Torres v. Secretary, Department of Corrections et al
Filing
15
OPINION AND ORDER dismissing Florida Attorney General; dismissing Claim One of 1 Petition for writ of habeas corpus as unexhausted, or alternatively denying, and denying all other claims. 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 10/27/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAVIER TORRES,
Petitioner,
v.
Case No: 2:14-cv-186-FtM-29CM
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 Javier Torres
(“Petitioner”),
a
prisoner
of
the
Florida
Corrections (Doc. 1, filed March 26, 2014).
Department
of
Petitioner attacks
the conviction entered against him by the Twentieth Judicial
Circuit
Court
in
Lee
County,
Florida
for
manslaughter.
Id.
Respondent filed a response to the petition, arguing that it should
be denied (Doc. 8).
Petitioner filed a reply (Doc. 13), and the
petition is ripe for review.
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.
Petitioner raises four claims in his petition.
Upon due
consideration of the pleadings and the state court record, the
Court concludes that each claim must be either dismissed or denied.
Because the Court may resolve the Petition 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.
Background
On June 26, 2009, the State of Florida charged Petitioner
with manslaughter, in violation of Florida Statute § 782.07(1)
(Ex. 1). 2
A jury found Petitioner guilty as charged (Ex. 2).
On
September 20, 2010, the trial court sentenced Petitioner to fifteen
years in prison (Ex. 4; Ex. 5).
Florida’s Second District Court
of Appeal upheld Petitioner’s conviction and sentence (Ex. 8);
Torres v. State, 73 So. 3d 770 (Fla. 2d DCA 2011).
On September 17, 2012, Petitioner filed a motion for postconviction relief pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (“Rule 3.850 motion”) (Ex. 9).
Each of the
three claims raised in the motion was denied (Ex. 11).
2
Florida’s
Citations to exhibits are to those filed by Respondent on
July 14, 2016 (Doc. 10).
Citations to the trial transcript,
located in Exhibit 2, will be cited as (T. at __).
- 2 -
Second District Court of Appeal affirmed per curiam (Ex. 12);
Torres v. State, 138 So. 3d 450 (Fla. 2d DCA 2013).
Florida filed the instant petition on March 14, 2014 (Doc.
1).
II.
A.
Legal Standards
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).
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
deference.
2008).
as
an
adjudication
on
the
merits
which
warrants
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).
- 3 -
“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,
- 4 -
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,
Williams, 529 U.S. at 406).
234
F.3d
at
531
(quoting
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
- 5 -
petitioner bears “the burden of rebutting the presumption of
correctness
by
clear
and
convincing
evidence.”
28
U.S.C.
§
2254(e)(1); Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“a
decision adjudicated on the merits in a state court and based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence presented
in the state-court proceeding”) (dictum);
Burt v. Titlow, 134 S.
Ct. 10, 15-16 (2013) (same).
B.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a
two-part
test
entitled
to
for
relief
determining
on
the
whether
ground
that
a
convicted
his
person
counsel
ineffective assistance. 466 U.S. 668, 687-88 (1984).
is
rendered
A petitioner
must establish that counsel’s performance was deficient and fell
below
an
objective
standard
of
reasonableness
and
deficient performance prejudiced the defense. Id.
that
the
This 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, 563 U.S. 170
(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
- 6 -
within the wide range of reasonable professional assistance[.]”
Id. at 689.
“prove,
by
Indeed, the petitioner bears the heavy burden to
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.
is
“a
probability
sufficient
to
A reasonable probability
undermine
confidence
in
the
outcome.” Strickland, 466 U.S. at 694.
C.
The
AEDPA
Exhaustion and Procedural Default
precludes
federal
courts,
absent
exceptional
circumstances, from granting habeas relief unless a petitioner has
exhausted
all
means
of
available
- 7 -
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 and 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
- 8 -
claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th
Cir. 1994).
A petitioner can avoid the application of procedural default
by establishing objective cause for failing to properly raise the
claim
in
state
court
and
actual
prejudice
from
the
alleged
constitutional violation. Spencer v. Sec'y, Dep't of Corr., 609
F.3d 1170, 1179–80 (11th Cir. 2010). To show cause, a petitioner
“must demonstrate that some objective factor 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);
Murray v. Carrier, 477 U.S. 478 (1986).
To show prejudice, a
petitioner must demonstrate there is a reasonable probability the
outcome of the proceeding would have been different. Crawford v.
Head, 311 F.3d 1288, 1327–28 (11th Cir. 2002).
A 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[.]”
478, 479-80 (1986).
Actual innocence means factual innocence, not
legal insufficiency.
(1998).
Murray v. Carrier, 477 U.S.
Bousley v. United States, 523 U.S. 614, 623
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).
“To be credible, a claim of actual innocence
- 9 -
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
In his brief on direct appeal, Petitioner summarized the facts
surrounding his arrest and trial as follows:
Appellant was charged by information on June
26, 2009 with one count of manslaughter. The
information alleged that “between January 30,
2009 and January 31, 2009,” [Petitioner]
killed Cindy Lynn Warner by “blunt force
trauma and/or strangulation, contrary to
Florida Statute 782.07(1).”
The record
establishes that Appellant and Ms. Warner were
living
together,
and
had
two
children
together. According to witness testimony at
the trial, on the evening of January 30, 2009,
there were several people gathered at the home
of Appellant and Ms. Warner.
Ms. Warner's
nephew, Daniel Massey, testified that on the
night of January 31, 2009, he slept on a love
seat outside of the bedroom occupied by
[Petitioner] and Ms. Warner.
Mr. Massey
testified that [Petitioner] and Ms. Warner
went to bed on the night of January 30, 2009,
and that he was told by another occupant of
the home sometime the following morning that
[Petitioner] had tried to wake up Ms. Warner
and discovered that she was dead. On crossexamination, Mr. Massey answered in the
negative when asked whether he “heard any
commotion from the bedroom” that night while
he was outside of the bedroom occupied by
[Petitioner] and Ms. Warner.
Witnesses also testified at the trial that Ms.
Warner had consumed cocaine and Oxycontin on
January 30.
In addition, the medical
examiner, Dr. Rebecca Hamilton, testified that
the toxicology report conducted on Ms. Warner
showed that she had taken anti-depressants
(Citalopram
and
Trazadone),
cocaine,
- 10 -
Oxycodone, and a benzodiazepine (Estazolam).
Dr. Hamilton also testified that the Oxycodone
level
in
Ms.
Warner's
blood
was
.408
milligrams
per
liter,
which
was
a
“significant” level, as Dr. Hamilton had
observed cases in which doses of Oxydonon
[sic] from .2 to 5 milligrams per liter had
been lethal.
Dr. Hamilton acknowledged on
cross-examination that this toxicology taken
alone, without anything else, would be
consistent with death due to the effects of
several drugs, and that if the autopsy had
only shown this toxicology and nothing else,
she would “possibly conclude” that Ms. Warner
dies as a result of the drugs. Dr. Hamilton
also agreed with the statement by Appellant's
counsel that the “drugs taken alone could be
consistent with a death due to basically a
drug overdose” if everything else is ruled
out.
Notwithstanding the toxicology, Dr. Hamilton
testified that she concluded the cause of Ms.
Warner's death to be strangulation. This was
due to Dr. Hamilton's observation of what she
referred to as “hemorrhages on both sides of
[Ms. Warner's] neck on the strap muscles.”
Dr. Hamilton also testified that she observed
petechial, however, she stated that the
petechial were “very faint.”
(Ex. 6 at 2-3) (internal citations to the record omitted).
Petitioner now raises four claims in his federal habeas
petition (Doc. 1). 3
He asserts that: (1) the trial court erred by
failing to give a special jury instruction as to causation (Claim
One); (2) trial counsel (Counsel) was ineffective for misadvising
him that his criminal background would be revealed to the jury if
3
Petitioner raised the issues of Claims Two through Four in
a single claim of ineffective assistance of Counsel (Doc. 1). For
clarity, the Court will label and address each ineffective
assistance claim separately.
- 11 -
he chose to testify (Claim Two); (3) trial counsel was ineffective
for failing to request a jury instruction on lesser included
offenses
(Claim
Three);
and
(4)
trial
counsel
made
only
a
boilerplate motion for judgment of acquittal (Claim Four). Id. at
5-10. Each claim will be separately addressed.
A.
Claim One
Petitioner asserts that the trial court erred by failing to
give a special jury instruction on causation (Doc. 1 at 5).
Specifically, he urges that such an instruction would have caused
the jury to conclude that the victim had died of a drug overdose,
or
alternatively,
that
“Petitioner's
actions
substantial factor in Ms. Warner's death.” Id.
were
not
a
Petitioner raised
this claim on direct appeal where it was denied without a written
opinion by Florida’s Second District Court of Appeal (Ex. 8).
Respondent urges that any constitutional aspect of Claim One
is unexhausted because it was raised only as an issue of state law
in state court (Doc. 8 at 4-5).
Alternatively, Respondent notes
that “Petitioner's state-law based claim is not cognizable [on
federal habeas review] and Petitioner is entitled to no relief.”
Id. at 5-6.
Indeed, the sole argument in Petitioner’s brief on
direct appeal was whether the trial court erred under Eversley v.
State, 748 So. 2d 963 (Fla. 1999) when it failed to give a special
jury instruction on causation (Ex. 6).
- 12 -
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
(internal citations omitted).
1291,
1302–03
(11th
Cir.
2005)
As part of such a showing, the
claim presented to the state courts “must include reference to a
specific federal constitutional guarantee, as well as a statement
of the facts that entitle the petitioner to relief.” Reedman v.
Thomas,
305
F.
App’x
544,
545–46
(11th
Cir.
2008)
(internal
citation omitted).
Petitioner’s brief on direct appeal did not suggest that he
raised a claim of constitutional dimension; nor does he do so in
the instant petition.
Because Petitioner did not show how this
particular claim implicated due process concerns in his brief on
appeal, Petitioner’s challenge to the state court’s denial of Claim
One is unexhausted. Petitioner does not satisfy (or even allege)
- 13 -
the cause and prejudice, or fundamental miscarriage of justice
exceptions to overcome the procedural default of this claim.
Florida’s procedural rules and time limitations preclude a second
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, Petitioner's claim is due to be
dismissed.
Even had Petitioner properly exhausted this claim, he is not
entitled to 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.”).
First, to
the extent Petitioner now argues that the trial court violated
Florida law when it failed to read a special jury instruction on
causation, the claim must fail.
“In conducting habeas review, a
federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle
v. McGuire, 502 U.S. 62, 68 (1991); see also 28 U.S.C. § 2254(a).
Accordingly, the Court may not grant habeas relief based on an
alleged error in the interpretation or application of state law.
Estelle, 502 U.S. at 68; Dugger v. Adams, 489 U.S. 401, 409 (1989)
(“[T]he availability of a claim under state law does not of itself
establish that a claim was available under the United States
Constitution.”).
- 14 -
Next,
even
assuming
arguendo
that
Petitioner
raises
a
cognizable federal claim, he must show that the state trial court’s
failure to read the instruction so infected the entire trial that
his resulting conviction for manslaughter violated due process.
Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
The Court does not judge the
allegedly erroneous instruction “in artificial isolation,” but
considers the instruction in the context of the trial record and
the jury instructions as a whole. Henderson, 431 U.S. at 152 n. 10
(citing Boyd v. United States, 271 U.S. 104, 107 (1926)).
Further,
“[a]n omission, or an incomplete instruction, is less likely to be
prejudicial than a misstatement of the law.” Henderson, 431 U.S.
at 154.
Accordingly, where, as here, the alleged error is an
omitted instruction, the burden on the petitioner is “especially
heavy.” Id.
The
trial
court
instructed
the
jury
on
manslaughter
follows:
To prove the crime of manslaughter, the State
must prove the following two elements beyond
a reasonable doubt:
One, Cindy Lynn Warner
is dead. And two, Javier Torres' acts caused
the death of Cindy Lynn Warner or the death of
Cindy Lynn Waner was caused by the culpable
negligence of Javier Torres.
. . .
I will now define culpable negligence for you.
Each of us has a duty to act reasonably towards
others. If there is a violation of that duty,
without any consideration intention of harm,
that violation is negligence.
But culpable
- 15 -
as
negligence is more than a failure to use
ordinary care toward others.
In order for
negligence to be culpable, it must be gross
and flagrant. Culpable negligence is a course
of conduct showing reckless disregard of human
life or the safety of persons exposed to its
dangerous effects, or such an entire want of
care as to raise a presumption of a conscious
indifference to consequences, or which shows
wantonness or recklessness, or a grossly
careless disregard for the safety and welfare
of the public, or such an indifference to the
rights of others as is equivalent to an
intentional violation of such rights.
The negligent act or omission must have been
committed with an utter disregard for the
safety of others.
Culpable negligence is
consciously doing an act or following a course
of conduct that the Defendant must have known,
or reasonably should have known, was likely to
cause death or great bodily injury.
(T. at 319-21).
Petitioner now appears to argue that an additional
instruction should have been read informing the jurors that, if
they concluded that the victim died of a drug overdose instead of
strangulation,
manslaughter. 4
Petitioner
could
not
be
found
guilty
of
However, this is precisely what the trial court
4
Petitioner does not apprise the Court of the special
instruction on causation he believes the trial court should have
read to the jury. In Eversley, the case cited by Petitioner in
the instant petition, the Florida Supreme Court explained that
there are two components to causation:
Causation consists of two distinct subelements. As legal scholars have recognized,
before a defendant can be convicted of a crime
that includes an element of causation, the
State must prove beyond a reasonable doubt
that the defendant's conduct was (1) the
“cause in fact” and (2) the “legal cause”
- 16 -
told the jury when it instructed that, in order to find Petitioner
guilty of manslaughter, it must find that “Javier Torres' acts
caused the death of Cindy Lynn Warner or the death of Cindy Lynn
Warner was caused by the culpable negligence of Javier Torres.”
(T. at 319).
Had the jury determined that the victim died of a
drug overdose and not from strangulation, as Counsel strenuously
argued during closing (T. at 313), the jury could not have found
him guilty of manslaughter.
When viewed in the context of the trial as a whole, Petitioner
has not met his heavy burden of showing that the trial court’s
failure to read a special instruction on causation violated due
process.
Claim One was neither contrary to, nor based upon an
(often called
relevant harm.
“proximate
cause”)
of
the
In order to establish that a defendant's
conduct was the “cause in fact” of a
particular harm, the State usually must
demonstrate that “but for” the defendant's
conduct, the harm would not have occurred. A
defendant
can
rebut
this
showing
by
demonstrating that the harm would have
occurred in any event, regardless of the
defendant's conduct.
Id. at 966-67 (citations omitted).
Presumably, Petitioner
believes that a special instruction would have led to an acquittal
by allowing the jury to find that the victim would have died from
a drug overdose even had she not been strangled. In other words,
Petitioner urges that the jury would not have found him to be the
“cause-in-fact” of the victim’s death due to the presence of drugs
in the her system at the time of her death. However, no evidence
was presented at trial that drugs caused the victim’s death or
that she would not have died in the absence of the drugs.
- 17 -
unreasonable
application
of,
Henderson
or
any
other
clearly
established federal law. In addition to being unexhausted, Claim
One is denied on the merits. 28 U.S.C. § 2254(d).
B.
Claim Two
Petitioner asserts that Counsel was ineffective for advising
him that, if he testified, “every aspect of his criminal background
would be revealed to the jury on cross-examination[.]” (Doc. 1 at
7).
Petitioner states that, had he known the jury would not have
learned the details of his prior convictions for grand theft,
burglary, and drug related offenses, he would have testified that:
the victim suffered from migraine headaches for which she took
prescription pain medication; at some time prior to her death, the
victim fell backwards and injured the back of her head and neck;
the victim took an oxycodone pill that was not prescribed shortly
before going to bed on January 30, 2009; and Petitioner found the
victim lying dead on the bed on January 31, 2009.
asserts
that
Examiner’s
this
testimony
testimony
that
would
the
have
victim’s
refuted
death
Petitioner
the
was
Medical
caused
by
strangulation. Id. at 8.
Petitioner raised this claim in his Rule 3.850 motion, and
the post-conviction court denied the claim without an evidentiary
hearing because he had not demonstrated Strickland prejudice:
While in many cases resolution of this type of
claim requires an evidentiary hearing, if an
interference claim is only supported by the
defendant's declaration of innocence, the
- 18 -
claim may be denied without a hearing. Jackson
v. State, 711 So. 2d 1371, 1373 (Fla. 4th DCA
1998). Furthermore, in this case the jury had
an opportunity to review a recording of
Defendant's extensive statement to the police
concerning the circumstances of the victim's
death and his denial that he strangled her.
In addition, on cross examination of Dr.
Hamilton, defense counsel was able to illicit
the fact that the victim ingested drugs
through the discussion of the results of the
autopsy.
Therefore, Defendant cannot show
how he was prejudiced by not testifying to
facts that were already presented to the jury.
Oisorio v. State, 676 So. 2d 1363, 1364 (Fla.
1996). Moreover, it was stated on the record
that Defendant was to testify, but after the
State's case was presented, which included
Defendant's lengthy statement, Defendant and
counsel decided it was in Defendant's best
interest not to testify.
(Ex. 11 at 2-3).
Florida’s Second District Court of Appeal
affirmed the post-conviction court’s rejection of Claim Two (Ex.
12).
of
Petitioner does not explain how the state court’s rejection
Claim
Two
was
contrary
to
Strickland
unreasonable determination of the facts.
supports
the
state
courts’
conclusion
or
based
upon
an
A review of the record
that
Petitioner
cannot
demonstrate prejudice from his decision not to testify.
During his trial, the state played the tapes of Petitioner’s
police interviews to the jury (T. at 191-94; Ex. 14).
In those
tapes, Petitioner told police that the victim had used cocaine and
taken OxyContin prior to going to bed (Ex. 14 at 9, 11, 12, 13,
15, 27, 29, 56, 63, 82).
He told police that the victim suffered
from migraine headaches and blurred vision. Id. at 12, 13, 15, 68.
- 19 -
The medical examiner testified that the victim had a significant
amount of drugs in her system when she died (T. at 262-65).
Petitioner repeatedly told the police that he had not harmed the
victim (Ex. 14).
Accordingly, most of the testimony Petitioner
asserts he would have given at trial was cumulative to that already
heard by the jury.
See Rose v. McNeil, 634 F.3d 1224, 1243 (11th
Cir. 2011) (“Obviously, a petitioner cannot satisfy the prejudice
prong
of
the
Strickland
test
with
evidence
that
is
cumulative of evidence already presented at trial.”).
merely
To the
extent Petitioner believes he could have contradicted his prior
statements to the police by making different, more favorable,
statements at trial, it is reasonable for counsel to believe
Petitioner’s
self-serving
testimony
would
have
had
little
credibility with the jury given Petitioner’s motivation to lie and
the evidence against him.
The state court’s determination that Petitioner cannot show
prejudice
from
his
failure
to
testify
at
trial
was
not
so
unjustified that it “was an error well understood and comprehended
in
existing
law
beyond
any
possibility
for
disagreement.” Harrington, 131 S. Ct. at 786-87.
fairminded
Accordingly,
Claim Two is denied pursuant to 28 U.S.C. § 2254(d).
C.
Claim Three
Petitioner asserts that Counsel was ineffective for failing
to request a jury instruction on lesser included offenses (Doc. 1
- 20 -
at 8).
He asserts that the jury should have been instructed on
aggravated battery, felony battery, and/or aggravated assault as
lesser included offenses to his manslaughter charge. Id. at 9.
Petitioner raised this claim in his Rule 3.850 motion, and the
trial court denied the claim on the ground that it lacked merit:
This allegation is without merit. When a
defendant is charged with a homicide, it is
improper to instruct the jury on a nonhomicide lesser included offense where the
defendant disclaims all criminal culpability
in the death of the victim. Humphrey v. State,
690 So. 2d 1351, 1353 (Fla. 3d DCA 1997). If
the jury believed that Defendant was not
culpable for the victim's death, the jury
would have the duty to acquit Defendant and
not find him guilty of a lesser included
offense. Humphrey at 1353. Moreover, as a
matter of law, even the failure to give an
instruction on a lesser included offense as a
possibility of a jury pardon cannot form the
basis for a finding of prejudice under
Strickland pursuant to rule 3.850. See State
v. Young, 932 So. 2d 1278 (Fla. 2d DCA 2006);
Sanders v. State, 946 So. 2d 953 (Fla. 2006).
(Ex. 3 at 3).
the
Florida’s Second District Court of Appeal affirmed
post-conviction
court’s
denial
of
this
claim
(Ex.
12).
Petitioner does not explain how the state courts’ conclusions were
contrary
to,
Strickland.
or
based
upon
an
unreasonable
application
of,
Nor does he assert that the conclusions were based
upon an unreasonable determination of the facts.
To the contrary,
a review of applicable state law supports the post-conviction
court’s denial of Claim Three.
- 21 -
The Florida Supreme Court has reasoned that in cases where
“death is not an issue, no rational purpose would be served by
instructing on” lesser included offenses. State v. Barrit, 531 So.
2d 338, 339 (Fla. 1988); see also Martin v. State, 342 So. 2d 501,
503 (Fla. 1977) (“[W]here a homicide has taken place, the proper
jury
instructions
are
restricted
to
all
degrees
of
murder,
manslaughter, and justifiable and excusable homicide.”).
The
Martin court noted that, when “an unlawful homicide has occurred,
[the
jury]
must
then
determine
manslaughter is involved.
what
degree
of
murder
or
Whether an aggravated assault occurred
as part of a crime that culminated in the death of the victim is
patently immaterial.” Martin, 342 So. 2d at 502-03.
Given the law
on this issue, reasonable counsel could have decided against asking
for a lesser-included jury instructions.
Therefore, Petitioner
has not satisfied the first Strickland ineffectiveness prong.
Moreover, it was not disputed that the victim was dead. If the
jury determined that Plaintiff had not strangled her, the jury
would have been required to return an acquittal, not a lesserincluded
prejudice
conviction.
from
instruction.
As
Counsel’s
a
result,
failure
to
Petitioner
seek
the
cannot
show
lesser-included
Claim Three fails to satisfy either prong of the
Strickland ineffectiveness test and is denied pursuant to 28 U.S.C.
§ 2254(d).
- 22 -
D.
Claim Four
Petitioner asserts that Counsel was ineffective for making
only a “perfunctory” motion for judgment of acquittal (Doc. 1 at
9).
Specifically, he argues that Counsel “failed to identify what
aspect of the evidence was insufficient or even state which element
was lacking in proof.” Id. Petitioner raised this claim in his
Rule 3.850 motion, and the post-conviction court denied it based
on the fact that Petitioner had not shown that “a more artfully
presented motion based on the evidence presented against him at
trial” would have been successful (Ex. 3 at 3) (citing Neal v.
State, 854 So. 2d 666, 670 (Fla. 2d DCA 2003)).
The post-
conviction court further determined that the motion for judgment
of acquittal did not have a “likelihood of success.” Id. at 4.
Florida’s Second District Court of appeal affirmed (Ex. 12).
Petitioner does not explain how the state courts’ conclusions were
contrary
to,
Strickland.
or
based
upon
an
unreasonable
application
of,
Nor does he assert that the conclusions were based
upon an unreasonable determination of the facts.
A review of
applicable state law supports the post-conviction court’s denial
of Claim Four.
Under Florida law, a motion for a judgment of acquittal is
designed
to
test
the
sufficiency
of
the
evidence
against
defendant. Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993).
a
A
trial court may not grant a motion for a judgment of acquittal
- 23 -
“unless the evidence is such that no view which the jury may
lawfully
take
of
it
favorable
to
the
opposite
party
can
be
sustained under the law.” Miller v. State, 782 So. 2d 426 (Fla. 2d
DCA 2001) (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)).
The party moving for a judgment of acquittal admits the facts
adduced in evidence and every conclusion favorable to the state
which is fairly and reasonably inferable therefrom. Spinkellink v.
State, 313 So. 2d 666, 670 (Fla. 1975).
If the state has produced
competent evidence to support every element of a crime, a judgment
of acquittal is not proper. Gay v. State, 607 So. 2d 454, 457 (Fla.
1st DCA 1992).
Under
Florida
Statute
§
782.07(1),
manslaughter
is
the
unlawful “killing of a human being by the act, procurement, or
culpable negligence of another” which is not excusable homicide or
murder.
At Petitioner’s trial, the medical examiner testified
that the victim was dead and had died from strangulation (T. at
257).
bedroom
Testimony was presented that the victim went into her
with
Petitioner,
and
that
no
other
adult
except
for
Petitioner entered the bedroom on the night the victim died (T. at
158-60).
Therefore,
viewing
the
evidence
in
the
light
most
favorable to the state, competent evidence was produced at trial
to prove each element of a manslaughter charge.
Although Counsel
did make only an admittedly “boilerplate” motion for a judgment of
acquittal at the close of the state’s case (T. at 277), his
- 24 -
performance was not deficient for failing to make a more complete
motion because he had no grounds on which to do so. Rasheed v.
Smith, 221 F. App’x 832, 836 (11th Cir. 2007) (failure to file a
motion which would be futile is not deficient performance of
counsel under Strickland).
Claim Four fails to satisfy the first
prong of Strickland, and is denied.
Any of Petitioner's allegations not specifically addressed
herein have been found to be without merit.
IV.
Certificate of Appealability Pursuant to 28 U.C.S. §
2253(c)(1) 5
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 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
5
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.” As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether he is entitled to a certificate of
appealability.
- 25 -
(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 v. Cockrell, 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 may not appeal in forma pauperis.
Therefore, it is now ORDERED AND ADJUDGED:
1.
The Florida Attorney General is dismissed from this
action.
2.
Claim One of Petitioner’s 28 U.S.C. § 2254 petition is
DISMISSED as unexhausted, or alternatively, DENIED. Each remaining
claim is DENIED.
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 _27th_ day of
October, 2016.
SA: OrlP-4
Copies: Javier Torres
Counsel of Record
- 26 -
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