Ayala v. Secretary, Department of Corrections et al

Filing 17

ORDER DENYING 1 Petition for writ of habeas corpus filed by Luis Manuel Ayala and this case is DISMISSED WITH PREJUDICE. 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). Petitioner has failed to make such a showing. See Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts. Accordingly, a Certificate of Appealability is DENIED.The Clerk of the Court is directed to close this case. Signed by Judge Gregory A. Presnell on 8/1/2014. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LUIS MANUEL AYALA,
Petitioner,
v.

CASE NO. 6:13-cv-324-Orl-31KRS

SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254
(Doc. No. 1).

Thereafter, Respondents filed a response to the petition in compliance with

this Court’s instructions and with the Rules Governing Section 2254 Cases for the United
States District Courts (Doc. No. 7). Although Petitioner was given an opportunity to file
a reply, he did not do so.
Petitioner alleges four claims for relief in his habeas petition: (1) trial counsel was
ineffective for failing to object to the State’s transferred intent argument; (2) trial counsel
was ineffective for failing to object to the erroneous modification of the jury instructions;
(3) his convictions for attempted murder and aggravated battery violate double jeopardy;
and (4) trial counsel was ineffective for misadvising him to reject the State’s plea offer.
For the following reasons, the petition for writ of habeas corpus is denied.
I.

Procedural History
Petitioner was charged with three counts of attempted first degree murder (counts

one through three), two counts of aggravated battery with firearm (counts four and five),
and one count of shooting from a vehicle (count six). After a jury trial, Petitioner was
convicted as charged.

The jury made special findings as to each count that Petitioner

actually possessed a firearm during the commission of the crimes.

The trial court

sentenced Petitioner to three concurrent terms of life imprisonment, with a three-year
mandatory minimum term, for counts one through three, to two concurrent thirty-year
terms of imprisonment for counts four and five, also with a three-year mandatory
minimum, and to a concurrent fifteen-year term of imprisonment for count six.1
Petitioner appealed, and while his appeal was pending he filed a motion to correct
sentencing error pursuant to Rule 3.800(b)(2) of the Florida Rules of Criminal Procedure in
which he alleged that the trial court’s upward departure sentences were illegal.
court granted Petitioner’s motion, and held a new sentencing hearing.

The trial court

resentenced Petitioner to the same sentences that were initially imposed.
appealed and again filed a Rule 3.800(b)(2) motion to correct sentencing error.
court denied the motion.

The trial

Petitioner
The trial

Furthermore, the Fifth District Court of Appeal affirmed

Petitioner’s convictions and sentences. Ayala v. State, 976 So. 2d 43 (Fla. 5th DCA 2008).
Petitioner filed a petition to invoke the discretionary review of the Supreme Court of
Florida, however, that petition was denied.
Petitioner subsequently filed a Rule 3.850 motion for post-conviction relief in which

1These

sentences constituted upward departures from Petitioner’s guidelines range.
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he alleged four claims.

The trial court held an evidentiary hearing on claim four, after

which it denied the claim.

The trial court, however, granted claim one and vacated

Petitioner’s convictions as to counts one and two. The trial court also denied Petitioner’s
remaining claims. Petitioner appealed, and the Fifth District Court of Appeal affirmed
per curiam. Petitioner also filed a Rule 3.800(a) motion to correct an illegal sentence. The
trial court denied the motion. The Fifth District Court of Appeal affirmed per curiam.
II.

Legal Standards
A.

Standard of Review Under the Antiterrorism Effective Death Penalty Act
(“AEDPA”)

Pursuant to the AEDPA, federal habeas relief may not be granted with respect to
a claim adjudicated on the merits in state court unless the adjudication of the claim:
(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).
“[S]ection 2254(d)(1) provides two separate bases for reviewing state court
decisions; the ‘contrary to’ and ‘unreasonable application’ clauses articulate independent
considerations a federal court must consider.” Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d
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1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh
Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the “contrary to” clause, a federal court may grant the writ if the
state court arrives at a conclusion opposite to that reached by [the United
States Supreme Court] on a question of law or if the state court decides a
case differently than [the United States Supreme Court] has on a set of
materially indistinguishable facts. Under the >unreasonable application=
clause, a federal habeas court may grant the writ if the state court identifies
the correct governing legal principle from [the United States Supreme
Court=s] decisions but unreasonably applies that principle to the facts of the
prisoner's case.
Even if the federal court concludes that the state court applied federal law incorrectly,
habeas relief is appropriate only if that application was “objectively unreasonable.”

Id.

Whether a state court's decision was an unreasonable application of law must be assessed
in light of the record before the state court. Holland v. Jackson, 542 U.S. 649, 652 (2004)
(per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n. 4 (2002) (declining to consider evidence
not presented to state court in determining whether its decision was contrary to federal
law).
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. See Parker, 244 F.3d at 835-36; 28 U.S.C. ' 2254(e)(1).

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B.

Standard for Ineffective Assistance of Counsel

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining 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.

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). In Hill v. Lockhart, 474 U.S. 52, 58
(1985), the Supreme Court of the United States held that “the two-part Strickland v.
Washington test applies to challenges to guilty pleas based on ineffective assistance of
counsel.”
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
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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).
III.

Analysis
A.

Claim One

Petitioner alleges trial counsel was ineffective for failing to object to the State’s
transferred intent argument (Doc. No. 1 at 9). Counts one and two charged Petitioner
with the attempted murder of victims Jim Kennedy (“Kennedy”) and Donnie White
(“White”) (App. A).

Count three charged Petitioner with the attempted murder of

victim Curtis Cortwright (“Cortwright”).

Id.

At trial, the State maintained that

Petitioner’s intent to murder Cortwright could be transferred to the other victims (App.
B at 408-11).

Petitioner raised this claim in his Rule 3.850 motion (App. KK).

The trial

court granted relief with regard to this claim and vacated Petitioner’s convictions for
counts one and two (App. OO). Therefore, this claim is denied as moot.2

2Petitioner

does not argue here, as he did on direct appeal, that he is entitled to
resentencing for counts three through six due to the vacatur of counts one and two (the
counts related to White and Kennedy). See App. QQ. To the extent Petitioner has
attempted to raise that claim, the Court notes that is was not preserved for appeal and
thus, has been procedurally defaulted. See Meus v. State, 968 So. 2d 706, 710 (Fla. 2d
DCA 2007) (issues not raised in the post-conviction court and raised for the first time in
an initial brief are waived). The Court is precluded from considering this claim as it
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B.

Claim Two

Petitioner claims that trial counsel was ineffective for failing to object to the
erroneous modification of the jury instructions (Doc. No. 1 at 11).

Respondents argue

that this claim is vague, conclusory, and facially insufficient (Doc. No. 7 at 17).
Court agrees.
modified.

The

Petitioner has not cited which jury instructions were erroneously

Vague, conclusory, speculative, or unsupported claims cannot support an

ineffective assistance of counsel claim.

Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir.

1991). Accordingly, Petitioner is not entitled to relief on his claim.
To the extent that Petitioner has attempted to raise the same claim he raised in his
Rule 3.850 motion (App. KK), the Court concludes that his claim is without merit.

In his

Rule 3.850 motion, Petitioner argued that trial counsel was ineffective for failing to object
to the attempted murder jury instructions on that basis that the instruction improperly
lists all three victims with the word “or” between their names. Id.

However, Florida

would be procedurally defaulted upon return to state court. Smith v. Sec’y Dep’t of Corr.,
572 F.3d 1327, 1342 (11th Cir. 2009). Further, Petitioner has neither alleged nor shown
cause or prejudice that would excuse any procedural default. Wright v. Hopper, 169 F.3d
695, 703 (11th Cir. 1999). Likewise, he has not shown the applicability of the actual
innocence exception. Murray v. Carrier, 477 U.S. 478, 496 (1986).
Alternatively, Petitioner has not demonstrated that he is entitled to resentencing
on counts three through six as valid aggravating factors exist to support the departure
sentences despite the vacatur of counts one and two. Specifically, evidence was
presented that White suffered severe injury as a result of the aggravated battery and that
in committing the aggravated battery upon White, Petitioner created a substantial risk of
death or great bodily harm to many persons. See § 921.0016(3)(i) & (l), Fla. Stat. (1995).
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courts have held that it is not error to use the words “and” or “or” between the names of
the victims in a jury instruction. Dempsey v. State, 72 So. 3d 258, 261 (Fla. 4th DCA 2011).
Petitioner has not demonstrated deficient performance on the part of counsel or
prejudice. Therefore, claim two is denied.
C.

Claim Three

Petitioner claims that his convictions for attempted murder and aggravated
battery violate double jeopardy (Doc. No. 1 at 13). Petitioner raised this claim in his Rule
3.850 motion (App. KK), and the trial court denied the claim (App. OO).

The Fifth

District Court of Appeal affirmed per curiam (App. SS).
Florida law provides that convictions for attempted first degree murder and
aggravated battery do not violate double jeopardy.

See Bradley v. State, 901 So. 2d 924,

925 (Fla. 5th DCA 2005) (reasoning that each offense has an element distinct from the
other and one offense is not a “degree variant” of the other) (citing Gutierrez v .State, 860
So. 2d 1043 (Fla. 5th DCA 2003)); Schirmer v. State, 837 So. 2d 587 (Fla. 5th DCA 2003)).
Therefore, Petitioner cannot demonstrate deficient performance on the part of counsel or
prejudice with regard to this claim. Accordingly, claim three is denied pursuant to §
2254(d).
D.

Claim Four

Petitioner claims that trial counsel was ineffective for misadvising him to reject the
State’s plea offer (Doc. No. 1 at 14).

Petitioner states that counsel never advised him that

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he had been positively identified by several witnesses to the crime and that those
witnesses would be testifying against him.

Id.

Petitioner states that had he been aware

of these facts, he would have taken the State’s thirty-year plea deal instead of going to
trial. Id. at 15. Petitioner raised this claim in his Rule 3.850 motion (App. KK).

The

trial court held an evidentiary hearing on this claim (App. NN).
At the post-conviction evidentiary hearing, Petitioner testified that his attorney
never spoke to him regarding the witness statements or the police report in this case. Id.
at 10. Additionally, Petitioner stated that he does not speak fluent English and when
counsel advised him of the thirty-year plea deal, no interpreter was present to help him
translate.

Id. at 11.

Petitioner testified that he did, however, understand that the State

had offered thirty years in prison. Id.

Petitioner also stated that he would not have

entered the plea because he did not commit any crime.

Id.

Defense counsel Thomas Luka (“Luka”) testified that he met with Petitioner on
several occasions, and he brought another attorney who spoke Spanish to act as an
interpreter.

Id. at 13. Luka stated that he discussed with Petitioner the facts of the case,

including the witness statements and police reports.

Id. at 13-14.

Luka stated that he

recalled the trial judge offering a thirty-year sentence in exchange for a guilty plea.

Id.

at 14. On cross-examination Luka testified that he also explained the facts of Petitioner’s
case to Petitioner’s family members, who assured him that they too had explained the
facts of the case to Petitioner. Id. at 15. The State prosecutor, Greg Tynan (“Tynan”),

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testified that he did not offer a plea in this case.
judge made a plea offer.

Id. Tynan could not recall if the trial

Id.

The trial court credited Luka’s testimony over Petitioner’s testimony and denied
the claim pursuant to Strickland. Id. at 22.

The trial court found the testimony reflected

that counsel advised Petitioner regarding the witness statements and the facts of the case.
Id. at 21-22. The trial court also noted Petitioner had indicated that he would not have
entered a plea to a crime he did not commit.

Id. at 21.

The Fifth District Court of

Appeal affirmed per curiam (App. SS).
This Court must accept the state court’s determination that Luka’s testimony was
more credible than Petitioner’s testimony. See, e.g., Baldwin v. Johnson, 152 F.3d 1304,
1316 (11th Cir. 1998) (“We must accept the state court’s credibility determination and thus
credit [counsels’] testimony over [petitioner’s].”). Additionally, the state court’s factual
findings are presumed correct, and Petitioner has not rebutted those findings by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1); Parker v. Head, 244 F.3d 831, 835-36 (11th
Cir. 2001). Petitioner has not demonstrated that the state court’s determination was
contrary to, or involved an unreasonable application of federal law, nor has he shown
that the state court’s denial of this claim resulted in an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

Accordingly, this claim is denied pursuant to § 2254(d).
Any of Petitioner’s allegations not specifically addressed herein have been found

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to be without merit.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus filed by Luis Manuel Ayala (Doc.

No. 1) is DENIED, and this case is DISMISSED WITH PREJUDICE.
2.

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). Petitioner has failed to make such a showing. See Rule 11 of the
Rules Governing Section 2254 Cases in the United States District Courts.

Accordingly, a

Certificate of Appealability is DENIED.
3.

The Clerk of the Court is directed to close this case.

DONE AND ORDERED in Orlando, Florida, this 1st day of August, 2014.

Copies to:
OrlP-3 8/1
Luis Manuel Ayala
Counsel of Record

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