Collando-Pena v. Secretary Florida Department of Corrections
Filing
22
ORDER denying 1 Petition and dismissing case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 4/5/2019. (ACT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILMAN COLLANDO-PENA,
Petitioner,
v.
Case No. 3:16-cv-1109-J-34PDB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Wilman Collando-Pena, an inmate of the Florida penal system, initiated
this action on August 25, 2016,1 by filing a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 (Petition; Doc. 1) in the Northern District of Florida. On August 30, 2016,
the Northern District of Florida transferred the Petition to this Court. Doc. 4. In the Petition,
Collando-Pena challenges a 2013 state court (Duval County, Florida) judgment of
conviction for attempted first-degree murder and armed burglary. Collando-Pena raises
nine grounds for relief. See Petition at 3-22.2 Respondents have submitted a
memorandum in opposition to the Petition. See Answer to Petition for Writ of Habeas
Corpus (Response; Doc. 18) with exhibits (Resp. Ex.). Collando-Pena elected not to
submit a brief in reply. Doc. 20. This case is ripe for review.
1
See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
For purposes of reference, the Court will cite the page number assigned by the
Court’s electronic docketing system.
2
II. Relevant Procedural History
On October 29, 2012, the State of Florida (State) charged Collando-Pena by way
of an amended Information with attempted first-degree murder (count one) and armed
burglary (count two). Resp. Ex. 1 at 31-32. Collando-Pena proceeded to a jury trial, at the
conclusion of which the jury found him guilty as charged as to each count. Id. at 43-46.
The jury also found that Collando-Pena actually possessed a firearm during the
commission of both offenses and that the structure he was found guilty of burglarizing as
to count two was a dwelling. Id. On June 18, 2013, the circuit court sentenced CollandoPena to a term of incarceration of forty years in prison with a ten-year minimum mandatory
as to each count. Id. at 84-90. The circuit court ordered the sentences to run concurrently.
Id.
Collando-Pena appealed the judgment of conviction and sentences to Florida’s
First District Court of Appeal (First DCA). Id. at 96. Collando-Pena’s appellate counsel
filed an Anders3 brief. Resp. Ex. 6. Several months later, appellate counsel filed a motion
to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)
(Rule 3.800(b)(2) Motion) in the circuit court, in which he alleged the circuit court erred in
imposing court costs and a public defender’s lien. Resp. Ex. 5 at 1-6. The circuit court
dismissed the Rule 3.800(b)(2) Motion as untimely due to the fact it was filed after the
initial brief, in contravention of Rule 3.800(b)(2). Id. at 11-12. Collando-Pena did not file a
pro se initial brief. Resp. Ex. 12. The First DCA ultimately affirmed the conviction and
sentence on June 3, 2014, with a written opinion explaining why the Rule 3.800(b)(2)
Motion did not preserve any errors on appeal. Id. On June 13, 2014, Collando-Pena,
3
Anders v. State of California, 386 U.S. 738 (1967).
2
through counsel, filed a motion for rehearing, which the First DCA denied on July 9, 2014.
Resp. Ex. 13. The First DCA issued the Mandate on July 25, 2014. Resp. Ex. 12.
On January 20, 2015, Collando-Pena filed a pro se motion for postconviction relief
pursuant to Florida Rule of Criminal Procedure 3.850 (Rule 3.850 Motion). Resp. Ex. 14
at 1-28. Collando-Pena raised the following ten grounds for relief in his Rule 3.850 Motion:
counsel inadequately argued a motion for judgment of acquittal (ground one); counsel
failed to object to confusing and incorrect jury instructions (ground two); counsel failed to
call a witness (ground three); counsel failed to introduce Collando-Pena’s cellphone
records at trial (ground four); counsel failed to call two witnesses (ground five); counsel
failed to call a witness (ground six); counsel failed to object to Williams4 rule evidence
(ground seven); counsel failed to object to the State and circuit court’s statements that
both offenses were punishable between forty years and life in prison (ground eight);
counsel mislead Collando-Pena regarding the need for him to testify at trial (ground nine);
and the cumulative effect of counsel’s errors prejudiced him (ground ten). Id. On
December 17, 2015, the circuit court denied the Rule 3.850 Motion. Id. at 29-42. On May
20, 2016, the First DCA per curiam affirmed the circuit court’s denial of Collando-Pena’s
Rule 3.850 Motion without a written opinion and issued the Mandate on June 15, 2016.
Resp. Ex. 17.
III. One-Year Limitations Period
The Petition was timely filed within the one-year limitations period. See 28 U.S.C.
§ 2244(d).
4
Williams v. State, 110 So. 2d 654 (Fla. 1959).
3
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 the Court can “adequately assess [Collando-Pena’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.
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
4
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 a written 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 an explanation, the United States
Supreme Court recently stated:
[T]he federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that the
unexplained decision adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (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
1192, 1196.
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. The Eleventh Circuit describes the limited
scope of federal review pursuant to § 2254 as follows:
5
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 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.’”[5] 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
5
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).
6
before the state court that adjudicated the claim on the merits. See Cullen v. 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 the petitioner’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 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:
7
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. 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,[6] supra, at 747–748, 111 S. Ct. 2546;
Sykes,[7] 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
6
7
Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
8
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). In order for a petitioner to
establish cause,
the procedural default “must result from some objective factor
external to the defense that prevented [him] from raising the
claim and which cannot be fairly attributable to his own
conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258 (11th Cir.
1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[8]
Under the prejudice prong, [a petitioner] must show that “the
errors at trial actually and substantially disadvantaged his
defense so that he was denied fundamental fairness.” Id. at
1261 (quoting Carrier, 477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may receive
consideration on the merits of 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.”
8
Murray v. Carrier, 477 U.S. 478 (1986).
9
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.
C. Ineffective Assistance of Trial 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.
10
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.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of any ironclad rule requiring a court to tackle one prong of the Strickland test before the other.”
Ward, 592 F.3d at 1163. 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
11
argument that counsel satisfied Strickland’s deferential
standard,” then a federal court 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 other words, “[i]n 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
Collando-Pena alleges that his trial counsel was ineffective because he failed to
adequately argue a motion for judgment of acquittal. Petition at 3-4. Specifically, he
contends that counsel should have argued that the State failed to prove the “remaining
in” element of burglary. Id. According to Collando-Pena, counsel’s failure to adequately
argue this point “undermined the outcome of this case, and permitted the jury to deliberate
over an offense not proven, thereby lessening the State’s burden of proof, and permitting
Petitioner to be found guilty of an offense not proven.” Id. at 4.
Collando-Pena raised a similar claim in his Rule 3.850 Motion. Resp. Ex. 14 at 68. The circuit court denied relief on this claim, stating in pertinent part:
Burglary can be proven in two ways:
(1) the
unauthorized entry into a structure with the intent to commit
an offense therein; or (2) notwithstanding an invited entry,
remaining in the structure: (a) surreptitiously, with the intent
to commit an offense; (b) after permission to remain has been
12
withdrawn, with the intent to commit an offense; or (c) to
commit or attempt to commit a forcible felony. § 810.02(1)(b)1,
2a-c, Fla. Stat. (2011).
Here, the Information specifically charged Defendant
as followed: “WILMAN RAMON COLLANDO PENA on
October 31, 2011, . . . did unlawfully enter or remain in a
structure or conveyance . . . with the intent to commit an
offense therein, and . . . became armed with explosives or a
dangerous weapon . . . .” In his own Motion, Defendant admits
he entered without consent. As such, even if counsel argued
the State failed to prove Defendant was an invitee, but
“remained therein,” the State still presented prima facie
evidence Defendant committed a Burglary as he made an
unauthorized entry. This Court finds Defendant is arguing
semantics when the Information is perfectly clear.
Accordingly, Ground One is denied.
Id. at 30-31 (record citations omitted and emphasis in original). The First DCA per curiam
affirmed the circuit court’s denial. Resp. Ex. 17.
To the extent that the First DCA decided the claim on the merits, 9 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 this 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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of the claim is not
entitled to deference, Collando-Pena’s claim in Ground One is without merit. In reviewing
In looking through the appellate court’s per curiam affirmance to the circuit court’s
“relevant rationale,” the Court presumes that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
9
13
a motion for judgment of acquittal, trial courts must determine “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see also Gudinas v. State, 693 So. 2d 953, 962 (Fla.
1997) (quoting Taylor v. State, 583 So. 2d 323, 328 (Fla. 1991) (holding a motion for
judgment of acquittal should not be granted unless “there is no view of the evidence which
the jury might take favorable to the opposite party that can be sustained under the law.”).
Under Florida law, burglary of a dwelling occurs where:
1. Entering a dwelling, a structure, or a conveyance with the
intent to commit an offense therein, unless the premises are
at the time open to the public or the defendant is licensed or
invited to enter; or
2. Notwithstanding a licensed or invited entry, remaining in a
dwelling, structure, or conveyance:
a. Surreptitiously, with the intent to commit an
offense therein;
b. After permission to remain therein has been
withdrawn, with the intent to commit an offense
therein; or
c. To commit or attempt to commit a forcible
felony, as defined in s. 776.08.
§ 810.02(1)(b), Fla. Stat. (2011) (emphasis added).
The record reflects that the State charged Collando-Pena with both methods of
committing a burglary. Resp. Ex. 1 at 31. At trial, the State introduced unrebutted
evidence that on the night of October 31, 2011, Collando-Pena knocked on the apartment
door of Sabrina Hoffer and Lindsay Rossman, who had a guest over that night, Ashley
Sleeper. Resp. Ex. 3 at 240-42, 296-98, 333. Assuming it was a trick or treater, Hoffer
14
opened the door; however, once unlocked Collando-Pena forcefully pushed the door
open and pointed a handgun within inches of Rossman’s face. Id. at 242-43, 298, 304,
333-36. Collando-Pena pulled the trigger, but it jammed. Id. at 244, 299-300, 333-36. He
attempted to fix the firearm, but the women pushed him out of the apartment and then
called police. Id. at 298-306, 337. Notably, both Hoffer and Rossman testified CollandoPena was not invited into their apartment. Id. at 242, 304. The State also introduced
evidence from a jail-house informant, Hector Sanchez-Andujar, who testified that
Collando-Pena confessed to him. Id. at 349-53. Additionally, another jail inmate also
testified that once Collando-Pena discovered Sanchez-Andujar would become a witness
in his case, Collando-Pena attacked and threatened to kill him, calling him a “snitch.” Id.
at 367-70. At the close of the State’s evidence, defense counsel moved for a judgment of
acquittal. Id. at 376-81. Regarding the burglary count, counsel argued that the State failed
to prove Collando-Pena entered the dwelling without permission or that he remained in
the structure when the victims pushed him out. Id. at 377. The circuit court denied the
motion for judgment of acquittal. Id. at 381.
Based on this record, Collando-Pena cannot demonstrate deficient performance
because counsel did in fact make the argument Collando-Pena now complains counsel
failed to make. Defense counsel argued the State failed to prove he remained in the
apartment. Id. at 377. As such, the record refutes his claim of deficient performance.
Likewise, Collando-Pena cannot demonstrate prejudice because there was unrebutted
evidence to support the unlawful entry method of burglary. Id. at 242-43, 298, 304, 33336, 351-53. After viewing the evidence in the light most favorable to the State, a rational
trier of fact could have found beyond a reasonable doubt that Collando-Pena unlawfully
15
entered the apartment with the intent to commit a crime therein. See Jackson, 443 U.S.
at 319. Accordingly, the case would have still gone to the jury and there is no reasonable
probability the outcome of the trial would have been different. In light of Collando-Pena’s
failure to demonstrate deficient performance or prejudice, relief on his claim in Ground
One is due to be denied.
B. Ground Two
In Ground Two, Collando-Pena avers that his trial counsel was ineffective because
she failed to object to misleading, confusing, and incorrect jury instructions for the
burglary offense. Petition at 4-7. Collando-Pena asserts that counsel should have
objected to the portion of the burglary instruction regarding the “remaining in” element. Id.
at 6-7. According to Collando-Pena, the State only provided evidence of a forced entry,
not an invitee remaining in the dwelling after consent had been revoked. Id. But for this
alleged error, Collando-Pena maintains that there is a reasonable probability that the jury
would have acquitted him. Id. at 7.
Collando-Pena raised this claim as ground two of his Rule 3.850 Motion. Resp. Ex.
14 at 8-12. In denying relief, the circuit court explained:
During the jury charge conference, defense counsel
requested this Court to read only one theory of Burglary,
stating the elements of the two theories were “not compatible.”
This Court considered counsel’s argument, but rejected such,
stating “I believe there’s sufficient evidence to support both
theories. I’m inclined to read both.” Thus, counsel cannot be
deficient for making the argument Defendant contends she
did not make, which was ultimately rejected by this Court.
As explained supra, the Information charged
Defendant under both theories of Burglary: unlawful entry
with intent to commit an offense therein and, notwithstanding
consent, remaining in [the] structure with the intent to commit
an offense therein. As such, this Court followed Standard Jury
16
Instruction 13.1 and instructed the jury on both theories of
Burglary, including each applicable element. As to
Defendant’s argument regarding the “stealth instruction,” this
Court finds Defendant has failed to show he was prejudiced
by such instruction. Based on the evidence adduced at trial, it
was not necessary for the State to prove Defendant’s entry
into the victims’ home was stealthy as the State could prove
Burglary by an entry without consent of the owner. See
Daughtry v. State, 804 So. 2d 426, 427 (Fla. 4th DCA 2001).
Sabrin[a] Hoffer (Ms. Hoffer), one of the residents at the
subject apartment, testified she heard a knock at the door.
Since it was Halloween, Ms. Hoffer assumed it was trick-ortreaters. Ms. Hoffer stated she opened the door and
Defendant pushed through and pulled out a gun. Ms. Hoffer
testified she did not invite Defendant inside. Accordingly,
Defendant cannot show that but for this instruction, the
outcome of the case would have been different.
As to any claim that counsel was ineffective for failing
to preserve this issue for appeal, “failure to preserve issues
for appeal does not show the necessary prejudice under
Strickland.” Strobridge v. State, 1 So. 3d 1240, 1242 (Fla. 4th
DCA 2009). In Strobridge, the appellate court found “the only
prejudice asserted was prejudice in the [defense attorney’s]
failure to preserve the issue for appeal and not any prejudice
occurring at the trial itself.” Id. at 1243; see Carattelli v. State,
961 So. 2d 312, 323 (Fla. 2007) (holding that a defendant
must demonstrate prejudice at trial, not on appeal). The
“ultimate focus of inquiry must be on the fundamental fairness
of the proceeding whose result is being challenged.”
Strickland, 466 U.S. at 670 (emphasis added). Therefore,
Ground Two is denied.
Id. at 31-32 (record citations omitted). The First DCA per curiam affirmed the circuit court’s
denial. Resp. Ex. 17.
To the extent that the First DCA decided the claim on the merits, 10 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
10
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
17
concludes that the state court’s adjudication of this 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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of the claim is not
entitled to deference, the claim in Ground Two is meritless because he cannot
demonstrate prejudice. The record reflects that after a long discussion with the parties,
the circuit court decided to instruct the jury on both theories of burglary. Resp. Exs. 3 at
393-400; 4 at 404. The defense originally objected, arguing the two theories were
incompatible and that the State needed to choose one or the other. Resp. Ex. 3 at 39394. The circuit court noted that “[t]hey’re two alternate theories and they can prove it either
way.” Id. at 394. The State went on to argue that there was no evidence of consent so
the “remaining in” instruction was not needed. Id. at 395. However, the circuit court and
defense attorney noted the victims opened the door for Collando-Pena without asking
who it was and that there was evidence to suggest an inference that Collando-Pena could
enter the apartment that day. Id. at 396. Based on this evidence, the circuit court stated,
“I believe there’s sufficient evidence to support both theories. I’m inclined to read both.”
Id. The circuit court was inclined to read both “because I think that there is a basis to infer
some of these things and I want to make sure that I’ve given an instruction that will cover
those so it doesn’t come back to haunt me on appeal.” Id. at 399. Notably, defense
counsel ultimately agreed with the Court about reading both possible burglary theories to
the jury. Id. at 400.
18
Based on this record, the circuit court would not have agreed to strike the
“remaining in” theory of burglary because it felt an inference could be drawn from the
evidence presented that the victims consented to Collando-Pena’s entrance into their
apartment. Thus, any objection to the reading of this jury instruction would have been
meritless. Counsel cannot be found ineffective for failing to raise a meritless objection.
See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1142 (11th Cir. 2005) (holding
counsel cannot be ineffective for failing to raise a meritless argument); Bolender v.
Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) (noting that “it is axiomatic that the failure
to raise nonmeritorious issues does not constitute ineffective assistance.”). Additionally,
because there was evidence that supported the theory of burglary regarding CollandoPena’s uninvited status, Collando-Pena can likewise not demonstrate prejudice. As noted
above, Collando-Pena barged into the apartment and tried to shoot Rossman, thereby
establishing the elements of burglary. Accordingly, even if the jury had not been instructed
on the “remaining in” theory of burglary, the jury would have still convicted him on the
alternate theory of burglary. For the foregoing reasons, Collando-Pena is not entitled to
the relief he seeks in Ground Two.
C. Ground Three
In Ground Three, Collando-Pena contends that his counsel was ineffective
because she failed to investigate and obtain his probation officer, Michael Everle, as a
witness and to obtain Collando-Pena’s cellphone records. Petition at 8-10. Collando-Pena
claims that Everle was available to testify and that he would have stated that he was with
Collando-Pena the morning after the incident, did not find anything inappropriate, and that
he overheard a phone conversation between Collando-Pena and the victim during which
19
the victim stated she was going to file a false police report as revenge for Collando-Pena
cheating on her. Id. at 8. Collando-Pena further asserts that his counsel should have
obtained the cellphone records to corroborate the fact that the victim called him the
morning after the incident. Id. Noting the hearsay nature of this testimony, Collando-Pena
contends that it would be admissible as an exception to the hearsay rule because it
demonstrates motive for the victim to fabricate the charged offenses. Id. at 9.
In his Rule 3.850 Motion, Collando-Pena raised a similar claim. Resp. Ex. 14 at
12-14. The circuit court denied relief on the claim, explaining:
This Court finds testimony from Officer Everle as to any
alleged statements made by the victim would be inadmissible
hearsay. See § 90.801, Fla. Stat. (2011). Here, Defendant
alleges Officer Everle would have testified to statements
made by Ms. Rossman to support a defense that Ms.
Rossman fabricated the entire incident. Thus, Officer Everle
would have testified to out-of-court statements offered for the
truth of the matter asserted. Such testimony is inadmissible
hearsay and would have been excluded during trial.
Accordingly, counsel cannot be ineffective for failing to call a
witness whose testimony would have been inadmissible.
As to Defendant’s cell phone records, this Court finds
Defendant has failed to prove he was prejudiced by such
omission. Ms. Hoffer, Ms. Rossman, and Ashley Sleeper (Ms.
Sleeper) testified Defendant burst through Ms. Hoffer and Ms.
Rossman’s front door, uninvited, and pointed a gun at Ms.
Rossman’s head. Immediately after this incident occurred,
Ms. Rossman called 911. The 911 call was played to the jury.
Considering three eyewitness[es] to the incident testified
Defendant burst into Ms. Hoffer and Ms. Rossman’s
apartment uninvited, Defendant cannot show that but for
counsel’s omission, the outcome of the case would have been
different. Accordingly, Ground Three is denied.
Id. at 32-34 (record citations omitted). The First DCA per curiam affirmed the circuit court’s
denial. Resp. Ex. 17.
20
To the extent that the First DCA decided the claim on the merits, 11 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 this 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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, this claim is without merit. The Eleventh Circuit has explained:
Although an ineffective-assistance-of-counsel claim is a
federal constitutional claim, which we consider in light of the
clearly established rules of Strickland, when “the validity of the
claim that [counsel] failed to assert is clearly a question of
state law, ... we must defer to the state's construction of its
own law.” Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th
Cir.1984) (affording deference to state court's decision “to the
extent it decide[d] the validity of [the petitioner's] underlying
state law claims”) (emphasis added) (superseded on other
grounds); see also Callahan v. Campbell, 427 F.3d 897, 932
(11th Cir. 2005) (holding that “[i]t is a fundamental principle
that state courts are the final arbiters of state law, federal
habeas courts should not second-guess them ...” (quotation
and omitted)). Put another way, “[a] state's interpretation of its
own laws or rules provides no basis for federal habeas corpus
relief, since no question of a constitutional nature is involved.”
McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.1992);
Hunt v. Tucker, 93 F.3d 735, 737 (11th Cir.1996) (federal
courts entertaining petitions for writs of habeas corpus must
follow the state court's interpretation of a state law absent a
constitutional violation).
11
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
21
Will v. Sec'y For Dep't of Corr., 278 F. App'x 902, 908 (11th Cir. 2008) (emphasis in
original). Here, the state circuit court determined Everle’s testimony would have been
inadmissible hearsay; therefore, the Court is bound by the circuit court’s interpretation of
Florida law. See id. Accordingly, as Everle’s testimony would have been inadmissible,
counsel cannot be deemed deficient for failing to present inadmissible evidence. See
Diaz, 402 F.3d at 1142; Bolender, 16 F.3d at 1573. It follows then that submission of
Collando-Pena’s phone records would not have had a reasonable probability of affecting
the outcome of the trial where those records would have only provided evidence that a
call took place and would not have been supported by testimony or evidence as to the
content of those calls. In light of three eye-witnesses, two of which who positively
identified Collando-Pena as the attacker, the evidence of the immediate 911 call, and
Collando-Pena’s confession to a fellow inmate, evidence of Collando-Pena’s phone
records would not have changed the outcome of the trial. Collando-Pena has failed to
demonstrate either deficient performance or prejudice; therefore, relief on his claim in
Ground Three is due to be denied.
D. Ground Four
Collando-Pena asserts that his counsel was ineffective for failing to obtain his
cellphone records and global positioning history. Petition at 10-11. The State asserted the
incident occurred between 10:30 p.m. and midnight on October 31, 2011; however,
Collando-Pena maintains that he was at home during that time period because he was
on probation. Id. at 10. Had counsel obtained these records, Collando-Pena claims that
the jury would have learned he was on his cellphone with Laura Strada when the crime
22
allegedly occurred and that his global positioning data would have reflected that he was
inside his apartment at the time of the incident. Id. at 11.
Collando-Pena raised this same claim as ground four of his Rule 3.850 Motion.
Resp. Ex. 14 at 15-16. In denying this claim, the circuit court explained:
As stated above, Ms. Hoffer, Ms. Rossman, and Ms.
Sleeper testified Defendant burst through Ms. Hoffer and Ms.
Rossman’s front door, uninvited, and pointed a gun at Ms.
Rossman’s head. Immediately after this incident occurred,
Ms. Rossman called 911. The 911 call was played to the jury.
Further, Hector Sanchez-Andujar (Mr. Sanchez) testified he
lived in the same jail dormitory as Defendant after Defendant
was arrested for the instant case. Mr. Sanchez stated he
became friends with Defendant. According to Mr. Sanchez,
Defendant discussed details about Defendant’s case with Mr.
Sanchez. Defendant told Mr. Sanchez he was arrested for
“attempt to homicide” and that Defendant committed the
crime. Defendant told Mr. Sanchez he used a gun during the
crime and explained to Mr. Sanchez where the crime
occurred. Defendant also explained to Mr. Sanchez how he
committed the crime. Based on the testimony of three
eyewitness[es] combined with Defendant’s confession to Mr.
Sanchez, Defendant cannot show how cell phone and “global
positioning” records would refute the overwhelming evidence
of guilt. Accordingly, Ground Four is denied.
Id. at 34-35 (record citations omitted). The First DCA per curiam affirmed the circuit court’s
denial. Resp. Ex. 17.
To the extent that the First DCA decided the claim on the merits, 12 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 this claim was not contrary to clearly
established federal law, did not involve an unreasonable application of clearly established
12
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
23
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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, Collando-Pena’s claim in Ground Four is without merit because he
cannot demonstrate prejudice. The Court finds there is no reasonable probability the
outcome of the trial would have been different had counsel obtained cellphone records
and global positioning records in light of the substantial evidence of Collando-Pena’s guilt
presented at trial. As mentioned above, three eye-witnesses testified as to the attack, with
two of the witnesses specifically and unequivocally identifying Collando-Pena as the
suspect. Resp. Ex. 3 at 240-45, 269-306, 333-37. The State played the victim’s 911 call
at trial, which corroborated the three eye-witnesses’ testimony. Id. at 298-303. What is
most damning, however, is Collando-Pena’s confession to a fellow inmate, Sanchez, in
which he detailed his role in the crime. Id. at 348-54. Additionally, Collando-Pena has not
provided the Court with any evidence concerning his cellphone and global positioning
records; instead, he alleges in a conclusory and speculative manner that these records
would have proven he was not at the victim’s apartment.13 However, such allegations
cannot support an ineffective assistance of counsel claim. See Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991) (recognizing that vague, conclusory, speculative, or
unsupported claims cannot support an ineffective assistance of counsel claim); Wilson v.
United States, 962 F.2d 996, 998 (11th Cir. 1992) (holding that conclusory allegations of
Notably, Collando-Pena’s cellphone and global positioning records would show
only where his cellphone was located, not necessarily where he was located.
13
24
ineffective assistance of counsel are insufficient to merit habeas relief). Accordingly,
Collando-Pena’s unsupported claims concerning these records, when viewed in light of
the competent, substantial evidence presented at trial, do not demonstrate prejudice
within the meaning of Strickland. As such the relief he seeks in Ground Four is due to be
denied.
E. Ground Five
In Ground Five, Collando-Pena argues that his counsel was ineffective for failing
to obtain Lamont Pierce and Isaiah Davis as defense witnesses. Petition at 13-14.
According to Collando-Pena, both Pierce and Davis would have testified they were with
Collando-Pena at his apartment during the time frame in which the incident occurred. Id.
at 13.
In his Rule 3.850 Motion, Collando-Pena raised a similar claim. Resp. Ex. 14 at
16-17. The circuit court denied relief on the claim and explained:
Again, as stated supra, the State presented an
overwhelming amount of evidence implicating Defendant in
this crime. Ms. Rossman testified she dated Defendant from
March to April of 2011, but the two broke up. Ms. Hoffer and
Ms. Rossman lived together in October of 2011. Ms. Rossman
testified that two weeks before Halloween she had a “gettogether” at her and Ms. Hoffer’s apartment. Defendant
attended the “get-together.” During the party, Ms. Hoffer
consumed a large amount of alcohol and ended up going to
her room to sleep. Subsequently, Ms. Rossman stated the
party ended and she asked Defendant to leave, but he
refused. Ms. Rossman and Defendant engaged in a physical
altercation before Ms. Rossman went to a neighbor’s house
to get help. When Ms. Rossman returned to her apartment,
she found Defendant raping Ms. Hoffer. Ms. Hoffer asked Ms.
Rossman not to call the police.
On Halloween, the night the instant offenses occurred,
Ms. Rossman and Ms. Hoffer were at their apartment with
their friend, Ms. Sleeper. Ms. Rossman, Ms. Hoffer, and Ms.
25
Sleeper testified Defendant burst through Ms. Hoffer and Ms.
Rossman’s front door, uninvited, and pointed a gun at Ms.
Rossman’s head. Ms. Rossman and Ms. Hoffer identified
Defendant as the individual who committed the offense. The
only reason Ms. Sleeper could not identify Defendant is
because of her viewpoint, explaining she could not have
identified her own father from the perspective she had when
Defendant burst through the door.
Mr. Sanchez, Defendant’s fellow jail-mate, testified
Defendant confessed to committing the crime, reiterating indepth details only Defendant would know. Further, once Mr.
Sanchez was listed as a State witness, Tyrone Gantt (Mr.
Gantt), testified Defendant attacked Mr. Sanchez in the jail,
threatened to kill him, and called him a snitch.
Considering the overwhelming amount of incriminating
evidence presented to the jury, Defendant cannot show he
was prejudiced by counsel’s alleged deficient performance.
Defendant raped Ms. Hoffer two weeks before committing the
instant crime. Ms. Rossman caught Defendant raping Ms.
Hoffer, thus, Defendant had motivation to attempt to kill Ms.
Rossman. Ms. Hoffer and Ms. Rossman identified Defendant
as the person who committed the instant offenses. Defendant
then confessed to Mr. Sanchez, and Mr. Sanchez’s testimony
was supported by evidence of Defendant’s retaliation.
Compelling evidence established Defendant’s guilt of
Attempted First Degree Murder and Armed Burglary, and the
jury undoubtedly relied on this evidence in forming its verdict.
Accordingly, the record conclusively refutes any claim that
Defendant was prejudiced by the absence of testimony from
these witnesses that Defendant was “giving out candy to the
kids when they came by for Halloween” when the offense
occurred. See Pardo v. State, 941 So. 2d 1057, 1065 (Fla.
2006). Ground Five is denied.
Id. at 35-36 (record citations omitted). The First DCA per curiam affirmed the circuit court’s
denial. Resp. Ex. 17.
26
To the extent that the First DCA decided the claim on the merits, 14 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 this 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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim in Ground Five is without merit. Collando-Pena cannot
demonstrate prejudice. Collando-Pena’s confession to Sanchez while in jail is a daunting
evidentiary hurdle to clear to establish prejudice under Strickland. Sanchez provided
specific information about the case that only Collando-Pena could have known, especially
considering Sanchez testified he did not review any of Collando-Pena’s discovery or legal
documents and his ability to speak and read English was extremely limited. Resp. Ex. 3
at 348-53, 356-58. Sanchez’s testimony coupled with the eye-witness testimony provided
at trial, demonstrates to the Court that there is no reasonable probability the outcome of
the trial would have been different had these witnesses testified at trial in the manner
Collando-Pena asserts. Moreover, other than Collando-Pena’s conclusory and selfserving allegations, he has failed to provide the Court affidavits, declarations, or other
evidence regarding the nature of the testimony these witnesses would provide. Such
14
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
27
conclusory and speculative allegations do not support a claim of ineffective assistance of
counsel. See Tejada, 941 F.2d at 1559; Wilson, 962 F.2d at 998. Accordingly, as he
cannot demonstrate prejudice, his ineffective assistance of counsel claim in Ground Five
is due to be denied.
F. Ground Six
Collando-Pena contends that his trial counsel was ineffective because she failed
to call Officer Pavone, a Duval County jail correctional officer, as a witness. Petition at
14-16. Hector Sanchez, a jailhouse informant who testified at trial that Collando-Pena
confessed to him, also testified in his deposition that he never reviewed any of CollandoPena’s discovery or case-related paperwork. Id. at 14. Collando-Pena maintains this was
a lie and that he let Sanchez review his discovery because Sanchez told him he was a
jailhouse law clerk. Id. According to Collando-Pena, “he had Officer Pavone . . . pull all of
his legal documents out of property for Sanchez to look over them.” Id. Accordingly,
Collando-Pena asserts that his counsel should have called Pavone as a witness to testify
that Collando-Pena’s legal documents were not “in the property storage room while
Sanchez was housed in the same jail pod as him.” Id. at 15. Collando-Pena claims such
testimony would have hurt the credibility of Sanchez and resulted in an acquittal at trial.
Id. at 16.
Collando-Pena raised a similar claim in his Rule 3.850 Motion. Resp. Ex. 14 at 1719. In denying relief on this claim, the circuit court stated:
This Court finds this Ground to be wholly without merit.
Assuming the “property log sheet” shows Defendant’s legal
documents were not in the property room at the time
Defendant was living with Sanchez, this alone does not prove
Defendant did not confess to Sanchez. Further, this witness
would not negate the eye witness testimony of Ms. Rossman,
28
Ms. Hoffer, and Ms. Sleeper. Accordingly, Defendant cannot
show that but for counsel’s alleged failure to call Officer
Pavone as a witness, he would have been acquitted. This
Ground is denied.
Id. at 9 (record citations omitted). The First DCA per curiam affirmed the circuit court’s
denial. Resp. Ex. 17.
To the extent that the First DCA decided the claim on the merits, 15 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 this 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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim in Ground Six is meritless. Even assuming Pavone would
testify that Collando-Pena’s legal materials were not in storage at the time he and
Sanchez were housed in the same dormitory, this evidence does not dispute Sanchez’s
testimony that he did not review Collando-Pena’s discovery. The fact that his legal
documents may not have been in the property room does not mean that the documents
were actually shown to Sanchez. Moreover, even if Pavone’s testimony would have
refuted Sanchez’s testimony, it would not have changed the outcome of the trial because
the testimony of the three eye-witnesses overwhelmingly established his guilt as to both
15
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
29
offenses. As such, Collando-Pena cannot demonstrate prejudice and relief on his claim
in Ground Six is due to be denied.
G. Ground Seven
As Ground Seven, Collando-Pena avers that his counsel was ineffective because
she failed to object to Williams rule evidence becoming a feature of the trial. Petition at
16-18. The circuit court allowed evidence of Collando-Pena’s alleged rape of the victim’s
roommate and the attempted rape of the victim, both of which occurred approximately
two weeks prior to the incident, to be introduced at trial to show motive for the attempted
first-degree murder charge. Id. at 16. However, Collando-Pena contends that “the State
used the evidence to paint Petitioner as a rapist and Petitioner’s trial for attempted murder
and burglary, essentially became a trial for attempted murder, burglary, and rape.” Id. at
17. Collando Pena maintains that this evidence tainted his image in the eye of the jury,
which rendered the verdict unreliable. Id. at 18.
Collando-Pena raised a similar claim in his Rule 3.850 Motion. Resp. Ex. 14 at 2022. In denying relief on this claim, the circuit court reasoned:
Prior to trial, the State filed a Notice of Other Crimes,
Wrongs or Acts Evidence seeking to introduce evidence that
Defendant attempted to rape Ms. Rossman and Ms. Hoffer
two weeks prior to the instant offenses occurred [sic]. The
State sought to admit this evidence to prove motive.
Subsequently, defense counsel filed a response to the State’s
Notice, objecting to the introduction of the evidence. One of
the arguments defense counsel relied on in his objection was
that the [sic] “the collateral offenses will become a feature of
the trial.” This Court conducted an in-depth hearing on the
Notice and objection on November 30, 2012. At that hearing,
counsel again argued the collateral evidence would become
a feature at trial. Despite counsel’s argument, this Court found
the probative value of the Williams rule evidence outweighed
the potential prejudice and denied counsel’s objection to the
admission of the evidence. Counsel also filed a Motion for
30
New Trial based on this Court’s admittance of the collateral
evidence and denial of Defendant’s objection to such. The
record shows counsel made the exact objection Defendant
now alleges counsel did not make. Accordingly, this claim is
without merit and Ground Seven is denied.
Id. at 37-38 (record citations omitted). The First DCA per curiam affirmed the circuit court’s
denial. Resp. Ex. 17.
To the extent that the First DCA decided the claim 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 this 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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, there is no merit to the claim raised in Ground Seven. The record
reflects that on July 20, 2012, the State filed a notice of its intent to use Williams rule
evidence at trial. Resp. Ex. 1 at 30. On November 30, 2012, defense counsel filed a
motion in opposition to the introduction of this evidence, id. at 33-35, in which counsel
argued, in part, that the evidence should be excluded because there was a danger it
would “become a feature of the trial, thereby causing undue prejudice to the defendant
and deprive him of his right to a fair trial.” Id. at 34. On the same day, the Court held a
16
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
31
hearing on the matter. Id. at 102-46. At the hearing, counsel again objected to the
introduction of the Williams Rule evidence, making the following specific arguments:
[W]e would argue that Mr. Pena would be clearly prejudiced
by allowing this evidence to come in and believe that the State
would make this a feature of the trial, that the jury would
simply convict Mr. Pena based on an alleged event that
happened. An event that was never recorded.
....
So we would argue that this is extremely prejudicial and it
would become a feature of the trial which would prejudice Mr.
Pena.
....
While the State has said they would limit any testimony on it,
I still think it would become a feature of the trial that the jury
would hold against Mr. Pena to a great degree.
Id. at 139, 141, 143-44. The circuit court ultimately allowed the State to present the
evidence. Id. at 144. Based on the above, the record refutes Collando-Pena’s assertion
that counsel failed to object that this evidence would become a feature of the trial.
Therefore, he has failed to establish deficient performance.
Additionally, the trial transcripts demonstrate that the State presented the Williams
rule evidence to the extent necessary to give it the proper context and did not belabor the
point. Id. at 236-39, 289-95, 352-53. Accordingly, contrary to Collando-Pena’s contention
otherwise, the Williams rule evidence did not become a feature of the trial. Moreover, as
noted above, the State introduced overwhelming evidence of Collando-Pena’s guilt;
therefore, the Court concludes there is no reasonable probability the outcome of the trial
would have been different had the Williams rule evidence not even been introduced. In
32
light of the above analysis, relief on Collando-Pena’s claim in Ground Seven is due to be
denied.
H. Ground Eight
Collando-Pena asserts that his trial counsel was ineffective for misadvising him to
not testify at trial. Petition at 19-21. According to Collando-Pena, he wanted to testify that:
(1) he was at home during the time period of the incident with three of his friends handing
out Halloween candy; (2) he was talking to Laura Strada on the telephone during this time
as well; (3) he was on probation and not allowed to leave his home; (4) his probation
officer visited his home the next day and searched his home and vehicle; (5) while his
probation officer was there Collando-Pena received a phone call from the victim during
which she discussed framing Collando-Pena for the crime; and (6) Sanchez reviewed all
of Collando-Pena’s legal documents prior to trial. Id. at 19-20. However, Collando-Pena
contends that his counsel advised him not to testify because his story was not credible
and that the jury would not believe him because he was a previously convicted felon. Id.
at 20. Additionally, Collando-Pena states his attorney told him she would be able to elicit
this same information through cross-examination; thus, his testimony was not needed. Id.
Collando-Pena maintains that both his counsel and the circuit court misadvised him about
the role his prior convictions would play if he testified, and, but for this alleged misadvice,
he claims he would have testified and the outcome of the trial would have been different.
Id. at 21.
33
Collando-Pena raised a similar claim in his Rule 3.850 Motion. Resp. Ex. 14 at 24,
26.17 The circuit court denied this claim, stating in pertinent part:
The court must address two factors when determining
whether counsel was deficient in advising a defendant not to
testify: (1) whether the defendant voluntarily agreed with
counsel not to take the stand; (2) whether counsel’s advice to
the defendant, even if voluntarily followed, was nevertheless
deficient because no reasonable attorney would have
discouraged the defendant from testifying. Simon v. State, 47
So. 3d 883, 885 (Fla. 3d DCA 2010) (citing Lott v. State, 931
So. 2d 807, 819 (Fla. 2006)).
During trial, this Court conducted a colloquy with
Defendant regarding his right to testify. This Court explained
Defendant had an absolute right to remain silent or an
absolute right to testify. This Court advised Defendant that if
he testified, he risked allowing the jury to hear about any prior
felony convictions. Defendant then stated he weighed all
those considerations when deciding not to testify. This Court
heeded Defendant’s position but advised him he had the right
to change his mind prior to the jury charge. Based on this
testimony, this Court finds Defendant voluntarily waived his
right to testify.
Further, this Court finds counsel was not deficient in
advising Defendant not to testify. In his own Motion,
Defendant admits he was on probation at the time the
offenses were committed. According to Defendant’s
scoresheet, Defendant has a prior felony conviction for
Carrying a Concealed Firearm. In an effort to protect
Defendant’s credibility, counsel advised Defendant not to
testify and instead attacked the State’s witnesses through
cross examination. Counsel attempted to question Sanchez’s
knowledge of Defendant’s case by asking Sanchez if he got
information on Defendant’s case by reviewing discovery
papers and documents from Defendant’s attorney, to which
Sanchez replied “no.” Further, counsel attempted to test Ms.
Rossman’s credibility on cross examination by impeaching
her with prior inconsistent testimony. As discussed supra, an
overwhelming amount of incriminating evidence was
presented during trial. Defendant voluntarily exercised his
17
Page twenty-five of the Rule 3.850 Motion is not contained in the exhibits
attached to the Response.
34
right to remain silent and counsel was reasonable in advising
Defendant not to testify as the jury would have learned of
Defendant’s prior record and probationary status at the time
of the offense. Accordingly, Ground Nine is denied.
Id. at 40-41 (record citations omitted). The First DCA per curiam affirmed the circuit court’s
denial. Resp. Ex. 17.
To the extent that the First DCA decided the claim on the merits, 18 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 this 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, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim in Ground Eight is meritless. The Eleventh Circuit has
explained:
It is by now abundantly clear that a criminal defendant
has a fundamental right to testify on his own behalf at trial.
Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97
L.Ed.2d 37 (1987); United States v. Teague, 953 F.2d 1525,
1532 (11th Cir.1992) (en banc). That right “cannot be waived
either by the trial court or by defense counsel,” and a “criminal
defendant cannot be compelled to remain silent by defense
counsel.” Teague, 953 F.2d at 1532. . . .
....
18
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
35
. . . “Defense counsel bears the primary responsibility for
advising the defendant of his right to testify or not to testify,
the strategic implications of each choice, and that it is
ultimately for the defendant himself to decide.” Teague, 953
F.2d at 1533. . . .
. . . We have recognized that “[t]he testimony of a criminal
defendant at his own trial is unique and inherently significant”
because, “[w]hen the defendant testifies, the jury is given an
opportunity to observe his demeanor and to judge his
credibility firsthand.” Nichols v. Butler, 953 F.2d 1550, 155354 (11th Cir.1992). The defendant's testimony is of “prime
importance” when “the very point of a trial is to determine
whether an individual was involved in criminal activity.” Id. at
1554 (internal quotation marks omitted).
Nejad v. Attorney General, State of Georgia, 830 F.3d 1280, 1289-90 (11th Cir. 2016).
The record reflects the following colloquy occurred at trial concerning CollandoPena’s decision to not testify:
THE COURT:
All right. How does your client intend to
proceed?
MR. ROBERTS:
Your Honor, at this time the defense does
not have any witnesses that it would like
to call and Mr. Pena has made the choice
that he does not wish to testify.
THE COURT:
All right. Mr. Pena, if you’d step forward,
please, so I don’t have to raise my voice
and risk the jury overhearing.
I know your lawyer has already
talked to you about this but I’m going to
talk to you about it on the record. You
have an absolute right to remain silent.
The state has the entire burden of
proving your guilt beyond a reasonable
doubt as to each element, not only as to
each crime but as to each element of
those crimes.
You are under no obligation to
present evidence or prove anything and
36
you are certainly under no obligation to
testify. However, you do have a right to
testify. If you choose to testify you give
up your right to remain silent and you
subject yourself to cross examination by
a trained prosecutor and also risk the
possibility that any felonies in your
background, and I don’t know about that
because I don’t have your record in front
of me, but if you do have felonies in your
background or other crimes of dishonesty
those will be brought out and placed
before the jury.
I suspect that all of those factors
were considered by you and weighed in
your decision not to testify, is that
correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT:
Okay. If you change your mind before I
bring the jurors back in let me know and
I’ll be glad to reinquire and let you take
the stand if that’s what you want to do.
Do you understand that, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT:
As a matter of fact, even after the jurors
return if you change your mind let your
lawyer know and I’ll do what needs to be
done in order to see that happens.
Otherwise I’ll conclude that your decision
remains unchanged, all right?
THE DEFENDANT: Yes, Your Honor.
Resp. Ex. 3 at 381-83.
Concerning Collando-Pena’s claim that counsel advised him not to testify because
the jury would not find him credible, Collando-Pena admits he was on probation at the
time of the incident and was a convicted felon. In light of these facts, Collando-Pena’s
37
credibility was an issue and, therefore, it was reasonable for his attorney to advise him
against testifying. See Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983) (noting
that “[e]ven if in retrospect the strategy appears to have been wrong, the decision will be
held ineffective only if it was so patently unreasonable that no competent attorney would
have chosen it.”). As it relates to his claim that his counsel advised him that the substance
of his testimony would have been able to be brought out on cross-examination, CollandoPena sat through the entire trial and heard all the cross-examination testimony.
Accordingly, he would have known the evidence against him and the lack of evidence in
support of his claims prior to making his decision to not testify. As such, the Court finds
his claim that counsel’s statement on this matter influenced his decision not to testify is
not credible, because he was fully aware of the evidence, or lack thereof, presented at
trial before waiving his right to testify.
Lastly, as to Collando-Pena’s assertion that both his counsel and the circuit court
failed to adequately advise him of the role his prior convictions would play if he testified,
he cannot demonstrate prejudice. Although the circuit court’s explanation of the role of
his prior felonies during the colloquy was ambiguous on this matter, he was still made
aware generally that the jury would know he was a convicted felon. Additionally, the
content of the testimony Collando-Pena claims he would have provided reveals that he
would have freely and voluntarily discussed his criminal past because he thought his
probation status would be helpful to his defense. In light of the content of his proposed
testimony, the Court concludes that counsel’s alleged misadvice and the circuit court’s
ambiguous explanation did not play a substantial role in his decision not to testify.
Moreover, even if Collando-Pena testified at trial, the Court finds there is no reasonable
38
probability the outcome of the trial would have been different in light of the substantial
evidence of his guilt presented to the jury. Moreover, as stated above, Collando-Pena
faced a serious credibility issue while the other witnesses did not. Accordingly, there is
no reasonable probability his testimony would have changed the outcome of the trial, and,
therefore, his claim in Ground Eight is due to be denied.
I. Ground Nine
Lastly, Collando-Pena contends that the cumulative effect of counsel’s alleged
deficiencies prejudiced him. Petition at 22. Collando-Pena raised this claim in his Rule
3.850 Motion. Resp. Ex. 14 at 27. The circuit court denied this claim of cumulative error,
explaining:
In Ground Ten, Defendant avers that the cumulative
effect of Defendant’s errors denied him effective assistance of
counsel. “Where individual claims of error alleged are either
procedurally barred or without merit, a claim of cumulative
error must fail.” Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003).
Defendant’s individual claims are without merit. Accordingly,
Defendant is not entitled to relief.
Id. at 41. The First DCA per curiam affirmed the circuit court’s denial. Resp. Ex. 17.
To the extent that the First DCA decided the claim on the merits, 19 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 this 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
19
In accordance with Wilson, the Court presumes that the appellate court adopted
the “relevant reasoning” of the circuit court. Wilson, 138 S. Ct. at 1194.
39
the evidence presented in the state court proceedings. Thus, Collando-Pena is not
entitled to relief on the basis of this claim.
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, the claim Collando-Pena raises in Ground Nine is without merit.
Where all individual claims are meritless, the claim of cumulative error is also without
merit. Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). As explained
above, each of Collando-Pena’s claims raised in his Petition are meritless. Therefore, his
claim of cumulative error is likewise without merit. Accordingly, relief on his claim in
Ground Nine is due to be denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Collando-Pena seeks issuance of a certificate of appealability, the undersigned
opines that a certificate of appealability is not warranted. The 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,
Collando-Pena “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues
presented were ‘adequate to deserve encouragement to proceed further,’” Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983)).
Where a district court has rejected a petitioner’s constitutional claims on the merits,
the petitioner must demonstrate that reasonable jurists would find the district court’s
40
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, the 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.
2.
The Clerk of the Court shall enter judgment denying the Petition and
dismissing this case with prejudice.
3.
If Collando-Pena appeals the denial of the Petition, the Court denies a
certificate of appealability. Because the 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 5th day of April, 2019.
41
Jax-8
C:
Wilman Collando-Pena, #J44664
Bryan G. Jordan, Esq.
42
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