Sepulveda v. Secretary, Department of Corrections et al
Filing
17
OPINION AND ORDER dismissing the Florida Attorney General as a named respondent; denying 1 Petition for writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 8/10/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL J. SEPULVEDA,
Petitioner,
v.
Case No: 2:14-cv-73-FtM-29MRM
SECRETARY,
DEPARTMENT
OF
CORRECTIONS
and
ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court upon a petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2254 by Michael J.
Sepulveda (“Petitioner”) who is presently confined at the Hamilton
Correctional Institution in Jasper, Florida (Doc. 1, filed January
21, 2014).
Petitioner, proceeding pro se, attacks the conviction
and sentence entered by the Twentieth Judicial Circuit Court in
Lee County, Florida for capital sexual battery.
filed a response to the petition (Doc. 9).
Id.
Respondent
Petitioner filed a
reply (Doc. 15).
1
When a 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.
Petitioner
However,
in
his
raised
reply,
two
claims
Petitioner
in
his
admits
original
that
petition.
Claim
Two
is
unexhausted because he did not appeal the post-conviction court’s
denial of the claim (Doc. 15 at 1).
Petitioner stated that he
“hereby voluntarily abandons ground two of his original § 2254
Petition and asks the court to consider his original petition as
if filed based only upon Ground (1).”
will not be further considered.
Id.
Accordingly, Claim Two
After a review of the record, the
Court concludes that Petitioner is not entitled to relief on Claim
One.
Therefore, 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.
Background and Procedural History
On May 16, 2006, Petitioner was charged by information with
one count of capital sexual battery on a child less than 12 years
of age, contrary to Florida Statute § 794.011(2) (Ex. 1, Vol. 1 at
7). 2
A trial was held on October 1-2, 2008 (Ex. 2).
During the trial, it came to the court’s attention that a
juror who had been peremptorily stricken by the state was sitting
2
References to exhibits and volumes are to those filed by
Respondent on July 9, 2014 (Doc. 12).
- 2 -
on the jury (Ex.3, Vol. II at 207). 3
The judge told Petitioner
that “[W]e do have an alternate that everybody agreed on, so you
have choices.
You can move for a mistrial and you may very well
get it right now and just be doing this all over again in front of
Judge Shoonover next week exactly the same time. . .
[o]r we can
excuse [the incorrect juror] and use the alternate and we’ll still
have six.” Id.
After consulting with Petitioner, counsel made a
motion for a mistrial, which was granted.
Id. at 209, 210.
Prior to jury selection at Petitioner's retrial, defense
counsel asserted that retrial was barred by double jeopardy (Ex.
2, Vol. 1 at 5).
The retrial court pondered why neither defendant
nor the state had pointed out to the first trial court, prior to
the
commencement
empaneled.
of
trial,
Id. at 8.
that
an
incorrect
juror
had
been
The retrial court determined that the first
court had reason for granting the mistrial and that jeopardy had
not attached.
Id.
After the second trial, Petitioner was found
guilty and sentenced to life in prison (Ex. 1, Vol. V at 72).
On direct appeal, Petitioner argued that the trial court
violated his right against double jeopardy by conducting a second
3
The court explained it to the parties as follows:
“Apparently the bailiff went out in the hall to get the people and
I gave him the names and he came back with somebody different than
what we gave him; that’s what I understand.” (Ex. 2, Vol II at
209-10).
- 3 -
trial after his first trial ended in a mistrial (Ex. 4).
Florida’s
Second District Court of Appeal per curiam affirmed (Ex. 6).
Petitioner filed a motion and an amended motion pursuant to
Rule
3.850
of
the
Florida
Rules
of
Criminal
Procedure
(collectively, “Rule 3.850 motion”), raising multiple claims of
ineffective assistance of counsel (Ex. 8; Ex. 12).
After an
evidentiary hearing, the post-conviction court denied the claims
(Ex. 14).
Petitioner did not appeal the denial of his Rule 3.850
motion (Doc. 1 at 5).
Petitioner
filed
the
instant
federal
habeas
petition
on
January 21, 2014 (Doc. 1).
II.
Governing Legal Principles
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).
to meet.
This standard is both mandatory and difficult
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
- 4 -
the
merits
which
warrants
deference.
2008).
Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir.
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); 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
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)).
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
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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 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.
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
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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] statecourt 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)).
III. Analysis
Petitioner asserts that the trial court violated his right
against double jeopardy by conducting a second trial after his
first one ended in a mistrial (Doc. 1 at 28-29).
Petitioner argues
that, although he moved for the mistrial (which would generally
preclude him from asserting that double jeopardy barred a retrial), prosecutorial or judicial misconduct provoked him into
doing so.
Id. at 29 (citing Oregon v. Kennedy, 456 U.S. 667, 673
- 7 -
(1982)).
Petitioner
also
asserts
that
the
inclusion
of
the
excused juror was not “so earth shaking an event as to make it
IMPOSSIBLE [to] conduct a fair trial or reach a fair verdict.”
Id. (emphasis in original). Petitioner raised this claim on direct
appeal (Ex. 4), but it was rejected by the appellate court (Ex.
6).
The Fifth Amendment provides that no person shall “be subject
for the same offence to be twice put in jeopardy of life or limb[.]”
U.S. Const. Amend. V.
The Double Jeopardy Clause protects a
criminal defendant from repeated prosecution for the same offense.
Kennedy, 456 U.S. at 671 (citing United States v. Dinitz, 424 U.S.
600, 606 (1976)).
The Double Jeopardy Clause clearly bars the re-
prosecution of a criminal defendant on the same charges after a
judgment of conviction or acquittal.
U.S. 332, 342-43 (1975).
United States v. Wilson, 420
However, the Clause “does not offer a
guarantee to the defendant that the State will vindicate its
societal interest in the enforcement of the criminal laws in [only]
one proceeding.”
When
defendant,
a
Kennedy, 456 U.S. at 672.
trial
double
is
terminated
jeopardy
bars
over
the
re-trial
“manifest necessity” for the jury’s discharge.
objection
unless
of
the
there
was
See United States
v. Perez, 22 U.S. 579, 280 (1824) (“We think, that in all cases of
this nature, the law has invested Courts of justice with the
authority to discharge a jury from giving any verdict, whenever,
- 8 -
in their opinion, taking all the circumstances into consideration,
there is a manifest necessity for the act, or the ends of public
justice would otherwise be defeated.”).
However, the United
States
Supreme
defendant
has
Court
has
concluded
that
in
cases
sought
the
mistrial,
“the
‘manifest
where
the
necessity’
standard has no place in the application of the Double Jeopardy
Clause.”
Kennedy, 456 U.S. at 672; United States v. Scott, 437
U.S. 82, 93 (1978) (recognizing that a defendant’s motion for a
mistrial constitutes “a deliberate election on his part to forgo
his valued right to have his guilt or innocence determined by the
first trier of fact.”); United States v. Tateo, 377 U.S. 463, 467
(1964) (“If Tateo had requested a mistrial on the basis of the
judge’s comments, there would be no doubt that if he had been
successful, the Government would not have been barred from retrying
him.”) (emphasis in original).
In the instant case, defense
counsel moved for a mistrial upon learning that a juror had been
improperly impaneled (Ex. 3, Vol. I at 60).
Petitioner asserts that there is an exception to the general
rule that retrial is not barred by double jeopardy when the
defendant moves for a mistrial (Doc. 15 at 2).
Specifically, he
urges that the trial court’s conduct was intended to provoke him
into moving for a mistrial:
[T]he court, on its own initiative brought up
and pursued the issue, which led to the
granting of the Motion for Mistrial.
The
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court provided the petitioner with an either
or choice without any input from either
counsel.
The court failed to explore all
possibilities, which could have led to the
continuation of trial.
The court failed to
establish a manifest necessity for granting a
mistrial. The court failed to make clear why
it was impossible for the jury, as selected
and accepted by all parties concerned, to
reach a fair verdict. The court effectively
goaded the Petitioner into moving for a
mistrial.
It is obvious from the remarks made by the
court that prior to bringing the situation to
the attention of the concerned parties the
court had already decided that double jeopardy
would not attach to a Motion for Mistrial in
this case. The court in the second trial also
ruled that double jeopardy did not attach, as
brought up by Respondent. In neither case did
either court give any kind of factual or legal
reason
for
this
assumption/ruling.
The
ruling/assumption was made in both [trials]
arbitrary and without supporting rule, law, or
case law being stated for the record.
Id. at 3 (internal citations to the record omitted).
Indeed, the
Supreme Court has found that “where the governmental conduct in
question is intended to ‘goad’ the defendant into moving for a
mistrial[,] a defendant [may] raise the bar of double jeopardy to
a second trial after having succeeded in aborting the first on his
own motion.”
Kennedy, 456 U.S. at 676.
However, a review of the
record does not support a conclusion that the Kennedy exception
applies in Petitioner's case.
When the first trial court became aware that an excused juror
sat through a portion of the trial, the court explained the
- 10 -
situation to the parties (Ex. 3, Vol. II at 207).
The court told
defendant that he could move for a mistrial “and you may very well
get it right now” or he could excuse the mistakenly empaneled juror
and
use
the
alternate
juror
instead.
Id.
at
208.
After
discussing the situation with Petitioner, counsel stated:
I’ve had an opportunity to speak to Mr.
Sepulveda and at this time we are going to ask
for a mistrial. We are not comfortable going
forward with the alternate we chose, Mr.
Donald, to be on our jury as he is not present
through an oversight.
Id.
At the court’s request, counsel made a formal motion for a
mistrial, which was granted.
Id. at 208-09.
The trial court did not goad Petitioner into moving for a
mistrial.
To the contrary, the court cautioned him against moving
for a mistrial; pointed out that an alternate juror was available;
and noted that the parties were in the same situation as if one of
the jurors had not shown up for trial (in which case the trial
would proceed with the alternate juror) (Ex. 3, Vol. II at 208).
Nevertheless, instead of proceeding with the alternate juror,
Petitioner chose to move for a mistrial.
Even if Petitioner
subjectively felt forced to ask for the mistrial in light of the
bailiff’s mistake in seating the incorrect juror, the Double
Jeopardy Clause applies only where the government intentionally
goaded the defense, not in cases of mistake or carelessness.
There
is no indication that the empanelment of the stricken juror was
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intended to provoke a mistrial request.
See Kennedy, 456 U.S. at
674-75 (clarifying that double jeopardy exception for defendants
who request a mistrial is limited to cases in which the government
actually intended to provoke a mistrial); see also Robinson v.
State, 574 So. 2d 108, 112 (Fla. 1991) (finding that the Kennedy
exception was inapplicable since the prosecutor's misconduct was
not a deliberate attempt to provoke a mistrial and there was no
indication that the prosecutor wanted a mistrial or that a mistrial
would have benefitted the State in any way).
Because Petitioner
has not shown that the bailiff’s mistake was intended to provoke
him into moving for a mistrial, the Kennedy exception is not
applicable.
Fairminded jurists could conclude that the state court’s
adjudication
of
this
established
federal
claim
law
was
nor
determination of the facts.
neither
based
contrary
upon
an
to
clearly
unreasonable
As a result, Petitioner is not
entitled to federal habeas relief on his claim.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.
Certificate of Appealability4
Petitioner is not entitled to a certificate of appealability.
A
prisoner
seeking
a
writ
of
habeas
4
corpus
has
no
absolute
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
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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 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.’”
36
(2003)(citation
Miller–El v. Cockrell, 537 U.S. 322, 335-
omitted).
Petitioner
has
not
made
the
requisite showing in these circumstances.
Because
Petitioner
is
not
entitled
to
a
certificate
of
appealability, he is not entitled to appeal in forma pauperis.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.
The Florida Attorney General is dismissed from this
action.
2.
Petitioner's 28 U.S.C. § 2254 petition is DENIED.
3.
Petitioner is DENIED a certificate of appealability.
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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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
of August, 2015.
SA: OrlP-4
Copies: Michael J. Sepulveda
Counsel of Record
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10th
day
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