).

The postconviction court reviewed the law in Strickland and

found Petitioner did not demonstrate either deficient performance or prejudice. The
postconviction court found:
Defendant asserts that trial counsel was ineffective for failing
to obtain dated photos from Defendant’s mother’s cell phone
that allegedly could have been used to impeach the credibility
of State witnesses who testified that Defendant was at the
scene of the crime. Specifically, Defendant argues that
these photographs would demonstrate that Defendant’s
brother was not in Immokalee at the time of the incident and
that this, in turn, would support Defendant’s assertion that

- 14 -

Defendant was not at the scene either. Defendant asserts
that his mother had “told defense counsel about the existence
of the photographs a month before trial and showed the
photos to counsel, and yet defense counsel failed to obtain
copies of them to show to the jury.” In its response, the State
argues that the photographs were undated and that they
would have been irrelevant in light of the aunt’s trial testimony
that reflected that she was unable to recall when the
graduation party was held. The State refers to portions of the
following excerpt to demonstrate the irrelevance of the
photographs:
Q: Now at this deposition, that was when you first brought
up this graduation party; is that right?
A: Yes.
Q: Okay. And you recall me asking you questions about
that graduation party?
A: You asked what I—I don’t recall what happened that day.
I don’t recall all the questions and what was said.
Q: Okay. But you do recall me asking you questions about
it?
A: Yeah. Of what we did that day, and I told you that we
had a graduation. I told you that we had a graduation party.
Q: Okay. Now, at that time, I asked you what day of the week
this was?
A: And I –
Q: Do you recall that?
A: Friday, Saturday, Sunday, I don’t know what day of the
week it was.
Q: Okay.
A: I’m not 100 percent.
T. 332.
The witness was then asked to read aloud the answer she had
given the day of the deposition. The following dialogue then
ensued:

- 15 -

Q: Okay. Please start with Line 17, question, and that
would be myself, and read that out loud.
A: Okay. What day was that?
Q: And what was your answer to the question on that day,
as it reads in that transcript?
A: Oh shoot, shoot, I’m going to guess it was like Thursday
or Friday.
Q: Okay. So there’s no mention on that day that it was a
Saturday or Sunday?
A: Right.
Q: This is the first day we’re hearing it probably was on a
Sunday? Would that be accurate?
A: Yes.
(T. 332-33). Thus, it appears that the State is arguing that
the photographs would have been irrelevant as proof that the
brother was not in Immokalee at the time of the shooting
because the pictures were undated and the aunt who
arranged the graduation party for her son was unable to
remember when the party took place. As to the aunt’s
testimony, the record reflects that she testified that her sister,
the mother of Defendant, arrived at the aunt’s house with
Defendant’s brother and his children. (T. 333-34). She
was, however, unable to state when they arrived. (T. 335).
As to his mother’s testimony, the record reflects that she
testified about the pictures on her cell phone at trial. (T. 34245). She had been asked on direct where her son, the
purported driver of the car, was the day of the shooting. She
replied that he had been with her at the Shell Factory, and that
she remembered this because of the photographs she had
taken on her camera phone but that the dates on the
photographs were from the date she had the photos printed.
(T. 345).
Later, on cross-examination, Defendant’s mother was again
asked about the pictures on her cell phone. She had just
been asked what the family had been doing at the Shell
Factory and how much time they had spent visiting various
parts of it, and Defendant’s mother stated that she could not
recall. (T. 353). The mother then explained why she did not
give these photographs to the police, stating that she believed

- 16 -

that they would have arrested her if she had tried. (T. 35457). Based on a review of the above referenced trial
testimony, the Court finds that even if trial counsel were found
to be ineffective for failing to obtain dated photos from
Defendant’s mother’s cell phone that allegedly could have
been used to impeach the credibility of State witnesses who
testified that Defendant was at the scene of the crime,
Defendant cannot demonstrate that there was a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different. Therefore, even if
trial counsel’s performance was deficient as alleged in
Defendant’s Ground 3, trial counsel cannot be found to have
been ineffective because Defendant cannot demonstrate
prejudice pursuant to Strickland. Accordingly, Ground 3 is
hereby denied.
Exh. 11 at 6-7. The appellate court per curiam affirmed the postconviction court’s order.
Exh. 16.
The Court finds that the State court’s denial of postconviction relief did not result
in a decision that was “contrary to, or involved an unreasonable application of” Strickland,
or “in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented” in the State court. Here, Petitioner satisfied neither the deficient
performance nor prejudice prongs of Strickland considering the record conclusively
refutes Petitioner’s assertion that his mother’s cellphone contained exculpatory
photographs showing he was at the graduation party.

As evidenced from the trial

testimony, the other cellphone photographs his mother had from the Shell Factory
contained the date the photographs were printed, not the date they were taken. Further,
Petitioner’s mother, similar to Petitioner’s Aunt, could not remember the day the
graduation party occurred and in fact testified in court that the graduation party happened
on a different day of the week than the day she had previously testified to during her
deposition. Petitioner is denied relief on Ground Three.
D. Ground Four

- 17 -

Petitioner argues that his defense attorney rendered ineffective assistance of
counsel when counsel failed to object and failed to move for a curative instruction based
on the prosecutor’s prejudicial comments. Petition at 10. Specifically, Petitioner faults
the prosecutor for saying he was a gang member during closing argument.

Id.

Petitioner refers the Court to these statements:
PROSECUTOR: And [Guerrero] told you that he was a
witness in that case, and that this man and his brother, Isreal,
who you saw on the stand, are friends with Mr. Argeta. I
believe the language the victim used was, they run together,
their gang members, they look out for one another.
Id. (errors in original).
In Response, Respondent first argues that Ground Four, similar to Ground Two, is
unexhausted and now procedurally defaulted because Petitioner did not specifically raise
this claim in his appellate brief after the postconviction court issued an order summarily
denying his claim. Response at 31. Turning to the merits, Respondent argues that the
postconviction court’s determination is entitled to deference under AEDPA. Id. at 32.
Notably, Petitioner raised Ground Four as his fourth ground, subsection (c), in his
Rule 3.850 motion filed in the postconviction court. The Court need not decide whether
Petitioner was required to specifically enumerate this ground in his appeal of the
postconviction court’s denial of his Rule 3.850 motion because this Court may
nevertheless deny a petitioner relief on the merits of an unexhausted claim. 28 U.S.C. §
2254(b)(2).
The postconviction court reviewed the law in Strickland and found Petitioner did
not demonstrate prejudice under Strickland. The postconviction court found:
As for Ground 4c, Defendant asserts that trial counsel was
ineffective for failing to object to highly prejudicial comments
allegedly made by the prosecutor in the State’s closing

- 18 -

argument. Specifically, Defendant refers to the following
statement made by the prosecuting attorney during closing
argument:
And [Guerrero] told you that he as a witness in the case, and
that this man and his brother, Isreal, who you saw on the stand
are friends with Mr. Argeta. I believe the language the victim
used was, they run together, they’re gang members, they look
out for one another.
(T. 418). Having reviewed the transcript, the Court finds that,
even if trial counsel was ineffective for failing to object to the
statement made by the prosecuting attorney during the
State’s closing argument that Defendant was a member of a
gang, the outcome of the underlying case at the trial level
would not have been different had the objections been made.
Bouchard, 922 So. 2d at 430-31. Therefore, even if trial
counsel’s performance was deficient as alleged in
Defendant’s Ground 4c, trial counsel cannot be found to have
been ineffective because Defendant cannot demonstrate
prejudice pursuant to Strickland. Accordingly, the claims
asserted by Defendant in Ground 4c are without merit.
Exh. 11 at 4. The appellate court per curiam affirmed the postconviction court’s order.
Exh. 16.
The Court finds that the State court’s denial of postconviction relief did not result
in a decision that was “contrary to, or involved an unreasonable application of” Strickland,
or “in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented” in the State court. Evidence was presented during the victim’s
testimony that Petitioner was a gang member. Thus, the prosecuting attorney’s brief
statement during closing argument that Petitioner was a gang member was a comment
on evidence the jury already heard. Moreover, there was overwhelming evidence of
Petitioner’s guilt including testimony from the victim, who saw Petitioner shoot him, and
another witness who was outside of the grocery store when the shooting occurred. See
generally Exh. 1, Vol. 4, T. 282-83; Vol. 3, T. 167) (victim testimony); Exh. 1, Vol. 2 at

- 19 -

175, 192, 195, 197-98 (second eyewitness testimony).

The postconviction court’s

decision was not contrary to, nor an unreasonable application of Strickland.

Petitioner

is denied relief on Ground Four.
ACCORDINGLY, it is hereby
ORDERED:
1. The Florida Attorney General is dismissed from this action.
2. The Petition for Writ of Habeas Corpus (Doc. #1) is DENIED for the reasons
set forth herein.
3.

The Clerk of Court shall terminate any pending motions, enter judgment

accordingly, and close this case.
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 omitted).

Petitioner has not made the requisite showing in these

- 20 -

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 1st day of March, 2017.

FTMP-1
Copies: All Parties of Record

- 21 -