Cutaia v. Attorney General, State of Florida et al
Filing
42
ORDER denying 1 Petition for writ of habeas corpus filed by Thomas Joseph Cutaia ; case dismissed with prejudice; certificate of appealability denied; clerk is directed to enter judgment and close the case. Signed by Judge Gregory A. Presnell on 9/19/2011. (TKW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
THOMAS JOSEPH CUTAIA,
Petitioner,
v.
CASE NO. 6:10-cv-1170-Orl-31GJK
SECRETARY, DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.
_________________________________/
ORDER
This case is before the Court on a petition for habeas corpus relief filed pursuant to 28 U.S.C.
§ 2254 by Thomas Joseph Cutaia (“Petitioner”) (Doc. 1, filed August 5, 2010). Upon consideration
of the petition, the Court ordered Respondents to show cause why the relief sought in the petition
should not be granted (Doc. 10). Thereafter, Respondents filed a response in compliance with this
Court’s instructions and with the Rules Governing Section 2254 Cases in the United States District
Courts (Doc. 12). Petitioner filed a reply to the response (Doc. 16).
Petitioner raises eleven claims in his petition. He asserts that: (1) no probable cause existed
for the victim’s initial approach towards Petitioner; (2) self-defense justified his actions; (3) his
convictions for both carrying a concealed weapon and possession of a firearm by a convicted felon
violated double jeopardy; (4) the inclusion of lesser included offenses in the jury instructions
violated double jeopardy; (5) the trial court refused to subpoena his defense witnesses; (6) the trial
court unconstitutionally limited his cross examination of a prosecution witness; (7) he was not formally
indicted by a grand jury for the offenses charged in the information; (8) Due Process was violated by
the use of a six person jury at his trial; (9) his Fifth, Sixth, Eighth, and Fourteenth Amendment rights
were violated by the use of Florida's 10-20-Life sentencing statute; (10) his rights were violated by
state law discovery violations; and (11) a conspiracy has rendered the state process ineffective to
protect his rights (Docs. 1, 2). Upon due consideration of the petition, the response, the reply, and the
state-court record, this Court concludes, for the reasons set forth below, that the petition should be
denied.
I.
Procedural History
On April 23, 2007, Petitioner was charged by second amended information with attempted
second degree murder (count one), unlawful possession of a firearm by a convicted felon (count two),
and carrying a concealed firearm (count three) (App. A at 215).1 Petitioner was initially found
incompetent to stand trial. Id. at 57. After competency was restored, Petitioner chose to represent
himself. Id. at 91. Count two was severed from the other charges and separate trials were held. Id. at
221.
After his first jury trial on the charges of attempted second degree murder and carrying a
concealed firearm, Petitioner was found guilty of the lesser included offense of aggravated battery and
guilty as charged of carrying a concealed firearm (App. A at 377-79). At his second jury trial for
unlawful possession of a firearm by a convicted felon, Petitioner was found guilty as charged. Id. at
422. Petitioner was sentenced to twenty years in prison on count one, five years in prison on count two,
and fifteen years in prison on count three. All sentences were to run consecutively. Id. at 380-87, 43136.
On April 7, 2009, Petitioner's convictions and sentences were per curiam affirmed by the
1
Unless otherwise noted, citations to the record refer to the appendices filed with
Respondents' response to the petition on December 30, 2010 (Docs. 14, 15).
2
Florida Fifth District Court of Appeal (App. G at 137); Cutaia v. State, 17 So. 3d 1239 (Fla. 5th DCA
2009). Petitioner sought review of the decision with the Florida Supreme Court which dismissed the
case for lack of jurisdiction. See Cutaia v. State, 13 So. 3d 468 (Fla. 2009). Petitioner also sought
review of his conviction and sentences with the United States Supreme Court and was denied on
November 2, 2009 (App. K at 1).
Petitioner filed his first petition for writ of habeas corpus with this Court on May 28, 2008
(App. I at 3; Case no. 6:08-cv-579-19DAB). The petition was dismissed without prejudice because
Petitioner's direct appeal was pending in the state court (App. I at 24). The instant petition was timely
filed on July 30, 2010 (Doc. 1).
II.
Governing Legal Principles
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry
v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003).
The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate
v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to "prevent federal habeas ‘retrials’ and to
ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535
U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the
federal habeas court’s evaluation of state-court rulings is highly deferential and that state-court
decisions must be given the benefit of the doubt).
A. Standard of Review Under the AEDPA
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the
merits in state court unless the adjudication of the claim:
3
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of
the United States Supreme Court "as of the time of the relevant state-court decision." Williams v.
Taylor, 529 U.S. 362, 412 (2000).
The United States Supreme Court has clarified the meaning of "contrary to" and "unreasonable
application" as used in 28 U.S.C. § 2254(d)(1):
[Section] 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have
independent meanings. A federal habeas court may issue the writ under the
"contrary to" clause if the state court applies a rule different from the governing law
set forth in our cases, or if it decides a case differently than we have done on a set
of materially indistinguishable facts. The court may grant relief under the
"unreasonable application" clause if the state court correctly identifies the governing
legal principle from our decisions but unreasonably applies it to the facts of the
particular case. The focus of the latter inquiry is on whether the state court's
application of clearly established federal law is objectively unreasonable, and we
stressed in Williams that an unreasonable application is different from an incorrect
one.
Bell v. Cone, 535 U.S. 685, 694 (2002).
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court’s
decision "was based on an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding." A determination of a factual issue made by a state court, however, shall
be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established
4
a two-part test to determine whether a convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance: (1) whether counsel’s performance was deficient and "fell
below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced
the defense. Id. at 687-88. In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States
Supreme Court clarified that the prejudice prong of the test does not focus solely on mere outcome
determination; rather, to establish prejudice, a criminal defendant must show that counsel's deficient
representation rendered the result of the trial fundamentally unfair or unreliable.
A court must adhere to a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance. Id. at 689-90. Thus, "a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir.
1989). As observed by the Eleventh Circuit Court of Appeals:
The test [for ineffective assistance of counsel] has nothing to do with what the best
lawyers would have done. Nor is the test even what most good lawyers would have
done. We ask only whether some reasonable lawyer at the trial could have acted, in the
circumstances, as defense counsel acted at trial. Courts also should at the start presume
effectiveness and should always avoid second guessing with the benefit of hindsight.
Strickland encourages reviewing courts to allow lawyers broad discretion to represent
their clients by pursuing their own strategy. We are not interested in grading lawyers’
performances; we are interested in whether the adversarial process at trial, in fact,
worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and
presumptions, “the cases in which habeas petitioners can properly prevail on the ground of ineffective
assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
C. Exhaustion and Procedural Default
The AEDPA precludes federal courts, absent exceptional circumstances, from granting habeas
5
relief unless a petitioner has exhausted all means of available relief under state law. Specifically, the
AEDPA provides, in pertinent part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that–
(A)
the applicant has exhausted the remedies available in the courts of
the State; or
(B)
(I)
there is an absence of available State corrective process; or
(ii)
circumstances exist that render such process ineffective to
protect the rights of the applicant.
28 U.S.C. § 2254(b)(1). Exhaustion of state remedies requires that the state prisoner “fairly presen[t]
federal claims to the state courts in order to give the State the opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing
Picard v. Conner, 404 U.S. 270, 275-76 (1971)). The petitioner must apprise the state court of the
federal constitutional issue, not just the underlying facts of the claim or a similar state law claim.
Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998). The United States Supreme Court has explained
that:
[c]omity concerns dictate that the requirement of exhaustion is not satisfied by the mere
statement of a federal claim in state court. Just as the State must afford the petitioner
a full and fair hearing on his federal claim, so must the petitioner afford the State a full
and fair opportunity to address and resolve the claims on the merits.
Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992).
In addition, a federal habeas court is precluded from considering claims that are not exhausted
but would clearly be barred if returned to state court. Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991) (stating that if a petitioner has failed to exhaust state remedies and the state court to which the
6
petitioner would be required to present his claims in order to meet the exhaustion requirement would
now find the claims procedurally barred, there is a procedural default for federal habeas purposes
regardless of the decision of the last state court to which the petitioner actually presented his claims).
Finally, a federal court must dismiss those claims or portions of claims that have been denied
on adequate and independent procedural grounds under state law. Coleman, 501 U.S. at 750. If a
petitioner attempts to raise a claim in a manner not permitted by state procedural rules, he is barred
from pursuing the same claim in federal court. Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir. 1994).
Procedural default will be excused only in two narrow circumstances. First, a petitioner may
obtain federal review of a procedurally defaulted claim if he can show both "cause" for the default and
actual "prejudice" resulting from the default. "To establish cause for procedural default, a petitioner
must demonstrate that some objective factor external to the defense impeded the effort to raise the
claim properly in the state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). To establish
prejudice, a petitioner must show that there is at least a reasonable probability that the result of the
proceeding would have been different. Henderson, 353 F.3d at 892.
The second exception, known as the "fundamental miscarriage of justice," only occurs in an
extraordinary case, where a "constitutional violation has probably resulted in the conviction of one who
is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). Actual innocence means factual
innocence, not legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). 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. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, "[t]o
be credible, a claim of actual innocence must be based on [new] reliable evidence not presented at
trial." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324).
7
III.
Analysis
The basic uncontested facts adduced at trial are as follows: On the night of November 1,
2005, police officer Michael Gavigan ("Officer Gavigan") approached Petitioner while he was
walking on the street. Petitioner fled from Officer Gavigan who pursued him on foot. As Officer
Gavigan rounded a corner of a condominium building, Petitioner began firing his weapon and
Officer Gavigan was struck by one bullet. Most of the bullet’s impact was absorbed by Officer
Gavigan's bullet-proof vest. Petitioner was later located hiding under a beach walkway and was
observed handling the firearm that had been used in the shooting.
A.
Claim One
Petitioner alleges that Officer Gavigan did not have probable cause to approach him on the
night of the incident as there was no evidence that a crime had been committed prior to the
approach (Doc. 2 at 45). Specifically, Petitioner alleges that, contrary to Officer Gavigan’s
testimony at trial, the officer approached him with his gun already drawn and asked to speak with
him even though Petitioner was doing nothing illegal at the time. Id. at 43, 45. Petitioner argues
that he was justified in shooting at Officer Gavigan in order "to secure his safe retreat from
imminent danger." Id. at 49. Petitioner raised this issue on direct appeal and the Fifth District Court
of Appeal per curiam affirmed (App. G at 30, 137).
As an initial matter, Petitioner’s claim on this issue is not clear. The exclusionary principle
of Wong Sun v. United States, 371 U.S. 471 (1963), cited by Petitioner, limits the proof the
Government may offer against the accused at trial and precludes evidence secured by official
lawlessness. However, Petitioner does not explain what evidence should have been excluded at
8
trial. Rather, Petitioner argues that Officer Gavigan lacked reasonable suspicion for his initial
approach towards Petitioner and as such, created a lethal and dangerous situation which put him
(Petitioner) in danger (Doc. 2 at 46).2 Even if Officer Gavigan acted improperly by initially
approaching Petitioner, a finding not made by this Court, such impropriety is irrelevant in assessing
the legality of Petitioner’s arrest for his subsequent act of shooting at Officer Gavigan. The
Eleventh Circuit has been clear that a defendant is not immunized from arrest for new crimes, even
if "the chain of causation is started by the police misconduct." United States v. Bailey, 691 F.2d
1009, 1017 (11th Cir. 1982)(concluding that, even if a drug enforcement agent's initial arrest of the
defendant was illegal, the defendant's subsequent flight and assault of the agent constituted
probable cause to re-arrest the defendant).3
Petitioner was not arrested for his allegedly suspicious behavior of walking along the street.
Petitioner was arrested for shooting Officer Gavigan. Petitioner does not allege, and the record
does not suggest, that his arrest for shooting the officer was constitutionally defective. See United
States v. Smith, 318 Fed. Appx. 780, 792 (11th Cir. 2009) (police officer had probable cause to
arrest defendant after he tried to flee from the officer and then attacked him). Accordingly,
Petitioner has not stated a cognizable Fourth Amendment claim, and the state court’s affirmance
of this claim on direct appeal was neither contrary to clearly established federal law nor based on
an unreasonable determination of the facts in light of the evidence presented in the state court
2
Any argument that Petitioner acted in self defense is addressed in claim two.
3
This is an unpublished decision and is persuasive, but not binding, authority pursuant to
Eleventh Circuit Rule 36–2. The Court notes this same rule applies to other Fed. Appx. cases cited
herein.
9
proceeding. Claim one does not warrant habeas relief. 28 U.S.C. § 2254(d).
B.
Claim Two
Although labeled "self defense," claim two is a collection of arguments and disagreements
with the outcome of Petitioner’s trials. Specifically, Petitioner argues that: (1) the trial court erred
by refusing to allow a witness’ prior testimony to be used at trial; (2) Officer Gavigan committed
perjury at trial; (3) he was justified in shooting Officer Gavigan under the standards of John Bad
Elk v. United States, 177 U.S. 529 (1900); and (4) the state failed to present sufficient evidence to
rebut his claim of self defense (Doc. 2 at 52-55). Petitioner raised these issues on direct appeal and
the Fifth District Court of Appeal per curiam affirmed (App. G at 15-22, 137).
1.
The trial court erred by refusing to admit prior testimony at trial
Petitioner alleges that on the night of the shooting, witness Parks Hempel ("Hempel") heard
shots fired and heard shell casings hit the ground, but did not hear Officer Gavigan speak to
Petitioner prior to the shooting (Doc. 2 at 52). During trial, Petitioner sought to present Hempel’s
testimony via an audio recording from a prior hearing (App. E at 191). Petitioner admitted that he
had not served a subpoena on Hempel to appear at trial because, as a pro se defendant, it was
difficult to do so. Id. at 189. The court refused to play the recorded testimony because Hempel
should have been subpoenaed and brought to trial. Id. at 191. In his state appellate brief, Petitioner
argued that the trial court’s refusal to play the audio from the hearing was "a very serious error and
judicial abuse, as the testimony was relevant to prove or disprove a material fact (Gavigan’s
testimony)." (App. G at 26). However, Petitioner presented this claim on direct appeal based on
10
state law grounds only and failed to allege the violation of a federal constitutional right.4
Accordingly, this claim is procedurally unexhausted and this Court is precluded from addressing
it on the merits.
Before a federal court may grant habeas relief, the habeas petitioner must exhaust every
available state court remedy for challenging his conviction, either on direct appeal or in a state
post-conviction motion. 28 U.S.C. § 2254(b); Henderson, 353 F.3d at 891 (“A state prisoner
seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he
first properly raised the issue in the state courts.”). The prohibition against raising an unexhausted
claim in federal court extends to both the legal theory of relief and to the specific factual contention
that supports relief. Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir.2004).
Petitioner's exclusively state law arguments presented on direct appeal leaves the exhaustion
requirement unsatisfied. Duncan, 513 U.S. at 365.
Moreover, because he could have raised a federal constitutional claim on direct appeal,
Petitioner is precluded from doing so collaterally in a Rule 3.850 motion. See e.g., Childers v. State,
782 So.2d 946, 947 (Fla. 4th DCA 2001) ( where an issue could have been raised on direct appeal,
it is not the proper subject for a Rule 3.850 motion) . The state procedural rules also preclude a
second direct appeal. Consequently, in addition to being unexhausted, this ground is procedurally
defaulted. Petitioner has not alleged that some external factor impeded his efforts to properly raise
4
Petitioner relied on Florida Statute § 90.804(2)(A) (allowing the introduction of former
testimony as a hearsay exception provided that the declarant is unavailable as a witness) and two
Florida Supreme Court cases in his argument. Petitioner did cite in his state court appellate brief,
without explanation or pinpoint reference, United States v. Young, 470 U.S. 1 (1985). A review of
this case does not indicate how Young is pertinent to the issue at hand.
11
this claim on direct appeal. Wright, 169 F.3d at 703. Nor has Petitioner presented new, reliable
evidence not presented at trial that would support an actual innocence claim. Shlep v. Delo, 513
U.S. 289, 324 (1995).
Because this ground remains unexhausted, it precludes federal review and this claim is
denied pursuant to 28 U.S.C. § 2254.
2.
Officer Gavigan’s testimony at trial
Petitioner alleges that Officer Gavigan’s testimony at trial must have been perjured because
the version of events presented at trial could not have happened as he testified (Doc. 2 at 53).
Petitioner also alleges that Officer Gavigan’s wounds were superficial and that he was essentially
unharmed. Id. at 58. Petitioner presented this issue in his state appellate brief on state law grounds
only and failed to specifically allege the violation of a federal constitutional right.
Assuming, arguendo, that Petitioner’s assertions regarding Officer Gavigan’s alleged
perjury is a claim that the evidence presented at trial was insufficient to find him guilty of
aggravated battery (a due process violation under the Fourteenth Amendment), Petitioner is not
entitled to relief. On federal habeas review, the question for this Court concerning the sufficiency of
evidence in a state court proceeding is 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) (emphasis in original).
Considerable evidence, much of it uncontested, was presented as to Petitioner’s guilt.
Officer Gavigan testified on direct examination to the following. On the night of November
1, 2005, while on routine patrol in his car, he observed Petitioner walking down the street carrying
a bag (App. E at 12). Although it was night and it was raining, Petitioner was wearing sunglasses.
12
Id. Officer Gavigan saw Petitioner again about twenty to thirty minutes later only a short distance
from where he had initially seen him. Id. at 44. Officer Gavigan pulled his car aside and observed
Petitioner, who had been walking north, turn and begin walking south. Id. at 45. He decided to
speak with Petitioner and left his car to approach him. When he was approximately twenty feet
from Petitioner, he identified himself as a police officer and asked to speak with him. Id. at 46.
Petitioner did not answer and proceeded to cross the street, leaving Officer Gavigan on the sidewalk
where he had initially attempted to make contact. Id. Petitioner proceeded part-way across the
street and turned to face Officer Gavigan who thought that Petitioner had decided to speak with
him. Id. at 46-47. He then observed Petitioner making furtive movements and dig in his jacket
pocket and he could see an object in Petitioner's pocket. Id. at 47. Officer Gavigan re-identified
himself as a police officer and ordered Petitioner to remove his hand from his jacket. Petitioner
turned and ran from Officer Gavigan who pursued him on foot. When the officer rounded a corner
he observed Petitioner with a gun in his hand who began firing at him. Id. at 50. As Officer
Gavigan sought cover behind a concrete wall, he could hear the bullets coming in his vicinity and
felt himself get hit in the side. Id. at 51. Officer Gavigan was wearing a bullet resistant vest which
absorbed most of the shock from the bullet's impact. Id. at 65. However, Officer Gavin suffered
a soft tissue injury and a herniated disk as a result of the shooting. Id.
Petitioner cross examined Officer Gavigan and attempted to cast doubt on his version of
events by showing a surveillance video from a nearby business that had a timer on it (App. E at 68121). The sound of shots being fired, but no voices, could be heard on the video. Petitioner also
examined Officer Gavigan about his testimony that Petitioner had been stationary when he fired
the shots at the officer and pointed out that the shell casings were not found where they would be
13
expected if the shots had been fired from a stationary position. Id. at 100-01. Petitioner questioned
Officer Gavigan extensively about his medical records, presumably to cast doubt on the extent of
his injuries. Petitioner also cross examined the state’s other witnesses and established that the shell
casings recovered at the scene were in good condition. Id. at 130.
Petitioner testified that he was unaware that Officer Gavigan was a police officer when he
initially approached him; that the officer was wearing a rain slicker that obscured his uniform; and
that the officer had drawn his gun prior to Petitioner’s attempt to flee (App. E at 311). Petitioner
ran from Officer Gavigan because he did not know what was going on and he wanted to get away.
Id. at 312. Petitioner thought that the officer was going to shoot him in the back, so in an effort to
force him to retreat, Petitioner shot to the side of Officer Gavigan, while continuing to run. Id. at
314-315. Petitioner also testified that he was afraid of certain criminals from out of state, including
his former in-laws and that these criminals killed a relative of his. Id. at 317-321. During closing
argument, Petitioner explained in great detail the points on which Officer Gavigan’s and
Petitioner’s versions of events differed and argued Officer Gavigan had not identified himself as
a policeman. Id. at 396 -412. Petitioner argued that Gavigan had created a dangerous situation and
that he (Petitioner) was not at fault in the shooting. Id. at 396. He argued that Officer Gavigan had
approached him in a menacing manner which justified his actions. Id. at 402-403.
A jury has the right to believe or disbelieve any witness. See United States v. Hewitt, 663 F.2d
1381, 86 (11th Cir. 1981) (unless testimony was incredible as a matter of law, a jury’s credibility
determination must be accepted by reviewing court). The jury was entitled to find the state's case
convincing and Officer Gavigan’s testimony credible. The jury was also entitled to disbelieve
Petitioner’s testimony and to consider his statements as untruthful or even as substantive evidence of
14
his guilt. United States v. Brown, 53 F.3d 312, 14 (11th Cir. 1995) ("a statement by a defendant, if
disbelieved by the jury, may be considered as substantive evidence of the defendant's guilt") (emphasis
in original); Atkins v. Singletary, 965 F.2d 952, 961 n.7 (11th Cir. 1992) (when a defendant chooses
to testify, he runs the risk that if disbelieved "the jury might conclude the opposite of his testimony is
true."). Although Petitioner disagrees with the jury’s decision, this Court cannot conclude that no
rational trier of fact, after considering the testimony and evidence presented at trial, could have found
the essential elements of aggravated battery beyond a reasonable doubt. Jackson, 443 U.S. at 319.
Accordingly, to the extent that Petitioner’s claim is one of insufficiency of the evidence, it does not
warrant habeas relief. Moreover, any other claim regarding Officer Gavigan’s testimony was presented
to the state appellate court in terms of state law only. As such, federal review is precluded. See
discussion, supra claim two; 28 U.S.C. § 2254(b).
3.
Justification
Petitioner asserts that the Supreme Court precedent set in John Bad Elk v. United States,
177 U.S. 529 (1900)5 provided a constitutional right to use reasonable force to resist an unlawful
arrest (Doc. 2 at 54). Petitioner raised this issue in his state appellate brief (App. G at 28) and
Florida's Fifth District Court of Appeal per curiam affirmed.
Petitioner’s reliance on John Bad Elk is misplaced. Even if Officer Gavigan’s request to
speak with Petitioner could properly be construed as an arrest, a finding not made by this Court,
the common law doctrine that a person can lawfully use all force necessary to resist an unlawful
arrest has been superceded by Florida Statute § 776.051(1) ("A person is not justified in the use of
5
In John Bad Elk, the United States Supreme Court applied the common law doctrine that
a person could lawfully use all force necessary to resist an unlawful arrest to overturn a petitioner’s
conviction for murder.
15
force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is
engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and
he or she is known, or reasonably appears, to be a law enforcement officer."); See also United
States v. Danehy, 680 F.2d 1311, 1316 (11th Cir.1982) (“[T]he common law right to resist an arrest
that is not based upon probable cause, suited though it may have been to a past era, has no
significant role to play in our own society where ready access to the courts is available to redress
such police misconduct.” (citations omitted)). Accordingly, Florida law forecloses the defense of
justifiable use of force by a defendant who resists an arrest by a law enforcement officer, regardless
of the legality of the arrest and Petitioner’s reliance on John Bad Elk is unavailing. The Fifth
District Court of Appeal’s rejection of this claim was neither contrary to clearly established federal
law nor based on an unreasonable determination of the facts in light of the evidence presented in
the state court proceeding. This claim does not warrant habeas relief. 28 U.S.C. § 2254(d).
4.
Self Defense
Petitioner argues that the state failed to prove beyond a reasonable doubt that Petitioner did
not act in self-defense when he shot at Officer Gavigan (Doc. 2 at 59). Petitioner raised this issue
in his state appellate brief, but only as a state-law issue. Accordingly, to the extent that Petitioner
argues that the Fifth District Court of Appeal misapplied Florida law in its per curiam affirmance
of his conviction, this court cannot review it. A state’s interpretation of its own laws or rules provides
no basis for federal habeas corpus relief, since no question of a constitutional nature is involved. See
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of
state law ....”); Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the
basis of a perceived error of state law.”); Hendrix v. Secretary, Fla. Dep't of Corr., 527 F.3d 1149,
16
1153 (11th Cir.2008) ( a violation of state law is not a ground for federal habeas relief).
Even if construed as a sufficiency of the evidence claim, Petitioner would need to
demonstrate that no rational trier of fact could have determined that Petitioner did not act in selfdefense. Jackson, 443 U.S. at 319. Petitioner simply cannot meet this burden. After the case in
chief, Petitioner asked for, and was permitted to have, a self defense instruction read to the jury:
The use of deadly force is justifiable only if the defendant reasonably believes
that the force is necessary to prevent imminent death or great bodily harm to
himself while resisting another’s attempt to murder him.
A person is justified in using deadly force if you reasonably believe that such
force is necessary to prevent imminent death or great bodily harm to himself or
another.
However, the use of deadly force is not justifiable if you find that Thomas
Joseph Cutaia initially provoked the use of force against himself unless the force
asserted toward the defendant was so great that he reasonably believed that he
was in imminent danger of death or great bodily harm, and had exhausted every
reasonable means to escape the danger other than using deadly force on Michael
Gavigan.
A person is not justified in using force to resist an arrest by a law enforcement
officer who is known to be or reasonably appears to be a law enforcement
officer. However, if an officer uses excessive force to make an arrest, then a
person is justified in the use of reasonable force to defend himself, but only to
the extent he reasonably believes such force is necessary.
In deciding whether defendant was justified in the use of deadly force, you must
judge him by the circumstances by which he was surrounded at the time the force
was used. The danger facing the defendant need not have been actual; however,
to justify the use of deadly force the appearance of danger must have been so real
that a reasonably cautious and prudent person under the same circumstances
would have believed that the danger could be avoided only through the use of
deadly force, or through the use of that force. Based upon appearances, the
defendant must have actually believed that the danger was real.
If the defendant was not engaged in an unlawful activity and was attacked at any
place where he had a right to be, he had no duty to retreat and had the right to
stand his ground and meet force with force, including deadly force, if he
17
reasonably believed that it was necessary to do so to prevent death or great
bodily harm to himself.
In considering the issue of self-defense, you may take into account the relative
physical abilities and capacities of the defendant and Michael Gavigan.
If in your consideration of the issue of self-defense you have a reasonable doubt
on the question of whether the defendant was justified using in the use of deadly
force, you should find the defendant not guilty. However, if from the evidence
you are convinced that the defendant was not justified in the use of deadly force,
you should find him guilty if all of the elements of the charge have been proved.
(App. G at 449-452). Clearly, the jury was well instructed on self-defense and on the state’s burden
to negate a self-defense claim. The jury heard testimony from both Petitioner and Officer Gavigan.
Although Petitioner testified that he acted in self-defense, a rational trier of fact could have
discredited Petitioner’s testimony and chosen to believe Officer Gavigan. A jury has the right to
believe or disbelieve any witness, even if Petitioner disagrees with the jury’s decision. See Hewitt, 663
F.2d at 1386. The appellate court’s rejection of this claim was neither contrary to clearly
established federal law nor based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. Accordingly, this claim does not merit habeas
relief. 28 U.S.C. § 2254(d).
C. Claim Three
Petitioner alleges that his convictions for both carrying a concealed weapon and for
possession of a firearm by a convicted felon violate double jeopardy principals under the Fifth
Amendment (Doc. 2 at 68). Specifically, Petitioner argues that the two convictions "are greater
and lessor included offenses of each other" and that the Fifth Amendment forbids successive
18
prosecution and cumulative punishment for the greater and lessor offenses.6 Id. at 70. Petitioner
raised this issue on direct appeal and the Fifth District Court of Appeal per curiam affirmed (App.
G at 41, 137).
The Double Jeopardy Clause of the Constitution protects a defendant from multiple
punishments for the same offense. Missouri v. Hunter, 459 U.S. 359, 365-66 (1983). Although the
Double Jeopardy Clause does not flatly prohibit the legislature from punishing the same conduct
under two different statutes, federal courts assume that the legislature ordinarily does not intend to
do so " ‘in the absence of a clear indication of contrary legislative intent.’ " Hunter, 459 U.S. at 366
(quoting Whalen v. United States, 445 U.S. 684, 691-92(1980)). The Eleventh Circuit summarized
its interpretation of Supreme Court law regarding double jeopardy as follows:
To summarize, our review of a potential double jeopardy violation arising from a
single prosecution is a two-stage analysis. First, we ascertain whether there exists a
clear legislative intent to impose cumulative punishments, under separate statutory
provisions, for the same conduct. If a clear indication of such intent exists, our
inquiry is at an end and the double jeopardy bar does not apply. If there is no clear
indication of legislative intent to impose cumulative punishments, we examine the
relevant statutes under the same-elements test of Blockburger. Under that test, if
each statutory offense requires proof of an element not contained in the other, the
offenses are not the “same” and double jeopardy is no bar to cumulative punishment.
Williams v. Singletary, 78 F.3d 1510, 1513 (11th Cir.1996).
The analysis of legislative intent begins by examining the language of the criminal statutes
6
Prior to trial, Petitioner moved the court to sever the count of possession of a firearm by
a convicted felon from the counts of attempted second degree murder and of carrying a
concealed weapon (App. A at 211). In the motion, Petitioner argued that in order to prove the
count of possession of a firearm by a convicted felon, the state would require evidence of a prior
conviction which would deprive him of a fair trial. Id. at 211. The motion was granted and, after
his trial for aggravated battery and carrying a concealed weapon, Petitioner was separately tried
and found guilty on the charge of possession of a firearm by a convicted felon ( App. A at 221;
App. F at 975-1256).
19
themselves. At the time of Petitioner's offense, the Florida statute concerning carrying a concealed
weapon provided that "[a] person who carries a concealed firearm on or about his or her person
commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s.
775.084." Fla. Stat. § 790.01 (2006). The statute concerning possession of a firearm by a convicted
felon provided that "[i]t is unlawful for any person to have in his or her care, custody, possession,
or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon.
. . if that person has been found guilty of an offense that is a felony in another state, territory, or
country and which was punishable by imprisonment for a term exceeding 1 year." Fla. Stat. §
790.23(1)(e) (2006). The language of these statutes provides no answer to the question of whether
the Florida legislature intended to punish carrying a concealed firearm and possession of a firearm
by a felon as separate offenses. Therefore, the Court will look at the same-elements test set forth
in Blockburger v. United States, 284 U.S. 299 (1932).
In Blockburger, the Supreme Court held that "the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact which the
other does not." 284 U.S. at 304. Here, each offense requires proof of an element that the other
does not. An element of possession of a firearm by a convicted felon, but not carrying a concealed
firearm, is that Petitioner has been convicted of a felony. An element of carrying a concealed
firearm, but not possession of a firearm by a convicted felon, is that the firearm carried by Petitioner
was concealed. Accordingly, the charges do not become the same offense under the Blockburger
test, and the Double Jeopardy Clause was not violated. See State v. Maxwell, 682 So.2d 83, 84
(Fla.1996) (multiple convictions for carrying a concealed firearm, possession of a short-barreled
shotgun, and possession of a firearm by a convicted felon do not violate the constitutional
20
protection against double jeopardy). The appellate court’s rejection of this claim was neither
contrary to clearly established federal law nor based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding. Accordingly, claim three does not
merit habeas relief. 28 U.S.C. § 2254(d).
D. Claim Four
Petitioner argues that the use of the lesser included offense jury instructions violated double
jeopardy principals because "the sufficiency and adequacy of the evidence does not support [an
attempted murder charge]." (Doc. 2 at 74). Specifically, Petitioner argues that, because he was
acquitted of attempted second degree murder, his conviction on the lessor included charge of
aggravated battery constituted a form of double jeopardy because "failure to convict on the ‘greater’
bars prosecution on the lessor-included-offense." Id. at 75. Petitioner raised this issue in his statecourt appellate brief and the Fifth District Court of Appeal per curiam affirmed (App. G at 44).
Petitioner’s claim lacks support in law. Where a defendant has been charged with a crime
that is a lesser-included offense of another charged crime, the Double Jeopardy Clause protects that
defendant from being convicted of both crimes. See Rutledge v. United States, 517 U.S. 292, 306
(1996). In addition, the Double Jeopardy Clause protects against a second prosecution for the same
offense after an acquittal or conviction, as well as against multiple punishments for the same
offense. North Carolina v. Pearce, 395 U.S. 711,717 (1969), overruled on other grounds by
Alabama v. Smith, 490 U.S. 794, 800-801 (1989). Petitioner appears to rely upon Supreme Court
precedent which bars a second trial on a lesser included after an acquittal on a greater crime. Monge
v. California, 524 U.S. 721, 729 (1998). However, in the instant case, Petitioner was not convicted
of both attempted second degree murder and aggravated battery. Neither was Petitioner tried
21
separately for aggravated battery after being acquitted of attempted second degree murder. Rather,
the jury simply returned a verdict for aggravated battery which is a lesser included offense of
attempted second degree murder (App. A at 377-379). Petitioner does not demonstrate that the state
court's decision rejecting this claim was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States.
Accordingly, claim four does not warrant habeas relief. 28 U.S.C. § 2254(d)(1).
E. Claim Five
Petitioner alleges that he was denied the right to due process because the trial court refused
to subpoena his defense witnesses (Doc. 2 at 82). Specifically, Petitioner alleges that he would
have called Parks Temple, Erica Henderson, Timothy Mell, and Dan Redcliffe at trial; that these
witnesses were crucial to his defense; and that he subpoenaed all of the witnesses by filing the
subpoenas with the clerk. Id. Petitioner insists that Florida Rule of Criminal Procedure 3.361
demanded that the clerk of court issue subpoenas and that the "State outright refused to process
[Petitioner’s] witness subpoenas on numerous occasions, several hearings, and both trials." Id. at
83. Petitioner raised this issue in his state court appellate brief and the Fifth District Court of
Appeal per curiam affirmed (App. G at 49-51, 137).
The issue of Petitioner’s failure to serve subpoenas on his witnesses was raised several times
before trial and at trial and it was explained to Petitioner that he needed to have his witness
subpoenas served by the sheriff (App. C at 631, App. E at 189). Petitioner argued to the trial court
that because he was pro se, filing with the court was as far as he could go and that by doing so, he
did indeed subpoena his witnesses (App. E at 190).
While Florida Rule of Criminal Procedure 3.361(a) allows the clerk of the court or any
22
attorney of record in an action to issue a subpoena, it does not grant authority for the clerk to serve
the subpoena on a witness. Rather, the service of process of witness subpoenas is governed by
Florida Statute § 48.021(1) which states that "all process shall be served by the sheriff of the county
where the person to be served is found. . ." (2007). Accordingly, Petitioner’s reliance on Florida
Rule of Criminal Procedure 3.361 is misplaced.
Petitioner has pointed to no clearly established federal law, as determined by the Supreme
Court of the United States, indicating that a pro se defendant should be excused from compliance
with a state’s procedural rules regarding service of process. On the contrary, the Supreme Court
has clearly stated that:
The right of self-representation is not a license to abuse the dignity of the
courtroom. Neither is it a license not to comply with relevant rules of procedural
and substantive law. Thus, whatever else may or may not be open to him on appeal,
a defendant who elects to represent himself cannot thereafter complain that the quality
of his own defense amounted to a denial of ‘effective assistance of counsel.’
Faretta v. California, 422 U.S. 806, 834 (1975) (emphasis added). The trial court explained to
Petitioner that sending his subpoenas to the clerk of the court was insufficient; he needed to serve his
subpoenas on the witnesses. Petitioner’s refusal to do so does not warrant habeas relief. Accordingly,
the appellate court’s rejection of this claim was neither contrary to clearly established federal law
nor based on an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. This claim is denied pursuant to 28 U.S.C. § 2254(d).
F. Claim Six
Petitioner alleges that the trial court unconstitutionally limited his cross examination of Officer
Gavigan in regards to an alleged consensual encounter between the officer and Petitioner (Doc. 2 at
23
85). Petitioner appears to specifically take issue with the trial court’s refusal to allow Petitioner to
question the officer regarding whether any Florida statute governed a consensual stop and whether
probable cause existed for the initial encounter between Petitioner and Officer Gavigan (App. E at 73,
App. F at 1163-64). The state appellate court rejected this claim on direct appeal (App. G at 137). After
reviewing the trial transcripts, the record does not demonstrate that the trial court impermissibly limited
Petitioner’s cross examination of Officer Gavigan.
The confrontation clause of the Sixth Amendment guarantees that every criminal defendant has
the right to confront witnesses against him. Davis v. Alaska, 415 U.S. 308, 315 (1974). The
opportunity to conduct reasonable cross-examination is of primary interest in this Sixth Amendment
right. See Crawford v. Washington, 541 U.S. 36, 41-42 (2004); U.S. v. Calle, 822 F.2d 1016, 1020
(11th Cir. 1987). However, a defendant’s right to cross-examine witnesses is not without limitation.
The United States Supreme Court has observed that “the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in whatever way,
and to whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985)
(emphasis in original). Cross-examination is constitutionally adequate as long as a defendant is
permitted to elicit sufficient information from which: (1) the jury can gauge credibility, motive, and
bias; and (2) his counsel is able to argue to the jury how the witness might have been biased. United
States v. Van Dorn, 925 F.2d 1331, 1335 (11th Cir.1991); United States v. Sellers, 906 F.2d 597, 602
(11th Cir.1990); Bundy v. Dugger, 850 F.2d 1402 (11th Cir.1988). The standard in reviewing a
limitation upon cross-examination is whether “the excluded testimony would have given the jury a
different impression of the witness' credibility.” United States v. DeParias, 805 F.2d 1447, 1452 (11th
Cir.1986).
24
In his first trial, Petitioner cross-examined Officer Gavigan regarding his reasons for wishing
to speak with him. On direct examination, the officer had noted that Petitioner had first come to his
attention because he was wearing sunglasses at night in the rain (App. E at 42). On cross-examination,
the following exchange occurred:
[PETITIONER]: . . . Suspicious – if I was wearing a funny hat, would that have been
suspicious?
[GAVIGAN]:
What do you mean by funny?
Q:
Anything out of what you might deem the realm of normal for yourself?
Anything? Anything, a banana hat, would you have stopped me to question
me?
A:
I don’t think that’s suspicious, no.
Q:
Okay. Is there any statute for a consensual stop?
[STATE]:
Objection, regarding – he’s asking him legal questions.
[COURT]:
I’ll sustain the objection, sir.
[PETITIONER]: How about probable cause?
[STATE]:
Objection, asking for a legal conclusion.
[COURT]:
Let me ask you what your question is again, please? Just tell me what your
question is.
[PETITIONER]: What was your initial – your intention when you approached me?
[COURT]:
Any objection to that question?
25
[STATE]:
Not to that question.
[COURT]:
You may answer that question.
[GAVIGAN]:
My intention was to make consensual encounter with you.
(App. E at 73-74). A similar exchange occurred during Petitioner’s second trial for possession of a
firearm by a convicted felon. Petitioner repeatedly questioned Officer Gavigan as to whether probable
cause existed for his initial approach towards Petitioner (App. F at 1163-67). The state objected and
argued that the reason for the initial encounter was not relevant to the case. Id. at 1164. The trial court
determined that probable cause was not an issue in this particular case and sustained the objection. Id.
at 1164, 1166. Petitioner argues that, because probable cause "governs an officer’s actions, [i]t was
in no way unduly harassing interrogation and should have been allowed." (Doc. 2 at 86).
Contrary to Petitioner’s assertions, the Confrontation Clause of the Sixth Amendment does not
prevent a trial judge from imposing any limits on the defense’s cross examination. Rather a trial judge
may impose reasonable limits to avoid "harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986).
Petitioner’s questions to Officer Gavigan regarding the Florida statutes
governing consensual stops and probable cause were not disallowed as unduly harassing as he alleges.
Rather, the questions were disallowed as irrelevant and as calling for a legal conclusion on Officer
Gavigan’s part. Accordingly, the subjects of Petitioner’s desired inquiry were not appropriate on
cross-examination as they were irrelevant to Petitioner’s guilt or innocence concerning his charged
conduct. See De Lisi v. Crosby, 402 F.3d 1294, 1300 (11th Cir. 2005) (in order to establish
Confrontation Clause violation a defendant must be prohibited from engaging in "otherwise
appropriate" cross examination); Alford v. United States, 282 U.S. 687, 694 (1931)( The scope of
26
cross-examination regarding a particular line of inquiry is “within the sound discretion of the trial
court,” and “it may exercise a reasonable judgment in determining when [a] subject is
[inappropriate].”). The denial of this claim by the Fifth District Court of Appeal was neither contrary
to, nor involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States. Accordingly, claim six does not warrant habeas relief. 28
U.S.C. § 2254(d)(1).
G. Claim Seven
Petitioner alleges that his Fifth Amendment rights were violated because he was not formally
indicted by a grand jury for the offenses charged in the information (Doc. 2 at 87). Petitioner raised
this issue on direct appeal and the Fifth District Court of Appeal per curiam affirmed (App. G at
33, 137).
This allegation fails to state grounds for habeas relief because there is no federal constitutional
right to be tried upon a grand jury indictment for a state offense. The Fifth Amendment's guarantee of
indictment by grand jury has not been applied to the states through the Fourteenth Amendment and
therefore, the sufficiency of the indictment is primarily a matter of state law. Alexander v. Louisiana,
405 U.S. 625, 633 (1972). To the extent Petitioner alleges that the state court incorrectly applied
Florida law by failing to indict by grand jury, this Court may not review it. A state’s interpretation of
its own laws or rules provides no basis for federal habeas corpus relief, since no question of a
constitutional nature is involved. See Lewis, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief
does not lie for errors of state law ....”). Accordingly, the state court's denial of relief on this claim was
neither contrary to, nor an objectively unreasonable application of, clearly established federal law, nor
was it an unreasonable determination of the facts in light of the evidence presented in the state court
27
proceedings. Claim seven in therefore denied.
H. Claim Eight
Petitioner alleges that a due process violation and "violation of the law of Fundamental Fairness
of the 6th and 14th Amendments [of the] U.S. Constitution" was violated by the use of a six person jury
at his trial (Doc. 1 at 27). After reviewing Petitioner’s state court appellate brief, this issue appears
to be unexhausted and cannot be considered by this Court. 28 U.S.C. § 2254(b); O'Sullivan v.
Boerckel, 526 U.S. 838 (1999) ("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.").
Assuming arguendo, that the claim is exhausted because Petitioner's state court appellate brief
tangentially addressed this issue, the claim fails on the merits because there is no federal constitutional
right to be tried by a twelve person jury. Article 1, § 22, of the Florida Constitution allows the
legislature to establish the number of jurors for cases, both civil and criminal, so long as a jury contains
at least six jurors. The United States Supreme Court has expressly held that Florida's use of a six
member jury does not violate the Sixth Amendment. Williams v. Florida, 399 U.S. 78, 86 (1970). The
Supreme Court's holding in Williams disposes of petitioner's claim that the Sixth and Fourteenth
Amendments require that he be tried by a jury of twelve. The Constitution simply does not require it.
See, e.g., Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir.2000) (relying on Williams v. Florida
to deny habeas relief on Florida prisoner's claim that the Sixth Amendment required that he be tried
of first degree murder by a jury of twelve, rather than six). Accordingly, Petitioner is not entitled to
habeas relief on claim eight.
I. Claim Nine
28
Petitioner argues that his Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated
by the use of Florida's 10-20-Life7 statute because it was used in conjunction with a lessor-included
offense jury instruction (Doc. 2 at 94). In particular, Petitioner appears to take issue with the
punishment imposed for his conviction for aggravated battery when he was acquitted of attempted
second degree murder. Id. This issue is unexhausted. In his state court appellate brief, Petitioner
argued that the use of the 10-20-Life statute demonstrated prosecutorial vindictiveness, but did not
argue that the 10-20-Life statute could not legally be used in conjunction with a lessor included jury
offense instruction (App. G at 57).
In response to Respondent's argument that this claim is unexhausted, Petitioner notes in his
reply brief that in Florida a sentencing issue may be raised at any time; that sentencing issues do not
have to be briefed on direct appeal; and that there is no time limit to raise a sentencing issue (Doc. 40
at 16). Petitioner misses the point. Since Petitioner has not yet raised this issue in state court, this
claim is currently unexhausted and cannot be considered by this Court. 28 U.S.C. § 2254(b);
O'Sullivan, 526 U.S. at 838 ("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.").
Furthermore, notwithstanding Petitioner's cryptic citation to Apprendi v. New Jersey, 120 S.Ct.
7
Florida Statute § 775.087 ("10-20-Life") provides minimum mandatory sentences when a
firearm is used in the commission of a violent felony. Under the statute, a person who commits an
aggravated battery and "during the course of the commission of [the aggravated battery] such person
discharged a [firearm] shall be sentenced to a minimum term of imprisonment of 20 years." Fla. Stat
§ 775.087 (2)(a)(2) (2006).
29
2348 (2000),8 this ground does not appear to present a claim of federal constitutional dimension.
Whether an information charging attempted second degree murder allows a jury instruction on the
lesser included offense of aggravated battery is a matter solely within the province of the Florida courts.
When a sentence falls within the statutory range, it is not a cognizable constitutional issue in habeas
proceedings. Townsend v. Burke, 334 U.S. 736, 741 (1948), see also Branan v. Booth, 861 F.2d 1507
(11th Cir.1988) (holding that petitioner's argument that trial judge misinterpreted state law regarding
departure from recommended guidelines for sentencing was denial of his due process raised only a state
law issue and was not cognizable in federal habeas action). A state court's error in applying its own
sentencing provisions is not cognizable on federal habeas corpus review, even when it is “couched in
terms of equal protection and due process.” Id. at 1508. Therefore, a state decision affecting only the
sentencing rights of prisoners under state law is of no consequence in relation to a federal habeas
corpus application.
Finally, to the extent it was raised in the instant petition, Petitioner's claim of prosecutorial
vindictiveness lacks merit. In his state appellate brief, Petitioner alleges that the state attorney
upgraded the charge to 10-20-Life "in direct response to the accused filing motions and refusing a
plea." (App. G at 57). It is not disputed that Petitioner was properly chargeable under the 10-20-Life
statute, since he used a firearm to commit an aggravated battery. See Fla. Stat § 775.087 (2)(a)(2)
(2006). The United States Supreme Court has specifically held that "so long as the prosecutor has
probable cause to believe that the accused committed an offense defined by statute, the decision
8
The Apprendi court held that every fact that increases the prescribed range of penalties to
which a criminal defendant is exposed must be established by proof beyond a reasonable doubt. In
the instant case, Petitioner neither explains his citation to Apprendi nor points to specific facts that
he believes were not established.
30
whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely
in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 64 (1978); see also Oyler v. Boles, 368 U.S.
448, 456 (1962) ( “T]he conscious exercise of some selectivity in enforcement is not in itself a federal
constitutional violation” so long as “the selection was [not] deliberately based upon an unjustifiable
standard such as race, religion, or other arbitrary classification.”). Accordingly, the denial of this claim
by the state appellate court was neither contrary to, nor involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States
J. Claim Ten
Petitioner alleges that his Fifth, Sixth, and Fourteenth Amendment rights were violated by state
law discovery violations. Specifically, Petitioner alleges:
The states attorney was supposed to deliver everything they had. Mr. Cutaia got about
500-600 pages of discovery[. W]hen Mr. Cutaia filed for the entire state attorneys file,
the file is 1326 pages and 6 cd's. Mr. Cutaia only got 3 cd's prior to trial and 500-600
pages.
(Doc. 1 at 29). Petitioner alleges that "[t]here is an all probability a Brady violation within the 1326
pages and 6 cd's." (Doc. 1 at 29). Petitioner raised the issue of a discovery violation in his state court
appellate brief and the Fifth District Court of Appeal per curiam affirmed (App. G at 48, 137).
Petitioner's allegations of discovery violations were thoroughly addressed by the trial court in
a May 14, 2007 pre-trial hearing on several motions, including Petitioner's motion to compel
discovery. At the hearing, the state attorney told the state court that there were no investigative reports
to disclose to Petitioner and explained the initial delays in provision of discovery:
Your Honor, the State has provided Mr. Cutaia with all the documentation. As soon as
we come in possession of new documents or new evidence, we send it over to him
immediately. Originally it took a long time, the 18 months, because he was in the state
31
hospital for over a year, then he fired his attorneys, there was a delay in getting it to him
because we really didn't know – he hadn't filed a demand for discovery, once he did
that, then we started sending the information over to him.. So we've done everything in
a timely manner.
(App. C at 734). Although Petitioner argued with the trial court regarding the relevancy of the material
he requested from the state, the state assured the court that Petitioner was receiving all discovery and
that it would continue to provide Petitioner with anything it received in the future. Id. at 736.
Petitioner appears to argue that, because the entire state attorney file requested after trial had
a greater number of pages than was provided in discovery, a Brady violation must have occurred.
However, Petitioner does not point to a single piece of exculpatory evidence that was withheld by the
state and does not point to a single discovery violation other than the apparent discrepancy between the
size of state attorney's entire file and the size of his own discovery file. Habeas relief is not warranted
when claims are merely conclusory allegations unsupported by specifics. Caderno v. United States, 256
F.3d 1213, 1217 (11th Cir. 2001); Black ledge v. Allison, 431 U.S. 63 (1977) (vague and conclusory
claims failing to state facts which would show an entitlement to relief can be dismissed without further
effort on the part of the court). The appellate court's rejection of this claim was neither contrary to or
an unreasonable application of federal law nor an unreasonable application of the law to the facts.
Ground ten does not warrant habeas corpus relief. 28 U.S.C. § 2254(d).
K. Claim Eleven
Petitioner alleges that "circumstances exist that render the state process ineffective to protect
the rights of the accused, appellant, Petitioner, Mr. Cutaia." (Doc. 1 at 30). Specifically, Petitioner
asserts that the circumstances are "a (4) four year, plus, conspiratol campaign of slander, defamation,
false light invasion of privacy and conspiracy to injure in person and or reputation, by public employees
32
of the state of Florida and (3) three of her [agencies] or subdivisions. Also involved are the F.B.I. and
their supported personnel (Salemmes and Martines (Martines are with Gates D.O.D))." (Doc. 1 at 30).
Petitioner notes that he has filed three state-court lawsuits that demonstrate a conspiracy that has been
an interference with the fair administration of justice (Doc. 1 at 33). Upon review of Petitioner’s state
court appellate brief, this issue appears to be unexhausted and cannot be considered by this court. 28
U.S.C. § 2254(b); O'Sullivan, 526 U.S. at 838.
Furthermore, the claim does not appear to be one that is cognizable in a 28 U.S.C. § 2254
petition. It is well-established that a writ of habeas corpus only extends to custody and detention. See
Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.1987); Williams-Bey v. Trickey, 894 F.2d 314, 317
(8th Cir.1990) (“Section 2254 only authorizes federal courts to review the constitutionality of a state
criminal conviction, not infirmities in a state post-conviction relief proceeding”). The gravamen of this
particular claim is unclear. However, to the extent Petitioner argues that the state court's denial of his
tort claims was unreasonable, such a claim is not cognizable in habeas corpus because it does not
challenge the fact or duration of Petitioner's confinement. Federal habeas relief does not extend to
collateral or ancillary forms of administrative relief. Williams-Bey, 894 F.2d at 317. Likewise, any
challenge to the legality of his post-conviction proceedings as a result of an alleged conspiracy is not
cognizable because such proceedings are not related to a Petitioner's detention. Accordingly, claim
eleven does not state a claim for habeas relief and is denied pursuant to 28 U.S.C. § 2254(a).9
9
In his reply brief, Petitioner expressed intent to file a civil action as to the conduct
described in claim eleven. One June 10, 2011, Petitioner filed a 106 page complaint against eightyeight named defendants pursuant to 42 U.S.C. § 1983 (Case No. 6:11-cv-00973-JA-DAB). The
issues raised in claim eleven appear to be repeated in the § 1983 claim. Accordingly, this Court also
treats claim eleven as abandoned. See Thomas v. McDonough, 228 F. App'x 931, 932 (11th
Cir.2007) (holding that “ § 1983 and § 2254 are mutually exclusive,” and that if a claim can be
brought under § 1983, it “cannot be brought under § 2254”).
33
Any of Petitioner’s allegations not specifically addressed herein have been found to be without
merit.
IV.
Certificate of Appealability
This Court should grant an application for 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 such a showing "the petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,
484 (2000); see also Lamarca v. Secretary Department of Corrections, 568 F.3d 929, 934 (11th Cir.
2009). When a district court dismisses a federal habeas petition on procedural grounds without
reaching the underlying constitutional claim, a certificate of appealability should issue only when a
petitioner shows "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; Lamarca, 568 F.3d at 934. However, a prisoner
need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner has not demonstrated that reasonable jurists would find the district court's assessment
of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of reason
would find this Court's procedural rulings debatable. Petitioner has failed to make a substantial
showing of the denial of a constitutional right. Thus, the Court will deny Petitioner a certificate of
appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
34
1.
The Petition for Writ of Habeas Corpus (Doc. 1) filed by Thomas Joseph Cutaia is
DENIED, and this case is DISMISSED WITH PREJUDICE.
2. Petitioner is DENIED a Certificate of Appealability.
3. The Clerk of the Court is directed to enter judgment accordingly and close this case.
DONE AND ORDERED at Orlando, Florida, this 19th day of September, 2011.
Copies to:
OrlP-4 9/19
Thomas Joseph Cutaia
35
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?