Ortega v. Florida Attorney General et al
MEMORANDUM AND ORDER Ortega's Petition for Writ of Habeas Corpus (Docket No. 1) is denied. A Certificate of Appealability will not issue; and The Clerk shall enter judgment accordingly, terminate all remaining deadlines as moot, and close the file. Signed by Judge Paul A. Magnuson on 12/5/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Octavio Torres Ortega,
Civ. No. 2:15-104-PAM-CM
MEMORANDUM AND ORDER
Florida Attorney General and
This matter is before the Court on a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254. (Pet. (Docket No. 1).) For the reasons that follow, the Petition is denied.
On January 21, 2010, a Florida state-court jury convicted Petitioner Octavio
Torres Ortega of Sexual Battery on a child under 12, and he was sentenced to life in
prison without parole.
(App’x Exs. 1H, 1I.)
Ortega appealed his conviction and
sentence, arguing that the trial court erred by denying a motion for judgment of acquittal
and admitting the victim’s hearsay statements into evidence because there was
insufficient evidence that they were reliable and trustworthy. (App’x Ex. 2A at 11, 27.)
The court of appeals affirmed per curiam. Ortega v. State, 57 So. 3d 857 (Fla. Dist. Ct.
App. 2011) (table). Mandate issued on April 12, 2011. (App’x Ex. 2D.)
In 2011, Ortega filed a petition for belated appeal under Fla. R. App. P. 9.141.
(App’x Ex. 5C at 1, 15.) The petition alleged that appellate counsel was ineffective for
failing to preserve constitutional violations and to argue that the trial court prejudiced
Ortega’s trial by admitting the victim’s videotaped testimony into evidence. (Id. at 4,
11.) The court of appeals denied the petition and Ortega’s motion for rehearing. Ortega
v. State, 81 So. 3d 427 (Fla. Dist. Ct. App. 2011) (table). (App’x Ex. 5I.)
Also in 2011, Ortega filed a postconviction motion under Fla. R. Crim. P. 3.850,
raising seven grounds of ineffective assistance of counsel. (App’x Ex. 3A at 18, 33.)
Ortega contended that trial counsel was ineffective for failing to (1) call expert witnesses
for the defense to rebut the state’s expert witnesses, (2) pursue a speedy trial violation,
(3) file a motion to suppress the victim’s videotaped testimony when the victim also
testified at trial, (4) file a motion to withdraw and appoint a Spanish-speaking attorney,
(5) communicate with Ortega from 2006 to 2010, (6) object to the victim’s mother’s
testimony that impermissibly bolstered the victim’s credibility, and (7) object to Sergeant
Timothy Fisher’s testimony that impermissibly bolstered the victim’s credibility. (Id. at
5-14.) The trial court denied his postconviction motion. (App’x Ex. 3E at 19.) A motion
for rehearing was also denied. (App’x Ex. 3G at 1.)
Ortega appealed the denial of his postconviction motion. Ortega’s appeal seemed
to argue that the trial court erred in finding that trial counsel was not ineffective because
the State did not prove that his claims failed to establish ineffective assistance of counsel.
(App’x Ex. 4A.) The court of appeals affirmed per curiam. Ortega v. State, 152 So. 3d
578 (Fla. Dist. Ct. App. 2014) (table). A motion for rehearing was also denied. (App’x
Ex. 4D.) Mandate issued on November 19, 2014. (App’x Ex. 4E.)
On February 17, 2015, Ortega filed this Petition, raising ten grounds for relief.
The first ground argues that the admission of the victim’s hearsay statements into
evidence violated his federal due process rights because there was insufficient evidence
that the child’s statements were reliable and trustworthy. The second ground contends
that his federal due process rights were violated because there was insufficient evidence
to convict him. The third ground alleges that appellate counsel was ineffective for failing
to argue on direct appeal that the trial court prejudiced Ortega’s trial by admitting the
victim’s videotaped testimony into evidence. The remaining seven grounds raise the
same ineffective assistance of counsel claims that Ortega raised in his state
The State argues that Ortega has not exhausted his state remedies as to his first
two claims, and that, to the extent that he is claiming a violation of federal speedy trial
rights in ground five, such claim is unexhausted because he only argued ineffective
assistance of counsel on the speedy trial violation before the trial court. (Resp. to Pet.
(Docket No. 14) at 17-18, 32-35, 41-43.)
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28
U.S.C. § 2241 et seq., a federal court’s “review is greatly circumscribed and is highly
deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002).
Indeed, AEDPA “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court
convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S.
685, 693 (2002) (citation omitted). The AEDPA restricts the Court’s review to statecourt judgments that:
(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). Further, § 2254 states that “a determination of a factual issue made
by a State court shall be presumed to be correct.” Id. § 2254(e)(1). The burden is on the
petitioner to “rebut the presumption of correctness by clear and convincing evidence.”
The State contends that Grounds I, II, and the substantive portion of Ground V are
unexhausted because Ortega did not present the claims during trial or on direct appeal,
and that he should be procedurally barred from raising them here. (Resp. to Pet. at 32-35,
41-43) Ortega responds that the federal due process claims are not procedurally barred
because he filed a notice of supplemental authority, pursuant to Fla. R. App. P. 9.225, to
preserve the claims. (Pet’r’s Reply (Docket No. 17) at 5-6.) Ortega does not respond to
the State’s claim that the substantive federal speedy trial rights claim is waived.
“For a federal court to hear a habeas claim resulting from a state conviction, the
petitioner must first exhaust the remedies available in his state’s courts.” Ramos v. Fla.
Dep’t of Corr., 441 F. App’x 689, 696 (11th Cir. 2011) (citing 28 U.S.C.
§ 2254(b)(1)(A)). “A claim is only exhausted if it is fairly presented to the state courts,
meaning that the same claim must be brought before both the state and federal courts and
presented in such a way ‘that a reasonable reader would understand [the] claim’s
particular legal basis and specific factual foundation.’”
Id. (alteration in original)
(quoting McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005)). To fully exhaust
his claims, Ortega was required not only to present the claims to the trial court via a
postconviction motion, but also to pursue those claims on appeal. Pope v. Rich, 358 F.3d
852, 853 (11th Cir. 2004).
Additionally, the record does not reflect a notice of
supplemental authority pursuant to Fla. R. App. P. 9.225. Because Ortega did not raise
these federal claims in the trial or appellate courts and did not properly argue a federal
speedy trial violation, they are unexhausted.
But, “Florida’s doctrine of fundamental error permits a court to review an issue
that was not preserved in the trial court.” Rambaran v. Dep’t of Corr., 821 F.3d 1325,
1328 n.3 (11th Cir. 2016) (citing State v. Delva, 575 So. 2d 643, 644-45 (Fla. 1991)).
Fundamental error occurs when the error “reach[es] down into the validity of the trial
itself to the extent that a verdict of guilty could not have been obtained without the
assistance of the alleged error.” Delva, 575 So. 2d at 644-45. This Court concludes that
none of Ortega’s claims constitute fundamental error. The trial court made reasonable
findings as to the first two claims, and as discussed below, the speedy trial claim has no
merit. Therefore, these three claims are defaulted.
Ineffective Assistance of Counsel
To establish ineffective assistance of counsel, Ortega must demonstrate “that his
counsel’s performance was objectively unreasonable by professional standards and that
he was prejudiced as a result of this poor performance.” Damron v. Florida, No. 8:07CV-2287, 2009 WL 1514269, at *2 (M.D. Fla. May 29, 2009). To show prejudice,
Ortega “must establish a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Woodford v. Visciotti,
537 U.S. 19, 22 (2002) (emphasis omitted) (quotations omitted). Moreover, “[t]here is a
strong presumption that an attorney’s conduct fell within the ‘wide range of professional
norms.’” Damron, 2009 WL 1514269, at *2 (quoting Strickland v. Washington, 466 U.S.
668, 689 (1984)). “Ineffective assistance of counsel can be grounds for challenging a
conviction if counsel’s performance was so egregious that it rendered the trial
fundamentally unfair.” Id. (quoting Strickland, 466 U.S. at 701).
Because of the limits on a federal court’s review under 28 U.S.C. § 2254, Ortega
can succeed on his ineffective-assistance-of-counsel claims only if he can show that the
trial court’s determination of the facts surrounding these claims was unreasonable. 28
U.S.C. § 2254(d).
Thus, he must establish both that his counsel was prejudicially
ineffective and that it was unreasonable for a court reviewing his claim to conclude
otherwise. A court may grant habeas relief only when an error “so infused the trial with
unfairness as to deny due process of law.” Taylor v. Sec’y, Fla. Dep’t of Corr., 760 F.3d
1284, 1295 (11th Cir. 2014) (quoting Lisbena v. California, 314 U.S. 219, 228 (1941)).
Ineffective Assistance of Appellate Counsel
Ortega’s third ground is that his appellate counsel was ineffective for failing to
argue on direct appeal that the trial court prejudiced his trial by admitting the victim’s
videotaped testimony into evidence in violation of Fla. Stat. § 92.53, the witness
This statute governs the admission of videotaped testimony of
victims who are (1) under the age of 18 or who are intellectually disabled and are (2)
unavailable to testify or will suffer at least moderate harm if they are made to testify in
the defendant’s presence in open court. Fla. Stat. § 92.53. But, Fla. Stat. § 92.53 is not
applicable to this case because the victim testified in open court and in Ortega’s presence.
(App’x Ex. 1J.). Therefore, appellate counsel was not ineffective for failing to raise this
issue. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“[No] decision of this Court
suggests . . . that the indigent defendant has a constitutional right to compel appointed
counsel to press nonfrivolous points requested by the client, if counsel, as a matter of
professional judgment, decides not to present those points.”). This ground fails.
Ineffective Assistance of Trial Counsel
Ortega contends that trial counsel was ineffective for failing to (1) call expert
witnesses for the defense to rebut the state’s expert witnesses, (2) pursue a speedy trial
violation, (3) file a motion to suppress the victim’s videotaped testimony when the victim
also testified at trial, (4) file a motion to withdraw and appoint a Spanish-speaking
attorney, (5) communicate with Ortega from 2006 to 2010, (6) object to the victim’s
mother’s testimony that impermissibly bolstered the victim’s credibility, and (7) object to
Sergeant Fisher’s testimony that impermissibly bolstered the victim’s credibility.
Ground IV: Failure to Call Expert Witnesses
Ortega contends that his trial attorney’s failure to call expert witnesses to rebut the
testimony of a social worker and the nurse who performed the victim’s medical
examination satisfies both elements of Strickland. The social worker testified as to the
victim’s understanding of the difference between a truth and a lie, and the nurse testified
that it was proper protocol not to obtain a DNA swab from the victim’s vagina because it
would have been extremely painful for the victim.
Under Florida law, trial counsel’s decision not to call an expert witness does not
constitute deficient performance if “trial counsel made a reasonable decision to confront
and challenge the State’s witness at trial through cross-examination.” Crain v. State, 78
So. 3d 1025, 1040 (Fla. 2011). Because Ortega’s trial counsel cross-examined both the
social worker and the nurse, the trial court reasonably determined that trial counsel’s
decision was within professional standards. This ground is without merit.
Ground V: Failure to Pursue a Speedy Trial Violation
Ortega seems to argue that it was improper for his trial counsel to waive his right
to a speedy trial without consulting with him first in Spanish. If a defendant is charged
with a felony under Florida law, trial must be held within 175 days of arrest. Fla. R.
Crim. P. 3.191(a). But a defendant can waive the right to speedy trial, and a defense
attorney can waive speedy trial on his client’s behalf. MacPhee v. State, 471 So. 2d 670,
671 (Fla. Dist. Ct. App. 1985) (citing State ex rel. Gutierrez v. Baker, 276 So. 2d 470,
472 (Fla. 1973)). Here, trial counsel waived the speedy trial right. (App’x Ex. 3E at 12.)
Because trial counsel may waive the right if he feels that such delay could have
benefitted Ortega, it is immaterial that trial counsel did not consult with him. The trial
court’s determination on this ground was reasonable.
Ground VI: Motion to Suppress
Ortega seems to argue that trial counsel was ineffective for failing to file a motion
to suppress the victim’s videotaped testimony because the victim also testified in person
at trial in violation of Fla. Stat. § 92.53. But, as previously discussed, Fla. Stat. § 92.53 is
not applicable here. Moreover, the trial court made a reasonable finding of admissibility.
This ground is without merit.
Ground VII: Motion to Withdraw
Ortega argues that trial counsel was ineffective for not filing a motion to withdraw
and not requesting that the trial court appoint a Spanish-speaking attorney because he
cannot speak English. From 2006 to 2009, Ortega was represented by a number of
attorneys from the Public Defender’s Office and the Office of Regional Counsel. In
2009, Adam Oosterbaan was ultimately appointed to represent Ortega because of the
language issue. Mr. Oosterbaan requested both a Spanish interpreter and a motion for
continuance in order to adequately prepare for trial. The trial court assigned a Spanish
interpreter and “granted [the] motion for continuance.” (App’x Ex. 3E at 14-15.) The
Court concludes that this claim is without merit.
Ground VIII: Failure to Communicate
Ortega seems to argue that trial counsel was ineffective for failing to communicate
with him from 2006 to 2010. But, a lack of communication is not per se ineffective
assistance of counsel. Jackson v. State, 801 So. 2d 1024, 1026 n.1 (Fla. Dist. Ct. App.
2001) (“Defendant would have to demonstrate how he was prejudiced by the lack of
consultation.”). This claim fails because Ortega has not shown any prejudice.
Grounds IX and X: Failure to Object to Testimony Bolstering
Ortega contends that trial counsel was ineffective for failing to object to testimony
from the victim’s mother and Sergeant Fisher, both of whom impermissibly bolstered the
victim’s credibility according to Ortega. But the victim’s mother did not testify about the
victim’s credibility. (App’x Ex. 1J.) She testified about her work situation, the family’s
living situation, that the victim knew Ortega, and that she called the police after being
alerted to the incident involving the victim. (App’x Ex. 3E at 16-17.)
Ortega seems to argue that Sergeant Fisher bolstered the victim’s credibility
because he was not the first responder on the scene and therefore did not have firsthand
knowledge of the incident. Ortega next seems to argue that Sergeant Fisher offered no
evidence that Ortega committed the crime and that Sergeant Fisher’s use of the phrase
“sex crimes arena” during his testimony was improper. (Pet. at 28-30.) But Sergeant
Fisher made no statement about the victim’s credibility. (App’x Ex 1J.) Because the
victim’s mother and Sergeant Fisher did not bolster the victim’s credibility, trial counsel
cannot be ineffective on this basis. This claim is without merit.
Certificate of Appealability
Ortega is required to secure a Certificate of Appealability before appealing the
dismissal of his habeas corpus action. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P.
22(b)(1). This Court cannot grant a Certificate of Appealability unless the prisoner “has
made a substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The prisoner must
establish that the resolution of his constitutional claims “was debatable among jurists of
reason.” Lott v. Att’y Gen., Fla., 594 F.3d 1296, 1301 (11th Cir. 2010) (quoting MillerEl, 537 U.S. at 336).
Ortega has not demonstrated that his claims are debatable or that they “deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327. The Court will therefore
not grant a Certificate of Appealability on any of Ortega’s claims.
Ortega is not entitled to federal habeas relief. Accordingly, IT IS HEREBY
Ortega’s Petition for Writ of Habeas Corpus (Docket No. 1) is DENIED;
A Certificate of Appealability will NOT issue; and
The Clerk shall enter judgment accordingly, terminate all remaining
deadlines as moot, and close the file.
Dated: December 5, 2017
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge
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