Espinosa-Montes v. Secretary, DOC et al
Filing
12
OPINION AND ORDER dismissing Florida Attorney General as a respondent; denying Claim One, dismissing Claims Two and Three as unexhausted, and alternatively denying Claim Three re: 1 Petition for writ of habeas corpus. A certificate of appealability is denied. The Clerk shall enter judgment accordingly and close the case. Signed by Judge John E. Steele on 6/2/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MIGUEL ESPINOSA-MONTES,
Petitioner,
v.
Case No: 2:15-cv-78-FtM-29MRM
SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents. 1
OPINION AND ORDER
This matter comes before the Court on a petition for habeas
corpus
relief
filed
pursuant
to
28
U.S.C.
§
2254
by
Miguel
Espinosa-Montes (“Petitioner” or “Espinosa-Montes”), a prisoner of
the Florida Department of Corrections (Doc. 1, filed February 9,
2015).
Espinoza-Montes,
proceeding
pro
se,
attacks
the
convictions and sentences entered against him by the Twentieth
Judicial
Circuit
Court
in
Lee
County,
Florida
imprisonment and attempted sexual battery. Id.
a response to the petition (Doc. 8).
for
false
Respondent filed
Espinoza-Montes filed a
reply (Doc. 11), and the matter is now 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.
Upon due consideration of the pleadings and the state court
record, the Court concludes that each claim must be dismissed or
denied.
Because the petition is resolved on 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 2
On July 9, 2009, the State of Florida charged Espinoza-Montes
by amended information with kidnaping, in violation of Florida
Statute § 787.01 (count one), and attempted sexual battery with a
deadly weapon, in violation of Florida Statute §§ 794.011(3) and
777.04 (count two).
After a three-day trial, the jury found
Espinoza-Montes guilty of the lesser-included offense of false
imprisonment in count one and guilty as charged in count two (Ex.
3).
The trial court sentenced Espinoza-Montes to an enhanced
sentence of twenty-five years in prison on count two, and to a
concurrent sentence of five years in prison on count one (Ex. 3).
Florida’s Second District Court of Appeal affirmed Petitioner’s
convictions, but remanded for resentencing because the trial court
was not authorized to enhance the sentence on count two.
2
Espinoza-
Unless otherwise indicated, citations to exhibits are to
those filed by Respondent on July 10, 14, 2015 (Doc. 9; Doc. 10).
Citations to the trial transcript, located at exhibit two, will be
cited as (T. at __).
- 2 -
Montes v. State, 113 So. 3d 847 (Fla. 2d DCA 2011).
Espinoza-
Montes was re-sentenced to fifteen years in prison on count two
(Ex. 3).
Florida’s Second District Court of Appeal affirmed (Ex.
6).
On January 15, 2014, Espinoza-Montes filed a motion for postconviction relief pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (“Rule 3.850 motion”) (Ex. 7).
conviction court denied the motion (Ex. 8).
The post-
Florida’s Second
District Court of Appeal affirmed without a written opinion.
Espinoza-Montes v. State, 156 So. 3d 1089 (Fla. 2d DCA 2014).
Espinoza-Montes’ motion for rehearing was denied on November 21,
2014 (Ex. 10).
On February 8, 2015, Espinoza-Montes filed the instant 28
U.S.C. § 2254 petition (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.
- 3 -
28 U.S.C. § 2254(d).
to meet.
This standard is both mandatory and difficult
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
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
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
- 4 -
“contrary to, or an unreasonable application of,” that federal
law. 29 U.S.C. § 2254(d)(1).
A decision is “contrary to” clearly
established federal law if the state court either: (1) applied a
rule that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme Court
when faced with materially indistinguishable facts. Ward v. Hall,
592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540
U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th 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
- 5 -
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.
Notably,
even
when
the
opinion
of
a
lower
state
post-
conviction court contains flawed reasoning, the federal court must
give the last state court to adjudicate the prisoner’s claim on
the merits “the benefit of the doubt.” Wilson v. Warden, Ga.
Diagnostic Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert.
granted Wilson v. Sellers, No. 16-6855, -- S. Ct. ---, 2017 WL
737820 (Feb. 27, 2017).
A state court’s summary rejection of a
claim, even without explanation, qualifies as an adjudication on
the merits which warrants deference.
F.3d 1144, 1146 (11th Cir. 2008).
theories
could
have
supported
Ferguson v. Culliver, 527
Therefore, to determine which
the
state
appellate
court’s
decision, the federal habeas court may look to a state postconviction court’s previous opinion as one example of a reasonable
application of law or determination of fact; however, the federal
court is not limited to assessing the reasoning of the lower court.
Wilson, 834 F.3d at 1239.
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
- 6 -
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
within the wide range of reasonable professional assistance[.]”
Id. at 689.
Indeed, the petitioner bears the heavy burden to
- 7 -
“prove,
by
a
preponderance
of
the
evidence,
that
counsel’s
performance was unreasonable[.]” Jones v. Campbell, 436 F.3d 1285,
1293 (11th Cir. 2006).
A court must “judge the reasonableness of
counsel’s conduct on the facts of the particular case, viewed as
of the time of counsel’s conduct,” applying a “highly deferential”
level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470,
477 (2000) (quoting Strickland, 466 U.S. at 690).
As
to
the
prejudice
prong
of
the
Strickland
standard,
Petitioner’s burden to demonstrate prejudice is high. Wellington
v.
Moore,
314
F.3d
1256,
1260
(11th
Cir.
2002).
Prejudice
“requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687.
That is, “[t]he defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. At 694.
is
“a
probability
sufficient
to
A reasonable probability
undermine
outcome.” Strickland, 466 U.S. at 694.
confidence
in
the
In the guilty plea context,
to show prejudice Petitioner must show that “there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
- 8 -
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
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).
- 9 -
Finally, a federal court must dismiss those claims or portions
of
claims
that
have
been
denied
on
adequate
and
independent
procedural grounds under state law. Coleman, 501 U.S. at 750.
If
a petitioner attempts to raise a claim in a manner not permitted
by state procedural rules, he is barred from pursuing the same
claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th
Cir. 1994).
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).
Murray v. Carrier, 477 U.S.
Actual innocence means factual innocence, not
- 10 -
legal insufficiency.
(1998).
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
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
Florida’s Second District Court of Appeal described the facts
surrounding Espinosa-Montes’ trial as follows:
At trial, the evidence established that the
victim stopped at a restaurant to use the
bathroom around 2 a.m. in May 2009. As she
attempted to leave the stall, an unknown man,
who was later identified as Mr. Espinoza–
Montes, pushed her back into the stall, beat
her, and attempted to rape her. In the
process, while he was behind her, he told her
that he was going to kill her with a knife and
he pressed something against her back. For at
least a brief time, she believed he actually
had a knife, but then she was able to see that
he was only pressing on her back with his
finger. The victim sustained multiple injuries
as a result of being beaten and punched by Mr.
Espinoza–Montes, including an injury that
resulted in a scar on her right arm.
Espinoza-Montes, 113 So. 3d at 847-48.
that:
(1)
defense
counsel
Espinoza-Montes now urges
(“Counsel”)
was
ineffective
for
providing legal advice that lead Petitioner to reject a favorable
plea offer (Claim One); (2) the trial court erred when it refused
- 11 -
to give a jury instruction on the offense of “felony battery”
(Claim Two); and (3) there was insufficient evidence to support
his conviction for attempted sexual battery (Claim Three) (Doc. 1
at 5-8).
Each claim will be addressed separately.
a.
Espinosa-Montes
asserts
Claim One
that
Counsel
was
ineffective
for
providing incorrect advice regarding a five-year plea offer from
the state (Doc. 1 at 5).
Specifically, he asserts that Counsel
advised him that the state would be unable to prove the required
element of intent to commit a sexual battery; that he would not be
found guilty of attempted sexual battery; and that he would only
be subject to five years in prison for the lesser-included offense
of felony battery.
Id.
Espinosa-Montes asserts that, had he
known that “the attorney[’]s legal advise [sic] was incorrect, he
would have accepted the state[’]s favorable plea offer.” (Doc. 1
at 5).
Espinosa-Montes raised this claim in his Rule 3.850 motion,
and the post-conviction court denied it as conclusively refuted by
the record (Ex. 8 at 5).
The post-conviction court pointed to a
portion of a pre-trial hearing in which Espinosa-Montes, Counsel,
and the prosecutor were queried as to whether a plea offer had
been extended.
Id. at 3-4.
Espinosa-Montes affirmed that he had
discussed the plea with his attorney.
Id.
The trial court
cautioned Espinosa-Montes that a jury trial involves risk and that
- 12 -
“the outcome of the jury trial will depend upon the evidence
presented and how the jury evaluates that evidence.”
The
trial
court
asked
Counsel
whether
she
had
Id. at 3.
discussed
the
potential sentence Espinosa-Montes faced if convicted, and she
replied:
Yes, sir.
I’ve discussed the per charge
maximums
as
well
as
concurrent
verses
consecutive.
I’ve discussed the maximum
sentences for the lesser and my best guess
about what would happen, although no one ever
knows what will happen, but we discussed that.
We spent a couple of hours together last week.
We went over all the evidence, all the photos.
He had a packet of discovery, which was huge,
all weekend.
A good portion of it was
pictures, but he has all the statements. He
has reviewed all of that.
Id. at 4 (emphasis added).
The trial court determined that Counsel
had adequately advised Espinosa-Montes that she (Counsel) could
offer only her “best guess” regarding the outcome if he proceeded
to trial.
Id.
The trial court further noted that any argument
from Espinosa-Montes that Counsel provided misadvice to reject an
offer because the state lacked sufficient evidence was “a legally
insufficient postconviction claim.”
Id. (citing Garcia v. State,
21 So. 3d 30 (Fla. 3d DCA 2009) and Millan v. State, 55 So. 3d 694
(Fla. 3d DCA 2011)).
Florida’s Second District Court of Appeal
affirmed without a written opinion. Espinoza-Montes, 156 So. 3d at
1089.
Accordingly, Claim One is exhausted.
The silent affirmance
of the post-conviction court’s ruling is entitled to deference,
- 13 -
and the Court must now determine whether any arguments or theories
could have supported the state appellate court’s decision. Wilson,
834 F.3d at 1235.
Espinosa-Montes
asserts
that
the
post-conviction
court
misapplied the United States Supreme Court rulings in Lafler v.
Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 133
(2012) when they rejected his claim (Doc. 11 at 5). 3
In Lafler,
defense counsel erroneously advised his client that he could not
be convicted for assault with intent to murder because he shot his
victim only below the waist.
Id. at 161.
Thereafter, based upon
this advice, the defendant rejected a favorable plea offer and
proceeded to trial where he was found guilty and received a lengthy
prison sentence.
Id.
The district court determined that defense
counsel was ineffective; granted the petitioner’s habeas petition;
and ordered the state to re-offer the plea deal.
Id.
The United
States Court of Appeals for the Sixth Circuit affirmed.
Id.
Notably, by the time the Supreme Court granted certiorari in
Lafler, the state had conceded that defense counsel’s performance
was deficient, and the only question before the Supreme Court was
how
to
apply
Strickland’s
prejudice
3
test
where
ineffective
Unlike the instant situation, in Frye, defense counsel
completely failed to communicate a favorable plea offer to his
client, and the client eventually was forced to accept a later
plea offer with less-favorable terms. Because it does not apply
to the facts in this case, Frye will not be further discussed by
this Court.
- 14 -
assistance results in the rejection of a plea offer and the
defendant is convicted at the ensuing trial.
Id. at 1384.
Like the petitioner in Lafler, Espinosa-Montes urges that he
received poor advice from Counsel, and that he rejected a favorable
plea offer as a result.
Specifically, he asserts that Counsel
informed him that the state would not be able to prove he had the
requisite intent to commit a sexual battery when he attacked the
victim, and that he would only be found guilty of the lesserincluded offense of felony battery instead of attempted sexual
battery (Doc. 1 at 5).
Although the basic facts in Lafler are
similar to those set forth in Claim One, unlike the petitioner in
Lafler, the state does not now concede that Counsel’s advice to
reject the offer was constitutionally infirm.
Rather, the post-
conviction court determined that Counsel’s performance was not
deficient because she only provided her “best guess” to EspinosaMontes as to how his trial would turn out, and that he was aware
of
this.
Therefore,
before
this
Court
can
consider
whether
Espinosa-Montes can demonstrate prejudice under Lafler, he must
first show that the post-conviction court’s conclusion on this
issue was contrary to, or based upon an unreasonable application
of, Strickland. 28 U.S.C. § 2254(d).
However, a review of the
record supports a conclusion that Counsel’s performance was not
constitutionally deficient.
- 15 -
During her argument on Counsel’s motion for a judgment of
acquittal, Counsel urged that the state had not proven each element
of attempted sexual battery (T. at 405).
Counsel noted that the
only evidence presented at trial showing that the attack was
sexually motivated was the victim’s testimony that the attacker
demanded she remove her pants and that he tried to unbutton her
pants with one hand while holding the victim by the hair with his
other hand.
Id.
Counsel posited that there could be multiple
reasons, other than an intent to sexually batter the victim, for
the attacker to demand that the victim remove her pants.
Id.
Counsel pointed to Rogers v. State, 660 So. 2d 237 (Fla. 1995) and
Ellis v. State, 754 So. 2d 887 (Fla. 5th DCA 2000) to support her
arguments. 4
In Rogers, evidence was presented at trial that the defendant
(Rogers) had ordered the victim to remove her clothing and had
squeezed her breast.
660 So. 2d at 241.
However, Rogers stopped
when the victim told him to, and he made no further attempts to
touch
her.
Id.
The
Florida
Supreme
Court
determined
that
“[w]hile Rogers may have touched Daniel’s breast and ordered her
to remove her clothes, these acts do not rise to the level of an
overt act toward the commission of a sexual battery.
In addition,
once Daniel refused Rogers’ advances and orders, Rogers left her
4
Counsel repeated her arguments in a motion for a new trial
after the verdict (Ex. 8 at State’s Exhibit H).
- 16 -
alone.”
Id.
The
Florida
Supreme
conviction for attempted sexual battery.
Court
reversed
Rogers’
Similarly, in Ellis, the
Fifth District Court of Appeals determined that the trial court
erred by denying the defense’s motion for judgment of acquittal on
an attempted sexual battery charge because the evidence showed
that the defendant only touched the victim, and there was no
evidence of an intent to penetrate. 754 So. 3d at 888.
After considering the facts in both Ellis and Rogers, the
trial court denied Counsel’s motion for a judgment of acquittal as
follows:
In the case before the Court, the victim has
testified that she was brutally attacked, and
that in addition to being beaten and held
behind by the hair was under the control of
the perpetrator.
The defense has raised
identity also as a defense in this case, but
regardless as to the perpetrator she was then,
at least on two occasions, told to remove her
pants, and that the perpetrator also tried to
undo her pants.
To me this is much more
strong evidence of intent to perpetrate a
sexual act than what was described in Ellis
and in Rogers.
There was an ongoing effort to overcome
resistance of the victim in this case,
likewise, I’m going to deny not only
Attempted Sexual Battery, but also on
kidnapping.
(T. at 418).
the
and
the
the
Although Counsel’s argument was ultimately rejected
by the trial court, given the similarity of the facts in Rogers to
those
in
Espinosa-Montes’
case,
reasonable
competent
defense
counsel could have determined that the prosecution would have
- 17 -
difficulty proving the intent element of attempted sexual battery
and advised her client of this conclusion.
Even
accepting
Espinosa-Montes’
allegations,
he
does
not
demonstrate that Counsel’s advice was completely unreasonable or
that it bore no relation to reasonable trial strategy.
“[A]n
erroneous strategic prediction about the outcome of a trial is not
necessarily deficient performance.”
Lafler, 566 U.S. at 174.
Espinosa-Montes does not claim that Counsel precluded him from
accepting the offer; nor does he deny that it was his choice to
reject
the
offer
and
proceed
to
trial.
Even
if
Counsel
overestimated the strength of Espinosa-Montes’ case, he still has
not demonstrated that her advice fell below an objective standard
of
reasonableness,
and
as
a
result,
Espinoza-Montes
satisfied Strickland’s performance prong.
has
not
See Minton v. Sec’y,
Dep’t of Corr., 271 F. App’x 916, 918 (11th Cir. 2008) (“The
Supreme Court has ‘declined to articulate specific guidelines for
appropriate attorney conduct and instead has emphasized that the
proper
measure
of
attorney
performance
remains
simply
reasonableness under prevailing professional norms.’”) (quoting
Wiggins v. Smith, 539 U.S. 510, 521 (2003)) (alterations omitted).
The record before this Court does not show that the state
court’s rejection of Claim One was contrary to Strickland, Lafler,
or any other clearly established federal law.
- 18 -
Claim One is denied.
b.
Espinosa-Montes
asserts
Claim Two
that
the
trial
court
erred
by
refusing to give a lesser-included jury instruction on felony
battery (Doc. 1 at 7).
Espinosa-Montes raised this claim in his
Rule 3.850 motion, where it was dismissed by the post-conviction
court because “[a] claim of trial court error generally can be
raised on direct appeal but not in a rule 3.850 motion[.]” (Doc.
8 at 5) (quoting Bruno v. State, 807 So. 2d 55 (Fla. 2001)).
Florida’s Second District Court of Appeal affirmed the postconviction court’s denial of this claim without a written opinion.
Respondent argues that Claim Two must be dismissed because
federal courts are precluded from addressing claims held to be
procedurally defaulted under state law (Doc. 8 at 13).
Indeed,
“[a] state court’s rejection of a petitioner’s constitutional
claim on state procedural grounds will generally preclude any
subsequent federal habeas review of that claim.” Judd v. Haley,
250 F.3d 1308, 1313 (11th Cir. 2001).
Further, an appellate
court’s
trial
per
curiam
affirmance
of
the
court’s
ruling
“explicitly based on procedural default is a clear and express
statement of its reliance on an independent and adequate state
ground which bars consideration by the federal courts.” Harmon v.
Barton, 894 F.2d 1268, 1273 (11th Cir. 1990).
The Eleventh Circuit has established a three-part test to
determine when a state court’s procedural ruling constitutes an
- 19 -
independent and adequate state rule of decision. Judd, 250 F.3d at
1313.
“First, the last state court rendering a judgment in the
case must clearly and expressly state that it is relying on state
procedural rules to resolve the federal claim without reaching the
merits of that claim.” Id.
Second, the state court’s decision
must rest entirely on state law grounds and not be intertwined
with an interpretation of federal law.
Id.
Third, the state
procedural rule must be firmly established and regularly followed
and not applied “in an arbitrary or unprecedented fashion.” Id.
In
the
instant
case,
the
post-conviction
court
clearly
dismissed this claim on a state procedural rule which was not
intertwined with an interpretation of federal law.
This law is
regularly followed in Florida courts. See Occhicone v. State, 768
So. 2d 1037, 1040 n.3 (Fla. 2000) (“[C]laims challenging the
validity of jury instructions should be raised on direct appeal,
not on motions for postconviction relief.”); Gorham v. State, 521
So. 2d 1067, 1070 (Fla. 1988) (“Because a claim of error regarding
the instructions given by the trial court should have been raised
on direct appeal, the issue is not cognizable through collateral
attack.”).
Accordingly, under the three-part test set forth in
Judd, Claim Two is procedurally barred.
As a general rule, claims forfeited under state law may
support federal habeas relief only if the petitioner demonstrates
cause for the default and prejudice from the asserted error.
- 20 -
See
Murray v. Carrier, 477 U.S. 478, 485 (1986); discussion supra Part
II(c).
Espinosa-Montes has demonstrated neither.
provided
new
evidence
demonstrating
the
Nor has he
existence
of
the
fundamental miscarriage of justice exception to the procedural
bar.
Rather,
Espinosa-Montes
concedes
that
“this
claim
is
procedurally barred for the purposes of this habeas petition.”
(Doc. 11 at 12).
Accordingly, Claim Two is due to be dismissed
as unexhausted and procedurally barred.
c.
28 U.S.C. § 2254(b)(1).
Claim Three
Espinosa-Montes asserts that it was “fundamental error of
constitutional magnitude to allow [him] to be convicted of an
offense unsupported by competent substantial evidence.” (Doc. 1 at
8).
Specifically, he asserts that “no evidence was submitted that
would
legally
battery].”
support
Id.
all
the
elements
of
[attempted
sexual
On direct appeal, Espinosa-Montes argued that
the trial court erred by failing to grant his motion for a judgment
of acquittal on the attempted sexual battery charge (Ex. 4 at 17). 5
5
Petitioner raised the instant “fundamental error” claim in
his Rule 3.850 motion, and the post-conviction court rejected it,
first noting that “[i]nsufficiency of the evidence cannot be raised
under rule 3.850, especially when a direct appeal has been taken.”
(Ex. 8 at 5) (quoting Jackson v. State, 640 So. 2d 1173 (Fla. 2d
DCA 1994); Childers v. State, 782 946 (Fla. 4th DCA 2001)). The
post-conviction court further found that even if it were to
consider the sufficiency of the evidence, “trial counsel advanced
and the Court rejected these arguments during the motion for
judgment of acquittal, charge conference, and motion for new
trial.”
Id.
Finally, the post-conviction court noted that
Petitioner had raised the trial court’s denial of his motion for
- 21 -
Florida’s
Second
District
Court
of
Appeal
affirmed
Espinosa-
Montes’ convictions “without discussion.” Espinoza-Montes, 113 So.
3d at 847.
In his appellate brief on this claim, Espinosa-Montes framed
his argument in terms of state law only – making no reference to
the United States Constitution, federal law, or even federal cases
(Ex. 4 at 17-19).
Therefore, he did not exhaust Claim Three.
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.
judgment of acquittal on direct appeal, where it was denied. Id.
at 9.
Florida’s Second District Court of Appeal affirmed the
post-conviction court’s dismissal of this claim. To the extent
Claim Three is a different claim than the one raised on direct
appeal, it is dismissed as unexhausted and procedurally barred.
See discussion supra Claim Two.
- 22 -
McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (internal
quotations and citations omitted).
As part of such a showing, the
claim presented to the state courts “must include reference to a
specific federal constitutional guarantee, as well as a statement
of the facts that entitle the petitioner to relief.” Reedman v.
Thomas,
305
F.
App’x
citation omitted).
544,
545–46
(11th
Cir.
2008)
(internal
Because he did not refer to any “specific
federal constitutional guarantee” in his brief on direct appeal,
Espinosa-Montes’
instant
challenge
to
the
sufficiency
of
the
evidence was not fairly presented to the state court and is
unexhausted.
Espinosa-Montes does not satisfy (or even allege)
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
direct appeal. Fla. R. App. P. 9.140(b)(3) (defendant wishing to
appeal a final judgment must do so within “30 days following
rendition of a written order”).
claim
cannot
be
considered
by
Consequently, Espinosa-Montes’
this
Court
and
is
due
to
be
dismissed.
Even assuming arguendo that this claim is exhausted and raises
a federal due process issue, Espinosa-Montes is not entitled to
habeas corpus relief. 28 U.S.C. § 2254(b)(2)(“An application for
a
writ
of
habeas
notwithstanding
the
corpus
failure
may
of
be
the
- 23 -
denied
applicant
on
to
the
merits,
exhaust
the
remedies available in the courts of the State.”).
The Due Process
Clause of the Fourteenth Amendment requires the state to prove
each element of the offense charged beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 315 (1979).
Under Jackson,
federal courts must look to state law for the substantive elements
of the offense, but to federal law for the determination of whether
the evidence was sufficient under the Due Process Clause.
v. Johnson, 132 S. Ct. 2060, 2064 (2012).
Coleman
For federal due process
review, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319.
Under Florida law, sexual battery is defined as “. . . vaginal
penetration
of
794.011(1)(h).
another
by
any
[
]
object[.]”
Fla.
Stat.
§
A person commits the offense of criminal attempt
under Florida law if he “attempts to commit an offense prohibited
by law and in such attempt does any act toward the commission of
such offense, but fails in the perpetration or is intercepted or
prevented in the execution thereof.”
Fla. Stat. § 777.04(1).
An
attempt involves two essential elements: specific intent to commit
the crime and an overt act done towards its commission.
Murphy, 394 So.2d 411, 413 (Fla. 1981).
must
be
such
that
they
would
have
Adams v.
“The intent and the act
resulted,
except
for
the
interference of some cause preventing the carrying out of the
- 24 -
intent, in the completed commission of the crime.”
Id.
The trial
court instructed the jury of the elements of attempted sexual
battery (T. at 487, 489-91).
As summarized by the state when arguing against EspinosaMontes’ motion for a new trial, Espinosa-Montes pushed the victim
into the bathroom; locked the door behind him; demanded that the
victim remove her pants; began beating the victim’s face and body;
again demanded that she remove her pants; and when she refused the
second demand, Espinosa-Montes pounded the victim’s head into the
toilet tank and attempted to remove her pants himself (Ex. 8 at
State’s Exhibit H).
Based
upon
the
specific
facts
of
the
instant
case,
and
construing the facts in the light most favorable to the State, the
Court rejects Espinosa-Montes’ claim that no rational finder of
fact could have found him guilty beyond a reasonable doubt of
attempted
sexual
battery.
Consequently,
the
state
court’s
rejection of this claim was not contrary to, or an unreasonable
application
of
federal
constitutional
unreasonable application of the facts.
law,
nor
was
it
an
In addition to being
unexhausted, Claim Three is denied on the merits.
Any
of
Espinosa-Montes’
allegations
not
addressed herein have been found to be without merit.
- 25 -
specifically
IV.
Espinosa-Montes
appealability.
Certificate of Appealability 6
is
not
entitled
to
a
certificate
of
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, Espinosa-Montes must demonstrate that
“reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong,” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), or that “the issues presented were ‘adequate to
deserve encouragement to proceed further.’” Miller–El, 537 U.S. at
335–36. Espinosa-Montes has not made the requisite showing in these
circumstances.
Because Espinosa-Montes 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:
6
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases in the United States District Courts, the “district court
must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Id. As this Court has
determined that Petitioner is not entitled to habeas corpus relief,
it must now consider whether Petitioner is entitled to a
certificate of appealability.
- 26 -
1.
The Florida Attorney General is DISMISSED as a named
Respondent.
2.
Claim One of the 28 U.S.C. § 2254 petition for habeas
corpus relief filed by Miguel Espinosa-Montes (Doc. 1) is denied;
Claim Two is dismissed as unexhausted; and Claim Three is dismissed
as unexhausted, or alternatively denied.
3.
Espinosa-Montes
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
of June, 2017.
SA: OrlP-4
Copies: All Parties of Record
- 27 -
2nd
day
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?