Puente v. Florida Attorney General et al
Filing
27
OPINION AND ORDER dismissing Florida Attorney General; dismissing with prejudice 1 Petition for writ of habeas corpus as set forth in the Opinion and Order. A certificate of appealability is denied. The Clerk shall enter judgment accordingly, terminate any pending motions, and close the case. Signed by Judge John E. Steele on 7/19/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ABEL PUENTE,
Petitioner,
v.
Case No: 2:15-cv-681-FtM-29MRM
FLORIDA ATTORNEY GENERAL and
SECRETARY, DOC,
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 Abel Puente
(“Petitioner” or “Puente”), a prisoner of the Florida Department
of
Corrections
(Doc.
1,
filed
November
2,
2015).
Puente,
proceeding pro se, attacks the convictions and sentences entered
against him by the Twentieth Judicial Circuit Court in Collier
County,
Florida
for
sexual
battery
and
simple
battery.
Respondent filed a response to the petition (Doc. 19).
Id.
Puente
filed a reply (Doc. 24), 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 and Procedural History 2
On May 5, 2009, Puente was charged by amended information
with two counts of sexual battery, in violation of Florida Statute
§ 794.011(5) (Ex. 1).
A jury found Puente guilty of one count of
sexual battery (count one) and the lesser included offense of
battery (count two).
Id.
The trial court sentenced Puente to a
total of fifteen years in prison.
Court
of
Appeal
affirmed
Id.
Puente’s
Florida’s Second District
convictions
and
sentences
without a written opinion (Ex. 2); Puente v. State, 70 So. 3d 594
(Fla. 2d DCA 2011).
On July 11, 2012, Puente filed a motion for post-conviction
relief pursuant to Rule 3.850 of the Florida Rules of Criminal
Procedure (“Rule 3.850 motion”) (Ex. 5).
2
On April 8, 2013, the
Unless otherwise indicated, citations to exhibits are to
those filed by Respondent on May 20, 2016 (Doc. 20; Doc. 21).
Citations to the trial transcript, located at exhibit four, will
be cited as (T. at __).
- 2 -
post-conviction court struck grounds 5(i) and 5(j) of Puente’s
motion (Ex. 6).
On May 16, 2014, the post-conviction court
summarily denied the remaining claims in Puente’s Rule 3.850 motion
(Ex. 7).
Florida’s Second District Court of Appeal affirmed.
Puente v. State, 164 So. 3d 9 (Fla. 2d DCA 2014).
Puente filed the instant petition on October 29, 2015 (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).
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.
Notably,
even
when
the
opinion
of
a
lower
state
post-
conviction court contains flawed reasoning, the federal court must
- 5 -
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, 137 S. Ct. 1203 (Feb. 27, 2017).
state
court’s
summary
rejection
of
a
claim,
even
A
without
explanation, qualifies as an adjudication on the merits which
warrants deference.
(11th Cir. 2008).
Ferguson v. Culliver, 527 F.3d 1144, 1146
Therefore, to determine which theories could
have supported the state appellate court’s decision, the federal
habeas court may look to a state post-conviction 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
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
- 6 -
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.
“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
- 7 -
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
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,
- 8 -
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
claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th
Cir. 1994).
- 9 -
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
must be based on [new] reliable evidence not presented at trial.”
- 10 -
Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup,
513 U.S. at 324).
III. Analysis
In his brief on direct appeal, Puente summarized the victim’s
description
of
the
incident
that
led
to
his
conviction
sentences as follows:
The [victim and Puente] were married in 2006.
According to [the victim], Puente moved out of
their trailer approximately one week prior to
the date of the alleged offense and moved in
with his parents. [The victim] testified that
Puente came over on the night of the offense
to visit their two children and as he was
leaving, one child began crying because he
wanted to go with his dad. Puente came back
inside and spoke to the child, and when he
left again, the child began to cry.
[The
victim] testified that she then locked the
door and would not let Puente back inside, but
he broke in through the front door.
[The victim] said that Puente was upset and
screaming at her, he smelled of alcohol, and
in front of their two small children, he
pushed her and grabbed her by the hair.
According to [the victim], Puente told her
that he wanted to have sex with her, threw her
down face-first onto the bed, pulled her
shorts down and inserted his penis into her
anus against her will. [The victim] testified
that while this was happening, their youngest
child was hitting Puente with the [television]
remote control and the oldest child was
yelling at him to stop hitting their mother.
[The victim] testified that in order to get
away from the children, she told Puente that
she wanted to go into the bathroom and have
sex there.
According to [the victim], she
- 11 -
and
closed the bathroom door and Puente told her
he wanted her to perform oral sex on him, he
grabbed her by the hair and made her put his
penis inside her mouth against her will. [The
victim] testified that Puente penetrated her
anus with his penis once again while inside
the bathroom.
When she heard the bathroom doorknob rattle,
[the victim] told Puente that one of their
children was leaving which made Puente leave
the bathroom. [The victim] testified that she
then attempted to crawl out of the bathroom
window, while her pants were still off, and
she yelled for help.
According to [the
victim], Puente saw her trying to get out of
the window and he pulled her back inside by
the feet and hair. [The victim’s] father, who
lived in the trailer with [the victim], came
to investigate and said he was going to call
the police.
After that, Puente left the
trailer.
(Ex. 2 at 4-5) (internal citations to the record omitted).
Puente raises a total of thirteen claims and sub-claims in
his petition.
He asserts that: (1) the trial court erred when it
denied his motion to appoint different defense counsel (Claim One);
(2) the trial court erred when it allowed a nurse practitioner to
testify about the victim’s description of the sexual assault (Claim
Two);
(3)
the
prosecutor’s
improper
comments
during
closing
argument denied him of a fair trial (Claim Three); (4) the trial
court erred by excluding testimony from Puente’s former girlfriend
that he could not get an erection when drunk (Claim Four); (5) the
state post-conviction court erred when it denied approximately
- 12 -
sixteen of his Rule 3.850 claims as procedurally barred because
they should have been raised on direct appeal (Doc. Five); (6)
Defense counsel (“Counsel”) erred by conceding Puente’s guilt to
the lesser-included offense of simple battery (Claim 6(a)); (7)
Counsel was ineffective for failing to object to the prosecutor’s
summary of the evidence during closing argument (Claim 6(b)); (8)
Counsel was ineffective for failing to properly impeach the victim
(Claim 6(c)); (9) Counsel was constitutionally ineffective for
failing
to
object
to
the
use
of
translators
during
the
investigation (Claim 6(d)); (10) Counsel should have objected to,
or
made
a
motion
to
exclude,
the
State’s
argument
on
his
consciousness of guilt in closing (Claim 6(e)); (11) Counsel should
have moved to exclude Nurse Diana Hansell’s testimony regarding
the victim’s rectal dilation because Hansell was not an expert on
rectal dilation and should not have been permitted to testify to
her
observation
of
it
(Claim
6(f));
(12)
Counsel
was
constitutionally ineffective for asking Detective Maran if the
victim’s injuries were consistent with her getting stuck in the
window when she tried to escape (Claim 6(g)); and (13) a conflict
of interest existed between Puente and Counsel throughout the trial
(Claim Seven).
Each of the claims will be addressed separately.
a.
Claim One
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Puente asserts that the trial court erred when it denied his
motion to dismiss Counsel and appoint different counsel (Doc. 1 at
5).
Specifically,
Puente
argues
“erroneous Faretta and Nelson[ 3]
that
the
trial
court
used
standards where neither applied
[and] also unreasonably ruled Petitioner was not indigent[.]”
Id.
Puente cites Bell v. Cone, 535 U.S. 685 (2002); Rose v. Clark, 478
U.S. 570 (1986); Brecht v. Abrahamson, 507 U.S. 619 (1993); United
States v. Gonzalez—Lopez, 126 S. Ct. 2557 (2006); Martel v. Clair,
132 S. Ct. 1276 (2012); Wiggins v. Smith, 539 U.S. 510 (2003); and
Harris v. Nelson, 89 S. Ct. 1082 (1969) in support of Claim One.
Respondent
argues
that
Puente
has
procedurally
defaulted
Claim One because he “did not fairly present the constitutional
dimension of this claim both at trial and then on direct appeal”
(Doc. 19 at 12).
Respondent notes that Puente’s claim on direct
appeal concerned “state procedural rules,” not a violation of his
constitutional rights, and argues that “Petitioner’s claim that
the state court made an inadequate inquiry under state law does
not provide a basis for federal habeas relief.” Id. at 12-13.
3
In Faretta v. California, 422 U.S. 806 (1975), the United
States Supreme Court held that criminal defendants have a
constitutional right to refuse counsel and represent themselves in
state criminal proceedings. Under Nelson v. State, 274 So. 2d 256
(Fla. 4th DCA 1973), when it appears to a trial judge that a
defendant wishes to discharge his court appointed counsel, the
judge should make an inquiry of the defendant as to the reason for
the request to discharge.
- 14 -
Indeed, Puente raised a similar claim on direct appeal, but did
not rely on any of the United States Supreme Court cases he now
offers (Ex. 2 at 23-29).
Rather, the issue raised on direct appeal
was “whether the trial court followed the proper procedures in
appointing counsel.” Id. (citing Williams v. State, 932 So. 2d
1233, 1236 (Fla. 1st DCA 2006)).
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 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
544,
545–46
- 15 -
(11th
Cir.
2008)
(internal
citation omitted).
Because he did not refer to any “specific
federal constitutional guarantee” in his brief on direct appeal,
Puente’s instant constitutional challenge to the trial court’s
decision not to appoint alternate counsel was not fairly presented
to the state court and is unexhausted.
(or
even
miscarriage
allege)
of
the
justice
default of this claim. 4
cause
and
exceptions
Puente does not satisfy
prejudice,
to
overcome
or
the
fundamental
procedural
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”).
Consequently, Claim One cannot be considered by this Court and is
due to be dismissed.
Even assuming arguendo that Claim One is exhausted and raises
a federal due process issue, Puente is not entitled to habeas
corpus relief. 28 U.S.C. § 2254(b)(2)(“An application for a writ
of habeas corpus may be denied on the merits, notwithstanding the
4
In his reply, Puente argues that he had the right to
effective assistance of counsel, and the trial court’s refusal to
appoint substitute defense counsel denied him of that right (Doc.
24 at 2).
Whether defense counsel was constitutionally
ineffective is a separate inquiry than whether Puente’s
constitutional rights were violated by the trial court’s refusal
to appoint alternate counsel. Puente’s ineffective assistance of
counsel claims are addressed in the sub-claims raised in Claim
Six.
- 16 -
failure of the applicant to exhaust the remedies available in the
courts of the State.”).
None of the cases cited in support of
Claim One stand for the proposition that a criminal defendant is
entitled to have counsel of his choice appointed for him.
In
United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the United
States Supreme Court recognized that “the erroneous deprivation of
the
right
necessarily
to
counsel
of
unquantifiable
choice,
and
with
consequences
indeterminate,
that
are
unquestionably
qualifies as a structural error.” Id. at 149 (quoting Sullivan v.
Louisiana, 508 U.S. 275, 282 (1993) (internal quotation marks
omitted)).
However, “the right to counsel of choice does not
extend to defendants who require counsel to be appointed for them.”
Gonzalez-Lopez, 548 U.S. at 152 (citing Wheat v. United States,
486 U.S. 153, 159 (1988); Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 624 (1989)).
In the instant case, when Puente became displeased with the
questions Counsel asked of witnesses or with the manner in which
Counsel was conducting his defense, he informed the trial court
(during the State’s case-in-chief) that he wanted to dismiss his
attorney (T. at 275, 293-94).
Puente was clear that he did not
wish to proceed without an attorney, and asked the court to appoint
a lawyer instead.
Id. at 275, 293-94.
The trial court asked
Puente to explain why he believed Counsel was not performing
- 17 -
adequately, and Puente explained Counsel’s alleged deficiencies to
the trial court.
Id. at 275-87.
The Court concluded that Puente
had “failed to demonstrate any specific omission or overt act on
the part of [Counsel] that is a substantial or serious deficiency
measurably below that of a competent counsel.” Id. at 287.
As noted by the Supreme Court in Gonzalez-Lopez, the right to
counsel of choice does not extend to defendants (such as Puente)
who require that counsel be appointed for them.
Moreover, a trial
court maintains “wide latitude in balancing the right of counsel
of choice against the needs of fairness, and against the demands
of its calendar.” 548 U.S. at 152.
the
discretion
to
“make
As such, trial courts retain
scheduling
and
other
decisions
effectively exclude a defendant’s first choice of counsel.”
that
Id.
Implicit in Puente’s request for the appointment of different
counsel was a motion to continue the trial.
would
necessitate
delay,
the
trial
discretion in rejecting the request.
Because such a motion
court
acted
within
its
The decision was neither
contrary to, nor an unreasonable application of, Gonzalez-Lopez or
any other Supreme Court case; therefore, in addition to being
dismissed as unexhausted and procedurally barred, Claim One is
denied on the merits.
b.
Claim Two
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Puente asserts that the trial court erred when it allowed
Nurse Practitioner Diana Hansell to testify regarding what the
victim told her after Puente sexually assaulted her (Doc. 1 at 7).
He argues that Hansell’s testimony was inadmissible hearsay and
that the appellate court incorrectly determined that her testimony
was admissible under the medical exception to the hearsay rule.
Id. 5
Respondent
argues
that
this
claim
is
unexhausted
and
procedurally barred because, when Puente raised it at trial and on
direct appeal, he asserted only an error under Florida state-law
rules of evidence (Doc. 19 at 25).
Indeed, a review of Puente’s
brief on appeal (Ex. 2) shows that he did not raise a due process
claim or even cite any federal cases in support of Claim Two.
Because he did not refer to any “specific federal constitutional
guarantee”
in
his
brief
on
direct
appeal,
Puente’s
instant
constitutional challenge to the admission of the nurse’s testimony
was not fairly presented to the state court and is unexhausted.
Puente 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.
5
Consequently,
Hansell was the medical professional who examined the victim
after the reported sexual assault.
- 19 -
Claim Two cannot be considered by this Court and is due to be
dismissed.
Even assuming that Claim Two was exhausted and raises a due
process
claim,
Puente
is
not
entitled
to
habeas
relief.
Generally, federal courts do not review a state court’s application
of state rules of evidence or procedure. See Estelle v. McGuire,
502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law
questions.
limited
In
to
conducting
deciding
habeas
whether
review,
a
a
federal
conviction
court
violated
is
the
Constitution, laws or treaties of the United States.”); McCullough
v. Singletary, 967 F.2d 530, 535–36 (11th Cir. 1992) (“State courts
are the ultimate expositors of their own state’s laws, and federal
courts entertaining petitions for writs of habeas corpus are bound
by the construction placed on a state’s criminal statutes by the
courts of the state except in extreme cases.”).
However, a federal
court may grant habeas relief where the error rises to the level
of a constitutional violation by “result[ing] in a denial of
fundamental fairness.” Dickson v. Wainwright, 683 F.2d 348, 350
(11th Cir. 1982) (citing Anderson v. Maggio, 555 F.2d 447, 451
(5th
Cir.
1977)).
Furthermore,
“the
erroneous
admission
of
prejudicial evidence can justify habeas corpus relief if it is
‘material in the sense of a crucial, critical, highly significant
- 20 -
factor.’” Anderson, 55 F.2d at 451 (quoting Hills v. Henderson,
529 F.2d 397, 401 (5th Cir. 1976)).
In the instant case, the state prosecutor asked Hansell on
direct exam whether she remembered what the victim had told her
about what had happened to her on the night she was raped by Puente
(T. at 249).
The nurse specifically testified that the victim’s
statements were taken to help her make a medical diagnosis and to
help her collect evidence.
Id. at 251-52.
Counsel made a hearsay
objection to Hansell’s testimony regarding what the victim had
told her.
Id.
The prosecutor argued that the medical diagnosis
exception to the hearsay rule applied.
Id. at 250.
Counsel
countered that, because an interpreter had been used during the
medical exam, Hansell’s testimony would fall outside of the medical
exception to hearsay.
Id.
Counsel explained that “it may be an
exception if it’s Ms. Puente telling what happened, but if it’s
through a third party, then it turns into hearsay.”
Id. at 251.
The trial court, apparently rejecting the prosecutor’s argument
regarding the medical exception, concluded that the statement was
not hearsay at all, but was “offered to rebut an express or implied
charge against a declarant of improper influence, motive, or recent
fabrication” and overruled the objection.
Id.
Hansell then
relayed the events the victim had told to her regarding the details
of the assault.
Id. at 252-53.
- 21 -
Hansell’s testimony was not the only testimony presented at
trial explaining what had happened during the assault.
The victim
also testified as to the events that occurred on the evening of
the crime at issue, and her testimony was virtually identical to
that given by Hansell. (T. at 136-4).
Accordingly, Hansell’s
testimony was not a “crucial, critical, highly significant factor”
in Puente’s conviction, and the state appellate court’s denial of
this claim did not violate due process. 6
In addition to being
unexhausted, Claim Two is denied on the merits. 28 U.S.C. §
2254(d).
6
The Court also notes that the appellate court could have
rejected this claim because Hansell’s testimony was admissible
under Florida law as an exception to the hearsay rule. As noted,
Hansell testified that the victim’s statements were taken to help
her make a medical diagnosis and help her collect evidence. Id.
at 251-52.
Florida law provides that statements made for the
purposes of medical diagnoses or treatment by a person seeking
treatment qualify as an exception to the hearsay rule. See Fla.
Stat. § 90.803(4).
That the victim’s statements were made to
Hansell through an interpreter would not affect the admissibility
of the testimony.
See Meacham v. State, 33 So. 983, 983
(1903)(“[W]here two parties, speaking different languages, and who
cannot understand each other, converse through an interpreter, the
words of the interpreter, which are their necessary medium of
communication, are adopted by both, and made a part of their
conversation, as much as those which fall from their own lips;
that the interpretation, under such circumstances, is prima facie
to be deemed correct; that in such a case either party, or a third
party who hears the conversation, may testify to it as he
understands it, although for his understanding of what was said by
one of the parties he is dependent on the interpretation which was
a part of the conversation; that the fact that such conversation
was had through an interpreter affects the weight, but not the
competency, of the evidence.”).
- 22 -
c.
Claim Three
Puente contends that the prosecutor made improper comments
during closing argument that “so infected [the] trial proceedings
that
granting
habeas
corpus
is
warranted”
(Doc.
1
at
8).
Specifically, Puente urges that the following statements from the
prosecutor constituted fundamental error:
The prosecutor called Puente manipulative and
controlling;
The prosecutor opined that “common sense would
tell you when a woman is having their period
it’s
not
usually
a
good
time
for
[intercourse]”;
The prosecutor urged that Defendant could have
walked away at any time even though Puente
testified that he could not have walked away
because the victim could have run after him
and hit him;
The prosecutor stated that when Puente wants
sex, he gets sex;
The prosecutor told the jury that in order to
believe the Defendant did not commit sexual
battery, the victim “must have had sex with
her children or something like that.”
(Ex. 2 at 36-37).
Respondent
again
notes
that
Puente
did
not
present
the
constitutional aspect of this claim at the trial level or on direct
appeal in the state appellate court, thereby leaving the this claim
unexhausted and procedurally defaulted (Doc. 19 at 33).
Indeed,
a review of Puente’s brief on appeal (Ex. 2) shows that he did not
- 23 -
raise a due process claim or even cite any federal cases in support
of Claim Three.
Because he did not refer to any “specific federal
constitutional guarantee” in his brief on direct appeal, Puente’s
instant
constitutional
challenge
to
the
prosecutor’s
closing
argument was not fairly presented to the state court and is
unexhausted.
Puente 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.
Consequently, Claim Three cannot be considered by this
Court and is due to be dismissed.
Even assuming that Claim Three was exhausted and raises a due
process claim, Puente is not entitled to habeas relief.
First,
the prosecutor’s arguments were not improper under Florida law.
In Ruiz v. State, the Florida Supreme Court noted that “the role
of counsel in closing argument is to assist the jury in analyzing
[the] evidence, not to obscure the jury’s view with personal
opinion, emotion, and nonrecord evidence[.]” 743 So. 2d 1, 4 (Fla.
1999).
The Ruiz court explained that “[t]he assistance permitted
includes
counsel’s
right
to
state
his
contention
as
to
conclusions that the jury should draw from the evidence.”
the
Id.
(citing United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978).
In
other
words,
the
prosecutor
is
- 24 -
not
merely
constrained
to
reciting the evidence introduced at trial as Puente now suggests;
rather, that “[t]he proper exercise of closing argument is to
review the evidence and to explicate those inferences which may
reasonably be drawn from the evidence.” Robinson v. State, 610
So.2d 1288, 1290 (Fla. 1992) (quoting Bertolotti v. State, 476
So.2d 130, 134 (Fla. 1985)).
At trial, the victim testified that on the night of the
incident, Puente became angry with her when she stopped paying
attention to him so he began screaming at her, pushed her, and
grabbed her by the hair (T. at 140).
Puente told the victim that
he wanted to have sex with her, and when she refused, he pushed
her down, pulled down her shorts, and put his penis in her anus.
Id. at 141-42.
When the victim’s young children began hitting
Puente, he took her into the bathroom, and over the victim’s
objection, grabbed her hair and forced his penis into her mouth.
Id. at 144.
Afterwards, Puente was still very upset and forced
the victim to engage in anal sex a second time.
Id.
When Puente
became distracted by a noise in the living room, the victim
attempted to climb through the bathroom window, but Puente pulled
her back inside by her hair and feet.
Id. at 146-47.
The victim
also testified that Puente had battered her multiple times in the
past and “was a very controlling individual.”
Id. at 452.
testified that she had to do what he wanted her to do.
- 25 -
Id.
She
After
Puente was jailed for raping her, the victim testified that he
would write numerous letters to her and call her sister’s home—
attempting to get the victim to drop the charges against him.
at 481.
Id.
Given the victim’s testimony, the prosecutor’s statements
regarding Puente’s manipulation and control of the victim and that
Puente “got sex when he wanted sex” were fair comments on the
evidence.
Likewise, the victim testified that she was on her period at
the time of the attack and that she had never engaged in anal sex
with Puente before (T. 141, 143).
The prosecutor’s statement
regarding “common sense” and the victim’s menstruation was his
suggestion of the inference the jury should draw from the evidence—
that Puente forced the victim to engage in anal sex because she
was on her period.
Puente misstates his own testimony at trial regarding whether
he could have left the trailer during his fight with the victim.
When
Puente
was
asked
by
the
prosecutor
whether
the
victim
prevented him from leaving the trailer, the following exchange
occurred:
Q.
So, you could have left[?]
A.
I could have – I could have left.
Q.
But you chose not to.
A.
Well, I did eventually leave.
- 26 -
Q.
Okay.
Before we get there, you were
saying – I guess you’re saying you were
in fear for your life because of –
because of her?
A.
Never did I say I was in fear for my life,
never.
Q.
Okay. You were – you were afraid of her
hurting you?
A.
I wasn’t afraid of my wife hurting me.
I never said that.
Q.
Well, why were you afraid she was going
to come at you?
A.
I wasn’t afraid that she was going to
come at me. She was just coming at me
to prevent me from leaving.
I’m not
afraid of my wife.
(T. at 565).
Puente’s own testimony defeats any argument that the
prosecutor misstated the evidence when he suggested that Puente
could have left the residence at any time.
Finally, the prosecutor’s final statement was made in the
context of explaining that Puente’s theory of defense (that the
victim had taken her young children with her shortly before the
assault in order to engage in sexual relations with another person)
made very little sense:
The defendant’s
story is the defendant’s
story, but if you believe that he was – well,
he didn’t say he was in fear of [the victim]
but that [the victim] was all over him and
that somehow he had to – he wanted to leave,
she wouldn’t leave – wouldn’t let him leave,
so somehow she was trying to open the door to
get him in the bathroom and then somehow she
- 27 -
decided to go out the window, and yet rather
than leave he wanted to help her by pulling
her by the hair. Use your common sense ladies
and gentlemen. What makes more sense? What
matches the evidence, the physical evidence?
And I guess he’s alluding to that somehow. We
have the dilation of the rectum, so there was
some kind of penetration of the anus. I guess
the allusion is, I thought she fooled around
my or something or something to that effect.
So I guess when she went away for that hour
she must have had sex with her children or
something like that.
I guess that’s the –
what the defendant’s trying to imply.
(T. at 620-21).
Notably, it is clear from the context of the
prosecutor’s closing argument that the prosecutor did not imply
that Petitioner accused the victim of having sexual relations with
her children.
Rather, the prosecutor argued that the physical
evidence showed that the victim had been anally penetrated and
that Puente’s confusing testimony on the stand—that the victim
left the trailer, along with her children, and then had sex with
somebody else shortly before her altercation with Puente—made
little sense.
“While a prosecutor may ‘not ridicule or otherwise
improperly attack the defense’s theory of the case,’ a prosecutor
is permitted to suggest to the jury that ‘based on the evidence of
the case, they should question the plausibility of the defense’s
theory.’” Davis v. State, 136 So. 3d 1169, 1203 (Fla. 2014)
(quoting Valentine v. State, 98 So.3d 44, 55–56 (Fla. 2012)).
- 28 -
Next,
even
prosecutorial
if
the
were
will
arguments
comments
compel
not
objectionable,
habeas
improper
corpus
relief
unless they rendered the defendant’s trial “fundamentally unfair.”
Brooks v. Kemp, 762 F.2d 1383, 1400 (1985) (en banc), vacated on
other grounds, 478 U.S. 1016 (1986), reinstated, 809 F.2d 700 (11th
Cir.) (en banc), cert. denied, 483 U.S. 1010 (1987).
this
inquiry,
the
Court
must
determine
whether
In making
the
improper
comments “were so egregious as to create a reasonable probability
that the outcome was changed because of them.”
at
1403.
A
“reasonable
probability”
undermine confidence in the outcome.
621, 623 (11th Cir. 1985).
is
Brooks, 762 F.2d
one
sufficient
to
Wilson v. Kemp, 777 F.2d
“If a reviewing court is confident
that, absent the improper remarks, the jury’s decision would have
been no different, the proceeding cannot be said to have been
fundamentally unfair.”
Cir. 1986).
Tucker v. Kemp, 802 F.2d 1293, 1296 (11th
In applying this standard, the reviewing court must
not consider the prosecutor’s comments in isolation.
See Johnson
v. Wainwright, 778 F.2d 623, 631 (11th Cir. 1985) (evaluating
challenged comments in light of “the rest of the prosecutor’s
speech”).
“In this regard, isolated or ambiguous or unintentional
remarks must be viewed with lenity.” Brooks, 762 F.2d at 1400.
The Court must also consider the lack of an objection in examining
the impact of a prosecutor’s closing argument, as the omission
- 29 -
“may demonstrate defense counsel’s belief that the live argument,
despite its appearance in a cold record, was not overly damaging.”
Brooks, 762 F.2d at 1397 n. 19; see also Davis v. Zant, 36 F.3d
1538, 1551 n. 20 (11th Cir. 1994) (“The failure to object can
sometimes serve to clarify an ambiguous record as to whether a
particular argument was in fact misleading or prejudicial.”).
After a full review of the trial transcript and the closing
arguments made by both Counsel and the prosecutor, the Court
concludes
that
prejudicial.
the
prosecutorial
remarks
at
issue
were
not
The evidence against Puente was overwhelming—in
addition to the victim’s testimony and the medical evidence of
anal
penetration—Puente’s
underpants (T. at 401).
sperm
was
found
on
the
victim’s
In addition to being unexhausted, Claim
Three is denied on the merits.
d.
Claim Four
Puente asserts that his constitutional rights were violated
when: (1) the trial court excluded (over objection) testimony from
his former girlfriend that Puente could not get an erection while
drunk; and (2) he was prevented from impeaching the victim by
introducing evidence of the victim’s prior inconsistent statement
(Doc. 1 at 10).
Once again, Respondent notes that Puente has not exhausted
the constitutional aspect of this claim because he did not fairly
- 30 -
present a federal constitutional issue to the state courts and on
appeal (Doc. 19 at 46).
Indeed, a review of Puente’s brief on
appeal (Ex. 2) shows that he did not raise a due process claim or
even cite any federal cases in support of Claim Four.
Because he
did not refer to any “specific federal constitutional guarantee”
in his brief on direct appeal, Puente’s instant constitutional
challenge to the prosecutor’s closing argument was not fairly
presented to the state court and is unexhausted.
Puente does not
satisfy (or even allege) the cause and prejudice, or fundamental
miscarriage
of
default
this
of
justice
claim.
exceptions
Florida’s
to
overcome
procedural
the
rules
procedural
and
time
limitations preclude a second direct appeal. Consequently, Claim
Four cannot be considered by this Court and is due to be dismissed.
Even if Claim Four was not procedurally barred, it is without
merit.
As noted, the general rule is that a federal court will
not review a trial court’s actions with respect to the admission
of
evidence.
See
discussion
supra
Claim
Two;
Jacobs
v.
Singletary, 952 F.2d 1282, 1296 (11th Cir. 1992) (“We review state
court evidentiary rulings on a petition for habeas corpus to
determine only whether the error, if any, was of such magnitude as
to deny petitioner his right to a fair trial.”) (internal quotation
omitted).
The trial court’s exclusion of testimony from Puente’s
former girlfriend regarding his ability to maintain an erection
- 31 -
when drunk did not render Puente’s trial fundamentally unfair.
Puente proffered evidence that his former girlfriend had been in
a relationship with him ten years prior, and when he drank during
their relationship, Puente was unable to obtain an erection when
the
girlfriend
wanted
to
engage
in
sex
(T.
at
490).
The
prosecution objected on the grounds of “relevant, speculative,
time frame, she’s not an expert.”
Id. at 491.
The trial court
determined that whether Puente, while drunk, had been unable to
maintain an erection with his girlfriend during consensual sex ten
years earlier was irrelevant and not probative.
Id.
Given the
ten-year difference in time, the different women involved, and the
fact
that
Puente
engaged
in
consensual
sex
with
his
former
girlfriend (as opposed to forcible rape with his wife of six
years), the trial court properly determined that the girlfriend’s
testimony was irrelevant.
Puente’s assertion that he was prevented from impeaching the
victim with a prior inconsistent statement is factually incorrect;
Counsel merely chose not to do so.
During the cross examination
of the victim, she stated that she continued to struggle with
Puente after he pulled her from the bathroom window and that Puente
then “tried to finish what he was doing” (T. at 166).
Counsel
asked the victim, “when you gave that statement to the police you
never mentioned anything about any sexual related thing after you
- 32 -
left the bathroom, right?”
Id. at 166-67.
The prosecution
objected, and the following exchange occurred:
STATE:
This is through an interpreter.
How would she know what she told the
police[?] She went through a third
party. I mean he –
COUNSEL:
It’s a sworn statement.
STATE:
It isn’t signed by her.
COUNSEL.
(Inaudible) just swear her in.
COURT.
Does she write – does she write in
English?
COUNSEL.
They had a translator asked do you
swear to tell the truth, the whole
truth, and nothing but the truth and
translate it from Spanish to English
and
produce
that
transcript.
There’s nothing in that transcript
about what she’s testifying to now.
COURT.
Well, if you’re trying to impeach
her
with
a
prior
inconsistent
statement, you need to ask her if
she – when she gave the interview if
she told – in her statement did she
say A, B, and C.
COUNSEL.
Okay.
COURT.
Okay. If she says – this is what
you want to prove to impeach – if
she says, yes, I did say that, then
that’s the end of the story. You’ve
impeached her.
If she says no, I
didn’t say any such thing –
COUNSEL.
You can show her this –
COURT.
Then, well, no. Then – then you can
introduce extrinsic evidence to
- 33 -
establish that she said something
else.
COUNSEL.
Okay.
STATE.
How can you do that
translated, Judge[?]
COURT.
He’ll have to call –
STATE.
The translator.
COURT.
He’ll have to call the translator in
this case to – to do that because
she can’t read this.
COUNSEL.
You’re right, she can’t read it.
COURT.
And you’re going to have the
interpreter interpret what’s on
here for her?
No, that would be
asking for even more confusion,
right?
COUNSEL.
(Inaudible).
COURT.
Then what the next step, that is if
you are able to impeach her with a
prior inconsistent statement, then
the State would be able to recall
her and ask her to explain that
statement.
She’d
have
that
opportunity too if we ever get that
far today or tomorrow or the next
day.
COUNSEL.
(Inaudible).
COURT.
Comprende?
Id. at 168-69.
when
she’s
Although not prevented from doing so, Counsel
apparently decided against calling in a translator to impeach the
victim regarding whether she had told the police that her struggle
- 34 -
with
Puente
continued
after
he
pulled
her
from
the
window.
Instead, Counsel questioned the victim about the nature of her
sexual relationship with Puente after he had moved out of the
trailer.
Id.
at
169-71.
Accordingly,
the
trial
court’s
discussion with Counsel regarding the proper procedure to follow
if he sought to impeach the victim did not violate Puente’s
constitutional rights.
In addition to being procedurally barred, Claim Four is denied
on the merits.
e.
Claim Five
Puente asserts that “about” sixteen of the claims raised in
his Rule 3.850 motion were erroneously denied as procedurally
barred because they “could have and should have been raised on
direct appeal” (Doc. 1 at 12).
This claim makes little sense.
Puente raised only twelve claims in his Rule 3.850 motion (Ex. 5),
so it is unclear how sixteen of the twelve could have been
dismissed as procedurally barred. 7
Moreover, Puente does not now
identify a single claim he believes was erroneously dismissed by
the post-conviction court as procedurally barred.
7
In his supporting memorandum, Petitioner merely states that
“many” of his claims were dismissed as procedurally barred.
However, he still does not identify the allegedly erroneously
dismissed claims (Doc. 2 at 14).
- 35 -
Rule 2(c) of the Rules Governing Habeas Corpus Cases under
Section 2254 specifies that a petition must:
(1)
specify all the grounds for
available to the petitioner;
(2)
state the facts supporting each ground;
(3)
state the relief requested;
(4)
be printed, typewritten,
handwritten; and
(5)
be signed under penalty of perjury by the
petitioner or by a person authorized to
sign it for the petitioner under 28
U.S.C. § 2242.
Rule 2(c)(1)-(5).
or
relief
legibly
In Mayle v. Felix, the United States Supreme
Court explained that a § 2254 habeas petition “is expected to state
facts that point to a real possibility of constitutional error.”
545 U.S. 644, 655 (2005) (quoting Advisory Committee’s Note on
Habeas Corpus Rule 4).
These facts must consist of sufficient
detail to enable the court to determine, from the face of the
petition alone, whether the petition merits further habeas corpus
review.
See Adams v. Armontrout, 897 F.2d 332, 334 (8th Cir.
1990); see also Beard v. Clarke, 18 F. App’x 530, 531 (9th Cir.
2001)
(“Conclusory
allegations
which
are
not
supported
by
a
statement of specific facts do not warrant habeas relief. . . .
Notice
pleading
is
insufficient;
the
petitioner
sufficient facts.”)(internal citations omitted).
- 36 -
must
state
Therefore, the
mere assertion of a ground for relief, without more factual detail,
does not satisfy a petitioner’s burden of proof or the requirements
of 28 U.S.C. § 2254(e)(2) and Rule 2(c) of the Rules Governing
Section 2254 Cases in the U.S. District Courts. See Smith v.
Wainwright, 777 F.2d 609, 616 (11th Cir. 1985) (holding that a
general
allegation
of
ineffective
assistance
of
counsel
is
insufficient; a petition must allege specific errors in counsel’s
performance and facts showing prejudice).
Accordingly, the Court
will not speculate on which claims Puente believes were erroneously
dismissed as procedurally barred, and Claim Five is subject to
dismissal as insufficiently pleaded.
To the extent Puente now urges that portions of his Rule 3.850
motion were not addressed by the post-conviction court because the
post-conviction court determined that those portions should have
been raised on direct appeal, he fairs no better.
In cases where
the petitioner has defaulted his federal claim in state court
pursuant to an independent and adequate state procedural rule,
federal
habeas
Petitioner
can
corpus
review
demonstrate
of
the
claim
cause
for
the
is
barred
default
and
unless
actual
prejudice or demonstrate the applicability of the fundamental
miscarriage of justice exception.
See Coleman, 501 at 748.
In his petition, Puente appears to concede that he defaulted
the unidentified claims pursuant to an independent and adequate
- 37 -
state procedural rule.
However, he urges that the claims were not
raised on direct appeal because of ineffective assistance of
appellate counsel (Doc. 1 at 12).
of
appellate
counsel
can
Although ineffective assistance
operate
to
provide
cause
for
the
procedural default of a claim of trial court error, Puente must
have first exhausted the underlying ineffective assistance of
appellate counsel claims, which he did not do. See Edwards v.
Carpenter, 529 U.S. 446, 450–51 (2000) (concluding that a federal
habeas court is barred from considering a procedurally defaulted
ineffective assistance of counsel claim as cause for procedural
default of another claim); Hill v. Jones, 81 F.3d 1015, 1029–31
(11th Cir. 1996) (noting that the Supreme Court’s jurisprudence on
procedural default dictate that procedurally defaulted claims of
ineffective assistance cannot serve as cause to excuse a default
of a second claim).
Nor has Puente presented new, reliable
evidence to support an actual innocence claim.
at 324.
Schlup, 513 U.S.
Consequently, Puente’s passing reference to ineffective
assistance of appellate counsel does not satisfy the cause and
prejudice, or fundamental miscarriage of justice exceptions to
overcome
the
procedural
default
of
Claim
Five.
Florida’s
procedural rules and time limitations preclude a second direct
appeal.
Consequently, in addition to being subject to dismissal
- 38 -
as insufficiently pleaded, Claim Five is both unexhausted and
procedurally barred and cannot be considered by this Court.
f.
Claim Six
Puente asserts that the post-conviction court erred when it
denied Grounds two, three, five, six, seven, eight, and ten of his
Rule 3.850 motion (Doc. 1 at 13).
Puente raised these claims in
his Rule 3.850 motion (Ex. 5), and the post-conviction court denied
the claims, adopting the state’s brief in opposition to the motion
(Ex. 7).
Florida’s Second District Court of Appeal affirmed
without a written opinion on the merits (Ex. 8).
The affirmance
of the post-conviction court’s ruling is entitled to deference,
and the Court must now determine whether any arguments or theories
could have supported the state appellate court’s conclusions.
Wilson, 834 F.3d at 1235.
Each of the claims will be addressed
separately.
1.
Ground Two (Claim 6(a))
Puente asserts that Counsel was constitutionally ineffective
because he conceded Puente’s guilt to simple battery during closing
argument (Doc. 1 at 13; Ex. 5 at 4).
Puente appears to take issue
with the following statements made by Counsel during closing:
[The state] has not met their burden in this
particular case, and I ask you to find the
defendant not guilty.
- 39 -
The Judge will also instruct you to what is
known as lesser included offenses.
If you
don’t believe that the defendant has committed
the offense of sexual battery, and I don’t
believe the evidence has shown that, the Judge
will instruct you that you can find the
defendant guilty of a lesser included offense.
That lesser included offense is battery. The
defendant took the stand and you heard Mr.
Puente
talk
about
what
happened
that
particular night, how he grabbed Mr. – Mrs.
Puente by the arm, how he grabbed her by the
hair.
That evidence is consistent with the
physical evidence, the photographs that the
State showed you regarding the hairs and so
forth, the bruise on the back of her arm. We
would ask you to find the defendant guilty of
what he did which is battery, simply battery.
(T. at 610-11).
Notably, Counsel did not concede Puente’s guilt
to the offenses with which he was charged (sexual battery), but
instead argued that the evidence pointed only to the lesserincluded crime of simple battery.
See Florida v. Nixon, 543 U.S.
175, 187 (2004) (holding that a concession of guilt to a lesser
included offense is not the functional equivalent of a guilty
plea); McNeal v. Wainwriqht, 722 F.2d 674, 677 (11th Cir. 1984)
(distinguishing that a tactical decision to admit to a lesser
offense does not amount to guilty plea without a defendant’s
consent and the tactical decision does not require a client’s
consent).
Given the evidence presented at trial (including Puente’s own
testimony) that Puente did grab the victim by the arm and hair (T.
- 40 -
at 517, 518, 522, 523), Counsel’s concession was not objectively
unreasonable, and there is no reasonable probability that the
outcome of the trial would have differed absent the concession.
Nixon,
543
U.S.
at
189.
Therefore,
Petitioner
cannot
demonstrate
cannot
show
Strickland prejudice.
Moreover,
performance.
Petitioner
deficient
The decision to admit to certain uncontested facts
was a tactical one and is entitled to deference.
“[C]ounsel cannot
be deemed ineffective for attempting to impress the jury with his
candor and his unwillingness to engage in ‘a useless charade’ [by
failing to concede overwhelming of guilt to a lesser included
offense].” Nixon, 543 U.S. at 192 (quoting United States v. Cronic,
466
U.S.
648,
656
n.
19
(1984)).
Accordingly,
satisfies neither prong of the Strickland test.
Petitioner
The state courts’
rejection of this claim was not contrary to or an unreasonable
application of Strickland, nor was it based upon an unreasonable
determination of the facts.
2.
Claim 6(a) is denied as without merit.
Ground Three (Claim 6(b))
Puente asserts that Counsel was ineffective for failing to
object to the prosecutor’s summary of the evidence during closing
argument (Ex. 5 at 5-26).
In addition to taking issue with the
statements discussed in Claim Three, Puente urges that Counsel
should have objected to the prosecutor’s final statement that
- 41 -
“[Puente] is guilty and he needs to be held accountable” (T. at
622).
Puente
also
complains
that
the
prosecutor
unfairly
solicited the jury’s sympathy by repeatedly pointing out that two
small children had been present when the victim was sexually
assaulted (Ex. 5 at 6-10). 8
A prosecutor who expresses his personal opinion concerning
the guilt of the accused poses the danger that “such comments can
convey the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the defendant
and can thus jeopardize the defendant’s right to be tried solely
on the basis of the evidence presented to the jury; and the
prosecutor’s
opinion
carries
with
it
the
imprimatur
of
the
Government and may induce the jury to trust the Government’s
judgment rather than its own view of the evidence.”
v. Young, 470 U.S. 1, 18 (1985).
United States
Even if the instant statement
8
The post-conviction court, adopting the state’s response,
denied this claim as procedurally barred on the ground that it
should have been raised on direct appeal (Ex. 6 at 6). The Court
disagrees that this claim was procedurally barred; it was parsed
in terms of ineffective assistance of counsel, not trial court
error. See State v. Barber, 301 So. 2d 7, 9 (Fla. 1974) (holding
that a claim of ineffective assistance of counsel cannot be raised
for the first time on direct appeal). However, this Court need
not consider the deference owed to the state court’s determination
that the claim is procedurally barred, nor need the Court consider
the applicability of Martinez v. Ryan, 566 U.S. 1 (2012) to excuse
the default, because the claim fails on the merits. See 28 U.S.C.
§ 2254(b)(2).
- 42 -
from the prosecutor could be construed as expressing his personal
opinion about Puente’s guilt, the statement came at the end of a
long, detailed summation of the evidence presented at trial.
at
611-22.
Reasonable
competent
defense
counsel
could
Id.
have
foregone an objection to the statement because, when viewed in
context of the entire summation, the remarks did not imply that
the
state
had
access
to
evidence
outside
the
record.
See
Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998)
(noting that counsel’s conduct is unreasonable only if petitioner
shows “that no competent counsel would have made such a choice”).
Moreover, the overwhelming evidence of Puente’s guilt eliminates
any doubt that the prosecutor’s remarks unfairly prejudiced the
jury’s deliberation.
The statements made by the prosecutor during closing argument
regarding the presence of the victim’s children at the assault and
the prosecutor’s other statements regarding the evidence presented
at trial were true and were merely a summary of the evidence
presented in Court.
See Braddy v. State, 111 So. 3d 810, 840
(Fla. 2012) (comments made during closing that “merely summarize[]
the evidence introduced at trial” are not improper).
Moreover,
even if the comments were objectionable, reasonable competent
counsel could have concluded that objecting to the inclusion of
statements about the children’s presence had little chance of
- 43 -
success and would have only directed the jury’s attention to the
fact that Puente was accused of raping his estranged wife in front
of two small children.
Likewise, objecting to the prosecutor’s
summary of the evidence would have highlighted the damaging aspects
of the evidence.
Cir.
1988)
Julius v. Johnson, 840 F.2d 1533, 1537-38 (11th
(defense
counsel’s
decision
not
to
object
to
prosecutor’s comments during closing argument was a deliberate
tactical
choice
objections
because
during
closing
counsel
argument
reasonably
merely
believed
focus
the
that
jury’s
attention on the damaging remarks); see also discussion supra Claim
Three.
Puente has demonstrated neither deficient performance nor
resulting
prejudice
from
Counsel’s
prosecutor’s closing arguments.
failure
to
object
to
the
Accordingly, Claim 6(b) is denied
as without merit.
3.
Ground Five (Claim 6(c))
Puente asserts that Counsel was ineffective for failing to
properly impeach the victim (Ex. 5 at 30-37).
He generally asserts
that essentially every statement made by the victim during her
testimony
was
untrue
and
that
Counsel
should
have
done
more
research to learn about the victim’s past so that he could more
effectively
question
her.
Specifically,
Puente
claims
that
Counsel should have: (1) obtained documents from the Department of
- 44 -
Immigration and Naturalization and used them to show who had
sponsored the victim’s citizenship; (2) found a witness to testify
that the victim had taken an English class; (3) been able to get
the victim to admit that she was the actual aggressor in the
altercation; (4) gotten the victim to admit that the only instances
of domestic violence in the past had involved Puente pushing the
victim four times; (5) asked the victim whether Petitioner ripped
or tore her clothing when he removed it, and if the victim answered
“yes,” Counsel could have impeached her; (6) “impeached” the victim
with her testimony that she had sexual relations with the victim
the day prior to the attack; (7) impeached the victim’s testimony
that she had asked Puente to leave the house because he was
irresponsible with her statement during the divorce hearing that
Puente was a good father; (8) impeached the victim with her
inconsistent statements as to the precise moment her father walked
in and witnessed Puente batter the victim; and (9) done a better
job impeaching the victim about how many times she had visited him
in jail.
Puente also asserts that Counsel should have called more
witnesses to testify that he (Puente) was not controlling and to
clarify how many times the victim had visited him in jail after
the rape.
Finally, Petitioner submits that the state may have
- 45 -
committed a Brady 9 violation by giving the Counsel photocopies of
the photographs of the victim’s injuries instead of the original
photographs. Id.
In denying the first part of this claim, the state postconviction court adopted the state’s response to Puente’s Rule
3.850 motion:
In this subset of eight postconviction claims,
the Defendant complains about trivial examples
about
defense
counsel’s
alleged
ineffectiveness. Many of the points he claims
were never presented to the jury, were, in
fact, presented to the jury.
Like the
defendant in Blackwood v. State, the Defendant
is simply unable to demonstrate that he was
deprived of his constitutional right to
counsel.
946 So. 2d 960 (Fla. 2006).
The
Defendant’s
defense
counsel
tried
to
accomplish all that the Defendant insisted of
him. The record is rife with instances where
defense counsel attempted to impeach the
victim with information but the victim would
simply not deliver the answer that the
Defendant was hoping for.
The victim’s
answers
to
defense
counsel’s
line
of
questioning cannot constitute a basis for
postconviction relief.
The record makes
clear
that
defense
counsel’s
crossexamination of the victim “falls squarely
within the range of reasonable professional
assistance, particularly where ‘[j]udicial
scrutiny of counsel’s performance must be
highly deferential.’”
Id. at 969 (quoting
9
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United
States Supreme Court held that “the suppression by the prosecution
of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.”
- 46 -
Strickland).
Like
the
defendant
in
Blackwood, the Defendant “fails to present any
instance in which the performance of counsel
falls to the level of being objectively
unreasonable, particularly when considered in
context of an overall strategy.”
Id.
Because of the trivial nature of these claims,
and the speculative connection between these
alleged instances of ineffective assistance
and the jury’s verdict, these claims should be
summarily denied.
(Ex. 6 at 16).
(Ex. 8).
these
Florida’s Second District Court of Appeal affirmed
Puente does not explain how the state courts’ denial of
claims
was
contrary
to
Strickland
or
based
upon
an
unreasonable determination of the facts.
As noted by the state court, much of this claim makes little
sense,
but
appears
to
be
based
primarily
upon
Puente’s
disappointment with Counsel’s attempts to impeach the victim.
For
example, when Counsel asked the victim whether she spoke English,
she answered “I understand a little bit.” (T. at 154).
She told
Counsel that she did not speak “much” English, only “one, two,
three words.”
Id. at 155.
It is unclear why Puente believes that
asking the victim about her English class would have impacted the
weight of her testimony or the outcome of his trial.
Nevertheless,
Counsel attempted to impeach the victim on this issue, and she
denied attending an English class.
Id. at 453.
Likewise, the
victim never testified that her father sponsored her citizenship,
only that he could have done so (T. at 172).
- 47 -
The victim admitted
that she had paid several thousand dollars towards obtaining legal
immigration status.
Id. at 442.
The victim admitted having
sexual relations with Puente two days before the assault (T. at
170), so Counsel could not have “impeached” or on this point.
Puente, not the state, elicited the testimony regarding Puente’s
prior battery of the victim, and the only statement in this regard
was the victim’s affirmance that Puente had hit her multiple times
in the past. Id. at 452.
Puente’s claims that better counsel could have gotten the
victim to admit that she was the aggressor in the altercation or
“tricked” her into lying about the condition of her clothing after
Puente removed them are speculative, and warrant no consideration.
See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague,
conclusory, speculative, and unsupported claims cannot support
relief for ineffective assistance of counsel).
Likewise, this
Court will not consider Puente’s claims that uncalled witnesses
would have testified in his favor.
Puente’s petition is devoid
of any evidence that these witnesses would have testified as Puente
now suggests. “[E]vidence about the testimony of a putative witness
must generally be presented in the form of actual testimony by the
witness or on affidavit.
A defendant cannot simply state that the
testimony would have been favorable; self-serving speculation will
not sustain an ineffective assistance claim.”
- 48 -
United States v.
Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes omitted);
accord Dottin v. Sec’y, Dep’t of Corr., No. 8:07–CV–884–T–27MAP,
2010 WL 3766339, at *6 (M.D. Fla. Sept. 16, 2010).
Puente fares no better with his argument that the state
committed a Brady violation by failing to insist that the state
provide the original photographs of the victim’s injuries.
Puente
raised this claim in his Rule 3.850 motion, and the state postconviction court adopted the state’s response to the motion (Ex.
7).
The state detailed the requirements to state a viable Brady
claim and denied Puente’s Rule 3.850 motion on the grounds that no
violation had occurred.
The state also determined that Puente had
suffered no prejudice from the alleged violation:
Next, the Defendant claims that defense
counsel knew the state had committed a Brady
violation in that the State did not provide
the original photographs of the victim’s
injuries to the defense.
He states that by
failing to request a Richardson hearing on
this alleged Brady violation, prejudiced the
Defendant because the “actual photographs”
show less bruising on the victim.
The
Defendant claims that the State had an
obligation to provide the original photographs
to the defense and that the failure to insist
upon this resulted in the Defendant being
convicted based on “photographic evidence
which was admittedly not a fair representation
of [the victim’s] actual physical condition.
The copies of photographs of which
Defendant complains are photographs of
victim’s bruising on the face and body.
photographs do not depict any evidence of
- 49 -
the
the
The
the
Defendant anally penetrating her. “There are
three components of a true Brady violation:
The evidence at issue must be favorable to the
accused, either because it is exculpatory, or
because it is impeaching; that evidence must
have been suppressed by the State, either
willfully or inadvertently; and prejudice must
have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999).
“As explained by the
United States Supreme Court, a ‘showing that
the prosecution knew of an item of favorable
evidence unknown to the defense does not
amount to a Brady violation, without more.’
Way v. State, 760 So. 2d 903, 912 (Fla. 2000)
(internal citations omitted). The defendant
must also show that the evidence was material.
“Evidence is material for the purposes of a
Brady claim only if there is a reasonable
probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different.
A
‘reasonable probability’ is a probability
sufficient to undermine confidence in the
outcome.” Id. (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985). To address
the issue of materiality, the correct inquiry
is whether “the favorable evidence could
reasonably be taken to put the whole case in
such a different light as to undermine
confidence in the verdict.”
Strickler, 527
U.S. at 290 (internal citations omitted).
The Defendant has failed to demonstrate any of
the necessary components of a Brady violation.
See section 92.29, Fla. Stat.
Moreover,
during his testimony, the Defendant admitted
to hitting the victim. Challenging the copies
of photographs taken by law enforcement would
have done nothing to have changed the verdict
with regard to the battery. Additionally, a
wealth of other inculpating evidence was
introduced at trial to prove beyond a
reasonable doubt that the Defendant had
committed a sexual battery upon the victim.
- 50 -
For these
denied.
reasons,
this
claim
should
be
(Ex. 6 at 17-18) (emphasis in original) (internal citations to the
record omitted).
Puente does not explain how the state courts’
adjudication of this claim was contrary to Strickland or based
upon an unreasonable determination of the facts.
First, the photographs of the victim’s injuries were clearly
not “suppressed.”
Counsel was aware that the copies provided by
the state were photocopies and not the original photographs (T. at
356).
See Provenzano v. State, 616 So. 2d 428, 430 (Fla. 1993)
(“There is no Brady violation where the information is equally
accessible to the defense and the prosecution, or where the defense
either had the information or could have obtained it through the
exercise of reasonable diligence.”).
Next, there is no reason to
believe that the photographs were exculpatory—the only testimony
about the photographs came from Detective Maran who testified that
the printer was not good and “there’s like a big line down here
that wasn’t on my pictures.”
Id. at 357.
Puente does not assert
that he has actually seen the original photographs (nor does he
provide them to this Court); rather, he merely speculates that the
marks that appear to be bruises on the victim “are actually random
defects in the poor quality printing/copying” of the photographs
in evidence (Ex. 5 at 36).
See Wright v. State, 857 So. 2d 861,
- 51 -
870 (Fla. 2003) (holding that there was no Brady violation because
the
exculpatory
effect
of
the
disputed
documents
was
merely
speculative); Gore v. State, 846 So.2d 461, 466-67 (Fla. 2003)
(holding that the Brady claim was insufficiently pleaded in the
rule 3.851 motion because the defendant presented no factual basis
that the disputed item ever existed or contained exculpatory
information).
Finally, the victim’s injuries were described to
the jury by Detective Maran, Nurse Hansell, and the victim (T. at
129-51, 246-99, t. at 322-41).
The marks on the victim are barely
visible on the photocopies of the photographs attached to the
record (Ex. 4 at 146-58).
Accordingly, Puente cannot show how the
failure to submit the missing photographs into evidence resulted
in prejudice.
Puente has demonstrated neither deficient performance nor
resulting prejudice from any of the myriad claims raised in Ground
Five of his Rule 3.850 motion.
Accordingly, the state court’s
rejection of this claim was neither contrary to Strickland nor
based upon an unreasonable determination of the facts.
Claim 6(c)
is denied as without merit.
4.
Ground Six (Claim 6(d))
Puente asserts that Counsel was constitutionally ineffective
for
failing
to
object
to
the
use
of
translators
during
investigation of the sexual assault (Ex. 5 at 38-40).
- 52 -
the
Puente
asserts that “since this case hinged upon credibility of witnesses
EVERYTHING in this case, it cannot be said that these errors did
not
change
the
outcome
of
credibility determination.”
In
denying
this
the
trial
by
changing
the
jury’s
Id. at 39.
claim,
the
state
post-conviction
court
adopted the state’s response to Puente’s Rule 3.850 motion, and
determined that defense counsel had actually objected to the use
of third-party translators, and that “any discrepancy concerning
the
content
or
reliability
of
statements
translated
by
an
interested or suspect interpreter related to the weight of the
evidence and did not bear on its admissibility.” (Ex. 6 at 19).
Florida’s Second District Court of Appeal affirmed (Ex. 8).
Puente does not explain how the state court’s denial of this
claim was contrary to Strickland or based upon an unreasonable
determination of the facts.
Moreover, Puente does not point to a
single instance in which he alleges that any interpreter made an
incorrect statement.
Accordingly, Puente has not met his burden
of demonstrating Strickland prejudice, and Claim 6(d) is denied as
without merit.
5.
Ground 7 (Claim 6(e))
Puente asserts that Counsel should have objected to, or made
a
motion
to
exclude,
the
State’s
closing
argument
Puente’s consciousness of guilt (Ex. 5 at 40).
- 53 -
regarding
Specifically,
Puente complains that the prosecutor commented that Puente had
left the scene of the crime before the police arrived.
In
denying
this
claim,
the
state
Id.
post-conviction
court
adopted the state’s response to Puente’s Rule 3.850 motion, and
determined that Counsel’s performance was not deficient because
the state “is permitted to comment on a defendant’s actions that
indicate his or her consciousness of his or her own guilt.”
6 at 19).
(Ex.
Florida’s Second District Court of Appeal affirmed (Ex.
8).
Puente does not explain how the state courts’ determination
was
contrary
to
Strickland
determination of the facts.
or
based
upon
an
unreasonable
Therefore, AEDPA deference should be
given to the state court’s decision.
The state court’s ruling is
well-supported
by
by
the
record
Strickland, and its progeny.
and
controlling
case
law,
Accordingly, reasonable competent
counsel could have decided against objecting to the prosecutor’s
comments regarding Petitioner leaving the scene of the crime. See
Caraballo v. State, 39 So. 3d 1234 (Fla. 2010) (the prosecution is
permitted to address a defendant’s apparent consciousness of guilt
during closing argument).
6.
Claim 6(e) is denied as without merit.
Ground 8 (Claim 6(f))
Puente asserts that Counsel should have moved to exclude Nurse
Diana Hansell’s testimony regarding the victim’s rectal dilation
- 54 -
because Hansell was not an expert on rectal dilation and should
not have been permitted to testify to her observation of it (Ex.
5 at 42).
Puente further asserts, without explanation, that
“persons who practice anal sex wherein their anus remains in a
constant state of dilation.”
Id.
Puente raised this claim in his Rule 3.850 motion, and the
state
post-conviction
court
Puente’s Rule 3.850 motion.
adopted
the
state’s
response
to
The court determined that Counsel’s
performance was not deficient because Hansell “testified as to
what she observed of the victim’s anus during a medical exam.
The
witness never purported to be an expert in rectal dilation and
testified that she had never seen a dilated anus prior to observing
the victim’s.” (Ex. 6 at 19).
The Court noted that, even had
Counsel objected, he would have been overruled because. “the
witness was testifying as to what she observed and what she, in
her experience as a medical practitioner had learned.”
Id. at 20.
As noted by the post-conviction court, Hansell testified as
to what she observed during her examination of the witness.
is allowed under Florida law.
This
See Lewek v. State, 702 So. 2d 527,
531 (Fla. 4th DCA 1997) (witness’s eyewitness testimony based upon
observation admissible).
Reasonable competent counsel could have
decided against objecting to the testimony.
Puente’s argument
that Counsel should have objected to Hansell’s testimony that a
- 55 -
rectal sphincter will generally close six to eight hours after
penetration
(T.
at
264)
is
equally
unavailing.
By
denying
Puente’s Rule 3.850 motion on the ground that Hansell’s testimony
was properly admitted, the state court has already told this Court
what would have happened had Counsel objected—the objection would
have been overruled.
State courts, not federal courts on habeas
review, are the final arbiters of state law.
Baggett v. First
Nat’l Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997).
The
state
court’s
conclusion
that
Hansell’s
testimony
was
admissible in its entirety puts to rest any claim that Puente was
prejudiced by Counsel’s failure to object to it.
Puente has demonstrated neither deficient performance nor
resulting prejudice from Counsel’s failure to object to Hansell’s
testimony.
Accordingly, the state courts’ rejection of this claim
was neither contrary to Strickland nor based upon an unreasonable
interpretation of the facts. Claim 6(f) is denied on the merits.
7.
Ground Ten (Claim 6(g))
Puente asserts that Counsel was constitutionally ineffective
for asking Detective Maran if the victim’s injuries were consistent
with her getting stuck in the bathroom window when she tried to
escape (Ex. 5 at 47).
Puente urges that Counsel was incompetent
because Detective Maran answered that the victim’s injuries were
not consistent with injuries received from getting stuck in a
- 56 -
window, and had Counsel not asked the question, the outcome of his
trial would have been different.
Id.
Puente raised this claim in his Rule 3.850 motion, and the
post-conviction court adopted the state’s response, which noted
that Puente could not demonstrate Strickland prejudice merely from
a single question (Ex. 6 at 20).
Puente does not explain how the
state courts’ conclusion was contrary to Strickland or based upon
an unreasonable determination of the facts.
Detective Maran initially testified that the injuries on the
victim were inconsistent with getting stuck in a window because
“the injuries would be in that area [of the body] where she was
stuck trying to wiggle in or out.” (T. at 358).
However, when
pressed by Counsel, Detective Maran admitted that she did not know
what part of the victim’s body was stuck in the window.
Id.
Accordingly, Counsel effectively diffused any impact of Detective
Maran’s
testimony
on
this
issue.
The
state
court
did
not
unreasonably conclude that Puente suffered no prejudice from this
question, and Claim 6(g) is denied on the merits.
g.
Claim Seven
Puente asserts that there was a conflict of interest between
Puente and Counsel “which resulted in counsel abandoning this case
and even becoming an adversary to the defense.” (Doc. 1 at 16).
Although this claim appears to a mere rambling re-hash of Puente’s
- 57 -
considerable displeasure with the quality of his defense, he
appears
to
make
the
incredible
assertion
that
Counsel
was
ineffective because he acceded to Puente’s demands to proceed in
certain ways.
See, e.g., Ex. 5 at 48 (complaining that Counsel
opened the door to Defendant’s prior bad acts merely because
Petitioner insisted that he do so).
constitutionally
ineffective
client’s wishes.
(Fla.
1992)(“[W]e
Counsel does not demonstrate
assistance
by
complying
with
his
See Sims v. State, 602 So. 2d 1253. 1257-58
do
not
believe
counsel
can
be
considered
ineffective for honoring the client’s wishes.”); Reed v. State,
875 So. 2d 415, 435-36 (Fla. 2005) (a petitioner cannot complain
in post-conviction proceedings that his defense counsel followed
his directions).
Moreover, the Court has reviewed the entire
transcript of Puente’s trial, and does not find a single instance
of constitutional ineffectiveness.
Finally, the Court concludes
that the overwhelming evidence of Puente’s guilt precludes a
finding that he suffered Strickland prejudice from any of Counsel’s
alleged shortcomings.
Claim Seven is denied on the merits.
Any of Puentes’ allegations not specifically addressed herein
have been found to be without merit.
- 58 -
IV.
Certificate of Appealability 10
Puentes 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, Puente 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. Puente has not
made the requisite showing in these circumstances.
Because
Puentes
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:
10
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.
- 59 -
1.
The Florida Attorney General is DISMISSED as a named
Respondent.
2.
Claims One through Four of the 28 U.S.C. § 2254 petition
for habeas corpus relief filed by Abel Puentes (Doc. 1) are
dismissed as unexhausted or, alternatively, denied on the merits;
Claim Five is dismissed as insufficiently pleaded; the remaining
claims are denied on the merits.
This case is dismissed with
prejudice.
3.
Puentes 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 July, 2017.
SA: OrlP-4
Copies: All Parties of Record
- 60 -
19th
day
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