RAMOS v. STATE OF FLORIDA
Filing
27
ORDER denying the Petition 1 and dismissing the case with prejudice. Signed by Judge Marcia Morales Howard on 4/24/2018. (BL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
JANNETTE RAMOS,
Petitioner,
v.
Case No. 3:15-cv-904-J-34PDB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
ORDER
I. Status
Petitioner Jannette Ramos, an inmate of the Florida penal
system, initiated this action on July 13, 2015, by filing a pro se
Petition for Writ of Habeas Corpus (Petition; Doc. 1) under 28
U.S.C. § 2254. In the Petition, Ramos challenges a 2011 state court
(Duval County, Florida) judgment of conviction for aggravated
manslaughter of a child. Respondents have submitted a memorandum in
opposition to the Petition. See Respondents' Answer to Petition for
Writ of Habeas Corpus (Response; Doc. 17) with exhibits (Resp.
Ex.). On June 29, 2016, the Court entered an Order to Show Cause
and Notice to Petitioner (Doc. 12), admonishing Ramos regarding her
obligations and giving Ramos a time frame in which to submit a
reply. Ramos submitted a brief in reply.1 See Petitioner's Motion
to Show Cause (Doc. 23). This case is ripe for review.
1
See Order (Doc. 26) (construing the Motion to Show Cause as
a reply).
II. Procedural History
On October 7, 2010, the State of Florida charged Ramos with
aggravated
manslaughter
of
a
child.
See
Resp.
Ex.
1
at
14,
Information. Ramos proceeded to a jury trial in August 2011, at the
conclusion of which, on August 4, 2011, the jury found her guilty,
as
charged.
See
id.
at
106,
Verdict;
Resp.
Exs.
3;
4;
5,
Transcripts of the Jury Trial (Tr.), at 457-58. On August 4, 2011,
the court sentenced Ramos to a term of imprisonment of fifteen
years to be followed by seven years of probation. See Resp. Exs. 1
at 110-14, Judgment; 2 at 324.
On direct appeal, Ramos, with the benefit of counsel, filed an
initial brief, arguing that the evidence was insufficient to
convict her of manslaughter by culpable negligence, and the trial
court erred when it denied her motions for judgment of acquittal
(ground one). Additionally, she asserted that the trial court erred
when it: (a) allowed the State to cross-examine the child victim's
father about the wrongful death lawsuit he filed against the
apartment complex, and (b) instructed the jury that it could
consider whether a witness was offered or received any money,
preferred treatment, or other benefit in order to get the witness
to testify (ground two). See Resp. Ex. 6. The State filed an answer
brief, see Resp. Ex. 7, and Ramos filed a reply brief, see Resp.
Ex. 8. On June 14, 2012, the appellate court affirmed Ramos's
conviction and sentence in a written opinion, see Ramos v. State,
2
89 So.3d 1119 (Fla. 1st DCA 2012); Resp. Ex. 9, and the mandate
issued on July 2, 2012, see Resp. Ex. 9.
On February 12, 2013, Ramos filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure
3.850 (Rule 3.850 motion). See Resp. Ex. 10 at 1-19. In her request
for post-conviction relief, she asserted that counsel (Alfonso
Perkins) was ineffective because he: failed to object to the
State's cross-examination of the child victim's father relating to
the wrongful death suit filed against the apartment complex (ground
one); failed to depose or call the apartment complex manager as a
witness at trial (ground two); and advised her not to testify at
trial (ground three). The circuit court struck ground two as
facially insufficient, and granted her leave to file an amended
motion. See id. at 23-25. Ramos filed an amended Rule 3.850 motion
and raised the above-stated grounds. See id. at 26-43. The circuit
court directed the State to respond to ground two. See id. at 4446. The State responded, see id. at 48-90, and Ramos filed a pro se
reply, see id. at 91-94. On December 16, 2014, the circuit court
denied her Rule 3.850 motion. See id. at 95-141.
On April 23,
2015, the appellate court affirmed the court's denial of postconviction relief per curiam, and the mandate issued on May 19,
2015. See Resp. Ex. 11.
3
III. One-Year Limitations Period
The Petition appears to be timely filed within the one-year
limitations period. See 28 U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner
to establish the need for a federal evidentiary hearing. See Chavez
v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.
2011). "In deciding whether to grant an evidentiary hearing, a
federal court must consider whether such a hearing could enable an
applicant to prove the petition's factual allegations, which, if
true, would entitle the applicant to federal habeas relief."
Schriro v. Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec'y,
Fla. Dep't of Corr., 834 F.3d 1299, 1318-19 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2245 (2017). "It follows that if the record
refutes the applicant's factual allegations or otherwise precludes
habeas
relief,
a
district
court
is
not
required
to
hold
an
evidentiary hearing." Schriro, 550 U.S. at 474. The pertinent facts
of this case are fully developed in the record before the Court.
Because
this
Court
can
"adequately
assess
[Ramos's]
claim[s]
without further factual development," Turner v. Crosby, 339 F.3d
1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be
conducted.
4
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) governs a state prisoner's federal petition for habeas
corpus. See Ledford v. Warden, Ga. Diagnostic & Classification
Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S.Ct.
1432 (2017). "'The purpose of AEDPA is to ensure that federal
habeas relief functions as a guard against extreme malfunctions in
the state criminal justice systems, and not as a means of error
correction.'" Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)
(quotation marks omitted)). As such, federal habeas review of final
state court decisions is "'greatly circumscribed' and 'highly
deferential.'" Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343
(11th Cir. 2011) (quotation marks omitted)).
The first task of the federal habeas court is to identify the
last state court decision, if any, that adjudicated the claim on
the merits. See Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d
1277, 1285 (11th Cir. 2016). The state court need not issue an
opinion explaining its rationale in order for the state court's
decision
to
qualify
as
an
adjudication
on
the
merits.
See
Harrington v. Richter, 562 U.S. 86, 100 (2011). Where the state
court's
adjudication
on
the
merits
is
unaccompanied
by
explanation, the United States Supreme Court recently stated:
[T]he federal court should "look through" the
unexplained decision to the last related
5
an
state-court decision that does provide a
relevant rationale. It should then presume
that the unexplained decision adopted the same
reasoning.
Wilson v. Sellers, No. 16-6855, 2018 WL 1800370, at *3 (U.S. Apr.
18, 2018). The presumption may be rebutted by showing that the
higher state court's adjudication most likely relied on different
grounds than the lower state court's reasoned decision, such as
persuasive alternative grounds that were briefed or argued to the
higher court or obvious in the record it reviewed. Id. at *3, 7.
If the claim was "adjudicated on the merits" in state court,
§ 2254(d) bars relitigation of the claim unless the state court's
decision
(1)
"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) "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);
Richter, 562 U.S. at 97-98. As the Eleventh Circuit has explained:
First, § 2254(d)(1) provides for federal
review for claims of state courts' erroneous
legal conclusions. As explained by the Supreme
Court in Williams v. Taylor, 529 U.S. 362, 120
S. Ct. 1495, 146 L.Ed.2d 389 (2000), §
2254(d)(1) consists of two distinct clauses: a
"contrary to" clause and an "unreasonable
application" clause. The "contrary to" clause
allows for relief only "if the state court
arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question
of law or if the state court decides a case
differently than [the Supreme] Court has on a
set of materially indistinguishable facts."
Id. at 413, 120 S. Ct. at 1523 (plurality
6
opinion).
The
"unreasonable
application"
clause allows for relief only "if the state
court identifies the correct governing legal
principle from [the Supreme] Court's decisions
but unreasonably applies that principle to the
facts of the prisoner's case." Id.
Second, § 2254(d)(2) provides for federal
review for claims of state courts' erroneous
factual determinations. Section 2254(d)(2)
allows federal courts to grant relief only if
the state court's denial of the petitioner's
claim
"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)(2). The
Supreme
Court
has
not
yet
defined
§
2254(d)(2)'s "precise relationship" to §
2254(e)(1), which imposes a burden on the
petitioner to rebut the state court's factual
findings "by clear and convincing evidence."
See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord
Brumfield v. Cain, 576 U.S. ---, ---, 135 S.
Ct. 2269, 2282, 192 L.Ed.2d 356 (2015).
Whatever that "precise relationship" may be,
"'a state-court factual determination is not
unreasonable merely because the federal habeas
court
would
have
reached
a
different
conclusion in the first instance.'"[2] Titlow,
571 U.S. at ---, 134 S. Ct. at 15 (quoting
Wood v. Allen, 558 U.S. 290, 301, 130 S. Ct.
841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016), cert.
denied, 137 S.Ct. 2298 (2017). Also, deferential review under §
2254(d) generally is limited to the record that was before the
state court that adjudicated the claim on the merits. See Cullen v.
2
The Eleventh Circuit has described the interaction between
§ 2254(d)(2) and § 2254(e)(1) as "somewhat murky." Clark v. Att'y
Gen., Fla., 821 F.3d 1270, 1286 n.3 (11th Cir. 2016), cert. denied,
137 S.Ct. 1103 (2017).
7
Pinholster, 563 U.S. 170, 182 (2011) (stating the language in §
2254(d)(1)'s "requires an examination of the state-court decision
at the time it was made").
Thus, "AEDPA erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state
court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). "Federal courts
may grant habeas relief only when a state court blundered in a
manner so 'well understood and comprehended in existing law' and
'was so lacking in justification' that 'there is no possibility
fairminded jurists could disagree.'" Tharpe, 834 F.3d at 1338
(quoting Richter, 562 U.S. at 102-03). This standard is "meant to
be" a "difficult" one to meet. Richter, 562 U.S. at 102. Thus, to
the extent that Ramos's claims were adjudicated on the merits in
the state courts, they must be evaluated under 28 U.S.C. § 2254(d).
B. Exhaustion/Procedural Default
There are prerequisites to federal habeas review. Before
bringing a § 2254 habeas action in federal court, a petitioner must
exhaust all state court remedies that are available for challenging
his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To exhaust
state remedies, the petitioner must "fairly present[]" every issue
raised in his federal petition to the state's highest court, either
on direct appeal or on collateral review. Castille v. Peoples, 489
U.S. 346, 351 (1989) (emphasis omitted). Thus, to properly exhaust
a claim, "state prisoners must give the state courts one full
8
opportunity to resolve any constitutional issues by invoking one
complete
round
of
the
State's
established
appellate
review
process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
In addressing exhaustion, the United States Supreme Court
explained:
Before seeking a federal writ of habeas
corpus,
a
state
prisoner
must
exhaust
available
state
remedies,
28
U.S.C.
§
2254(b)(1), thereby giving the State the
"'"opportunity to pass upon and correct"
alleged violations of its prisoners' federal
rights.'" Duncan v. Henry, 513 U.S. 364, 365,
115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (per
curiam) (quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the
necessary "opportunity," the prisoner must
"fairly present" his claim in each appropriate
state court (including a state supreme court
with powers of discretionary review), thereby
alerting that court to the federal nature of
the claim. Duncan, supra, at 365-366, 115
S.Ct. 887; O'Sullivan v. Boerckel, 526 U.S.
838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1
(1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
A state prisoner's failure to properly exhaust available state
remedies results in a procedural default which raises a potential
bar to federal habeas review. The United States Supreme Court has
explained the doctrine of procedural default as follows:
Federal habeas courts reviewing the
constitutionality of a state prisoner's
conviction and sentence are guided by rules
designed to ensure that state-court judgments
are
accorded
the
finality
and
respect
necessary to preserve the integrity of legal
proceedings within our system of federalism.
9
These rules include the doctrine of procedural
default, under which a federal court will not
review the merits of claims, including
constitutional claims, that a state court
declined to hear because the prisoner failed
to abide by a state procedural rule. See,
e.g., Coleman,[3] supra, at 747–748, 111 S.Ct.
2546; Sykes,[4] supra, at 84–85, 97 S.Ct. 2497.
A state court's invocation of a procedural
rule to deny a prisoner's claims precludes
federal review of the claims if, among other
requisites, the state procedural rule is a
nonfederal ground adequate to support the
judgment and the rule is firmly established
and consistently followed. See, e.g., Walker
v. Martin, 562 U.S. --, --, 131 S.Ct. 1120,
1127–1128, 179 L.Ed.2d 62 (2011); Beard v.
Kindler, 558 U.S. --, --, 130 S.Ct. 612,
617–618, 175 L.Ed.2d 417 (2009). The doctrine
barring procedurally defaulted claims from
being heard is not without exceptions. A
prisoner may obtain federal review of a
defaulted claim by showing cause for the
default and prejudice from a violation of
federal law. See Coleman, 501 U.S., at 750,
111 S.Ct. 2546.
Martinez v. Ryan, 132 S.Ct. 1309, 1316 (2012). Thus, procedural
defaults
may
be
excused
under
certain
circumstances.
Notwithstanding that a claim has been procedurally defaulted, a
federal court may still consider the claim if a state habeas
petitioner can show either (1) cause for and actual prejudice from
the default; or (2) a fundamental miscarriage of justice. Ward v.
Hall, 592 F.3d 1144, 1157 (11th Cir. 2010).
3
Coleman v. Thompson, 501 U.S. 722 (1991).
4
Wainwright v. Sykes, 433 U.S. 72 (1977).
10
In
the
petitioner
absence
may
of
receive
a
showing
of
cause
consideration
on
and
the
prejudice,
merits
of
a
a
procedurally defaulted claim if the petitioner can establish that
a fundamental miscarriage of justice, the continued incarceration
of one who is actually innocent, otherwise would result. The
Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and
prejudice, there remains yet another avenue
for him to receive consideration on the merits
of his procedurally defaulted claim. "[I]n an
extraordinary case, where a constitutional
violation has probably resulted in the
conviction of one who is actually innocent, a
federal habeas court may grant the writ even
in the absence of a showing of cause for the
procedural default." Carrier, 477 U.S. at 496,
106 S.Ct. at 2649. "This exception is
exceedingly narrow in scope," however, and
requires proof of actual innocence, not just
legal innocence. Johnson v. Alabama, 256 F.3d
1156, 1171 (11th Cir. 2001).
Ward, 592 F.3d at 1157. "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." Johnson v.
Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, "'[t]o be credible,'
a claim of actual innocence must be based on reliable evidence not
presented at trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(quoting
Schlup,
513
U.S.
at
324).
With
the
rarity
of
such
evidence, in most cases, allegations of actual innocence are
ultimately summarily rejected. Schlup, 513 U.S. at 324.
11
C. Ineffective Assistance of Counsel
"The
Sixth
Amendment
guarantees
criminal
defendants
the
effective assistance of counsel. That right is denied when a
defense attorney's performance falls below an objective standard of
reasonableness and thereby prejudices the defense." Yarborough v.
Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith,
539 U.S. 510, 521 (2003), and Strickland v. Washington, 466 U.S.
668, 687 (1984)).
To establish deficient performance, a
person challenging a conviction must show that
"counsel's representation fell below an
objective
standard
of
reasonableness."
[Strickland,] 466 U.S. at 688, 104 S.Ct. 2052.
A court considering a claim of ineffective
assistance must apply a "strong presumption"
that counsel's representation was within the
"wide range" of reasonable professional
assistance. Id., at 689, 104 S.Ct. 2052. The
challenger's burden is to show "that counsel
made errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id., at
687, 104 S.Ct. 2052.
With respect to prejudice, a challenger
must demonstrate "a reasonable probability
that, but for counsel's unprofessional errors,
the result of the proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence
in the outcome." Id., at 694, 104 S.Ct. 2052.
It is not enough "to show that the errors had
some conceivable effect on the outcome of the
proceeding." Id., at 693, 104 S.Ct. 2052.
Counsel's errors must be "so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable." Id., at 687, 104
S.Ct. 2052.
12
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized "the
absence of any iron-clad rule requiring a court to tackle one prong
of the Strickland test before the other." Ward v. Hall, 592 F.3d
1144, 1163 (11th Cir. 2010). Since both prongs of the two-part
Strickland
test must be satisfied to show a Sixth Amendment
violation, "a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa." Id.
(citing Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)).
As stated in Strickland: "If it is easier to dispose of an
ineffectiveness
claim
on
the
ground
of
lack
of
sufficient
prejudice, which we expect will often be so, that course should be
followed." Strickland, 466 U.S. at 697.
A state court's adjudication of an ineffectiveness claim is
accorded great deference.
"[T]he
standard
for
judging
counsel's
representation is a most deferential one."
Richter, - U.S. at -, 131 S.Ct. at 788. But
"[e]stablishing
that
a
state
court's
application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The
standards created by Strickland and § 2254(d)
are both highly deferential, and when the two
apply in tandem, review is doubly so." Id.
(citations and quotation marks omitted). "The
question is not whether a federal court
believes the state court's determination under
the Strickland standard was incorrect but
whether that determination was unreasonable a substantially higher threshold." Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411,
1420, 173 L.Ed.2d 251 (2009) (quotation marks
omitted). If there is "any reasonable argument
that
counsel
satisfied
Strickland's
deferential standard," then a federal court
13
may not disturb a state-court decision denying
the claim. Richter, - U.S. at -, 131 S.Ct. at
788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014);
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). "In addition to
the deference to counsel's performance mandated by Strickland, the
AEDPA adds another layer of deference--this one to a state court's
decision--when we are considering whether to grant federal habeas
relief from a state court's decision." Rutherford v. Crosby, 385
F.3d
1300,
1309
(11th
Cir.
2004).
As
such,
"[s]urmounting
Strickland's high bar is never an easy task." Padilla v. Kentucky,
559 U.S. 356, 371 (2010).
VI. Findings of Fact and Conclusions of Law
A. Ground One
As ground one, Ramos asserts that the State's evidence was
insufficient to prove beyond a reasonable doubt that she committed
the aggravated manslaughter of a child, and the trial court erred
in denying her motions for judgment of acquittal in violation of
the
Fifth
and
Fourteenth
Amendments.
See
Petition
at
5.
Respondents argue that Ramos did not present this claim as a
federal due process violation on direct appeal, and thus Ramos's
federal due process claim has not been exhausted and therefore is
procedurally barred. See Response at 14-25. On this record, the
Court agrees that the federal due process claim has not been
exhausted and is therefore procedurally barred since Ramos failed
14
to raise the claim in a procedurally correct manner. Ramos has not
shown
either
cause
excusing
the
default
or
actual
prejudice
resulting from the bar. Moreover, she has failed to identify any
fact warranting the application of the fundamental miscarriage of
justice exception.
Even assuming that Ramos's federal due process claim is not
procedurally barred, Ramos is not entitled to relief. As previously
stated, Ramos argued this issue on direct appeal, see Resp. Exs. 6;
8, and the State filed an Answer Brief, see Resp. Ex. 7. The
appellate court ultimately affirmed Ramos's conviction and sentence
per curiam in a written opinion as to this issue, stating in
pertinent part:
Jannette Ramos appeals her conviction and
sentence for aggravated manslaughter of a
child following the drowning death of her
infant son in a retention pond close to her
apartment. We affirm.
The only issue meriting discussion is
whether the totality of Ramos's acts, and
failures to act, establish the culpable
negligence necessary to sustain her conviction
for manslaughter of a child.
Florida
imposes
upon
parents
the
responsibility to supervise and protect their
children who are too young to care for
themselves. Machin v. Walgreen Co., 835 So.2d
284 (Fla. 3d DCA 2002). Here, the legal
responsibility for the care of the youngest of
Ramos's five children, Nathan Cook, nineteen
months old at the time he drowned, fell
squarely upon her as his immediate caregiver.
Mere negligence in the care of one's young
child doesn't necessarily amount to culpable
negligence. Things happen in the care of young
15
children
that
are
unexpected
even
by
experienced parents; a one-time accident or
misfortune that could not be reasonably
expected to result in serious harm, without
more, does not generally transform a parent
into a culpably negligent criminal. Close
legal questions arise, however, because each
tragic case involves the confluence of an
innocent child's death and a bereaved parent,
whose degree of care, neglect, indifference,
or callous disregard is measured against
societal norms and expectations under the
circumstances. What some judges might deem
culpable negligence by a parent might be
insufficiently egregious to others. See, e.g.,
Edwards v. State, 755 So.2d 443 (Miss. App.
1999) (reversing, over a dissent, the culpable
negligence manslaughter conviction of parents
in the death of their four-year-old who
drowned during [a] camping trip due to
insufficient evidence of culpable negligence).
For this reason, we have reviewed the record
closely to determine whether the jury was
presented with sufficient evidence to believe
Ramos was culpably negligent under the law.
In Florida, culpable negligence is a
"gross and flagrant" violation of a duty of
care that causes injury, a course of conduct
showing "reckless disregard of human life,"
"such wantonness or recklessness" as to equal
the intentional violation of the rights of
others, or an "entire want of care" raising
"the
presumption
of
indifference
to
consequences." Preston v. State, 56 So.2d 543,
544 (Fla. 1952); Fla. Std. Jury Instr. (Crim.)
7.7. We evaluate the totality of the
circumstances, as reflected in the record, in
determining whether the facts presented
constitute culpable negligence. Behn v. State,
621 So.2d 534, 537 (Fla. 1st DCA 1993). If the
evidence is sufficient to establish a jury
question regarding whether Ramos was culpably
negligent, we must affirm. State v. Nowlin, 50
So.3d 79, 81 (Fla. 1st DCA 2010) (existence of
a jury question precludes dismissal).
16
The initial impression of the detective
investigating Nathan's death was that it was
accidental.[5] But that impression was quickly
erased. Several of Ramos's neighbors came
forward to tell of many repeated instances of
Ramos's failure to supervise Nathan in the
months preceding his death. The neighbors were
not surprised to learn that Nathan had died;
they described the situation as a tragedy
waiting to happen.
The testimony regarding Ramos's neglect of
Nathan
was
plentiful.
Seven
neighbors
testified
at
trial
that
Nathan
would
frequently "escape" from Ramos's second floor
apartment, crawling down the outside stairs
and going near the retention pond, placing the
infant at serious risk. Frequently, neighbors
saw Nathan descend the stairs from Ramos's
apartment by himself, unsupervised. Sometimes
Nathan scooted down the stairs unfazed, but
neighbors also saw him fall down the stairs
and hit his head on the ground on multiple
occasions.
One neighbor recounted two separate incidents
where Nathan was unsupervised and roaming
alone, requiring her to intervene and return
him to Ramos's apartment.[6] The first time,
the neighbor found Nathan wandering, alone,
clothed only in a diaper, beside the retention
pond. She took Nathan home to discover the
apartment door wide open and Ramos nowhere to
be found; only after the neighbor entered the
apartment and called out several times did
Ramos appear, talking on her mobile phone and
wholly unaware that Nathan had been outside.
The same neighbor found Nathan near the
retention pond a second time and took him
home, located on the other side of the
5
See Tr. at 295 ("Everything was consistent with our
investigation as far as it was a drowning, it was an accident. What
started throwing up the red flags was witnesses coming forward as
far as the history of not watching the children.").
6
See Tr. at 152-63.
17
building, where Ramos was
around with other adults.
simply
standing
Another neighbor testified that, five to ten
times, she found Nathan alone and unsupervised
outside of the apartment, having "bounced down
the
stairway"
from
his
second
floor
apartment.[7] Each time she returned Nathan to
his home, the front door would be open. Ramos
never accepted responsibility, always casting
blame on one of her other children for
allegedly leaving the door open. Several other
witnesses told similar stories: they found
Nathan wandering outside, returned him to the
apartment with its door open and Ramos
oblivious to whether Nathan was missing. Many
times Ramos would simply not bother to
physically take control of Nathan upon his
return; instead, she was preoccupied or too
busy to do so – using the computer or talking
on the phone. In fact, some neighbors reported
that none of Ramos's children, including
Nathan, were ever supervised while they played
outside.
Yet another neighbor noticed Nathan, while
scampering around the pool at the apartment
complex, fall into the spa area; a maintenance
worker had to rescue him.[8] Ramos did not
notice that her child had fallen into the
water or appear at the pool until the neighbor
reported that Nathan was unsupervised in a
risky area.
On the day of Nathan's death, a witness
thought he saw three turtles in the pond, but
realized his error twenty to forty-five
minutes later when he saw a distraught Ramos
with Nathan on the shore of the pond where the
"turtles" had been.[9] As had occurred so often
before, the apartment door was open, Nathan
7
See Tr. at 167, 169.
8
See Tr. at 210-11.
9
See Tr. at 221.
18
had wandered out one last time, and ultimately
fell to his death in the retention pond.
Ramos argues that this evidence, as a
whole, cannot support a finding that she acted
with culpable negligence; she claims her
motion for judgment of acquittal should have
been granted. We disagree. Applying a de novo
standard, we review the evidence in a light
most favorable to the State, drawing all
reasonable inferences in its favor. Jones v.
State, 790 So.2d 1194, 1196-97 (Fla. 1st DCA
2001).
The totality of the circumstances encompasses
events both on the day of Nathan's death and
at times leading up to that day, if they are
relevant to show Ramos was culpably negligent.
We have little pause to conclude that the
totality of Ramos's conduct was sufficient to
create a jury question of whether she was
culpably negligent in breaching her duty of
care toward Nathan by allowing him repeatedly
to wander, unsupervised, near the retention
pond. Ramos argues that evidence of her
numerous failures to supervise Nathan on many
previous occasions cannot establish her
culpable negligence on the day of Nathan's
death (when she was in the shower, allegedly
leaving Nathan's care in the hands of a very
young sibling). Had this been a single
isolated incident – without the history of
Ramos's repeated indifference and inaction as
to Nathan's safety – it might fall short of a
"gross and flagrant" violation of a duty of
care under a culpable negligence standard.
Evidence of past neglect and indifference,
however, is relevant to show that Ramos acted
wantonly and recklessly on a continuous basis,
exhibiting a pattern that she was indifferent
to the dangerous and ultimately deadly
consequences of her actions. The jury was
entitled to make the reasonable inference
that, after the many previous close calls and
despite the many altruistic attempts of
neighboring Good Samaritans, Ramos exhibited a
degree of behavior that established a "gross
and flagrant" violation of a duty of care for
19
Nathan or, alternatively, an "entire want of
care"
that
created
a
presumption
of
indifference to the consequences of her
conduct. A single lapse of judgment on a
single day may be insufficient to show an
"entire want of care," but the evidence here
shows a recurring series of increasingly
disturbing
lapses.
This
evidence
was
sufficient to create a jury question, under
the totality of the circumstances, that Ramos
had engaged in culpable negligence that
breached her duty to supervise and protect
Nathan.
We also conclude that Ramos's culpable
negligence caused Nathan's death, and the
exact length of time that Nathan was outside
the apartment does not change our conclusion.
It is undisputed that he was seen face-down in
the water at least twenty minutes before he
was retrieved from the pond. While a momentary
one-time lapse of judgment by a parent
ordinarily would not suffice to establish
culpable negligence that is the legal cause of
a child's death, Ramos's overall and ongoing
pattern of gross indifference does. This
lamentable pattern entitled the jury to find
that Ramos was culpably negligent and caused
Nathan's death. . . .
Ramos, 89 So.3d at 1120-23 (footnotes omitted).
After a review of the record and the applicable law, the Court
concludes that the state court's adjudication of this claim was not
contrary to clearly established federal law and did not involve an
unreasonable application of clearly established federal law. Nor
was
the
state
court's
adjudication
based
on
an
unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Accordingly, Ramos is not entitled to
relief on the basis of this claim.
20
Even assuming that the state court's adjudication of this
claim is not entitled to deference, and that the claim presents a
sufficiently exhausted issue of federal constitutional dimension,10
Ramos's claim fails because the State presented sufficient evidence
to support Ramos's conviction for aggravated manslaughter of a
child. The Due Process Clause of the Fourteenth Amendment requires
the State to prove each element of the offense charged beyond a
reasonable doubt. Thompson v. Nagle, 118 F.3d 1442, 1448 (11th Cir.
1997) (citing Jackson v. Virginia, 443 U.S. 307, 314 (1979)). In
reviewing the sufficiency of the evidence, "this court must presume
that conflicting inferences to be drawn from the evidence were
resolved by the jury in favor of the State." Thompson, 118 F.3d at
1448 (citing Machin v. Wainwright, 758 F.2d 1431, 1435 (11th Cir.
1985)). Jackson v. Virginia "provides the federal due process
benchmark for evidentiary sufficiency in criminal cases." Williams
v. Sec'y for Dep't of Corr., 395 F. App'x 524, 525 (11th Cir. 2010)
(per curiam) (citing Green v. Nelson, 595 F.3d 1245, 1252-53 (11th
Cir. 2010)). In accordance with this authority, the relevant
question is whether any rational jury, after viewing the evidence
in the light most favorable to the prosecution, could have found
the essential elements of the charged offense beyond a reasonable
doubt. Jackson, 443 U.S. 319.
10
See Response at 14-25.
21
Under Florida law, a person who causes the death of any person
under the age of eighteen by culpable negligence under Florida
Statutes
section
827.03
commits
the
crime
of
aggravated
manslaughter of a child, a felony of the first degree. See Fla.
Stat. § 782.07(3) (2012); see Ibeagwa v. State, 141 So.3d 246, 247
(Fla. 1st DCA 2014). As previously stated, the State charged Ramos
with aggravated manslaughter of a child as follows:
Jannette Ramos on November 5, 2009, in
the County of Duval and the State of Florida,
did unlawfully, by culpable negligence, cause
the death of a person under the age of 18
years old, to-wit: Nathan Cook, while being
the child's care giver, by failing to
supervise
the
victim,
without
lawful
justification and under circumstances not
constituting excusable homicide or murder,
contrary to the provisions of Sections
782.07(3) and 827.03(3), Florida Statutes.
Resp. Ex. 1 at 14, Information. At trial, the court instructed the
jury as follows:
Jannette Ramos, the defendant in this
case, has been accused of the crime of
aggravated manslaughter.
To prove the crime of manslaughter, the
state must prove the following two elements
beyond a reasonable doubt:
First, that Nathan Cook is dead.
And the second, the death of Nathan Cook
was caused by the culpable negligence of
Jannette Ramos.
However, the defendant cannot be guilty
of manslaughter if the killing was either
justifiable or excusable homicide.
22
The killing of a human being is
justifiable homicide and lawful if necessarily
done while resisting an attempt to murder or
commit a felony upon the defendant or to
commit a felony in any dwelling house in which
the defendant was at the time of the killing.
The killing of a human being is excusable
and, therefore, lawful under any one of the
following three circumstances:
First, when the killing is committed by
accident and misfortune in doing any lawful
act by lawful means with usual ordinary
caution and without any unlawful intent or
when the killing occurs by accident and
misfortune in the heat of passion upon any
sudden and sufficient provocation or when the
killing
is
committed
by
accident
and
misfortune resulting from a sudden combat if a
dangerous weapon is not used and the killing
is not done in a cruel or unusual manner.
Next I'm going to define for you culpable
negligence. Each of us ha[s] a duty to act
reasonably toward others. If there is a
violation of that duty without any conscious
intention
to
harm,
that
violation
is
negligence. But culpable negligence is more
than a failure to use ordinary care toward
others. In order for negligence to be
culpable, it must be gross and flagrant.
Culpable negligence is a course of conduct
showing reckless disregard of human life or of
the safety of persons exposed to its dangers
-- to its dangerous effects, or such an entire
want of care as to raise a presumption of a
conscious indifference to consequences, or
which shows wantonness or recklessness, or a
grossly careless disregard for the safety and
welfare of the public, or such an indifference
to the rights of others as is equivalent to an
intentional violation of such rights.
The negligent act or omission must have
been committed with an utter disregard for the
safety of others. Culpable negligence is
consciously doing an act or following a course
23
of conduct that the defendant must have known
or reasonably should have known was likely to
cause death or great bodily injury.
If you find the defendant guilty of
manslaughter, you must then determine whether
the state has further proved beyond a
reasonable doubt that Nathan Cook was a child
whose death was caused by the negligent -- by
the neglect, excuse me, of Jannette Ramos, a
caregiver.
A "child" means any person under the age
of 18 years.
A "caregiver" means a parent, adult
household member, or other person responsible
for a child's welfare.
"Neglect of a child" means a caregiver's
failure or omission to provide a child with
the care, supervision, and services necessary
to maintain a child's physical and mental
health, including but not limited to food,
nutrition, clothing, shelter, supervision,
medicine and medical services that a prudent
person would consider essential for the
well-being of the child.
Repeated conduct or a single incident or
omission by a caregiver that results in or
could reasonably be expected to result in a
substantial risk of death of a child may be
considered in determining neglect.
Tr. at 434-37.
After viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found Ramos
committed the aggravated manslaughter of a child. Thus, viewing the
evidence in the light most favorable to the prosecution, there was
sufficient
evidence
to
support
the
conviction
for
aggravated
manslaughter of a child. Competent evidence of the elements of the
24
offense was introduced at trial, and no due process violation
occurred. The jury was entitled to believe the State witnesses'
accounts of what transpired on the day in question as well as the
time period leading up to the tragedy. Given the record, the trial
court did not err in denying Ramos's motions for judgment of
acquittal;11 the evidence was sufficient to justify the court
submitting the case to the jury; and the evidence was sufficient to
support the conviction for aggravated manslaughter of a child.
Therefore, Ramos is not entitled to habeas relief as to ground one.
B. Ground Two
As ground two, Ramos asserts that the trial court erred when
it: (a) allowed the State to cross-examine the child victim's
father (Robert Cook) about the wrongful death lawsuit he filed
against the apartment complex, and (b) instructed the jury that it
could consider whether a witness was offered or received any money,
preferred treatment, or other benefit in order to get the witness
to testify, thus violating Ramos's federal due process right. See
Petition at 6. Respondents argue that Ramos did not present this
claim as a federal due process violation on direct appeal, and thus
Ramos's federal due process claim has not been exhausted and
therefore is procedurally barred. See Response at 26-29. On this
record, the Court agrees that the federal due process claim has not
been exhausted and is therefore procedurally barred since Ramos
11
See Tr. at 301, 378, 390.
25
failed to raise the claim in a procedurally correct manner. Ramos
has not shown either cause excusing the default or actual prejudice
resulting from the bar. Moreover, she has failed to identify any
fact warranting the application of the fundamental miscarriage of
justice exception.
Even assuming that Ramos's federal due process claim is not
procedurally barred, Ramos is not entitled to relief. As previously
stated, Ramos argued this issue on direct appeal, see Resp. Exs. 6;
8; the State filed an Answer Brief, see Resp. Ex. 7; and the
appellate court ultimately affirmed Ramos's conviction and sentence
per curiam in a written opinion,12 see Ramos, 89 So.3d 1119.
In its appellate brief, the State addressed the claim on the
merits, see Resp. Ex. 7 at 20-24, and therefore, the appellate
court may have affirmed Ramos's conviction based on the State's
argument. If the appellate court addressed the merits, the state
court's adjudication of this claim is entitled to deference under
AEDPA. After a review of the record and the applicable law, the
Court concludes that the state court's adjudication of this claim
was not contrary to clearly established federal law and did not
involve an unreasonable application of clearly established federal
law.
Nor
was
the
state
court's
adjudication
based
on
an
unreasonable determination of the facts in light of the evidence
12
The appellate court did not explain its rationale underlying
its affirmance as to the issue. See Ramos, 89 So.3d at 1120.
26
presented in the state court proceedings.
Accordingly, Ramos is
not entitled to relief on the basis of this claim.
Even assuming that the state court's adjudication of this
claim is not entitled to deference, and that the claim presents a
sufficiently exhausted issue of federal constitutional dimension,13
Ramos's claim is without merit. Notably, in denying Ramos's Rule
3.850 motion as to her ineffectiveness claim relating to counsel's
failure to object to the cross-examination of Robert Cook, the
circuit court stated in pertinent part:
Defendant alleges that counsel was
ineffective for failing to object to the
State's cross-examination of Robert Cook
("Cook") regarding his pending civil suit
against the apartment complex where the
instant offense took place. Defendant asserts
that this testimony was irrelevant and
inadmissible.
"Where a witness has filed a civil suit
against the defendant or a third party
(arising out of the criminal incident),
inquiry into this is relevant to the witness'
motivation in testifying at the criminal
trial." Graves v. State, 937 So.2d 1286, 1290
(Fla. 4th DCA 2006) (quoting Nelson v. State,
704 So.2d 752, 753 (Fla. 5th DCA 1998)); Payne
v. State, 541 So.2d 699, 700 (Fla. 1st DCA
1989). Such testimony should only be excluded
if "it is unjust to the witness and uncalled
for by the circumstances." Graves, 937 So.2d
at 1290 (citation omitted.)
In this case, Cook, the victim's father,
testified
for
the
defense.
On
cross-examination, the State asked Cook about
the pending civil suit he filed against the
13
See Response at 26-29.
27
apartment complex where the victim drowned in
a retention pond. (Ex. D at 332-35.) The State
asked Cook what the purpose of the civil suit
was and whether he brought a civil suit
against Defendant. (Ex. D at 333-35.)[14] This
questioning was relevant and admissible in
order to determine Cook's motivation for
testifying. See Graves, 937 So.2d at 1290;
Payne, 541 So.2d at 700. Moreover, the
testimony was not unjust or uncalled for under
the circumstances. In fact, in Ground Two of
the instant Motion, Defendant states that if
she had not been misadvised about her right to
testify, she would have testified as to the
alleged negligence of the apartment complex in
that she requested to have the locks fixed on
her door and that they never fixed them.
During this contested cross-examination, and
on redirect when defense counsel asked
follow-up questions regarding the contested
cross-examination, Cook testified that the
apartment complex's failure to repair the door
locks was one of the underlying reasons of his
civil suit against the apartment complex. (Ex.
D at 334, 336-37.) Defendant cannot, in one
ground say that certain testimony is harmful,
and in another ground within the same Motion,
state that she wished that evidence had been
brought out at trial. This Court finds that
the cross-examination was proper, and thus,
counsel cannot be held ineffective for failing
to object to it. See Hitchcock, 991 So.2d 337,
360 (Fla. 2008) ("Counsel cannot be deemed
ineffective for failing to make a meritless
objection.") (citation omitted).
Assuming arguendo counsel was deficient,
Defendant fails to satisfy the prejudice prong
of Strickland. Defense counsel's argument
during Defendant's trial was that Defendant
took reasonable actions to protect her child,
but that this was an unfortunate accident that
happened because Defendant's eldest daughter
14
Notably, the court overruled counsel's objection to the
State's cross-examination of Cook relating to the lawsuit's purpose
as beyond the scope of direct examination. See Tr. at 333.
28
left the top door lock unlocked, and the other
lock was broken, despite Defendant's requests
for repair. Cook's contested statements on
cross support the alleged fault of the
apartment complex. As stated above, Defendant
avers in Ground Two that she wanted the
apartment complex manager to testify at trial
to the fact that the apartment complex did not
fix her door lock, despite her many requests.
Therefore,
this
Court
finds
that
this
testimony did not prejudice Defendant's case,
but rather, aided in presenting testimony that
Defendant herself wanted presented. Defendant
is, thus, not entitled to relief on this
claim.
Resp. Ex. 10 at 96-98.
The trial court did not err when it permitted the State to
cross-examine Cook as to the potential benefits he could receive
from his civil lawsuit. See Tr. at 332-35. Moreover, the court did
not err when it instructed the jury on weighing the evidence as
follows:
It is up to you to decide what evidence
is reliable. You should use your common sense
in deciding which is the best evidence and
which evidence should not be relied upon in
considering your verdict. You may find some of
the evidence not reliable or less reliable
than other evidence.
You
should
also
consider
how
the
witnesses acted, as well as what they said.
Some additional things to consider are:
Did the witness seem to have an
opportunity to see and know the things about
which the witness testified?
Did the witness seem to have an accurate
memory?
29
Was
the
witness
honest
and
straightforward in answering the attorneys'
questions?
Did the witness have some interest in how
the case should be decided?
Does the witness' testimony agree with
the other testimony and other evidence on the
case?
Has the witness been offered or received
any money, preferred treatment, or other
benefit in order to get the witness to
testify?
Has any pressure or threat been used
against the witness that affected the truth of
the witness' testimony?
Did the witness at some other time make a
statement that is inconsistent with the
testimony he or she gave in court?
You may rely upon your own conclusion
about the witness. A juror may believe or
disbelieve all or any part of the testimony of
any witness.
Tr. at 442-44 (emphasis added). Accordingly, on this record, Ramos
is not entitled to federal habeas relief on ground two.
C. Ground Three
As ground three, Ramos asserts that counsel was ineffective
because he advised her not to testify at trial. See Petition at 8.
She raised the claim in her amended Rule 3.850 motion in state
court. See Resp. Ex. 10 at 40-42. The court ultimately denied the
post-conviction motion with respect to the claim, stating in
pertinent part:
30
Defendant alleges that counsel was
ineffective
for
misadvising
Defendant
regarding her right to testify. Defendant
asserts that she wished to testify and counsel
told her she was not allowed. Defendant avers
that had counsel informed her of her right to
testify, she would have chosen to testify to
rebut allegedly untruthful testimony.
At the end of Defendant's case,[15] this
Court asked whether Defendant was going to
testify, and counsel responded that she would
not. This Court then entered into a colloquy
with Defendant personally to assure that she
made this decision knowingly and voluntarily.
(Ex. D at 375-77.) This Court explained, and
Defendant acknowledged on the record, that
Defendant had the right to remain silent, but
also had the right to testify on her behalf.
(Ex. D at 376-77.) Defendant also acknowledged
she understood that while she may get advice
on whether to testify by her attorneys, it was
ultimately her decision and she was "the final
decisionmaker" on whether to testify on her
own behalf. (Ex. D at 377.) This colloquy
shows that Defendant was fully aware of her
right to testify and her right to make that
decision, and individually made the decision
to remain silent and not become a witness.
Therefore, Defendant cannot now go behind her
sworn statements to allege that she would have
testified had she known her rights. Stano v.
State, 520 So.2d 278, 280 (Fla. 1988); Bir v.
State, 493 So.2d 55, 56 (Fla. 1st DCA 1986);
Dean v. State, 580 So.2d 808, 810 (Fla.
3d DCA 1991). Accordingly, Ground Three is
denied.
Id. at 100-01. On Ramos's appeal, the appellate court affirmed the
trial court's denial of post-conviction relief per curiam. See
Resp. Ex. 11.
15
See Tr. at 362-63, 374-77.
31
To the extent that the state appellate court affirmed the
trial court's denial on the merits,16 the Court will address the
claim in accordance with the deferential standard for federal court
review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court's
adjudication of the claim was not contrary to clearly established
federal law, did not involve an unreasonable application of clearly
established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. Thus, Ramos is not entitled to relief
on the basis of the claim.
Moreover,
even
assuming
the
state
appellate
court's
adjudication of the claim is not entitled to deference, Ramos's
claim nevertheless is without merit. In evaluating the performance
prong of the Strickland ineffectiveness inquiry, there is a strong
presumption in favor of competence. See Anderson v. Sec'y, Fla.
Dep't of Corr., 752 F.3d 881, 904 (11th Cir. 2014). The presumption
that counsel's performance was reasonable is even stronger when, as
in this case, defense counsel Mr. Perkins is an experienced
criminal defense attorney.17 The inquiry is "whether, in light of
16
In looking through the appellate court's affirmance to the
trial court's "relevant rationale," this Court presumes that the
appellate court "adopted the same reasoning." Wilson, 2018 WL
1800370, at *3.
17
"When courts are examining the performance of an experienced
trial counsel, the presumption that his conduct was reasonable is
32
all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance."
Strickland, 466 U.S. at 690. "[H]indsight is discounted by pegging
adequacy to 'counsel's perspective at the time' . . . and by giving
a 'heavy measure of deference to counsel's judgments.'" Rompilla v.
Beard, 545 U.S. 374, 381 (2005). Thus, Ramos must establish that no
competent attorney would have taken the action that counsel, here,
chose.
Notably, the test for ineffectiveness is neither whether
counsel could have done more nor whether the best criminal defense
attorneys might have done more; in retrospect, one may always
identify shortcomings. Waters v. Thomas, 46 F.3d 1506, 1514 (11th
Cir. 1995) (stating that "perfection is not the standard of
effective assistance") (quotations omitted). Instead, the test is
whether what counsel did was within the wide range of reasonable
professional assistance. Ward, 592 F.3d at 1164 (quotations and
citation omitted); Dingle v. Sec'y for Dep't of Corr., 480 F.3d
1092,
1099
(11th
Cir.
2007)
("The
question
is
whether
some
reasonable lawyer at the trial could have acted as defense counsel
acted in the trial at issue and not what 'most good lawyers' would
have done.") (citation omitted).
even stronger." Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000); see Williams v. Head, 185 F.3d 1223, 1229 (11th
Cir. 1999). Mr. Perkins was admitted to the Florida Bar in 1990.
See http://www.floridabar.org. At the time of Ramos's 2011 trial,
Perkins was an experienced trial lawyer.
33
At trial, defense counsel initially advised the court that
Ramos had not made a final decision as to whether she would testify
or not. See Tr. at 362-63. The next morning, the following colloquy
ensured.
[DEFENSE COUNSEL]: Your Honor, at this
time Ms. Ramos has decided that she does not
want to testify at this point. I did talk to
her about that last night and again this
morning to make sure that there were no
changes in that. She would be the last witness
that we would call.
. . . .
THE COURT: All right I need to speak to
Ms. Ramos.
And for the
name, please?
record
the
interpreter's
THE INTERPRETER: Adrianna Gonzalez.
THE COURT: Ms. Gonzalez, if you will
raise your right hand. Do you solemnly swear
you
will
accurately
interpret
all
conversations for this defendant so help you
God?
THE INTERPRETER: Yes I do.
THE COURT: Ms. Ramos, I know you speak
English, so hopefully you will understand me.
If you don't understand something I say, just
let me know and we can have Ms. Gonzale[z] try
and help you out.
Your attorney, Mr. Perkins, has indicated
that you are going to exercise your right to
remain silent and not become a witness in this
case; is that correct?
[RAMOS]: Yes, sir.
34
THE COURT: And, obviously, you understand
you have that right under the United States
Constitution?
[RAMOS]: Yes, sir.
THE COURT: You also can become a witness
if you wanted to. If you did, then you would
be treated like any other witness and you
would take the stand like they did and you
would have to take the oath. You'd be examined
and cross-examined and just be treated as any
other witness was treated that you have seen
during the course of the trial. You understand
that is an option? You don't have too, but it
is an option.
[RAMOS]: Yes, sir.
THE COURT: All right, and then I gather
that you have had conversations with your
attorneys, maybe family members or whatever to
make the decision whether or not to testify or
not to testify, correct?
[RAMOS]: Yes, sir.
THE COURT: And do you recognize and
understand that ultimately while you get
advice from attorneys and you get advice from
family members, it is your decision, your
individual
decision,
you're
the
final
decisionmaker on whether to become a witness
or not. Do you understand that?
[RAMOS]: Yes, sir.
THE COURT: And sometimes there are
strategies involved about whether to take the
stand or not take the stand. Sometimes
defendants don't want to because they don't
think they could do it; it is just too scary
for them. Other times defendants want to take
the stand. Their lawyers may say I don't think
it's a good idea; let's just stand on what we
have done so far. And, you know, so different
things can be considered. But at the end of
35
the day it is your choice whether to become a
witness or not. Do you understand?
[RAMOS]: Yes, sir.
THE COURT: All right. And you have
decided to exercise your constitutional right
to remain silent and not become a witness,
correct?
[RAMOS]: Correct.
Tr. at 374-77.
On this record, Ramos has failed to carry her burden of
showing that her counsel's representation fell outside that range
of reasonably professional assistance. Even assuming arguendo
deficient performance by defense counsel, Ramos has not shown any
resulting
prejudice.
She
has
not
shown
that
a
reasonable
probability exists that the outcome of the case would have been
different if counsel had advised her in the manner she suggests.
Her ineffectiveness claim is without merit since she has shown
neither deficient performance nor resulting prejudice. Accordingly,
Ramos is not entitled to federal habeas relief on ground three.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Ramos seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not
warranted. This Court should issue a certificate of appealability
only if the petitioner makes "a substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this
substantial
showing,
Ramos
"must
36
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 v. Cockrell, 537 U.S.
322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
n.4 (1983)).
Where
a
constitutional
district
claims
court
on
the
has
rejected
merits,
the
a petitioner's
petitioner
must
demonstrate that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong. See
Slack, 529 U.S. at 484. However, when the district court has
rejected a claim on procedural grounds, the petitioner must show
that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Id. Upon
consideration of the record as a whole, this Court will deny a
certificate of appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Petition (Doc. 1) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
37
2.
The Clerk of the Court shall enter judgment denying the
Petition and dismissing this case with prejudice.
3.
If Ramos appeals the denial of the Petition, the Court
denies a certificate of appealability. Because this Court has
determined that a certificate of appealability is not warranted,
the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this
case. Such termination shall serve as a denial of the motion.
4.
The Clerk of the Court is directed to close this case and
terminate any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 24th day of
April, 2018.
sc 4/24
c:
Jannette Ramos, FDOC #J45308
Counsel of Record
38
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