Iglesias v. Secretary, Department of Corrections et al
Filing
14
ORDER denying Mr. Iglesias's petition. The Clerk is directed to enter judgment accordingly and close this case. COA and IFP on appeal denied. Signed by Judge Virginia M. Hernandez Covington on 12/3/2019. (CLF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
GABRIEL IGLESIAS
Petitioner,
v.
Case No. 5:16-cv-642-Oc-33PRL
SECRETARY, DEPT. OF
CORRECTIONS, et al.,
Respondents.
___________________________\
ORDER
Gabriel Iglesias, a state prisoner acting pro se, initiated this case by filing a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Respondents filed a Response
seeking denial of the Petition. (Doc. 6). Mr. Iglesias filed a Reply. (Doc. 10). Because the Court
may resolve the Petition on the basis of the record, an evidentiary hearing is not warranted. See
Habeas Rule 8(a). For the reasons discussed below, the Petition is denied.
PROCEDURAL HISTORY
In July 2012, a jury in Citrus County, Florida, found Mr. Iglesias guilty of two counts of
arson and two counts of burglary of a conveyance. (Respondents’ Appendix, Doc. 6, Exh. A, pp.
85-88, 328-30) (hereafter “Exh”).
According to the testimony presented at trial, Mr. Iglesias entered the unoccupied vehicles
of Kelly and William Lemming and set the trucks on fire. Mr. Iglesias and Mr. Lemming had
previously agreed to trade trucks after Mr. Iglesias fixed Mr. Lemming’s truck. (Exh. B, Trial
Transcript, pp. 37-38). Mr. Lemming took his truck back when Mr. Iglesias did not follow through
with the agreement. Mr. Lemming towed his truck to the home of his friend and Mr. Iglesias’s
neighbor, William Stuelke. Mr. and Mrs. Lemming decided to stay the night at the home of Mr.
1
Stuelke in Floral City and tow the truck to their home in Pinellas County the next day, September
5, 2010. (Id. at 41-46).
The Lemmings, Mr. Stuelke, and Mr. Stuelke’s girlfriend, Randee Roemer, were all at Mr.
Stuelke’s home when the fires occurred. (Id. at 46). The Lemmings and Ms. Roemer testified
that they heard what sounded like Mr. Iglesias’s truck outside. (Id. at 47, 81, 108-09, 111). They
went outside and saw the vehicles on fire. (Id. at 47). Mr. Lemming testified that he could see
Mr. Iglesias in the tree line. (Id. at 48). Mrs. Lemming testified she could see Mr. Iglesias’s
taillights but not Mr. Iglesias. (Id. at 84). Ms. Roemer testified she did not see anything but the
fires. (Id. at 109-11). Mr. Stuelke did not testify at the trial.
Rick and Robin Anderson, who also lived near Mr. Iglesias, were his alibi witnesses at the
trial.
Mr. Anderson testified that Mr. Iglesias was at his house until around 2:30 a.m. and had
just left when Mr. Stuelke called asking where Mr. Iglesias was. (Id. at 206). Mrs. Anderson
testified that Mr. Iglesias was walking home to his house from her house when her husband
received a call from Mr. Stuelke and her husband replied “What? Your truck’s on fire?” (Id. at
223). Mr. Iglesias testified at trial, stating that he was with the Andersons until 12:30 or 1:00 a.m.
(Id. at 242).
The fire marshal who investigated the case testified as an expert and concluded that the
fires were arson and were started by a human in the passenger compartments of the trucks. The
fire marshal, who also arrested Mr. Iglesias, testified that Mr. Iglesias told him he was in bed at
home that night by 10 p.m. (Id. at 135-83).
Mr. Iglesias testified that he did not make that
statement. (Id. at 253).
Ms. Roemer testified that some months after the fires, Mr. Iglesias told her that he was not
going to admit anything until after the trial. She assumed this meant he set the trucks on fire even
though he did not admit this to her. The State impeached her with her prior deposition testimony
2
that Mr. Iglesias did tell her he set the trucks on fire. (Id. at 103-32). Mr. Iglesias testified that he
never told Ms. Roemer that he set the trucks on fire. (Id. at 248-49).
Mr. Iglesias was sentenced to 15 years’ imprisonment on the first arson count; 15 years
of consecutive probation on the second arson count; and 5 years’ probation on the burglary
counts, to run concurrently with the 15-year term of probation. Mr. Iglesias’s conviction and
sentence were affirmed by the Fifth District Court of Appeal, per curiam without written opinion,
on August 30, 2013. (Exh. G); Iglesias v. State, 118 So.3d 814 (Fla. 5th DCA 2013) (table).
On March 20, 2014, Mr. Iglesias filed a pro se motion for post-conviction relief pursuant to
Fla. R. Crim. P. 3.850, raising 10 grounds for relief. (Exh. J). The trial court summarily denied
Grounds 3-10 but ordered an evidentiary hearing as to Grounds 1 and 2 (trial counsel’s alleged
failure to convey a plea offer and depose William Stuelke).
On October 8, 2014, the trial court conducted an evidentiary hearing. The trial court
denied Grounds 1 and 2 of the motion on October 23, 2014. Mr. Iglesias appealed, briefing
Grounds 1, 2, 4, and 9 for appellate review. The Fifth District Court of Appeal affirmed per curiam
without written opinion. Iglesias v. State, 184 So.3d 536 (Fla. 5th DCA 2016) (table); (Exh. O).
THE PRESENT PETITION
Mr. Iglesias, pro se, filed a timely federal habeas petition in this Court on October 21,
2016. (Doc. 1). He alleges four grounds for relief, alleging that trial counsel was constitutionally
ineffective for failing to:
1.
2.
3.
4.
Convey a 5-year plea offer;
Depose witness William Stuelke and present associated exculpatory evidence;
Move to suppress Mr. Iglesias’s pre-Miranda statement; and,
Conduct an adequate pretrial investigation.
(Id.) The State contends that Ground 4 was not properly presented to the state courts and is now
procedurally defaulted and barred from federal habeas review, and that Grounds 1, 2, and 3 are
without merit. (Doc. 6). Mr. Iglesias argues that he is entitled to review of Ground 4 pursuant to
Martinez v. Ryan, 566 U.S. 1 (2012) (creating exception to procedural default rule where counsel
3
during initial-review collateral proceedings was ineffective or defendant did not have counsel).
(Doc. 10).
AEDPA STANDARD OF REVIEW
The role of a federal habeas court when reviewing a state prisoner’s application pursuant
to 28 U.S.C. § 2254 is limited. See Williams v. Taylor, 529 U.S. 362, 403-404, 120 S. Ct. 1495,
1518-19 (2000). Specifically, a federal court must give deference to state court adjudications
unless the state court’s adjudication of the claim is “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States,” or “resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the state proceeding.” See 28 U.S.C. § 2254(d)(1)- (2). The
“contrary to” and “unreasonable application” clauses provide separate bases for review.
Wellington v. Moore, 314 F.3d 1256, 1260-61 (11th Cir. 2002). A state court’s rejection of a claim
on the merits is entitled to deference regardless of whether the state court has explained the
rationale for its ruling.
Furthermore, under § 2254(d)(2), this Court must determine whether the state court's
adjudication resulted in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding. The AEDPA directs that only
clear and convincing evidence will rebut the presumption of correctness afforded the factual
findings of the state court. See § 2254(e)(1). Therefore, it is possible that federal review may
determine that a factual finding of the state court was in error, but deny the Petition because the
overall determination of the facts resulting in the adjudication was reasonable. See Valdez v.
Cockrell, 274 F.3d 941, 951 n. 17 (5th Cir. 2001).
EXHAUSTION AND PROCEDURAL DEFAULT
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts
4
that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404
U.S. 270, 275-76 (1971). The prohibition against raising unexhausted claims in federal court
extends not only to broad legal theories of relief, but also to the specific assertions of fact that
might support relief. Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).
A federal claim is subject to procedural default where the petitioner failed to properly
exhaust it in state court and it is obvious that the unexhausted claim would now be barred
under state procedural rules. See Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999).
A procedural default may be excused if the petitioner establishes (1) cause for the default and
prejudice, or (2) a fundamental miscarriage of justice. Id. at 1306. The fundamentalmiscarriage-of-justice exception is “exceedingly narrow in scope” because it requires proof of
actual innocence, not just legal innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001).
INEFFECTIVE ASSISTANCE OF COUNSEL
State court rulings on ineffective assistance of counsel claims are governed by Strickland
v. Washington, 466 U.S. 668 (1984).
“Ineffective assistance under Strickland is deficient
performance by counsel resulting in prejudice . . . with performance being measured against an
‘objective standard of reasonableness’ under ‘prevailing professional norms.’” Rompilla v. Beard,
545 U.S. 374, 380 (2005) (quoting Strickland, 466 U.S. at 688) (internal citations omitted). The
Supreme Court has stated that in reviewing ineffective assistance of counsel claims brought by
state prisoners seeking habeas corpus relief subject to 28 U.S.C. § 2254(d)(1) and/or (2), the
standard to be applied is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
The Supreme Court “require[s] that the federal court use a ‘doubly deferential’ standard of review
that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow,
571 U.S. 12, 15 (2013) (citing Pinholster, 563 U.S. at 190).
5
DISCUSSION
GROUND ONE:
Ineffective assistance of trial counsel – failure to convey a 5-year plea
offer
In Ground 1, Mr. Iglesias argues that trial counsel failed to convey to him a 5-year plea
offer from the State. (Doc. 1). In rejecting this claim on post-conviction review, the state court
first summarized the relevant testimony at the evidentiary hearing:
Mr. [Harold] Silver testified that he was originally co-counsel to Mr. Ed Tilton and
entered a Notice of Appearance on August 2, 2011. Mr. Tilton was subsequently
suspended from the practice of law and Mr. Silver became the defendant’s sole
attorney and an order appointing Mr. Silver was entered January 23, 2012. Mr.
Silver also testified that he received copies of discovery from the State attorney
and he personally sent copies to the defendant. Within the discovery material
there was a written plea offer of 10 years in DOC. Mr. Silver had no recollection
of discussing this specific plea offer however in general the defendant was
adamant that he was not going to accept any plea. Mr. Silver further testified that
he was not aware of a 5 year plea offer because it was made prior to his
representation.
…
Next, Mr. Henry Iglesias the defendant’s father testified. Mr. Iglesias testified that
he was at every meeting between Mr. Silver and his son . . . Additionally, a plea
offer of 10 years was originally mentioned by Mr. Tilton and Mr. Silver however an
offer of 5 years was never mentioned.
Thereafter, the defendant testified that his first attorney was Joe Sowell from the
Public Defender’s Office and when he was arrested a second time. Mr. Sowell
had to withdraw due to a conflict. Mr. Sowell never mentioned a plea offer. The
first time the defendant became aware of the 5 year plea offer was when he
reviewed his PSI. However, a 10 year plea offer was conveyed by Mr. Tilton and
thought it was only for the separate burglary case not the present case. The
defendant also testified he would have accepted a 5 year plea offer but not the 10
year plea offer. He also was willing to consider a plea right before trial because
he felt Mr. Silver was not prepared.
…
Then, Mr. Paul Norville testified that he was the prosecuting attorney in this case
and has been since inception . . . Mr. Norville testified that he sent the 5 year plea
offer to Mr. Sowell. The 5 year plea was based on the possibility that the defendant
would be an informant for a federal agency. However, the federal agency did not
use the defendant as an informant because he was revealing his potential
informant status to people. There was no other plea offer and in his contacts with
the defendant he felt the defendant would go to trial based on the defendant’s
demeanor and attitude. Mr. Norville also testified that he thought the defendant
6
had a very good case based on the alibi witnesses. Mr. Norville further testified
that he made a second offer on May 7, 2011 that included resolution of both cases.
This new offer in effect revoked the previous 5 year offer. After Mr. Tilton was
appointed there were no other plea discussions because the defendant always
wanted to go to trial. Prior to jury selection a possible plea was discussed but no
offer made.
…
The final witness was Mr. Ed Tilton who testified that he represented the defendant
prior to Mr. Silver. He was aware of the 10 year plea offer and showed it to the
defendant that stated he wanted to go to trial.
(Exh. J, pp. 291-95).
Ultimately, the state court found that Mr. Iglesias had not demonstrated that trial counsel
was ineffective regarding the plea: “The Court found that Mr. Silver properly discussed plea
options with the defendant and the defendant was adamant about not accepting a plea.” (Id. at
296). The state court’s ruling on this issue was affirmed by the Fifth District Court of Appeal.
(Exh. O).
The state court found trial counsels’ testimony at the evidentiary hearing more credible
than Mr. Iglesias’s and his father’s. “Determining the credibility of witnesses is the province and
function of the state courts, not a federal court engaging in habeas review.” Consalvo v. Sec’y
for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011). “Federal courts have no license to
redetermine credibility of witnesses whose demeanor has been observed by the state trial court,
but not by them.” Id. “In the absence of clear and convincing evidence, we have no power on
federal habeas review to revisit the state court’s credibility determinations.” Bishop v. Warden,
GDCP, 726 F.3d 1243, 1259 (11th Cir. 2013); see also Nejad v. Attorney Gen., State of Ga. 830
F.3d 1280, 1292 (11th Cir. 2016) (“[A] federal court engaged in habeas review is not empowered
to second guess a state court’s credibility determination based on speculation about the interests
of a witness[.]”)
However, even assuming, arguendo, that trial counsel was deficient, Mr. Iglesias must still
satisfy the Strickland prejudice prong. In Lafler v. Cooper, 566 U.S. 156 (2012), the Supreme
7
Court “clarified that the Sixth Amendment right to effective assistance of counsel extends
specifically ‘to the negotiation and consideration of plea offers that lapse or are rejected.’” Osley
v. United States, 751 F.3d 1214, 1221 (11th Cir. 2014) (quoting In re Perez, 682 F.3d 30, 932
(11th Cir. 2012) (per curiam)). In order to establish prejudice, the defendant must show a
reasonable probability that but for counsel’s ineffectiveness: (1) “the plea offer would have been
presented to the court (i.e., that the defendant would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening circumstances)”; (2) “the court would have
accepted its terms”; and (3) “the conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that in fact were imposed.” Lafler,
566 U.S. at 164
Mr. Iglesias has failed to satisfy the three-part test set forth in Lafler. First, Mr. Iglesias
has not shown there was a reasonable probability the 5-year plea offer would have been
presented to the court. The prosecutor testified that the 5-year plea offer was premised on Mr.
Iglesias’s potential as a federal informant, and that Mr. Iglesias had jeopardized that opportunity.
And, as the trial court noted at the conclusion of the hearing, between the September 21, 2010,
5-year written plea offer and the May 18, 2011, 10-year written plea offer, Mr. Iglesias had incurred
additional criminal charges in separate cases. (Exh. I, p. 111).
Mr. Iglesias has not demonstrated that he would have accepted the plea, especially where
trial counsel testified at the post-conviction evidentiary hearing that Mr. Iglesias was resistant to
any plea offer. Nor has Mr. Iglesias met the remaining two prongs of the Lafler test. To find that
he has met either would depend upon mere speculation as to whether the court would have
accepted the plea or that Mr. Iglesias’s sentence would have been less severe. See Missouri v.
Frye, 566 U.S. 134, 148 (2012) (“[A] defendant has no right to be offered a plea, nor a federal
right that the judge accept it.”)
8
Mr. Iglesias has failed to demonstrate that the state court’s rejection of this claim was
contrary to, or an unreasonable application of Strickland, or an unreasonable determination of the
facts in light of the evidence adduced in state court. Ground 1 is without merit.
GROUND TWO:
Ineffective assistance of counsel – failure to investigate and present
exculpatory evidence related to witness William Stuelke
In Ground 2, Mr. Iglesias argues that trial counsel was constitutionally ineffective for failing
to interview or depose Mr. Stuelke, who would have testified that Mr. Lemming made up the story
about seeing Mr. Iglesias leave the scene and tried to convince the other witnesses to lie as well.
(Doc. 1).
In rejecting this claim on post-conviction review, the trial court first summarized the
testimony at the evidentiary hearing on the issue:
Mr. Silver stated that [he] remembered that Mr. William Stuelke was a witness
present at the night of the fire. Mr. Stuelke provided a written affidavit stating that
he heard the defendant’s vehicle leaving. Mr. Silver testified that it was
unnecessary to depose Mr. Stuelke based on the affidavit which included a
statement mentions [sic] to other fires in the neighborhood. Mr. Silver thought that
if Mr. Stuelke elaborated on other fires in the neighborhood he may implicate the
defendant in those fires. Mr. Silver and the defendant discussed trial strategy and
both felt that they had a very good case with alibi witnesses Mr. Ricky Anderson
and Mrs. Robin Anderson. Additionally, Mr. Silver testified he thought he could
impeach Ms. Randy Roemer with conflicting testimony.
…
[The defendant’s father] also testified that the defendant never agreed not to call
Mr. Stuelke.
…
The defendant further testified that he spoke to Mr. Silver about Mr. Stuelke and
never advised Mr. Silver not to call him. The defendant felt Mr. Stuelke’s testimony
would have refuted Mr. Leming’s [sic] testimony. He was able to locate Mr. Stuelke
and he was available to testify at trial. However, Mr. Silver never followed up.
During cross-examination the defendant testified that he was not aware that Mr.
Sowell attempted to depose Mr. Stuelke twice.
…
9
As to Mr. Stuelke, Mr. Norville testified that he had difficulty locating Mr. Stuelke
for deposition or for trial. Mr. Norville stated he wanted to consider Mr. Stuelke as
a trial witness based on his statement placing the defendant at the scene which
supported other witnesses statements. Mr. Norville felt Mr. Stuelke would have
been a good witness for the State based on his written statement which suggested
that the defendant may have been setting fires in the neighborhood with Mr.
Anderson.
…
Mr. Tilton testified that he did not want to depose Mr. Stuelke because he was
concerned Mr. Stuelke may add or delete something from the written statement.
Additionally, Mr. Tilton did not want Mr. Stuelke to testify at trial. Mr. Tilton’s
strategy for trial was to focus on the Anderson’s testimony that provided an alibi
for the defendant.
(Exh. J, pp. 291-95) (internal citations omitted).
The trial court found that trial counsel was not ineffective in his decisions regarding Mr.
Stuelke, finding that “Mr. Silver made a strategic decision not to depose or call Mr. Stuelke as a
witness based on two alibi witnesses that were favorable to the defendant.” (Id. at 296).
The
Fifth District Court of Appeal per curiam affirmed the post-conviction court’s ruling without written
opinion. (Exh. O).
“The performance inquiry will generally boil down to whether trial counsel's actions (or
inactions) were the result of deficient performance or sound trial strategy. To protect counsel's
independence, we start with the strong presumption that trial counsel's performance was
constitutionally adequate.” Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1238 (11th Cir.
2011) (citations omitted).
Mr. Iglesias has not shown that trial counsel’s performance was
deficient, where he did not pursue a witness who placed Mr. Iglesias at the scene of the crime
and who the State wanted to call as its own witness.
Mr. Stuelke’s affidavit also stated: “This
isn’t the first time this has occurred and probly [sic] not the last. My wife is so terrified she doesn’t
want to sleep in her own house.” (Exh. K, p. 17). Nor has Mr. Iglesias demonstrated that the
outcome of his trial would have been different had Mr. Stuelke been deposed or testified at trial.
Counsel made a strategic decision to avoid an unfavorable witness.
10
Mr. Iglesias has failed to demonstrate that the state court’s rejection of his claim was
contrary to, or an unreasonable application of Strickland, or an unreasonable determination of the
facts in light of the evidence adduced in state court. Ground 2 is without merit.
GROUND THREE:
Ineffective assistance of trial counsel – failure to move to suppress
pre-Miranda statement
In Ground 3, Mr. Iglesias argues that trial counsel failed to move to suppress a statement
made to police prior to being read his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
(Doc. 1). The specific statement at issue is Mr. Iglesias’s statement to the fire marshal after being
taken into custody but prior to being Mirandized that the night of the fire he was asleep and had
been in bed since 10 p.m. Mr. Iglesias argues that the conflict between his pre-Miranda statement
of his whereabouts and his alibi defense at trial (witnesses who stated Mr. Iglesias was at their
home at the time of the fire) would have been the proper basis for a motion to suppress. (Doc. 1,
pp. 12-14).
In summarily rejecting this claim on post-conviction review, the state court wrote:
Motion [sic] to suppress is filed to suppress evidence gained improperly or illegally.
In a claim for ineffective assistance of counsel based on counsel’s failure to file a
motion to suppress, a defendant must allege facts sufficient to show that counsel
had a valid basis for filing a motion to suppress and that there is a reasonable
probability it would have been granted.
Here, Defendant fails to cite any improper conduct by law enforcement in obtaining
evidence he seeks to suppress. Additionally, the statement made to law
enforcement prior to Miranda that was admitted at trial was not incriminating.
Therefore, trial counsel had no basis to seek suppression.
Accordingly,
Defendant’s Grounds Four and Nine are conclusively refuted by the record.
(Exh. J, pp. 197-98) (internal citations omitted). The state court’s ruling on this issue was affirmed
by the Fifth District Court of Appeal. (Exh. O).
To determine whether trial counsel was constitutionally deficient for failing to file a motion
to suppress, it is necessary to determine whether the motion had merit. Kimmelman v. Morrison,
477 U.S. 365, 375 (1986). Miranda protects a defendant’s Fifth Amendment right against self-
11
incrimination and bars the admission of incriminating statements made during a custodial
interrogation unless the proper Miranda warning was first given. First, a motion to suppress in
this case would likely have failed because Mr. Iglesias voluntarily made the pre-Miranda
statement and the statement alone was not self-incriminating. See, e.g., McGriff v. Dep’t of Corr.,
338 F.3d 1231, 1236 (11th Cir. 2003) (Miranda “is intended to operate prophylactically, to protect
a defendant from making self-incriminating statements during his arrest or interrogation that might
be used against him in the course of subsequent legal proceedings.”).
However, even assuming that trial counsel was deficient for failing to file a motion to
suppress, Mr. Iglesias cannot demonstrate that but for that failure, the jury would have rendered
a verdict of not guilty. Mr. Iglesias’s pre-Miranda statement that he had been in bed since 10 p.m.
could still have been used for impeachment purposes to impeach his testimony at trial that he
was at the Andersons until 12:30 or 1:00 a.m. In Harris v. New York, 401 U.S. 222 (1971), “the
Supreme Court held that a statement obtained in violation of Miranda could be used to impeach
the testimony of a criminal defendant, so long as the statement was not involuntary.” Elliot v.
Sec’y, Fla. Dep’t of Corr., 483 Fed. Appx. 565, 567 (11th Cir. 2012) (rejecting habeas petitioner’s
argument that state court erred in allowing him to be impeached with statements that were
obtained in violation of Miranda). Mr. Iglesias cannot show prejudice where his prior inconsistent
statement, even if obtained in violation of Miranda, could have been used to impeach him. Nor
can he show prejudice where his alibi witnesses’ statements were inconsistent and there were
multiple eyewitnesses placing him at the scene of the crime.
Mr. Iglesias has failed to demonstrate that the state court’s rejection of this claim was
contrary to, or an unreasonable application of Strickland, or an unreasonable determination of the
facts in light of the evidence adduced in state court. Ground 3 is without merit.
12
GROUND FOUR:
Ineffective assistance of trial counsel – failure to conduct an adequate
pretrial investigation
In Ground 4, Mr. Iglesias argues that trial counsel Harold Silver was constitutionally
ineffective for failing to conduct an adequate pretrial investigation and should have contacted and
interviewed multiple witnesses. (Doc. 1). Respondents contend that this claim is unexhausted
and procedurally defaulted. (Doc. 8).
Mr. Iglesias raised this claim in his Rule 3.850 motion. However, in his brief on appeal
from the denial of his Rule 3.850 motion, Mr. Iglesias only briefed Grounds 1, 2, and 9 of his Rule
3.850 motion. Mr. Iglesias wrote in his brief that he “is appealing all grounds of denial but will only
be arguing the strongest grounds in this Brief . . .” (Exh. L, p. 2). However, pursuant to Rule
9.141(b)(3) of the Florida Rules of Appellate Procedure, failure to fully brief and argue points on
appeal after receiving an evidentiary hearing in connection with a Rule 3.850 motion constitutes
a waiver of those claims. See, e.g., Leonard v. Wainwright, 601 F. 2d 807, 808 (5th Cir. 1979)
(Florida prisoner must appeal denial of Rule 3.850 relief to exhaust remedies).
Mr. Iglesias argues (Doc. 10) that his procedural default should be excused under
Martinez v. Ryan, 566 U.S. 1 (2012). However, the Court in Martinez expressly excluded error
arising from appeal in initial-review collateral proceedings from its holding:
The holding in this case does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings, second
or successive collateral proceedings, and petitions for discretionary review in a
State's appellate courts. See 501 U.S., at 754, 111 S.Ct. 2546; Carrier, 477 U.S.,
at 488, 106 S.Ct. 2639. It does not extend to attorney errors in any proceeding
beyond the first occasion the State allows a prisoner to raise a claim of ineffective
assistance at trial, even though that initial-review collateral proceeding may be
deficient for other reasons.
Martinez, 566 U.S. at 16.
Nor has Mr. Iglesias shown that he should be able to obtain review of his procedurally
defaulted claim by showing cause and prejudice or that a fundamental miscarriage of justice
would occur if his claim were not considered. See Coleman v. Thompson, 501 U.S. 722, 750
13
(1991) (exception from procedural default bar exists where defendant can show cause for the
default and prejudice from a violation of federal law); Schlup v. Delo, 513 U.S. 298, 323-27 (1995)
(clarifying standard for the fundamental miscarriage of justice exception). Because Ground 4 of
the petition is procedurally defaulted, it is precluded from federal review.
CONCLUSION
For the reasons stated herein, the Petition (Doc. 1) is DENIED with prejudice. The Clerk
is directed to enter judgment accordingly.
Any of Mr. Iglesias’s allegations not specifically
addressed herein have been found to be without merit. The Clerk is directed to terminate any
pending motions and close the file.
Mr. Iglesias is not entitled to a Certificate of Appealability (COA). He does not have the
absolute right to appeal. 28 U.S.C. § 2253(c)(1). A COA must first issue. Id. To merit a COA, he
must show that reasonable jurists would find debatable both (1) the merits of an underlying
claim, and (2) the procedural issues that he seeks to raise. See 28 U.S.C. § 2254(c)(2); Slack v.
McDaniel, 529 U.S. 473, 478 (2000). Mr. Iglesias has not made the requisite showing. Finally,
because he is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED at Ocala, Florida, on December 3rd, 2019.
Copies to:
Counsel of Record
Gabriel Iglesias
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?