Sanchez v. Jones et al
Filing
34
ORDER denying 1 Petition and dismissing case with prejudice, with instructions to the Clerk. Signed by Judge Marcia Morales Howard on 4/10/2019. (ACT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
SIMON A. SANCHEZ,
Petitioner,
v.
Case No. 3:16-cv-1400-J-34MCR
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Simon Sanchez, an inmate of the Florida penal system, initiated this
action on November 2, 2016,1 by filing a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2254 (Petition; Doc. 1). In the Petition, Sanchez challenges a 2009 state court
(Duval County, Florida) judgment of conviction for attempted armed robbery. Sanchez
raises twelve grounds for relief. See Petition at 6-48.2 Respondents have submitted a
memorandum in opposition to the Petition. See Response (Response; Doc. 23) with
exhibits (Resp. Ex.). Sanchez submitted a brief in reply (Reply; Doc. 30) with exhibits
(Reply Ex.). This case is ripe for review.
II. Relevant Procedural History
On April 10, 2008, the State of Florida (State) charged Sanchez by way of an
amended Information with two counts of armed robbery (counts one and two), robbery
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
(count three), and attempted armed robbery (count four). Resp. Ex. A at 12-13. On
February 23, 2009, Sanchez, through counsel, moved to sever the trials of all four counts.
Id. at 48. The circuit court granted the motion to sever the same day. Id. at 49. Sanchez
proceeded to a jury trial on count four, at the conclusion of which the jury found him guilty
as charged, with a specific finding that Sanchez actually carried a deadly weapon during
the commission of the offense. Id. at 102. On May 18, 2009, the circuit court adjudicated
Sanchez a habitual felony offender (HFO) and sentenced him to a term of incarceration
of thirty years in prison. Id. at 126-31.
Sanchez initiated a direct appeal of his judgment and conviction on June 9, 2009.
Id. at 135. With the assistance of counsel, he filed an initial brief raising the following
claims: (1) the circuit court erred in overruling a defense objection that the State’s crossexamination of Sanchez shifted the burden of proof; (2) the circuit court erred in denying
the motions for judgment of acquittal; and (3) the circuit court fundamentally erred in
reading an incomplete, misleading, and confusing jury instruction on deadly weapons.
Resp. Ex. E at 9-23. The State filed an answer brief. Resp. Ex. F. On June 10, 2010, the
First District Court of Appeal (First DCA) per curiam affirmed Sanchez’s conviction and
sentence and issued the Mandate on June 28, 2010. Resp. Ex. G. Sanchez filed a pro se
motion for rehearing, which the First DCA struck as unauthorized. Id.
On June 13, 2011, Sanchez filed a pro se petition for writ of habeas corpus with
the First DCA. Resp. Ex. H. In the petition for writ of habeas corpus, Sanchez alleged his
appellate counsel was ineffective because counsel: (1) failed to raise a fundamental error
argument concerning his HFO designation; (2) failed to raise an argument that the circuit
court violated Sanchez’s right to self-representation; (3) failed to a raise a fundamental
2
error argument concerning improper prosecutorial comments; and (4) failed to obtain
records needed for his direct appeal. Id. On July 8, 2011, the First DCA denied the petition
for writ of habeas corpus on the merits. Resp. Ex. I.
Sanchez filed a pro se motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850 (Rule 3.850 Motion) on July 27, 2011. Resp. Ex. L. Sanchez
raised the following grounds for relief, alleging his counsel was ineffective for failing to:
(1) properly object to his HFO sentence; (2) protect his speedy trial rights; (3) adopt and
refile his pro se motion to suppress; (4) challenge the victim’s out-of-court identification;
(5) object to the prosecutor’s improper comments; (6) adequately argue a motion for
judgment of acquittal; (7) object to a defective jury instruction; (8) adequately investigate
and prepare a misidentification defense; (9) impeach witnesses; (10) obtain an expert
witness; and (11) withdraw due to a conflict of interest. Id. at 4-32. On July 2, 2012,
Sanchez filed an amended motion for postconviction relief pursuant to Rule 3.850
(Amended Rule 3.850 Motion). Resp. Ex. N. In the Amended Rule 3.850 Motion, Sanchez
raised the same eleven claims as he did in his Rule 3.850 Motion and added two
additional claims of ineffective assistance of counsel. Id. As ground twelve, he alleged
that his counsel failed to file a proper and timely motion for new trial, and as ground
thirteen, he contended that his counsel failed to properly file a motion in limine. Id. at 3034. On August 3, 2015, the circuit court struck grounds four, ten, and eleven of the
Amended Rule 3.850 Motion and gave Sanchez leave to amend. Resp. Ex. X. Sanchez
did not amend these grounds. Resp. Exs. J; Y at 6. On December 14, 2015, the circuit
court denied the Amended Rule 3.850 Motion. Resp. Ex. Y. On June 1, 2016, the First
DCA per curiam affirmed the denial without a written opinion. Resp. Ex. DD at 1. Sanchez
3
moved for rehearing, which the First DCA denied on July 21, 2016. Id. at 2-8. The First
DCA issued the Mandate on August 8, 2016. Id. at 10.
On February 27, 2016, Sanchez filed a motion to correct an illegal sentence
pursuant to Florida Rule of Criminal Procedure 3.800(a) (Rule 3.800(a) Motion). Resp.
Ex. EE. In his Rule 3.800(a) Motion, Sanchez alleged his HFO sentence was
unconstitutional. Id. The circuit court denied the Rule 3.800(a) Motion on July 1, 2017.
Resp. Ex. FF. On June 13, 2018, the First DCA per curiam affirmed the denial without a
written opinion. Resp. Ex. GG; Sanchez v. State, 249 So. 3d 601 (Fla. 1st DCA 2018).
III. One-Year Limitations Period
The Petition was 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 the Court can “adequately assess [Sanchez’s] claim[s] without
4
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
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.
5
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:
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.
6
§ 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.’”[3] 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. 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).
3
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
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:
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:
8
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,[4] supra, at 747–748, 111 S. Ct. 2546;
Sykes,[5] 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). 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).[6]
Under the prejudice prong, [a petitioner] must show that “the
4
Coleman v. Thompson, 501 U.S. 722 (1991).
Wainwright v. Sykes, 433 U.S. 72 (1977).
6 Murray v. Carrier, 477 U.S. 478 (1986).
5
9
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.”
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.
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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.
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
11
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 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).
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VI. Findings of Fact and Conclusions of Law
A. Ground One
Sanchez alleges that his appellate counsel was ineffective for failing to raise an
argument on direct appeal that the circuit court fundamentally erred when it refused to
allow him to represent himself during a suppression hearing. Petition at 6-8. According to
Sanchez, the circuit court had previously found him capable of representing himself and
allowed him to proceed pro se. Id. at 7. Sanchez filed a pro se motion to suppress and
the circuit court scheduled an evidentiary hearing on the motion. Id. However, after
scheduling the hearing, the circuit “struck Petitioner’s self representation and appointed
the same already dismissed counsel (James F. Nolan) whom petitioner already had
several conflicting issues with.” Id. At the suppression hearing, Sanchez contends that
his trial counsel refused to argue Sanchez’s pro se motion to suppress, stating to Sanchez
“that he found no merit on petitioner’s motion.” Id. At that point, Sanchez requested the
circuit court to allow him to represent himself, but the circuit court denied the request
ruling Sanchez had difficulty with English and only had a sixth-grade education. Id.
Sanchez notes that after his trial, the circuit court allowed Sanchez to represent himself
and found Sanchez’s education, language, legal understanding, and writing skills made
him competent to proceed pro se. Id. Sanchez claims he was prejudiced because the
circuit court’s erroneous ruling finding him incompetent to represent himself prohibited
him from testing the legality of the evidence he sought to suppress. Id.
On January 27, 2009, Sanchez represented himself at a pre-trial hearing. Resp.
Ex. B at 162-79. During the hearing, the circuit court inquired whether Sanchez wanted
to have counsel reappointed. Id. at 173. Initially, Sanchez stated “Yes. Only if it’s not the
13
same lawyer.” Id. After hearing Sanchez’s complaints about his former attorney, who was
not Sanchez’s first attorney, the circuit court determined that nothing in the record
warranted appointing a different counsel and advised Sanchez that it could allow him to
proceed pro se or reappoint his former attorney. Id. at 173-78. In response, Sanchez
stated “I don’t know – I’m not sure about it right now, to tell you the truth.” Id. at 177. The
circuit court then reappointed his former counsel and advised Sanchez that they would
reassess the situation at the next hearing date, and Sanchez agreed. Id. at 177-78.
On February 9, 2009, the circuit court scheduled a hearing to determine whether
counsel would adopt Sanchez’s pro se motions to suppress and sever. Id. at 210-22. At
the hearing, counsel represented that he would not adopt the motion to suppress
Sanchez’s confession because after listening to the interview he determined Sanchez
never confessed. Id. at 212. As to Sanchez’s motion to suppress evidence, counsel again
refrained from adopting it because he did not think it was worthy of a motion to suppress
because the stop was legally sufficient. Id. at 212-13. After hearing from his counsel,
Sanchez complained about his attorney’s failure to adopt his motions to suppress. Id. at
214-21. The circuit court found Sanchez had not shown good cause to remove counsel
and advised Sanchez he may hire his own attorney if he so desired. Id. at 217, 221.
Notably, Sanchez never stated at this hearing that he wanted to represent himself. Id. at
210-22.
On March 26, 2009, the circuit court held a Nelson7 hearing on Sanchez’s motion
to dismiss his counsel. Id. at 180-208. Sanchez complained, among other things, about
his counsel’s failure to adopt his motion to suppress; however, counsel explained he did
7
Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).
14
not adopt it because he felt it was not warranted. Id. at 190-91. After hearing counsel’s
explanations, the circuit court determined that counsel was not deficient and declined to
dismiss him. Id. at 192. Sanchez thereafter moved to represent himself and the circuit
court conducted an extensive Faretta8 inquiry. Id. at 195-207. After the inquiry, the
following exchange occurred between Sanchez and the circuit court:
THE COURT: Do you have any questions that you need to
ask me before I determine whether or not you can represent
yourself?
THE DEFENDANT: I don’t know. All right. I just want to let
you know I’m very – it’s very disadvantaged [sic] against me
right now, so I don’t know if I want to represent myself.
THE COURT: I’m sorry. You do not know whether or not you
want to represent yourself?
THE DEFENDANT: Right after you read me all this, I was like
thinking about it, you know, they got – they got it very bad on
me right now because language, I don’t go to the law library
no more, like I told you. I’m very disadvantaged basically in
representing myself.
THE COURT: I can’t understand what you’re saying.
THE DEFENDANT: I’m not in a good position to represent
myself, basically. I’ve been thinking about it.
THE COURT: That’s fine. Based on that statement, I will find
that you’re not in a position to represent yourself and will
proceed with Mr. Nolan and proceed to trial on Monday.
Id. at 206-07.
The record reflects that Sanchez’s appellate counsel did not raise on direct appeal
the issue of whether the circuit court violated his right to represent himself. Resp. Ex. E.
In his petition for writ of habeas corpus filed with the First DCA, Sanchez argued his
8
Faretta v. California, 422 U.S. 806 (1975).
15
appellate counsel was ineffective for failing to raise this issue in the initial brief. Resp. Ex.
H at 10-12. The First DCA denied the petition for writ of habeas corpus on the merits.
Resp. Ex. I.
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, Sanchez 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, Sanchez’s claim in Ground One is without merit. Under Florida law,
“[b]efore the trial court can make a decision whether to permit the defendant to proceed
pro se, the defendant's request for self-representation must be unequivocal.” Tennis v.
State, 997 So. 2d 375, 378 (Fla. 2008) (citing State v. Craft, 685 So. 2d 1292, 1295 (Fla.
1996)). Here, Sanchez never made an unequivocal request to proceed pro se at the
February 9, 2009 hearing and the circuit court did not conduct a Faretta inquiry; instead
focusing solely on whether or not counsel should be discharged. Resp. Ex. B at 210-22.
Accordingly, the circuit court did not err in failing to hold a Faretta hearing. Tennis, 997
So. 2d at 378. Notably, the circuit court did conduct a Faretta inquiry at the March 26,
Throughout this order, 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
16
2009 hearing, with Sanchez ultimately deciding not to proceed pro se. Resp. Ex. B at
195-207. Appellate counsel is not ineffective for failing to raise a claim that would not
have succeeded on appeal. 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.”). Therefore, Sanchez’s claim in Ground One is due to be denied.
B. Ground Two
In Ground Two, Sanchez avers that the circuit court erred in dismissing as legally
insufficient grounds four, ten, and eleven of his Amended Rule 3.850 Motion. Petition at
10-12. He asserts he properly amended these claims prior to the circuit court denying his
Amended Rule 3.850 Motion, but the circuit court ignored his amendments. Id. As state
procedural rules control a movant’s ability to amend a Rule 3.850 Motion, this Court
cannot address the propriety of that action in federal habeas proceedings. See Swarthout
v. Cooke, 562 U.S. 216, 219 (2011) (holding errors of state law are not cognizable in
federal habeas review); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions.”); Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004) (“[W]hile habeas
relief is available to address defects in a criminal defendant's conviction and sentence,
an alleged defect in a collateral proceeding does not state a basis for habeas relief.”).
Accordingly, the relief Sanchez seeks in Ground Two is due to be denied.
17
C. Ground Three
As Ground Three, Sanchez contends that his trial counsel was ineffective because
he failed to object to his HFO sentence. Petition at 13-15. More specifically, he contends
that one of the prior convictions the State relied on in support of the HFO sentence did
not qualify as a predicate offense because his “conviction [had] been withheld and his
probationary period [had] been completed before the instant offense [had] been
committed . . . .” Id. at 14.
Sanchez raised a similar claim as ground one of his Amended Rule 3.850 Motion.
Resp. Ex. N at 4-5. The circuit court denied the claim, stating in pertinent part:
The State filed with the Court certified copies of two
prior felony convictions from Duval County. In case number
2007-CF-16906, for the third degree felony of grand theft, the
Court ordered that adjudication of guilt be withheld, and
Defendant was placed on unsupervised probation for thirty
days on December 3, 2007, with 24 days credit for time
served. In the instant motion, Defendant states that he
completed probation on that conviction before he committed
the present offense.
A defendant qualifies as HFO if he or she committed
the current offense within five years of the date of conviction
of the last prior felony. § 775.084(1)(a)2.b., Fla. Stat. (2008);
Whitmore v. State, 147 So. 3d 24, 25 (Fla. 1st DCA 2013);
reh’g denied (Sept. 19, 2013), review denied, 134 So. 3d 452
(Fla. 2014). Section 775.084(2), Florida Statutes (2008)
states that: “[f]or purposes of this section, the placing of a
person on probation or community control without an
adjudication of guilt shall be treated as a prior conviction.”
Therefore, Defendant was properly qualified as HFO based
upon the two prior felony convictions, including his conviction
where adjudication was withheld, plus the current offense,
which occurred on February 21, 2008.
Further, Defendant can demonstrate no deficient
performance by Mr. Nolan because during Defendant’s first
sentencing hearing on May 15, 2009, Mr. Nolan objected to
the HFO designation based upon the reasoning presented in
18
Ground One. The Court explained on the record that section
775.084(2), Florida Statutes (2008), allows for HFO status to
be based upon a felony where adjudication was withheld.
The Court finds no deficient performance by Mr. Nolan,
and therefore, summarily denies Ground One.
Resp. Ex. Y at 6-7 (record citations omitted). The First DCA per curiam affirmed the denial
of this claim. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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, Sanchez 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 fails as a matter of law. Pursuant to section 775.084(2),
Florida Statutes (2008), for purposes of HFO sentencing, “the placing of a person on
probation or community control without an adjudication of guilt shall be treated as a prior
conviction.” See also Whitmore v. State, 147 So. 3d 24, 24-25 (Fla. 1st DCA 2013)
(holding defendant’s prior conviction for grand theft was a qualifying offense for purposes
of HFO sentencing even though adjudication of guilt on the grand theft charge was
withheld and defendant had completed the sentence before committing the offense for
which he was currently being sentenced). Accordingly, counsel cannot be deemed
ineffective for failing to raise a meritless argument. See Diaz, 402 F.3d at 1142; Bolender,
19
16 F.3d at 1573. Moreover, the record reflects that counsel objected to Sanchez being
classified as a HFO because adjudication was withheld on the grand theft charge;
however, the circuit court overruled the objection based on section 775.084(2). Resp. Ex.
B at 229-30. Therefore, the record also refutes Sanchez’s claim of deficient performance.
For the above stated reasons, relief on the claim in Ground Three is due to be denied.
D. Ground Four
Sanchez asserts that his trial counsel was ineffective for failing to preserve
Sanchez’s speedy trial rights. Petition at 17-19. According to Sanchez, his first attorney,
Greg Messore, filed a demand for a speedy trial; however, once James Nolan became
his attorney, Nolan agreed to a continuance, thus waiving his speedy trial rights, without
Sanchez’s consent. Id. at 17. Sanchez contends that Nolan’s decision to waive his speedy
trial rights prejudiced him for the following reasons: (1) it precluded his discharge; (2) it
allowed the State additional time to prepare its case; (3) it allowed the State to negotiate
a deal with Sanchez’s co-defendant to testify against Sanchez at his trial; (4) it created a
conflict of interest between Sanchez and Nolan; and (5) it precluded Sanchez from raising
on appeal issues with his speedy trial rights. Id.
Sanchez alleged a similar claim in his Amended Rule 3.850 Motion. Resp. Ex. N
at 5-9. In denying this claim, the circuit court explained:
In Ground Two, Defendant alleges that his counsel was
ineffective for failing to invoke and preserve Defendant’s
speedy trial rights. The Court adopts and incorporates the
State’s Response to Ground Two. Barnes v. State, 38 So. 3d
218, 219-20 (Fla. 2d DCA 2010); see e.g., German v. State,
596 So. 2d 509, 509 (Fla. 1st DCA 1992).
It is well-settled law in Florida that a defense motion for
continuance made during the speedy trial time period waives
the speedy trial rule, even if the motion for continuance is
20
made by counsel over a defendant’s protestations. State v.
Riechmann, 777 So. 2d 342, 365 (Fla. 2000); Randall v. State,
938 So. 2d 542, 544 (Fla. 1st DCA 2006). In Ground Two, the
Court can find no deficient performance by Mr. Nolan
because, as explained in the State’s Response, Mr. Nolan
had good reason to continue the case and waive the speedy
trial rule. The Court summarily denies Ground Two.
Resp. Ex. Y at 7 (record citations omitted). The First DCA per curiam affirmed the circuit
court’s denial of this claim. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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, Sanchez 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, Sanchez’s claim in Ground Four is meritless. Florida Rule of
Criminal Procedure 3.191 governs a defendant’s right to speedy trial in the Florida
criminal judicial system. Pursuant to Rule 3.191(a), the state shall bring a defendant
charged with a felony to trial within 175 days. “This right is not self-executing and requires
a defendant to take affirmative action to avail himself of the remedies provided under the
statute.” Dillard v. Sec’y Dep’t of Corr., 440 F. App’x 817, 819 (11th Cir. 2011) (citing State
v. Nelson, 26 So. 3d 570, 574 (Fla. 2010)).
21
Notably, “[under Florida law,] a waiver of speedy trial by counsel is binding on the
defendant, ‘even though done without consulting him and even against the client’s
wishes.’” Dillard, 440 F. App’x at 820 (quoting State v. Kruger, 615 So.2d 757, 759 (Fla.
4th DCA 1993)); see also New York v. Hill, 528 U.S. 110, 115 (2000) (holding that defense
counsel could waive defendant's right to be brought to trial within the 180-day period
specified under the Interstate Agreement on Detainers, by agreeing to a trial date outside
that period, even without the express consent of defendant). Moreover, “‘[a] claim of
ineffective assistance of counsel based on a failure to seek discharge because of a
violation of the speedy trial rule is extremely tenuous where the State had available the
recapture window of Rule 3.191(p)(3),’ which was added in 1985 to give ‘the system a
chance to remedy a mistake.’” Remak v. State, 142 So. 3d 3, 6 (Fla. 2d DCA 2014)
(quoting Hammond v. State, 34 So. 3d 58, 60 (Fla. 4th DCA 2010); Florida Bar Re: Amend
to Rules-Criminal Procedure, 462 So. 2d 386 (Fla. 1984)).
The record reflects that contrary to Sanchez’s assertions otherwise Messore did
not file a demand for speedy trial. Resp. Ex. A. Additionally, on July 31, 2008, within the
175-day speedy trial period, attorney Nolan orally moved for a continuance, which the
circuit court granted, thus waiving Sanchez’s speedy trial rights. Id. at 18. Sanchez’s claim
that counsel waived his speedy trial rights over his objection fails because under Florida
law, counsel had the right to waive speedy trial without consulting Sanchez and over
Sanchez’s objection. See Dillard, 440 F. App’x at 820. Moreover, Sanchez cannot
demonstrate prejudice because he does not provide any support for the conclusion that
the State would not have been able to bring him to trial during the recapture period. See
Remak, 142 So. 3d at 6. As such, his claim of prejudice is wholly speculative and
22
insufficient to warrant federal habeas relief. 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). Accordingly, relief on
Sanchez’s claim in Ground Four is due to be denied.
E. Ground Five
In Ground Five, Sanchez argues that his trial counsel was ineffective for failing to
adopt his pro se motion to suppress evidence obtained following the search and seizure
of his vehicle. Petition at 20-22. According to Sanchez, the officers who stopped his
vehicle unnecessarily prolonged his detention prior to arrest and lied about receiving
consent from Sanchez to search the vehicle. Id. at 21. Sanchez contends that he did not
consent to a search and his co-defendant would have been able to corroborate his
allegations. Id.
Sanchez alleged a similar claim in his Amended Rule 3.850 Motion. Resp. Ex. N
at 9-11. The circuit court denied this claim, stating:
In Ground Three, Defendant alleges that he received
ineffective assistance of counsel due to counsel’s failure to
adopt his pro se motion to suppress evidence obtained in a
search of his car. Defendant claims that the initial stop of his
vehicle was illegal and that he did not consent to a search of
his car. The Court adopts and incorporates the State’s
Response to Ground Three with respect to the factual
determinations made therein. The Court notes that Mr. Nolan
repeatedly represented to the Court that Defendant’s motion
to suppress was legally insufficient and declined to make the
motions.
(i)
Traffic Stop
Officer Chad James testified during the trial that he
stopped Defendant’s vehicle because the license plate tag
was registered to a different vehicle. Such a discrepancy is a
valid reason for a law enforcement officer to conduct a traffic
23
stop. Gomez v. State, 748 So. 2d 352, 352 (Fla. 3d DCA
1999), reh’g denied (Feb 09, 2000), review dismissed, 762
So.2d 916 (Fla.2000) [sic]; Heller v. State, 576 So. 2d 398,
399 (Fla. 5th DCA 1991). Therefore, Defendant’s motion to
suppress based upon the illegality of the traffic stop is
meritless, and Mr. Nolan was not deficient for failing to make
such a motion. See State v. Lugo, 2 So. 3d 1, 21 (Fla. 2008).
(ii)
Consent for the Search
In Ground Three, Defendant also alleges that Mr.
Nolan should have filed a motion to suppress because
Defendant claims that he did not consent to the search.
Defendant further alleges that his co-defendant Steven
Lawton Jarrell, III, corroborated Defendant’s story that there
was no consent for the search. This subsection is denied
because Defendant fails to demonstrate prejudice under
Strickland, “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. The second prong
of the ineffective assistance of counsel test focuses on
whether the results of the proceeding are reliable. Stephens
v. State, 748 So. 2d 1028, 1034 (Fla. 1999).
During the trial, Officer James testified that when he
conducted the traffic stop, Defendant consented to the search
of his vehicle. In Defendant’s vehicle, Officer James
discovered a BB gun, an iPod, some foreign currency that he
believed was from Mexico, a knife, and a latex glove.
Assuming Mr. Nolan had filed a motion to suppress,
and assuming that the Court granted the motion, the jury still
had overwhelming evidence – even without the items
obtained from the vehicle – to find Defendant guilty. The
victim, Ms. Pate, testified that Defendant was the person who
attempted to rob her with a gun, and she positively identified
Defendant from a photo lineup. Co-defendant Mr. Jarrell
testified that he and Defendant attempted to rob the victim. In
addition, Defendant testified at trial, and the jury had the
opportunity to consider Defendant’s version of events.
Further, none of the items from Defendant’s vehicle
directly link Defendant to the attempted robbery: Ms. Pate
testified that a revolver, not a BB gun or knife, was used in the
attempted robbery, nothing was stolen from Ms. Pate so the
24
iPod and currency are irrelevant to the crime, and the
attempted robbery did not involve a latex glove, either.
The Court finds that Defendant failed to demonstrate
that he was prejudiced by Mr. Nolan’s failure to file a motion
to suppress based upon the theory of consent.
Ground Three is summarily denied in it [sic] entirety.
Resp. Ex. Y at 8-9 (record citations omitted). The First DCA per curiam affirmed the denial
without a written opinion. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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, Sanchez 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. The Court notes that “[t]he
Supreme Court has mandated a highly deferential review of counsel's conduct, especially
where strategy is involved,” and “[i]ntensive scrutiny and second guessing of attorney
performance are not permitted.” Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.
1994) (citing Strickland, 466 U.S. at 689-90)). The Eleventh Circuit has explained that:
Inquiries into strategic or tactical decisions challenged as
ineffective assistance of counsel involve both a factual and a
legal component. The question of whether an attorney's
actions were actually the product of a tactical or strategic
decision is an issue of fact, and a state court's decision
25
concerning that issue is presumptively correct. By contrast,
the question of whether the strategic or tactical decision is
reasonable enough to fall within the wide range of
professional competence is an issue of law not one of fact, so
we decide it de novo.
Provenzano v. Singletary, 148 F.3d 1327, 1330 (11th Cir. 1998). The record reflects
counsel informed the circuit court that he did not adopt the motions because he found
them to be legally insufficient. Resp. Ex. B at 190-91, 212-13. The Court finds counsel’s
strategic decision reasonable in light of the following evidence which was presented at
trial.
Concerning the traffic stop, Officer Chad James testified that he stopped
Sanchez’s vehicle because the license plate affixed to the vehicle was registered to a
different car. Resp. Ex. D at 208. Notably, Sanchez testified that he informed the officer
that he had just recently purchased the vehicle and was unable to afford to change the
registration. Id. at 254-55. Failing to have the properly registered license plate on a vehicle
is a violation of Florida law that constitutes a lawful reason for conducting a traffic stop.
See Heller, 576 So. 2d at 399. Accordingly, there would have been no legal basis for
counsel to have filed a motion to suppress on the grounds that the stop was illegal,
particularly because Sanchez admitted that the vehicle was not properly registered. Id.
Counsel cannot be deemed deficient for failing to raise a meritless argument. See Diaz,
402 F.3d at 1142; Bolender, 16 F.3d at 1573.
As it relates to the issue of consent, James testified that Sanchez consented to the
search of his vehicle. Resp. Ex. D at 210. However, Sanchez testified he did not consent
to search the vehicle. Id. at 250, 254-55. Based on this conflicting testimony, credibility
would have been a critical issue at any suppression hearing. Sanchez contends that
26
Jarrell would have corroborated his testimony, but he offers no evidence in support of this
conclusory allegation. See Petition; Reply. As previously discussed, speculation and
conclusory allegations cannot form the basis of an ineffective assistance of counsel claim.
See Tejada, 941 F.2d at 1559. Notably, Jarrell did not give testimony at trial regarding
whether Sanchez gave consent to the search or not. Resp. Ex. C at 179-97. Jarrell did
testify that he had a drug problem, a felony conviction arising from a guilty plea for his
role in this incident, and had a prior conviction for a crime of dishonesty. Id. at 179-80.
Likewise, Sanchez had one prior felony conviction. Resp. Ex. D at 272. Accordingly, even
assuming Jarrell would have testified as Sanchez alleges, both Sanchez and Jarrell’s
credibility would have been a serious issue hindering the success of a motion to suppress.
Based on this evidence, the Court finds counsel’s strategic determination not to file a
motion to suppress was reasonable. Therefore, Sanchez is not entitled to relief on this
claim. See Provenzano, 148 F.3d at 1330; Spaziano, 36 F.3d at 1039.
Moreover, Sanchez cannot demonstrate prejudice because even if counsel
successfully suppressed evidence from the stop, there is no reasonable probability the
outcome of the trial would have been different given the remaining competent, substantial
evidence presented at trial. The victim, Monica Pate, testified that on February 21, 2008,
at approximately 9:30 p.m., she was walking from the local grocery store to her apartment
when two men exited a vehicle and approached her. Resp. Ex. C at 144-47. One of the
men, Sanchez, pointed a gun at her neck and began to grope her body while searching
for money. Id. at 145, 148-51. However, Sanchez did not find any money and eventually
left the scene. Id. at 151-52. After the two men left, Pate called 911 and gave a description
of the assailants to the dispatcher. Id. at 157-60. Pate made an in-court identification of
27
Sanchez as the man who pointed the gun at her. Id. at 145-46. Sanchez did not have a
mask on his face and Pate was able to closely observe Sanchez’s features because they
were face to face. Id. at 145, 147-50. After the incident, law enforcement presented her
with a photo line-up. Resp. Exs. C at 152-53; D at 219-22. Pate was unable to identify the
other individual, but she positively identified Sanchez as the assailant. Resp. Exs. C at
152-56; D at 221-22. Sanchez’s co-defendant, Steve Jarrell, testified at trial that he and
Sanchez attempted to rob Pate because they wanted money for drugs. Resp. Ex. C at
183. Jarrell’s testimony corroborated Pate’s testimony that Sanchez pointed a gun, which
unbeknownst to Pate actually was a BB gun, at Pate and searched her unsuccessfully for
money. Id. at 184-191, 193. Based on this competent, substantial evidence, which was
not related to evidence secured from the search and seizure of Sanchez’s vehicle, there
is no reasonable probability the outcome of the trial would have been different had
counsel successfully suppressed evidence obtained from the search of Sanchez’s car.
Sanchez has failed to demonstrate deficient performance or prejudice; therefore, his
claim in Ground Five is due to be denied.
F. Ground Six
Sanchez contends that his trial counsel was ineffective because he failed to object
to allegedly improper comments and questions the prosecutor made during trial. Petition
at 24-28. Specifically, he asserts the prosecutor made the following improper comments:
(1) suggesting Sanchez committed another uncharged crime; (2) introducing unduly
prejudicial evidence of collateral crimes; (3) arguing about evidence not presented at trial;
(4) bolstering the credibility of witnesses by stating they had no interest in the case; (5)
misstating the law; (6) disparaging the defense; (7) giving personal opinions as to the
28
“justness of the case;” (8) personally attacking Sanchez; (9) insinuating Sanchez and his
attorney were lying and voicing a personal belief that Sanchez is guilty; (10) leading
witnesses; and (11) shifting the burden. Id. at 25-26.
Sanchez raised this claim as ground five of his Amended Rule 3.850 Motion. Resp.
Ex. N at 14-18. The circuit court denied this claim, explaining:
(i)
Ms. Pate’s Testimony
The Court adopts and incorporates section (i) of the
State’s Response that finds Defendant’s allegations
conclusively refuted by the record and ruled upon by the Court
in a Nelson hearing held on May 15, 2009. Based upon the
State’s analysis in section (i), the Court summarily denies
Defendant’s claims of ineffective assistance of counsel for Mr.
Nolan’s alleged failure to object to leading questions during
the direct examination of Ms. Pate.
Defendant also alleges that Ms. Pate gave testimony
that conflicted with Detective Butler, and Mr. Nolan was
ineffective for failing to point out any inconsistencies in
testimonies regarding the photo line-up and victim
statements. In fact, Mr. Nolan did point out during closing
arguments that Ms. Pate and Officer Butler were inconsistent
as to the date of the photo line-up. Further, Mr. Nolan
questioned Ms. Pate as to what exactly she was doing when
she was approached by Defendant and co-defendant Mr.
Jarrell. Ms. Pate testified that she was returning from the
grocery store, and Mr. Nolan impeached Ms. Pate with her
deposition transcript wherein she stated that she was going to
the grocery store.
Because Defendant’s allegations are conclusively
refuted by the record and Defendant can show no deficient
performance by Mr. Nolan during Ms. Pate’s trial testimony,
the Court summarily denies section (i) of Ground Five.
(ii)
Mr. Jarrell’s Testimony
Defendant avers that Mr. Nolan should have objected
during co-defendant Mr. Jarrell’s trial testimony because the
State improperly questioned Mr. Jarrell about collateral crimes
committed by Defendant and because Mr. Jarrell gave
29
inadmissible hearsay testimony in response. The State
questioned Mr. Jarrell:
State:
And what was – what was the
intent that day? Did you guys
discuss in the car or what did you
and Mr. Sanchez both know was
about to happen?
Mr. Jarrell:
We were looking for money for
drugs and so we were – we were
looking for people that could
possibly give us money for drugs.
The Court finds no error in the State’s question to Mr.
Jarrell regarding Defendant’s motive for the attempted armed
robbery. Mr. Jarrell’s response was not hearsay; that is, a
“statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” § 90.801, Fla. Stat. (2008);
Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA 2012). Mr.
Jarrell was not testifying about an out-of-court statement.
Even if Mr. Jarrell’s testimony could be considered hearsay,
such testimony would be an exception to the hearsay rule as
an admission by Defendant, because he was testifying to the
out-of-court actions and statements of Defendant. § 90.803,
Fla. Stat. (2008); Delacruz v. State, 734 So. 2d 1116, 1122
(Fla. 1st DCA 1999).
Mr. Jarrell testified that Defendant was looking for
drugs, testimony that could be considered collateral crime
evidence. However, evidence of other crimes that are
factually dissimilar to the charged crime is admissible if
relevant, such as when it establishes a motive. § 90.404, Fla.
Stat. (2008); [Floyd v. State], 913 So. 2d 564, 572 (Fla. 2005).
Here, seeking drugs is a crime that is factually dissimilar to
armed robbery, and Mr. Jarrell’s testimony established the
pair’s motive that night.
Mr. Nolan had no legal basis for objecting to the
aforementioned questions or statements during the trial
testimony of Mr. Jarrell. Defendant fails to show any deficient
performance by Mr. Nolan in section (ii), and therefore, the
Court summarily denies section (ii) of Ground Five.
(iii)
Defendant’s Testimony
30
Defendant avers that Mr. Nolan failed to object when
the prosecutor asked Defendant questions about evidence
that was not in the record: latex gloves, Mexican pesos, and
knives. This allegation is refuted by the record.
Prior to Defendant’s testimony, Officer Chad James
testified about the night that he stopped Defendant’s vehicle.
Officer James testified that he took items from Defendant’s
car into evidence, including some Mexican pesos. During
cross examination, Mr. Nolan objected when the State
attempted to ask more about the Mexican pesos; however,
the objection was overruled because testimony about the
pesos was already in the record.
Officer James also testified regarding State’s Exhibit 5,
a photograph of the interior of Defendant’s car that depicted
what he found on the floorboard of the passenger side: latex
gloves, a knife, and a BB gun. Therefore, the Court finds that
Mr. Nolan was not deficient in failing to object to the State’s
questioning Defendant about these items because Officer
James had already testified about these items.
Defendant also complains that the State suggested
that there was more evidence than just what was introduced
at trial by asking Defendant, “So all the stuff was just friends’
and other people’s, it was all in your car, correct?” and “All the
stuff in the car all belonged to other people, but it was your
car?” The Court finds nothing legally wrong with these
questions, and, therefore, Mr. Nolan was not deficient in
failing to object to them.
Finally, Defendant alleges that Mr. Nolan was deficient
for failing to object when the State asked him the questions,
“So, your lawyer is not doing a good job?” The Court finds that
Mr. Nolan objected three times to this line of questioning, and
three times the Court overruled his objections. Therefore, the
Court finds no deficient performance by Mr. Nolan. The Court
summarily denies section (iii) of Ground Five.
(iv)
State’s Closing Arguments
In this section, Defendant complains that Mr. Nolan
failed to object to several comments by the prosecutor during
closing arguments. Specifically, Defendant claims that the
prosecutor made personal attacks against Mr. Nolan, ridiculed
31
the defense theory, gave personal opinions, and misstated
the law.
....
The Court adopts and incorporates the State’s response to
section (iv), and based upon that analysis, finds no error with
the prosecutor’s comments, no error with Mr. Nolan’s failure
to object, and no prejudice to Defendant. The Court finds that
the State Attorney’s comments would not have constituted
reversible error even if they had been objected to at trial
because they reflect the State’s theory of what happened in
the case. Gordon v. State, 863 So.2d 1215, 1220 (Fla. 2003)
[sic]. Defense Counsel cannot be found to be ineffective in
failing to object to proper comments, thus Defendant fails to
prove the first prong of Strickland. Therefore, the Court
summarily denies section (iv) of Ground Five.
(v)
Cumulative Effect of Prosecutorial Misconduct
The Court adopts and incorporates the State’s
response in section (v). The Court finds that Mr. Nolan was
not deficient in handling the prosecutorial comments and
questions alleged in Ground Five; therefore, Defendant’s
arguments regarding any cumulative effect of such comments
are moot.
(vi)
Failure to Preserve Issues for Appeal
In regards to Defendant’s argument that counsel was
ineffective because Mr. Nolan failed to preserve issues for
appellate review, the Court finds Defendant is not entitled to
relief. “[F]ailure 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 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). Defendant’s argument does not challenge the result
of his conviction, but instead addresses the effect counsel’s
32
performance had on an appeal. Thus, Defendant does not
demonstrate prejudice at trial, and he is not entitled to relief.
Therefore, Ground Five, in its entirety, is summarily
denied.
Resp. Ex. Y at 9-15 (record citations omitted). The First DCA per curiam affirmed the
denial without a written opinion. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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, Sanchez 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. Having independently reviewed
the trial transcript, the Court agrees with the circuit court’s analysis that none of the
prosecutor’s questions or comments were improper in light of the evidence presented at
trial and the context in which the questions and statements were made. The Court need
not review in detail each question and comment, because the Court has determined
Sanchez cannot demonstrate prejudice. See Ward, 592 F.3d at 1163 (noting that “a court
need not address the performance prong if the petitioner cannot meet the prejudice prong,
and vice-versa.”). The State presented substantial evidence of Sanchez’s guilt. The victim
closely observed Sanchez and unequivocally and immediately picked Sanchez out of a
33
photo line-up. Resp. Exs. C at 152-56; D at 221-22. Sanchez’s co-defendant confessed
to the crime and detailed Sanchez’s involvement, which corroborated the victim’s
testimony. Resp. Ex. C at 183-191, 193. Accordingly, even assuming every question and
comment Sanchez complains of in Ground Six was not stated at trial, there is no
reasonable probability the outcome of the trial would have been different in light of the
substantial evidence of Sanchez’s guilt. As Sanchez cannot demonstrate prejudice, relief
on his claim in Ground Six is due to be denied. See Ward, 592 F.3d at 1163.
G. Ground Seven
As Ground Seven, Sanchez avers that trial counsel was ineffective because he
failed to adequately argue a motion for judgment of acquittal. Petition at 30-31. According
to Sanchez, counsel should have argued the BB gun did not constitute a deadly weapon
under the robbery statute. Id. at 30. Sanchez asserts that the State failed to introduce any
evidence of the BB gun’s operability or the type of injury it might inflict, which he claims
is required under Florida law when a BB gun is found unloaded and introduced into
evidence. Id.
Sanchez alleged a similar claim in his Amended Rule 3.850 Motion. Resp. Ex. N
at 18-19. In denying this claim, the circuit court stated in pertinent part:
The State had to prove that Defendant attempted to rob
Ms. Pate, using a deadly weapon. Accepting all facts
presented by the State, the trial court had in front of it a
multitude of evidence, including the victim’s testimony that
Defendant was the person who attempted to rob her with a
gun, co-defendant Mr. Jarrell’s testimony that he and
Defendant attempted to rob the victim, Officer James’
testimony regarding the BB gun found in Defendant’s car, and
Officer Butler’s testimony about the victim picking Defendant
out of a photo line-up. There is no reasonable probability that
a judgment of acquittal would have been granted regardless
of whether trial counsel presented the motion more artfully.
34
Consequently, Defendant is not entitled to relief on this
ground.
Furthermore, Defendant is incorrect that the BB gun
cannot be considered a deadly weapon. Whether a BB gun is
a “deadly weapon” – even if inoperable, unloaded, or
incapable of inflicting death or great bodily harm – is a
question of fact to be determined by the jury. Dale v. State,
703 So. 2d 1045, 1047 (Fla. 1997) (holding that an unloaded
BB gun was found by the jury to be a “deadly weapon”);
Mitchell v. State, 698 So. 2d 555, 562 (Fla. 2d DCA 1997),
approved, 703 So. 2d 1062 (Fla. 1997) (after thorough
analysis of BB guns as deadly weapons, concluding that the
assessment of the likelihood of injury is from a reasonable
victim’s perspective). The jury’s finding will not be overturned
as long as it is supported by competent, substantial evidence.
Dale, 703 So. 2d at 1047.
Here, there was competent and substantial evidence to
support the jury’s finding that the BB gun was a deadly
weapon. The victim did not know that the “gun” that was held
to her neck by Defendant was inoperable. Ms. Pate testified
that she believed that the gun was a revolver. Through his
own actions during the robbery, Defendant implied that the
gun was loaded and operable. Therefore, the evidence that a
reasonable victim would have thought that Defendant used a
deadly weapon during the attempted robbery is competent
and sufficient to support the jury’s finding.
In regards to Defendant’s argument that counsel was
ineffective because he failed to preserve any issues for
appeal, the Court incorporates the argument in Ground Five
on this matter and finds that Defendant has failed to
substantiate his claim of prejudice. Ground Six, in its entirety,
is summarily denied.
Resp. Ex. Y at 15-17 (record citations omitted). The First DCA per curiam affirmed the
circuit court’s denial of this claim. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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
35
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, Sanchez 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. In reviewing
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.”).
The Florida Supreme Court has explained:
Section 812.13, Florida Statutes (1995), defines the
crime of robbery, and provides in relevant part:
(2)(a) If in the course of committing the robbery
the offender carried a firearm or other deadly
weapon, then the robbery is a felony of the first
degree, punishable by imprisonment for a term
of years not exceeding life imprisonment or as
provided in [the penalty statutes].
(b) If in the course of committing the robbery the
offender carried a weapon, then the robbery is a
felony of the first degree, punishable as
provided in [the penalty statutes].
36
(c) If in the course of committing the robbery the
offender carried no firearm, deadly weapon, or
other weapon, then the robbery is a felony of the
second degree, punishable as provided in [the
penalty statutes].
§ 812.13, Fla. Stat. (1995).
Although section 812.13 fails to define the terms
“firearm” and “weapon,” the definitions for these terms
contained in the Florida Standard Jury Instructions are a
correct statement of the law:
A “firearm” is legally defined as (adapt from F.S.
790.001 as required by allegations).[2]
....
A “weapon” is legally defined to mean any object
that could be used to cause death or inflict
serious bodily harm.
Fla. Std. Jury Instr. (Crim.) 156(a). Whether a particular
“weapon” is in fact deadly is a jury question:
A “deadly weapon” has generally been
defined to be one likely to produce death or
great bodily injury. Whether or not the weapon
involved is to be classed as “deadly” is a factual
question to be resolved by the jury under
appropriate instructions.
Goswick v. State, 143 So.2d 817, 820 (Fla.1962), receded
from on other grounds, State v. Smith, 240 So.2d 807
(Fla.1970).
The issue posed here is whether the “deadliness” of a
BB gun is properly a jury question, or whether a BB gun is so
innocuous that it is always a non-deadly weapon as a matter
of law. Our review of pertinent caselaw reveals that Florida's
district courts have overwhelmingly concluded that a BB or
pellet gun can be a deadly weapon, and that the issue of
“deadliness” is a jury question. We agree with the district
courts and hold that whether a BB or pellet gun is a deadly
weapon-i.e., whether it is “likely to produce death or great
bodily injury”-is a factual question to be answered by the jury
in each case. Goswick, 143 So. 2d at 820. The jury's finding
37
will be sustained on review if supported by competent
substantial evidence.
Dale, 703 So. 2d at 1046-47 (footnotes excluded). Notably, the failure to present evidence
that a BB gun was loaded or operable is not dispositive as to the issue of whether a BB
gun is a deadly weapon. Santiago v. State, 900 So. 2d 710, 711 (Fla. 3d DCA 2005).
“However, if the weapon is not introduced at trial where it may be inspected and tested
by the jury or if the evidence introduced is that the gun was inoperable, then a finding that
the weapon is a deadly weapon will not be sustained.” Id. (emphasis in original).
As an initial matter, the Court notes that the circuit court found in its order denying
Sanchez’s Amended Rule 3.850 Motion that there was competent, substantial evidence
to support the jury’s finding that the BB gun constituted a deadly weapon under Florida
law. Accordingly, the Court must accept the circuit court’s determination that the BB gun
was a deadly weapon pursuant to Florida law. See Estelle, 502 U.S. at 67-68 (“[I]t is not
the province of a federal habeas court to reexamine state-court determinations on statelaw questions.”). The record also supports the State court’s conclusion, as it reflects that
the victim believed Sanchez had a real firearm pointed at her neck and she believed
Sanchez was going to kill her. Resp. Ex. C at 147-48, 158, 160-61, 168-69, 176-77.
Indeed, photographs of the BB gun introduced at trial support the victim’s belief that the
BB gun looked real. Resp. Ex. A at 80-81. Jarrell’s testimony at trial corroborates the
victim’s testimony that Sanchez acted and used the BB gun in such a way as to give the
appearance that it was an actual gun. Resp. Ex. C at 183-191, 193. Jarrell testified that
Sanchez told him that he purchased the BB gun from Wal-Mart. Id. at 187. Jarrell gave
the following description of the BB gun: “[i]t’s a black and silver BB gun and it has – the
barrel of it is black and it’s broken also so the front piece of it where there would normally
38
be a piece on the barrel, there’s no pieces there.” Id. at 190. The State introduced the BB
gun into evidence and after Jarrell examined it on the stand, he stated, “[t]hat is the BB
gun that we used and the part that I’m talking about is broken is this up here. This would
normally have a piece shielding over the top of it.” Id. Notably, Sanchez testified that the
BB gun was not his but belonged to a friend who was “playing with” the BB gun while
Sanchez was cleaning his car and left it in the car. Resp. Ex. D at 253-54. Sanchez further
testified that prior to the incident an officer conducted a traffic stop of his vehicle and
thought the BB gun was real enough to examine it during the stop. Id. at 254. According
to Sanchez, the officer stated the BB gun was broken but he did not specify in what
manner. Id.
Here, the BB gun was introduced into evidence and Sanchez utilized it in a manner
to suggest to the victim that it was loaded and capable of inflicting great bodily injury. To
the extent Sanchez argues its broken, Jarrell’s testimony reveals that a portion of the BB
gun was broken off, not that it was inoperable, and pictures of the BB gun do not reveal
any obvious defects. No other testimony indicates the BB gun was inoperable. When
viewing this evidence in a light most favorable to the State, there is no reasonable
probability the circuit court would have granted a motion for judgment of acquittal on this
issue. See Jackson, 443 U.S. at 319; Dale, 703 So. 2d at 1046-47; Santiago, 900 So. 2d
at 711. In light of this conclusion, counsel cannot be found ineffective for failing to raise a
meritless argument. See Diaz, 402 F.3d at 1142; Bolender, 16 F.3d at 1573. Accordingly,
for the above stated reasons, relief on the claim in Ground Seven is due to be denied.
39
H. Ground Eight
Sanchez asserts that his trial counsel was ineffective for failing to object to an
incomplete, misleading, and confusing jury instruction on the definition of a deadly
weapon. Petition at 33-34. According to Sanchez, the instruction should have specifically
included the term “BB gun” as the weapon used in this case. Id. at 33. Additionally,
Sanchez contends that “[t]he jury was never instructed as to how to evaluate the broken
BB gun as a potential deadly weapon based on the law, the facts of the case or petitioner’s
actions, which can only be considered if petitioner used the device as a club or bludgeon
(inflict bodily harm or death) and not on the subjective intent of [the] perpetrator or
subjective fear of [the] victim.” Id.
Sanchez alleged a similar claim as ground seven of his Amended Rule 3.850
Motion. Resp. Ex. N at 19-20. In denying this claim, the circuit court explained:
In Ground Seven, Defendant alleges that he received
ineffective assistance of counsel because Mr. Nolan failed to
object to an improper jury instruction that stated that a broken
BB gun could be a deadly weapon. The Court adopts and
incorporates the State’s Response to Ground Seven. In
addition, as analyzed under Ground Six, whether an
inoperable BB gun is considered a deadly weapon is a
question for the jury. Therefore, the Court finds that Mr. Nolan
was not deficient in failing to object to the jury instruction. The
Court summarily denies Ground Seven.
Resp. Ex. Y at 18. The First DCA per curiam affirmed the circuit court’s denial of this claim
without a written opinion. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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
40
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, Sanchez 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 Florida Supreme Court
has held that “[a]lthough section 812.13 [the robbery statute] fails to define the terms
‘firearm’ and ‘weapon,’ the definitions for these terms contained in the Florida Standard
Jury Instructions are a correct statement of the law.” Dale, 703 So. 2d at 1046. Notably,
as stated above, Dale concerned the issue of whether or not a BB gun constituted a
deadly weapon. Id. Accordingly, as the Florida Supreme Court has determined that the
standard jury instruction is legally sufficient in cases involving a BB gun, the Court finds
any objection to the standard instruction given here would have been meritless. Counsel
cannot be deemed deficient for failing to raise a meritless issue; therefore, Sanchez has
failed to demonstrate deficient performance. See Diaz, 402 F.3d at 1142; Bolender, 16
F.3d at 1573. To the extent Sanchez claims the jury was never given direction as to “how
to evaluate” the BB gun as a deadly weapon, such direction is a matter better suited for
closing argument as that is when the attorneys are tasked with arguing the facts in relation
to the law. See United States v. Siegel, 587 F.2d 721, 726 (5th Cir. 1979) (stating that
“the purpose of closing arguments is to assist the jury in analyzing, evaluating and
applying the evidence.”). For the above stated reasons, relief on Sanchez’s claim in
Ground Eight is due to be denied.
41
I. Ground Nine
Sanchez contends that his trial counsel was ineffective because he failed to
present certain exculpatory evidence that would have supported a misidentification
defense. Petition at 36-38. Specifically, Sanchez maintains counsel should have
impeached the victim with her deposition testimony in which she failed to identify
Sanchez’s car and the damage to the vehicle. Id. at 37. Additionally, Sanchez alleges the
previous owner of his vehicle would have been able to testify that the damage to his
vehicle occurred prior to Sanchez assuming ownership of the car. Id. at 36-37. According
to Sanchez, had counsel impeached the witness in this manner and presented evidence
of the car’s damage at trial, the outcome of the proceeding would have been different. Id.
at 37.
Respondents contend that this claim is unexhausted because Sanchez did not
present the claim in this context to the state court. Response at 29. Sanchez counters
that he did exhaust this claim. Reply at 20. The record reflects that Sanchez raised a
similar claim as ground eight of his Amended Rule 3.850 Motion. Resp. Ex. N at 20-21.
In the Amended Rule 3.850 Motion, he alleged his counsel failed to impeach the victim
regarding her knowledge of whether Sanchez’s vehicle was damaged and also mentioned
counsel’s failure to call the car’s previous owner as a witness. Id. Although the allegations
are not word for word similar, Sanchez did present the substance of the instant claim to
the state court in his Amended Rule 3.850 Motion. Therefore, the Court finds Sanchez
did exhaust this claim.
Turning to the issue of deference, the circuit court denied this claim, stating:
The Court adopts and incorporates the State’s
Response to Ground Eight. Mr. Nolan addressed the theory
42
of misidentification of Defendant and the vehicle during the
cross examination of Ms. Pate, and he impeached Ms. Pate
with prior statements. The Defense theory of misidentification
was also presented to the jury during closing argument.
During a Nelson hearing prior to the start of trial, Mr. Nolan
testified as to why he did not call Ms. Cruz as a witness.
Defendant’s allegations are refuted by the record, and the
Court summarily denies Ground Eight.
Resp. Ex. Y at 18 (record citations omitted). The First DCA per curiam affirmed the denial
without a written opinion.
To the extent that the First DCA decided the claim on the merits, 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, Sanchez 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 because Sanchez cannot demonstrate
prejudice. Attached to Sanchez’s Reply as an exhibit is a portion of the victim’s deposition
in which defense counsel asks her if she saw any damage to the car at all. Reply Ex. F
at 19. The victim replied, “[o]nly thing I remember is the tinted windows.” Id. This testimony
reflects that the victim had no memory of damage, not that she did not see any damage.
Therefore, there would have been no basis to impeach her on this matter. Moreover,
whether there was damage to Sanchez’s vehicle is irrelevant to this case. The victim was
certain about Sanchez’s identity and was face-to-face with Sanchez for a prolonged
43
period of time. Resp. Ex. C at 145, 147-50. The victim, without hesitation, positively
identified Sanchez in a photo line-up. Resp. Exs. C at 152-56; D at 221-22. Sanchez’s
co-defendant, Jarrell, confessed at trial that he and Sanchez attempted to rob Pate,
corroborating the victim’s testimony. Resp. Ex. C at 183-191, 193. Based on this
overwhelming evidence, there is no reasonable probability the outcome of the trial would
have been different had counsel put on evidence concerning damage to Sanchez’s
vehicle, particularly in light of the fact the victim did not give a description of the vehicle
at trial. Id. at 143-73. As Sanchez cannot demonstrate prejudice, relief on his claim in
Ground Nine is due to be denied.
J. Ground Ten
In Ground Ten, Sanchez asserts that trial counsel was ineffective for failing to
investigate and impeach the victim and Jarrell with their prior convictions and to impeach
Butler with evidence that he had been demoted. Petition at 39-41. According to Sanchez,
the victim’s deposition established that she had been convicted of a crime of dishonesty;
however, counsel failed to address it during cross-examination. Id. at 40. Regarding
Jarrell, Sanchez contends that Jarrell had a more extensive prior record involving crimes
of dishonesty than the single conviction that Jarrell testified about at trial. Id. As to Butler,
Sanchez claims that Butler “was removed [from] his unit because of misconduct and
dishonesty as a detective (contrary to his testimony at trial).” Id.
Sanchez alleged a similar claim in his Amended Rule 3.850 Motion. Resp. Ex. N
at 22-23. In denying this claim, the circuit court reasoned:
As to the criminal history of Ms. Pate, the Court finds
that this issue was addressed on May 15, 2009, during a
Nelson hearing where Defendant made twenty-five
allegations of ineffective assistance of counsel against Mr.
44
Nolan. Mr. Nolan testified that he researched the background
of Ms. Pate. The Court finds that Mr. Nolan was not deficient
in his investigation of Ms. Pate’s prior criminal history.
For Mr. Jarrell, the Court finds that Defendant’s
allegations are refuted by the record. Mr. Jarrell was
impeached with all admissible convictions.
As for Officer Butler, the Court finds no evidence in the
record to support Defendant’s allegation that Officer Butler
was demoted due to misconduct. In fact, Officer Butler
testified that he returned to patrol because he preferred an
officer’s work schedule over a detective’s. Therefore, Mr.
Nolan was not deficient in failing to impeach Officer Butler with
Defendant’s allegations.
The Court summarily denies Ground Nine.
Resp. Ex. Y at 19 (record citations omitted). The First DCA per curiam affirmed the denial
without a written opinion. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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, Sanchez 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, Sanchez’s claim in Ground Ten is without merit. Pursuant to section
90.610, Florida Statutes (2008), “[a] party may attack the credibility of any witness,
including an accused, by evidence that the witness has been convicted of a crime if the
45
crime was punishable by death or imprisonment in excess of 1 year under the law under
which the witness was convicted, or if the crime involved dishonesty or a false statement
regardless of the punishment.” A withhold of adjudication does not qualify as a conviction
for purposes of section 90.610. McFadden v. State, 732 So. 2d 412, 413 (Fla. 3d DCA
1999).
The record refutes Sanchez’s allegations concerning the prior records of the victim
and Jarrell. During a Nelson hearing held on May 15, 2009, after trial, defense counsel
made the following statements to the circuit court concerning the prior records of the
victim and Jarrell:
I did take the testimony of – the deposition of the co-defendant
as well as the victim. We did our research, and the State and
I had come to an agreement as to what the prior record was
for purposes of trial. It was consistent with our investigation.
....
[A]bout the victim’s prior record, I think we’ve addressed
those. However, we did a background check, FDLE search for
Monica Pate.
Resp. Ex. B at 238-39. Counsel also made the following statement addressing Butler’s
position with the Jacksonville Sheriff’s Office:
[T]here was a detective who was no longer a detective, he
was queried in his deposition why he was no longer a
detective. He indicated that he enjoyed more days off and he
gave excuses or reasons at his deposition why he was no
longer a detective, and I did raise those with him. There was
nothing to indicate that he was demoted or otherwise
punished and removed from a detective.
Id. at 242-43.
As it relates to the victim, Sanchez attached to his Reply a copy of the docket for
a misdemeanor case with Monica Lawonna Pate listed as the defendant. Reply Ex. G.
46
The docket printout reflects that Pate entered a plea of no contest to one count of filing a
false police report and one count of contempt of court. Id. Notably, adjudication of guilt
was withheld as to the false police report charge. Id. Even assuming the Monica Pate
listed as the defendant in Sanchez’s exhibit is the victim in this case, adjudication of guilt
was withheld as to the filing of a false police report; therefore, counsel could not have
used it at trial to impeach the victim. See McFadden, 732 So. 2d at 413. The contempt of
court conviction was a misdemeanor and was not a crime of dishonesty or a false
statement, as the docket reflects the contempt charge was added after Pate failed to
appear; accordingly, counsel could not have utilized this conviction to impeach the victim
either. See § 90.610, Fla. Stat. (2008).
Concerning Jarrell and Butler, other than Sanchez’s conclusory allegations there
is no evidence in support of Sanchez’s claims here. As stated above, defense counsel
testified he discovered nothing to indicate Jarrell had additional convictions or that Butler
was demoted. Sanchez has not provided the Court with any evidence to rebut this
testimony. Accordingly, Sanchez has failed to meet his burden to overcome the factual
evidence provided in the record. See Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir.
2008) (“It is the petitioner's burden to establish his right to habeas relief and he must
prove all facts necessary to show a constitutional violation.”); Tejada, 941 F.2d at 1559
(recognizing that vague, conclusory, speculative, or unsupported claims cannot support
an ineffective assistance of counsel claim). In light of the above, Sanchez has failed to
demonstrate his allegations in Ground Ten would have been proper impeachment
material. Counsel cannot be found deficient for failing to raise a meritless argument. See
47
Diaz, 402 F.3d at 1142; Bolender, 16 F.3d at 1573. For the above stated reasons, the
relief Sanchez seeks in Ground Ten is due to be denied.
K. Ground Eleven
Sanchez alleges that his trial counsel was ineffective because he failed to file a
motion for new trial within the time limits prescribed by the Florida Rules of Criminal
Procedure and that counsel should have provided more facts in the motion to establish
that the verdict was contrary to the weight of the evidence. Petition at 43-44. Sanchez
raised a similar claim in his Amended Rule 3.850 Motion. Resp. Ex. N at 30-32. In denying
this claim, the circuit court stated:
The Court adopts and incorporates the State’s Response to
Ground Twelve. Based upon the reasoning presented in the
State Response, the Court finds that Defendant cannot prove
the prejudice prong of Strickland because the Court
considered Defendant’s motion on the merits and denied it.
See Manley v. State, 605 So. 2d 1327, 1328 (Fla. 2d DC
1992). The Court summarily denies Ground Twelve.
Resp. Ex. Y at 20 (record citations omitted). The First DCA per curiam affirmed the circuit
court’s denial of this claim. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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, Sanchez is not entitled to
relief on the basis of this claim.
48
Nevertheless, even if the state appellate court’s adjudication of this claim is not
entitled to deference, it is without merit. Pursuant to Florida Rule of Criminal Procedure
3.590(a), a motion for new trial in a noncapital case must be filed within ten days after the
rendition of the verdict or the finding of the court. A motion for new trial shall be granted
if, among other reasons, the circuit court determines the verdict is contrary to the weight
of the evidence. Fla. R. Crim. P. 3.600(a)(2). “[T]he ‘weight of the evidence’ standard
evaluates whether a greater amount of credible evidence supports an acquittal.” Velloso
v. State, 117 So. 3d 903, 905 (Fla. 4th DCA 2013).
Here, the verdict was rendered on April 1, 2009. Resp. Ex. A at 102. Counsel filed
the motion for new trial on April 14, 2009. Id. at 103. Accordingly, the motion for new trial
was untimely. See Fla. R. Crim. P. 3.590(a). However, the circuit court denied the motion
on the merits even though it was untimely. Resp. Exs. A at 104; Y at 610. Accordingly,
Sanchez cannot demonstrate prejudice as the circuit court did not reject the motion as
untimely. To the extent Sanchez argues counsel should have argued the motion more
adequately, the weight of the evidence against him does not support his assertion that
the circuit court would have granted the motion. As noted above, two-eyewitnesses, the
victim and Sanchez’s co-defendant, both unequivocally identified Sanchez as the
assailant. Other than Sanchez’s own self-serving testimony there was no evidence to
rebut the victim and Jarrell’s testimony; therefore, the verdict was not contrary to the
weight of the evidence. See Velloso, 117 So. 3d at 905. No matter how well argued the
motion for new trial could have been, there is no reasonable probability the circuit court
would have granted it. In light of Sanchez’s failure to demonstrate prejudice, he is not
entitled to relief on the claim in Ground Eleven.
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L. Ground Twelve
Lastly, Sanchez contends that his trial counsel was ineffective for failing to file a
motion in limine to exclude the following evidence from trial: (1) Sanchez’s vehicle; (2)
the BB gun; (3) foreign currency; (4) Jarrell’s testimony concerning consuming drugs with
Sanchez; (5) leather jackets; (6) latex gloves; (7) a knife; and (8) the State’s mentioning
of the severed counts. Petition at 46-48. According to Sanchez, this evidence was
irrelevant and unduly prejudicial because it introduced evidence of collateral and
unrelated crimes. Id. at 46-47.
Sanchez alleged a similar claim in his Amended Rule 3.850 Motion. Resp. Ex. N
at 32-34. The circuit court denied the claim, explaining:
The Court adopts and incorporates the State’s
Response to Ground Thirteen. As analyzed by
the State, the described motion in limine would
have been meritless. Therefore, Defendant
failed to show both deficient performance by Mr.
Nolan and prejudice. The Court summarily
denies Ground Thirteen.
Resp. Ex. Y at 20 (record citations omitted). The First DCA per curiam affirmed the denial
of this claim. Resp. Ex. DD.
To the extent that the First DCA decided the claim on the merits, 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
50
the evidence presented in the state court proceedings. Thus, Sanchez 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, Sanchez’s claim here is meritless. In reviewing the record,
Sanchez’s vehicle, the BB gun, and the leather jackets were all relevant to the case
against him because the victim testified about seeing Sanchez exit the vehicle, wearing
a leather jacket, and pointing a gun (which later turned out to be the BB gun) at her. Resp.
Ex. C at 145, 147, 158, 160-61. Accordingly, this particular evidence was relevant to
identifying Sanchez as the perpetrator. Jarrell’s testimony concerning doing drugs with
Sanchez was relevant to establish motive for the robbery as they committed the robbery
in hopes of getting drug money. Id. at 183. Regarding the foreign currency, knife, and
latex gloves, the record reflects that counsel did object to testimony on these items;
however, the circuit court overruled the objection because Sanchez gave testimony
saying everything in the car did not belong to him. Resp. Ex. D at 259-60. Although not a
motion in limine, the objection served as the functional equivalent because counsel
attempted to exclude the State from introducing that evidence. As such, Sanchez cannot
demonstrate prejudice.
As to Sanchez’s allegations that the State alluded to the severed counts during
trial, Sanchez has failed to cite which comments or questions he finds objectionable, thus,
preventing the Court from adequately analyzing this claim. Therefore, Sanchez has failed
to meet his burden and his conclusory allegations are insufficient to warrant habeas relief.
See Blankenship, 542 F.3d at 1270; Tejada, 941 F.2d at 1559. To the extent Sanchez
refers to the same portion of the transcript as cited in his Amended Rule 3.850 Motion, a
51
review of the relevant questions and statements reveals the prosecutor did not allude to
the severed accounts. Resp. Ex. D at 258-60. The prosecutor’s use of the phrase “this
attempted armed robbery” does not necessarily indicate Sanchez was arrested on
multiple offenses. Moreover, even assuming all this evidence was excluded, there is no
reasonable probability the outcome of the trial would have been different because the
victim and the co-defendant provided competent, substantial evidence as to Sanchez’s
role in the attempted robbery. Accordingly, Sanchez has failed to demonstrate deficient
performance or prejudice; therefore, relief as to his claim in Ground Twelve is due to be
denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Sanchez 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, Sanchez
“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
52
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 Sanchez 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 10th day of April, 2019.
53
Jax-8
C:
Simon Sanchez, #J38918
Thomas Duffy, Esq.
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