Pedraza v. Secretary, DOC et al

Filing 16

OPINION AND ORDER dismissing the Florida Attorney General; denying in part and dismissing in part 1 Petition for writ of habeas corpus. Ground 1 is denied on the merits, and Grounds 2 and 3 are dismissed as procedurally defaulted. Ground 3 is also denied in the alternative on the merits. The Clerk shall enter judgment accordingly, terminate any pending motions, and close the case. A certificate of appealability is denied. Signed by Judge John E. Steele on 4/4/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MIGUEL PEDRAZA,
Petitioner,
v.

Case No: 2:16-cv-338-FtM-29MRM

SECRETARY, DOC and FLORIDA
ATTORNEY GENERAL,
Respondents. 1
/
OPINION AND ORDER
This matter comes before the Court on Petitioner, Miguel
Pedraza's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus
by a Person in State Custody (Doc. #1), filed on May 5, 2016.
Respondent,

Julie

Jones,

Secretary

of

the

Department

The
of

Corrections, filed her Response in Opposition (Doc. #12) on October
25, 2016.

Pedraza filed his Reply Brief to the Respondent’s

Opposition (Doc. #15) on November 16, 2016.

The Petition is fully

briefed and ripe for the Court’s 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.

I.

Background

Shortly after midnight on November 24, 2005, Pedraza and his
Co-defendants unlawfully entered the house located at 18060 Nalle
Road in North Fort Myers, Florida. (Ex. 5, at 3). According to the
record before the Court, Pedraza was driving the vehicle that
transported the individuals to the Nalle Road residence with the
express purpose of robbing the men inside. (Ex. 5, at 3).

The

owner of the Nalle Road residence was Pedraza’s uncle, Rafael
Tinco. (Ex. 5, at 3).
to

house

construction

Tinco used the North Fort Myers residence
workers

employed

construction company. (Ex. 5, at 3-4).

by

his

Miami

based

During the course of the

robbery shots were fired and one man, Jose Gomez, was killed. (Ex.
5, at 5-6).
On February 1, 2006, the Grand Jury for the Twentieth Judicial
Circuit in and for Lee County, Florida, indicted Pedraza on charges
of felony murder in the death of Jose Gomez in violation of Fla.
Stat. § 782.04(1), 775.87(2)(a), and 777.011. (Ex. 5, at 1).

On

January 23, 2009, the jury found Pedraza guilty of felony murder.
(Ex. 3).

Pedraza filed a motion for a new trial on April 2, 2009,

which was denied by the trial court on October 13, 2009.

Pedraza

appealed the trial court’s denial of his motion for a new trial on
October 19, 2009.

Florida’s Second District Court of Appeals per

curiam affirmed the trial court’s ruling on July 1, 2011. (Ex. 8).

2

On April 27, 2012, Pedraza filed a motion to correct illegal
sentence pursuant to Fla. R. Crim. P. § 3.800.

He was ordered to

file an amended petition because his original petition was not
filed under oath. (Ex. 13).
amended petition.

On October 16, 2013, he filed his

The § 3.800 petition was denied on October 16,

2013. (Ex. 14).
On July 23, 2013, Pedraza filed a motion for post-conviction
relief pursuant to Fla. R. Crim. P. § 3.850.
denied on March 17, 2014. (Ex. 17).

That petition was

The Second District Court of

Appeals affirmed the denial without opinion and the appeals court’s
Mandate was issued on May 18, 2016. (Ex. 23); Pedraza v. State,
190 So. 3d 72 (Fla. 2d DCA 2016).
Pedraza now files the instant motion for habeas corpus relief
pursuant to the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) 28 U.S.C. § 2254.
II. Standards of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), governs
this action. Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007).
Respondent concedes that the Petition is timely filed in this
Court, and this Court agrees. (Doc. #12, at 3-4).
Under AEDPA, the standard of review is greatly circumscribed
and highly deferential to the state courts. Alston v. Fla. Dep't
of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010) (citations omitted).

3

AEDPA altered the federal 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). The
following legal principles apply to this case.
A. Deference to State Court Decisions
A federal court must afford a high level of deference to the
state court's decision. Ferguson v. Culliver, 527 F.3d 1144, 1146
(11th Cir. 2008). 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); Cullen v. Pinholster, 563 U.S. 170, 181(2011).
“This is a difficult to meet, and highly deferential standard for
evaluating state-court rulings, which demands that the state-court
decisions be given the benefit of the doubt.”

Id. (internal

quotations and citations omitted). See also Harrington v. Richter,
562 U.S. 86, 102 (2011) (pointing out that “if [§ 2254(d)’s]
standard is difficult to meet, that is because it was meant to
be.”).

4

Both the Eleventh Circuit and the Supreme Court broadly
interpret

what

is

meant

by

an

“adjudication

on

the

merits.”

Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir. 2011).
a

state

court’s

summary

rejection

of

a

claim,

even

Thus,
without

explanation, qualifies as an adjudication on the merits that
warrants deference by a federal court.

Id.; see also Ferguson v.

Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).

Indeed, “unless

the state court clearly states that its decision was based solely
on a state procedural rule [the Court] will presume that the state
court

has

rendered

an

adjudication

on

the

merits

when

the

petitioner’s claim ‘is the same claim rejected’ by the court.”
Childers v. Floyd, 642 F.3d at 969 (quoting Early v. Packer, 537
U.S. 3, 8 (2002)).
“A

legal

principle

is

‘clearly

established’

within

the

meaning of this provision only when it is embodied in a holding of
[the United States Supreme] Court.”

Thaler v. Haynes, 559 U.S.

43, 47 (2010); see also Carey v. Musladin, 549 U.S. 70, 74 (2006)
(citing Williams v. Taylor, 529 U.S. 362, 412 (2000)) (recognizing
“[c]learly established federal law” consists of the governing
legal principles, rather than the dicta, set forth in the decisions
of the United States Supreme Court at the time the state court
issues

its

decision).

“A

state

court

decision

involves

an

unreasonable application of federal law when it identifies the
correct legal rule from Supreme Court case law but unreasonably

5

applies that rule to the facts of the petitioner's case, or when
it unreasonably extends, or unreasonably declines to extend, a
legal principle from Supreme Court case law to a new context.”
Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291 (11th
Cir.

2012)

(internal

quotations

and

citations

omitted).

The

“unreasonable application” inquiry requires the Court to conduct
the two-step analysis set forth in Harrington v. Richter, 562 U.S.
at 86.

First, the Court determines what arguments or theories

support the state court decision; and second, the Court must
determine whether “fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior”
Supreme Court decision.

Id. (citations omitted).

Whether a court

errs in determining facts “is even more deferential than under a
clearly erroneous standard of review.”
1195, 1201 (11th Cir. 2005).

Stephens v. Hall, 407 F.3d

The Court presumes the findings of

fact to be correct, and petitioner bears the burden of rebutting
the presumption by clear and convincing evidence.

28 U.S.C. §

2254(e)(1).
The Supreme Court has held that review “is limited to the
record that was before the state court that adjudicated the claim
on the merits.”

Cullen, 131 S. Ct. at 1398.

Thus, the Court is

limited to reviewing only the record that was before the state
court at the time it rendered its order. Id.
B. Ineffective Assistance of Counsel

6

Ineffective assistance of counsel claims are reviewed under
the standards established by 28 U.S.C. § 2254(d). Newland v. Hall,
527 F.3d 1162, 1183 (11th Cir. 2008).

Post-AEDPA, the standard

set forth in Strickland v. Washington, 466 U.S. 668 (1984), remains
applicable to the claims of ineffective assistance of counsel
raised in this case.

Newland, 527 F.3d at 1184.

In Strickland,

the Supreme Court established a two-part test to determine whether
a convicted person is entitled to habeas relief on the grounds
that his or her counsel rendered ineffective assistance: (1)
whether counsel’s representation was deficient, i.e., “fell below
an

objective

standard

of

reasonableness”

“under

prevailing

professional norms,” which requires a showing that “counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment”; and (2) whether
the deficient performance prejudiced the defendant, i.e., there
was

a

reasonable

probability

that,

but

for

counsel’s

unprofessional errors, the result of the proceeding would have
been different, which “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 688; see also

Bobby Van Hook, 558 U.S. 4, 8 (2009); Cullen v. Pinholster, 131 S.
Ct. at 1403 (2011).
States may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented,” but “the Federal

7

Constitution imposes one general requirement: that counsel make
objectively reasonable choices.”

Bobby Van Hook, 130 S. Ct. at 17

(internal quotations and citations omitted).

It is petitioner

who bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable.”
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006).

Jones v.

A court must

“judge the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,” Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland,
466 U.S. at 690), applying a “highly deferential” level of judicial
scrutiny.

Id.

A court must adhere to a strong presumption that

“counsel’s conduct falls within the wide range of reasonable
professional

assistance.”

Strickland,

466

U.S.

at

689.

An

attorney is not ineffective for failing to raise or preserve a
meritless issue.

Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.

1989); United States v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992) (“a lawyer’s failure to preserve a meritless issue plainly
cannot prejudice a client”). “To state the obvious: the trial
lawyers, in every case, could have done something more or something
different.

So, omissions are inevitable.

But, the issue is not

what is possible or ‘what is prudent or appropriate, but only what
is constitutionally compelled.’”

Chandler v. United States, 218

F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)).

8

C. Exhaustion of State Remedies and Procedural Default
Before a district court can grant habeas relief to a state
prisoner under § 2254, the petitioner must exhaust all state court
remedies that are available for challenging his conviction, either
on direct appeal or in a state post-conviction motion. See §
2254(b)1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(“[T]he state prisoner must give the state courts an opportunity
to act on his claims before he presents those claims to a federal
court in a habeas petition.”).

A state prisoner “‘must give the

state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
appellate review process,’ including review by the state's court
of last resort, even if review in that court is discretionary.”
Pruitt v. Jones, 348 F.3d 1355, 1358–59 (11th Cir. 2003).
To exhaust a claim, a petitioner must make the state court
aware of both the legal and factual bases for his claim.
Snowden

v.

Singletary,

135

F.3d

732,

735

(11th

Cir.

See
1998)

(“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 on and correct alleged
violations of its' prisoners federal rights.’” (quoting Duncan v.
Henry, 513 U.S. 364, 365 (1995))). A federal habeas petitioner
“shall not be deemed to have exhausted the remedies available in
the courts of the State ... if he has the right under the law of

9

the State to raise, by any available procedure, the question
presented.” Pruitt, 348 F.3d at 1358. The prohibition against
raising an unexhausted claim in federal court extends to both the
broad legal theory of relief and the specific factual contention
that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d
1317, 1344 (11th Cir. 2004).
III. Discussion
Pedraza raised the following three grounds in his Petition:
Ground One, ineffective assistance of counsel for failing to argue
the correct predicate needed to allow him to introduce evidence of
bias relating to state witness Elizabeth Reed; 2 Ground Two, denial
of the constitutional right of due process due for failing to allow
a jury instruction of duress and accessory after the fact; and
Ground Three, denial of due process by the trial court by allowing
improper opinion testimony by Detective Kalstrom.
A. Ground One: Ineffective Assistance of Counsel
In Ground One, Pedraza avers that trial counsel should have
argued that Reed’s testimony was biased because she was a suspect
in a second robbery/homicide after the Nalle Road robbery/homicide

Elizabeth Reed was a passenger in the vehicle driven by Pedraza
to the Nalle Road residence on November 24, 2005. Reed remained
in the vehicle during the robbery/homicide.
After Reed was
questioned by police about the incident, she was arrested and
charged with first degree murder for her participation in events
at the Nalle Road residence. Reed subsequently pled guilty to the
reduced charge of second degree murder and agreed to testify
against her Co-Defendants. (Ex. 5, at 4-6).
2

10

at issue in Pedraza’s case.

Although Reed was questioned about

the second robbery/homicide, she was never charged. Pedraza states
that during her initial interview and subsequent interviews Reed
“continuously exculpated” him. (Doc. #1, at 5).

Pedraza contends

that it was only after Reed was questioned/implicated in a second
robbery/homicide investigation—approximately a year and a half
after the instant case—that Reed agreed to enter into a plea deal
with the State of Florida.

After Reed made her deal with the State

Attorney’s Office, she then changed her position regarding Pedraza
and implicated him in the November 24, 2005 murder of Gomez.
Pedraza argues that since Reed was never charged in the second
robbery/homicide investigation, it should be presumed that she
received a deal and her testimony would be biased against him.
Pedraza argues that trial counsel tried to introduce Reed’s
bias caused by her being dropped as a suspect in the second
robbery/homicide at his trial, but was prevented by the trial
court.

At the trial, trial counsel did indeed attempt to question

Reed about her potential involvement in a second robbery/homicide.
Trial counsel argued that exposing Reed as a suspect in the second,
but

unrelated

robbery/homicide,

testimony was tainted with bias.

would

demonstrate

that

her

However, before trial counsel

could pursue that line of questioning, the prosecutor objected.
After

a

bench

conference,

the

trial

court

sustained

the

prosecutor’s objection and Pedraza’s trial counsel’s attempt to

11

discredit Reed due her possible participation in a second robbery
homicide was barred.
Pedraza argues that he was prejudiced because trial counsel
did not attempt to argue that Reed’s testimony was biased due to
the fact that no charges were pressed against her in the second
robbery/homicide.

Pedraza wanted counsel to insinuate that Reed

was not charged because she cut a plea deal and agreed to testify
against

him

in

robbery/homicide.

order

to

escape

prosecution

in

the

second

Pedraza contends that since Reed was the only

witness who could tie him to the crime, he should have been allowed
to probe her bias on cross examination.

Consequently, Reed argues

that trial counsel was ineffective because she did not bring up
Reed’s obvious bias based upon the fact that she cut a deal with
the State of Florida which led to her not being charged in the
second robbery/ homicide.
Respondent maintains that Pedraza’s trial counsel did not
violate Strickland in her representation at trial.

Respondent

notes that Pedraza raised this issue—and only this issue—in his
Rule 3.850 post-conviction relief motion.

The post-conviction

court denied Pedraza’s Rule 3.580 claim finding that Pedraza could
not satisfy both requirements under Strickland.
The post-conviction court noted that trial counsel attempted
to challenge Reed’s credibility by insinuating that she was not
charged in the second robbery/homicide because she agreed to

12

testify against Pedraza.
questioning.
thereafter

The State objected to that line of

The trial court sustained the State’s objection, and
Pedraza’s

trial

counsel

did

connection to the second/robbery homicide.

not

pursue

Reed’s

Upon review, the post-

conviction court held that trial counsel was not deficient in her
response

to

the

prosecutor’s

objection

because

the

second

robbery/homicide was inadmissible and the trial court correctly
sustained the State’s objection. (Ex. 22, at 1072).

The post-

conviction court noted that Pedraza’s trial counsel did cross
examine Reed at trial and challenged her credibility on matters
related to Pedraza’s case.
Pedraza’s trial counsel was not ineffective under Strickland.
In order to prove that trial counsel was ineffective, Pedraza would
have to prove that trial counsel’s performance was deficient and
that her deficient performance prejudiced his case.

Here, the

trial court ruled that use of Reed’s possible involvement in a
second robbery/homicide—a crime for which she was never charged—
would violate Florida law.

At the bench conference on the State’s

objection to that line of questioning, trial counsel vigorously
argued for the inclusion of the second/robbery homicide in order
to undermine Reed’s credibility.

Once the trial court refused to

allow that line of questioning, trial counsel did cross examine
Reed about the terms of her plea deal and inconsistencies between
her trial testimony and her previous contradictory statements

13

regarding

the

Nalle

Road

robbery/homicide.

When

questions

regarding the second robbery/homicide were barred, Pedraza’s trial
counsel attacked Reed’s credibility within the parameters allowed
by the trial court’s rulings. As such, trial counsel’s performance
did not fall below an objective standard of reasonableness under
prevailing professional norms and thus, her performance was not
deficient.
Moreover, Pedraza cannot demonstrate prejudice because his
trial counsel was allowed the opportunity to cross examine Reed
about her plea deal and credibility.

The post-conviction court

noted in its ruling that trial counsel’s failure to use the second
robbery/homicide to discredit Reed did not prejudice Pedraza’s
case

because

the

second/robbery

homicide

was

inadmissible.

Pedraza was not prejudiced by trial counsel’s actions because the
outcome of the case could not have been changed since the second
robbery/homicide could not be admitted.

Thus, Pedraza’s claim for

ineffective assistance of counsel is denied.
B. Ground Two:
Denial of
Accessory After the Fact
In

Ground

Two,

Pedraza

Jury

argues

Instruction

that

he

of

Duress

and

was

denied

his

constitutional right to due process and a fair and impartial trial
because the court did not allow a requested jury instruction of
duress and accessory after the fact.

Pedraza avers that he was

not complicit in the robbery/homicide, but that he was merely at
the scene, and was under the influence of narcotics and a dominant

14

co-defendant.

Pedraza further claims that his mere presence at

the scene is not sufficient to establish that he was a principal
to the crime.
Respondent maintains that Pedraza is procedurally barred from
pursuing Ground Two because he failed to exhaust his claim in State
court.

Pedraza admits that he did not exhaust Ground Two in state

court, but argues he should be allowed to raise it now because he
is not an attorney and did not understand the rules and procedures
for filing a direct appeal.

Thus, he claims he should be allowed

to bring an unexhausted claim for the first time on federal habeas
review.
The

requirement

of

exhausting

state

remedies

as

a

prerequisite to federal review is satisfied if the petitioner
“fairly presents” his claim in each appropriate state court and
alerts that court to the federal nature of the claim. 28 U.S.C. §
2254(b)(1); Picard v. Connor, 404 U.S. 270, 275–76 1971).

Pedraza

acknowledges that he has never raised his claim challenging the
State court exclusion of a requested jury instruction of duress
and accessory after the fact. (Doc. #1, at 7).
Pedraza argues that under Martinez v. Ryan, Ground Two should
not be procedurally barred as unexhausted because he did not have
the knowledge to aid him in his initial collateral review. 566

15

U.S. 1 (2012). 3

In Martinez, the United States Supreme Court held

that “[w]here, under state law, ineffective-assistance-of-trialcounsel claims must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
court

from

hearing

those

claims

if,

in

the

initial-review

collateral proceeding, there was no counsel or counsel in that
proceeding was ineffective.” Id.
lacks merit.

Pedraza’s Martinez argument

The Martinez ruling only addresses ineffective

assistance of counsel and does not address court error.
Ordinarily,

a

federal

habeas

corpus

petition

containing

unexhausted claims is dismissed under Rose v. Lundy, 455 U.S. 509,
522 (1982), this would allow Pedraza to return to the state courts
to present his unexhausted claim.

However, such a result in this

instance would be futile since any direct appeal would be untimely
under Florida law.

Ground Two is dismissed as both unexhausted

and procedurally barred.
C. Ground Three: Improper Opinion Testimony
In

Ground

Three,

Pedraza

avers

he

was

denied

his

constitutional rights of due process and a fair and impartial trial
due to the trial court allowing the improper opinion testimony of
Det. Kalstrom.

Pedraza claims that Det. Kalstrom alluded to his

3

Pedraza was represented by counsel on appeal by Special Public
Defender Jeffrey Sullivan. (Ex. 5, at 33).

16

guilt in his testimony and offered his opinion that Pedraza was
the mastermind of the entire robbery/ homicide.
Pedraza

made

a

motion

Kalstrom’s testimony.

for

mistrial

at

the

end

of

Det.

The trial court held that Det. Kalstrom was

not offering an opinion on Pedraza’s guilt or innocence but was
explaining why he thought Pedraza was a suspect.

Pedraza states

that he did not bring the issue on direct appeal because as a lay
person he did not understand the rules and law regarding appeals.
Respondent replies that “although Pedraza did raise the issue of
Det. Kalstrom’s testimony, in his direct appeal, he did not raise
the issue as a federal constitutional claim.” (Ex. 5, at 26-30).
Since Ground Three was not raised as a federal claim on appeal,
Respondent argues that Ground Three is procedurally barred.
In his direct appeal to the Second District Court of Appeals,
Pedraza argued, based solely on Florida law, that the trial court
should have granted a mistrial because Det. Kalstrom said in his
“opinion” Pedraza planned the robbery.

However, Pedraza did not

argue that his claim was a federal constitutional claim.
Pursuant to Duncan v. Henry, 513 U.S. 364 (1995), petitioner
must fairly present the substance of his federal claim to the state
courts in order to satisfy the exhaustion requirement. “If state
courts

are

to

be

given

the

opportunity

to

correct

alleged

violations of prisoners' federal rights, they must surely be
alerted to the fact that the prisoners are asserting claims under

17

the United States Constitution. If a habeas petitioner wishes to
claim that an evidentiary ruling at a state court trial denied him
the due process of law guaranteed by the Fourteenth Amendment, he
must say so, not only in federal court, but in state court.”
Duncan, 513 U.S. at 365–66. “Thus, to exhaust state remedies fully
the petitioner must make the state court aware that the claims
asserted present federal constitutional issues.” Jimenez v. Fla.
Dep't of Corr., 481 F.3d 1337, 1342 (11th Cir. 2007).

“A litigant

wishing to raise a federal issue can easily indicate the federal
law basis for his claim in a state court petition or brief, for
example, by citing in conjunction with the claim the federal source
of law on which he relies or a case deciding such a claim on
federal grounds, or by simply labeling the claim ‘federal.’”
Baldwin v. Reese, 541 U.S. 27, 32, (2004).

In this instance,

Pedraza failed to bring to the state court his claim in Ground
Three as a federal constitutional claim and instead brought the
claim under Florida law. (Ex. 5, at 26-30).

Thus, Pedraza failed

to exhaust his claim in Ground Three.
Pedraza acknowledges that he has never raised the claim
presented in Ground Three on direct appeal.

As discussed above,

a federal habeas corpus petition containing unexhausted claims is
dismissed under Rose v. Lundy, 455 U.S. 509, 522 (1982), this would
allow

Pedraza

to

unexhausted claim.

return

to

the

state

courts

to

present

his

However, such a result in this instance would

18

be futile since any direct appeal would be untimely under Florida
law.

Thus, Ground Three is dismissed as both unexhausted and

procedurally barred.
In his reply, Pedraza appears to indirectly raise an issue of
ineffective assistance of appeals counsel by arguing that he was
uninformed and lacked knowledge of the process to raise this issue
on appeal. (Doc. #15, at 2-3).

He states he was required to rely

on institutional law clerks to help him with his procedures.
Thus,

it

appears

unexhausted,

he

while

appears

Pedraza
to

admits

argue

that

ineffective

the

issue

is

assistance

of

appellant counsel for the failure to exhaust Ground Three on
appeal.
Although an ineffective-assistance-of-counsel claim asserted
as cause for the procedural default of another claim can itself be
procedurally defaulted is not to say that that procedural default
may not itself be excused if the prisoner can satisfy the causeand-prejudice standard with respect to that claim. Edwards v.
Carpenter, 529 U.S. 446, 450-51 (2000).

In order to satisfy the

cause-and-prejudice standard, Pedraza must have first exhausted
the underlying ineffective assistance of appellate counsel claim,
which he did not do. Id. at 453.

Nor has Pedraza presented new,

reliable evidence to support an actual innocence claim. Schlup v.
Delo, 513 U.S. 298, 324 (1995). Consequently, the ineffective
assistance of appellate counsel claim, raised for the first time

19

in Pedraza’s reply (Doc. #15), does not satisfy the cause-andprejudice

standard,

or

fundamental

miscarriage

of

justice

exceptions required to overcome the procedural default of Ground
Three.
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, Ground

Three is procedurally barred and cannot be considered by this
Court.
In the alternative, even if Pedraza’s claim in Ground Three
was not procedurally barred and assuming it raises a federal claim,
it still lacks merit.

As noted by the Respondent, the trial court

denied Pedraza’s motion for a mistrial.

In denying the motion for

a mistrial, the trial court found that Det. Kalstrom was not giving
an opinion on guilt or innocence, but was giving his rationale on
why Pedraza was a suspect in the case. (Ex. 5, at 27). At Pedraza’s
request, the trial court gave a jury instruction informing the
jury that “the use of the word opinion is not to be considered by
you as an opinion of the guilt or innocence of this defendant.
The use of the term ‘opinion’ can be considered as a statement of
his opinion as to what led him to believe this witness was a
suspect in the case and why he pursued investigations of this

20

suspect.” (Ex. 5, at 28); See Weeks v. Angelone, 528 U.S. 225, 226
(2000) (a jury is presumed to follow the court’s instructions).
Pedraza does cite to one federal case in his direct appeal.
Pedraza cites to United States v. Young, 470 U.S. 1 (1985), to
support his position that Det. Kalstrom’s testimony caused a
mistrial.

However, he does not rely on Young to support a

violation of federal law or a constitutional right. In fact, the
holding in Young support’s the Respondent’s position.
In Young, petitioner argued that his due process rights had
been violated when the prosecutor remarked during rebuttal closing
that in his personal opinion Young was guilty.

The Supreme Court

held:
that prosecutor's remarks during rebuttal
argument in which he stated his opinion that
defendant was guilty and urged the jury to “do
its job” did not amount to plain error,
requiring reversal despite lack of objection,
where any potential harm from prosecutor's
giving his personal opinion was mitigated by
jury's understanding that prosecutor was
countering defense counsel's repeated attacks
on
prosecution's
integrity
and
defense
counsel's
argument
that
the
evidence
established no crime and where overwhelming
evidence of guilt eliminated any doubt that
prosecutor's remarks unfairly prejudiced the
jury.
Young, 470 U.S. at 1.

Similarly, Det. Kalstrom was responding to

trial counsel’s questions when he testified.

During the trial,

the following exchange occurred between Pedraza’s trial counsel
and Det. Kalstrom.

21

Trial Counsel: And so you recall basically asking [Elizabeth
Reed] if [Pedraza] was of the group, as well?
And do you recall what her answer was?
Det. Kalstrom: I think she went on to explain that he was just
driving. That her—
Trial Counsel: Basically she said he was not part any [sic] of
The criminal actions as she perceived them to be
criminal actions; is that correct?
Det. Kalstrom: Well that may have been Elizabeth’s opinion, but
driving the get-away car was culpable, in my mind.
Trial Counsel: Yes sir. And that’s why he became, as far as our
concerned, a suspect in the case because he was
driving the vehicle from the scene; isn’t that
correct?
Det. Kalstrom: Well it was that and other things.
Trial Counsel: Yes sir. The fact that you found out later that
his relatives had owned the property?
Det. Kalstrom: Yes he had set it up.
Trial Counsel: Okay. You’re saying that she said he set it up?
Det. Kalstrom: No I am not. That was my opinion. You asked me
what led me to consider him a suspect. The fact
that he led them there and then drove the vehicle
was my reason for considering him a suspect.
(Ex. 5, at 27-28).
Det. Kalstrom was responding to trial counsel’s questions as
to why Pedraza—in his opinion—was a suspect and not making a
statement

of

guilt

or

innocence.

Given

that

the

trial

court

instructed the jury that Det. Kalstrom’s opinion was not evidence
and that Det. Kalstrom was responding to trial counsel’s line of
questioning, Pedraza’s claim that Det. Kalstrom’s testimony denied

22

him due process and a fair trial fails.

Accordingly, Pedraza is

denied relief as to Ground Three.
Conclusion
After a thorough review of the case law, statutes, Parties’
memoranda of law, and the record, the Court finds that Pedraza’s
grounds for habeas relief lack merit and his Petition is due to be
denied.
ACCORDINGLY, it is hereby
ORDERED:
1. The Florida Attorney General is DISMISSED from this action.
2. Petitioner, Miguel Pedraza's Petition under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State Custody
(Doc. #1) is DENIED IN PART AND DISMISSED IN PART.
One is DENIED on the merits.

Ground

Grounds Two and Three are

DISMISSED as procedurally defaulted, and Ground Three is
also DENIED alternatively on the merits.
3. The Clerk of the Court shall terminate any pending motions,
enter judgment accordingly, and close the case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO FILE APPEAL IN FORMA
PAUPERIS
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability. A prisoner seeking to appeal a
district court's final order denying his petition for writ of
habeas corpus has no absolute entitlement to appeal but must obtain
a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1);

23

Harbison

v.

Bell,

556

U.S.

180,

184

(2009).

“A

[COA]

may

issue...only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, Petitioner “must demonstrate that reasonable
jurists

would

find

the

district

court's

assessment

of

the

constitutional claims debatable or wrong,” Tennard v. Dretke, 542
U.S. 274, 282 (2004) or, that “the issues presented were adequate
to

deserve

Cockrell,

encouragement
537

Petitioner

has

to

proceed

U.S.

322,

335-36

not

made

the

further”,

Miller-El

(2003)(citations

requisite

showing

v.

omitted).
in

these

circumstances. Finally, because Petitioner is not entitled to a
certificate of appealability, he is not entitled to appeal in forma
pauperis.
DONE and ORDERED in Fort Myers, Florida this
April, 2017.

Copies:Miguel Pedraza
Asst. Attorney General, Soyna Roebuck Horbelt
FtMP-2

24

4th

day of