Verner-Buchowski v. Secretary, Department of Corrections et al
Filing
26
ORDER dismissing case Signed by Judge Roy B. Dalton, Jr. on 9/1/2015. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
EVA VERNER-BUCHOWSKI,
Petitioner,
v.
CASE NO. 6:13-cv-1244-Orl-37KRS
SECRETARY, DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.
/
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. § 2254
(Doc. 1).
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. 12).
Petitioner filed a reply to the response (Doc. 19), a supplement (Doc.
21), and an addendum to the petition (Doc. 25).
Petitioner alleges fourteen claims for relief in her habeas petition. 1
For the
following reasons, the petition for writ of habeas corpus is denied.
I.
PROCEDURAL HISTORY
Petitioner lists eight grounds in her habeas petition. However, several of these
grounds contain multiple subclaims. The petition is disjointed; commingles and repeats
allegations and claimed constitutional violations. The Court has done its best to
construe the petition liberally and to address the claims and subclaims in an orderly way.
Thus, for ease of discussion, the Court has renumbered the claims and addresses each
separately except in instances where the claims are related.
1
Petitioner was charged by the Office of Statewide Prosecution with two counts of
criminal use of personal identification information in an amount greater than $100,000
(App. A). 2 After a jury trial (App. S), Petitioner was convicted as charged (App. T).
The
trial court sentenced Petitioner to two consecutive fifteen-year terms of imprisonment,
each with a ten-year minimum mandatory term (App. Z & AA). Petitioner filed a pro se
petition for writ of habeas corpus with the Florida Fifth District Court of Appeal (“Fifth
DCA”), and the appellate court dismissed the petition (App. BB & CC).
Petitioner subsequently appealed her convictions and sentences (App. DD).
After
granting Petitioner leave to proceed pro se on appeal (App. GG), the Fifth DCA affirmed
per curiam (App. KK). Petitioner filed a petition for review with the Supreme Court of
Florida (App. PP).
The Supreme Court of Florida declined to accept jurisdiction and
denied the petition (App. RR).
Petitioner filed a motion for return of seized property in the trial court (App. SS).
The trial court summarily denied the motion (App. TT).
Petitioner also filed a motion to
enforce and a petition for writ of mandamus in which she asked the trial court to enforce
its prior order directing that her property be returned (App. UU and VV).
denied the motions (App. XX).
The trial court
Petitioner appealed (App. ZZ), and the Fifth DCA
affirmed per curiam (App. EEE).
The State alleged that Petitioner used the identification of Se’Belle Smith Dymmek
(“Dymmek”) without her permission in order to obtain two mortgages using Dymmek’s
property as collateral for the mortgages (App. A & B). One mortgage was for $350,000
and the other was for $2,300,000. Id.
2
2
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the
Florida Rules of Criminal Procedure (App. JJJ).
After Petitioner filed two addendums
(App. KKK & WWW) and an amended Rule 3.850 motion (App. SSS), the trial court
summarily denied the motions (App. XXX).
Petitioner appealed (App. YYY), and the
Fifth DCA affirmed per curiam (App. AAAA).
II.
A.
LEGAL STANDARDS
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.”
1292, 1308 (11th Cir. 2005).
Maharaj v. Sec’y for Dep’t of Corr., 432 F.3d
The meaning of the clauses was discussed by the Eleventh
3
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).
B.
Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
4
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. 3
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).
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
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.
5
3
on the ground of ineffective assistance of counsel are few and far between.”
Rogers v.
Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Likewise, it well established that a defendant has the right to effective counsel on
Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984). Claims of ineffective
appeal.
assistance of appellate counsel are governed by the same standard applied to trial counsel
under Strickland.
See Sairras v. Fla. Dep’t of Corr., 496 F. App’x 28, 34 (11th Cir. 2012)
(citing Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991)).
When evaluating the
prejudice prong of Strickland, the Court must first review the merits of the omitted claim
to determine whether counsel’s actions affected the outcome of the appeal.
941 F.2d at 1132.
See Heath,
Counsel’s performance will be deemed prejudicial if the Court
concludes that “the neglected claim would have a reasonable probability of success on
appeal.”
Id.
III.
A.
ANALYSIS
Claim One
Petitioner alleges she was denied due process when she was forced to proceed pro
se at trial against her will (Doc. 1 at 19).
In support of this claim, Petitioner contends that
she requested effective counsel and did not wish to represent herself.
Id.
Petitioner
states that because she was forced to proceed pro se, she was unable to gather evidence
and depose the State’s witnesses.
HH).
Id.
Petitioner raised this claim on direct appeal (App.
The Fifth DCA affirmed per curiam (App. KK).
Prior to trial, Petitioner filed several motions to discharge counsel (App. C at 1066
07; App. D). The trial court held a hearing on Petitioner’s motions (App. F).
Petitioner
told the trial court that the Office of the Public Defender did not have “time or money”
to represent her.
Id. at 6-7.
herself. Id. at 6.
The trial court advised Petitioner regarding her right to an attorney
Petitioner also stated that she would prefer to represent
Id. at 8-11.
and the ways in which an attorney could help her.
advised her regarding the limitations of representing herself.
stated that she understood these matters. Id. at 8-12.
into Petitioner’s health and education. Id. at 12-13.
The trial court also
Id. at 11.
Petitioner
The trial court further inquired
The trial court found Petitioner was
competent to waive counsel and allowed Petitioner to discharge defense counsel.
Id. at
14.
The trial court later reappointed the Office of the Public Defender to represent
Petitioner (App. J).
Petitioner again moved to discharge counsel (App. K).
The trial
court held a hearing on Petitioner’s motion, at which time defense counsel Marsha D.
Frankel (“Frankel”) advised the court that she had met with Petitioner on a number of
occasions (App. L at 2).
After a lengthy discussion, Petitioner agree to forego
discharging counsel at that time. Id. at 15-16.
However, several weeks later Petitioner
filed additional motions to discharge counsel (App. O).
The trial court held another
hearing, during which it again advised Petitioner of the charges, her rights regarding
counsel, and the hazards of representing herself (App. P at 20-24).
The trial court
indicated that it would appoint Frankel as standby counsel. Id. at 24.
The record reflects that Petitioner was not forced to proceed pro se in her criminal
7
case.
Petitioner asked to discharge counsel on two occasions, and after an inquiry, the
trial court granted her requests.
Although Petitioner stated that her physical health was
poor, the record demonstrates that Petitioner was intelligent, mentally aware, understood
the nature of the charges, the defenses, and penalties, was advised regarding the rules of
procedure and evidence, was appointed standby counsel, and was cautioned about the
pitfalls of representing herself.
The record indicates that Petitioner made a knowing and
intelligent waiver of her right to counsel.
Faretta v. California, 422 U.S. 806 (1975)
(holding that the Sixth Amendment includes an implicit right to self-representation, and
a defendant may knowingly and intelligently waive the right to counsel after the trial
court conducts a hearing during which the defendant is informed of the charges, the trial
procedures, and the hazards of self-representation); Rose v. United States, 590 F. App’x
937, 940 (11th Cir. 2014).
Petitioner has not shown that she was denied due process, and
therefore, this claim is denied.
To the extent Petitioner argues that the trial court should have discharged Frankel
and appointed a new attorney, Petitioner has not demonstrated that she is entitled to
relief on this claim.
In the State of Florida, when a criminal defendant requests
discharge of court-appointed counsel, the court is required to hold a hearing to determine
whether there is cause to believe that trial counsel is not rendering effective assistance.
See Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
The trial court’s alleged failure to
hold an adequate Nelson hearing or find that Frankel was acting in a deficient manner is
not subject to federal review.
See McCullough v. Singletary, 967 F.2d 530, 535 (11th Cir.
8
1992); Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (holding that “[i]t is a
fundamental principle that state courts are the final arbiters of state law, federal habeas
courts should not second-guess them”). It is not the function of this Court to scrutinize
the application of Florida law by the Florida court..
Moreover, to the extent Petitioner complains that she was forced to proceed to trial
unprepared without evidence and witnesses, the Court finds that this allegation is
refuted by the record.
The prosecutor indicated that he would attempt to find and
subpoena any witness Petitioner wished to call at trial (App. P at 75). Petitioner initially
could not give the trial court or prosecutor the names of any witnesses she wished to call.
Id. at 77-79. Petitioner requested that she be allowed to call three witnesses: Joe, Heidi,
and Brian. Id. at 80. Petitioner did not know the last names of the witnesses. Id. The
prosecutor agreed to subpoena these witness if Petitioner could tell him how to locate the
witnesses.
Id. at 101.
Frankel indicated that Petitioner had never asked her to
investigate these witnesses. Id. at 109. Petitioner also indicated that she wished to call
a doctor from the Sand Lake Hospital to testify on her behalf, but after the prosecutor
stated that he would try to find this witness, Petitioner declined the prosecution’s
assistance. Id. at 122-24. Prior to the commencement of trial, the State gave Petitioner
access to all of the documents that it had seized from her hotel room, which were
contained in a red suitcase (App. R at 2).
The record reflects that Petitioner was given the opportunity to call witnesses and
review documents prior to the commencement of trial. However, Petitioner declined to
9
pursue these opportunities . Therefore, Petitioner is not entitled to relief on this claim.
Therefore, the state court’s denial of this claim was neither contrary to, nor an
unreasonable application of, clearly established federal law.
Accordingly, claim one is
denied. 4
B.
Claim Two
Petitioner claims that trial counsel was ineffective for failing to advise her
regarding the five-year plea offer (Doc. 1 at 20).
addendum to the Rule 3.850 motion (App. KKK).
Petitioner raised this claim in her
The trial court summarily denied the
claim, finding counsel was not deficient for failing to advise Petitioner regarding the plea
because Petitioner was proceeding pro se when the State made the offer (App. XXX). The
Fifth DCA affirmed per curiam (App. AAAA).
At an August 23, 2005, hearing on Petitioner’s motion to discharge counsel,
Frankel told the court that she advised Petitioner regarding the five-year plea offer, and
Petitioner stated she did not want to accept a plea (App. L at 3).
The Court asked
Additionally, Petitioner argues for the first time in her reply that due to her pro
se status, she was unaware of how to pick a jury (Doc. 19 at 4). Petitioner states that she
would have picked different jurors than those who sat on her jury. Id. However, the
record reflects that Frankel helped Petitioner with jury selection (App. S at 33). The trial
court gave Petitioner an opportunity to consult with Frankel prior to questioning the
prospective jury members. Id. at 95. The trial court also allowed Petitioner additional
time to discuss with counsel which potential jury members she wanted for the venire.
Id. at 99-100, 106-07. Petitioner was allowed to exercise her peremptory challenges in
the manner she saw fit. Id. at 101-109. Petitioner did not have any objections to the
members who were empaneled. Petitioner has not shown that she was unprepared for
voir dire or unable to properly pick a jury. Therefore, this claim is denied.
4
10
Petitioner whether she ever indicated that she wanted to accept the five-year offer. Id.
Petitioner stated that Frankel did not discuss the matter with her. Id. at 11.
at 11.
Frankel stated, “She has never said that she wanted to accept this offer.
And I’ve seen
her at least three times when she could have said, yes, I want it, or with some
modification.
I had even advised her at the time that the Prosecutor had indicated that
there might be some monies that could be returned to Ms. Verner.
interested.”
She was not
Id. at 12. The prosecutor also advised the court that Petitioner said she
was not interested in taking a plea because “any kind of term of imprisonment longer
than a year was a death sentence.”
Id. at 12.
made the same statement to the court.
The trial court noted that Petitioner had
Id.
Additionally, at a September 26, 2005 hearing, Frankel stated that the five-year
plea offer was initially conveyed to Petitioner when she was proceeding pro se (App. P at
14).
Frankel also indicated that the State had left the five-year plea open “for a period
of time.” Id. When Frankel was reappointed to represent Petitioner, she discussed the
plea with Petitioner, and Petitioner indicated she “was not interested in that plea offer.”
Id. at 15.
The prosecutor agreed that Petitioner was proceeding pro se when the five-year
plea was initially conveyed to her.
Id. at 37. The prosecutor further stated that she had
letters from Petitioner indicating that any sentence would be “a death sentence.” Id. at 38.
The prosecutor then offered a plea to the ten-year minimum mandatory term.
Id.
Petitioner refused to accept the plea, stating that due to her health a ten-year plea would
amount to a death sentence.
Id. at 54-55.
11
Petitioner was advised of the five-year plea offer when she represented herself.
Because counsel had been discharged, she had no duty to advise Petitioner regarding the
matter.
Furthermore, even if counsel had a duty to advise Petitioner after she was
reappointed, the record reflects that Petitioner was advised regarding the plea offer.
Moreover, the record indicates that Petitioner was not willing to accept a term of
incarceration for more than one year.
Thus, Petitioner has not demonstrated either
deficient performance or prejudice. The state court’s denial of this claim was neither
contrary to, nor an unreasonable application of, Strickland.
Accordingly, claim two is
denied.
C.
Claim Three
Petitioner contends that her Fifth Amendment rights were violated when the State
failed to formally charge her or present the charges to her (Doc. 1 at 21).
In support of
this claim, Petitioner contends that one cannot be tried and convicted unless “indicted.”
Id.
Petitioner raised this claim in her Rule 3.850 motion (App. JJJ).
The trial court
summarily denied the claim, concluding that Petitioner’s charge via information was
proper pursuant to Florida law (App. XXX). The Fifth DCA affirmed per curiam (App.
AAAA).
Petitioner was charged by information with two counts of section 817.568(2)(c),
Florida Statutes (App. A).
Rule 3.140 of the Florida Rules of Criminal Procedure
provides that “[a]n offense that may be punished by death shall be prosecuted by
indictment.” Fla. R. Crim. P. 3.140(a).
The Rule further states that all other offenses
12
may be prosecuted by indictment or information.
Id.
Thus, because Petitioner was not
facing a crime punishable by death, the State was not required to indict Petitioner.
record reflects that Petitioner was properly charged by information.
The
Accordingly, the
state court’s denial of this claim was neither contrary to, nor an unreasonable application
of, clearly established federal law.
D.
Claim three is therefore denied.
Claims Four and Six
Petitioner asserts in her third and fifth claims that her due process rights were
violated when her property was seized by the Sheriff and not returned (Doc. 1 at 22-23,
29-31; Doc. 25).
Petitioner contends that the trial court ordered the return of her
property but the Sheriff failed to comply with that order (Doc. 1 at 29-31).
essentially challenges the forfeiture of her assets.
Id.
Petitioner
Petitioner raised these claims in
her Rule 3.850 motion and amended Rule 3.850 motion (App. JJJ & SSS).
The trial court
summarily denied these claims, concluding that they were not properly raised in a Rule
3.850 motion (App. XXX).
The Fifth DCA affirmed per curiam (App. AAAA).
A challenge to the seizure and forfeiture of assets is not cognizable in a habeas
proceedings.
See Adams v. Bunting, 2015 WL 4898129, at * (N.D. Ohio Aug 17, 2015);
Marin v. Raperlje, 2014 WL 5023466, at *1 (E.D. Mich. Oct. 8, 2014); Melton v. Crosby, 2005
WL 3434051, at *10 (M.D. Fla. Dec. 13, 2005); Bowen v. United States, No. Civ.A.7:05-cv37(CDL), 2005 WL 1676668, at *2 (M.D. Ga. June 29, 2005).
entitled to relief on claims four and six, and they are denied.
E.
Claim Five
13
Therefore, Petitioner is not
Petitioner contends that trial counsel was ineffective because she had no plans for
her defense, failed to speak to witnesses and gather evidence, failed to subpoena Joe
Fricano (“Fricano”), and failed to file a motion to suppress the seizure of her property,
specifically, the documents and computer taken from her hotel room (Doc. 1 at 23-25, 29).
Petitioner also alleges that she is not guilty of the crimes because she had no intent to
commit the crimes and there were no injuries to the victim. Id. at 23-24).
raised this claim in her Rule 3.850 motion (App. JJJ).
Petitioner
The trial court summarily denied
the claim, noting that because Petitioner represented herself, she could not make an
argument that counsel rendered deficient performance (App. XXX).
The Fifth DCA
affirmed per curiam (App. AAAA).
Petitioner has not shown that she is entitled to relief.
demonstrate that Frankel had “no plans” for her defense.
First, Petitioner cannot
Frankel indicated in a letter
to Petitioner that she had “no documents showing plans for . . . [a] defense.” (App. SSS).
That statement, however, cannot be construed to mean that counsel had not prepared any
defense on Petitioner’s behalf.
proceed pro se.
Moreover, the Court notes that Petitioner elected to
Therefore, counsel cannot be faulted for failing to present a defense at
trial.
Additionally, Petitioner states that prior to trial, counsel failed to speak to
witnesses and gather evidence.
Petitioner claims counsel failed to call her cardiologist
14
to testify at trial. 5
The cardiologist purportedly would have testified that Petitioner
signed the documents for the second mortgage while in the hospital, and she did not
understand what she was doing due to her health concerns.
As discuss in relation to
claim one, Frankel indicated that Petitioner never gave her the name of the doctor.
When the State offered to find and subpoena the doctor, Petitioner refused (App. P at 101,
122-24).
Therefore, Petitioner cannot show that defense counsel’s actions amount to
deficient performance.
Furthermore, Herbert Biggs testified that when Petitioner
signed the documents for the second mortgage, she appeared to be alert, lucid, and
“sharp.” (App. S at 267-72).
Consequently, Petitioner cannot demonstrate prejudice.
Petitioner states in her reply that counsel failed to call Robert Cohen (“Cohen”) as
a witness. 6
Petitioner contends that Cohen would have testified that Petitioner was
attempting to give all the money she obtained from the mortgages back to the lenders.7
Petitioner does not provide an affidavit from the cardiologist demonstrating that
he or she would have testified in this manner. “[E]vidence about the testimony of a
putative witness must generally be presented in the form of actual testimony by the
witness or an affidavit. A defendant cannot simply state that the testimony would have
been favorable; self-serving speculation will not sustain an ineffective assistance claim.”
United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes omitted); Dottin v. Sec’y
Dep’t of Corr., No. 8:07-cv-884-T-27MAP, 2010 WL 376639, at *6 (M.D. Fla. Sept. 16, 2010).
Therefore, Petitioner’s claim is speculative, and her self-serving speculation will not
sustain this claim of ineffective assistance of counsel. See Tejeda v. Dugger, 941 F.2d 1551,
1559 (11th Cir. 1991) (stating vague, conclusory, speculative, and unsupported claims
cannot support relief for ineffective assistance of counsel).
5
6
This argument is not raised in the petition.
7
There is no affidavit from Robert Cohen establishing his testimony.
15
Even assuming that Cohen would have testified in this manner, Petitioner cannot
demonstrate prejudice.
The crime was committed when Petitioner used the victim’s
personal information to obtain the mortgages. Disposition of the fruits of the crime has
no relevance to its commission.
With regard to the failure to subpoena witness Fricano, Petitioner stated that
counsel should have subpoenaed this witness in order to question him regarding Norma
Harper (“Harper”), whom Petitioner claims secured the $350,000 mortgage (Doc. 1 at 24).
Fricano testified at trial. Petitioner had every opportunity to question Fricano regarding
this matter and in fact cross-examined him (App. S at 166-67).
Moreover, Fricano
testified that he received a phone call from a person claiming to be the victim (App. S at
156-57).
This person secured a mortgage for $350,000 after faxing him a copy of her
driver’s license and passport. Id. at 157.
was later identified as Petitioner.
The person with whom Fricano had contact
Id. at 160-62.
The failure to question Fricano
regarding Harper’s purported involvement can hardly be attributable to standby counsel
and, in any event, did not result in prejudice.
Petitioner also asserts that counsel failed to file a motion to suppress the seizure of
her documents and computer (Doc. 1 at 23-25, 29).
not have a warrant to seize her property.
Id. at 25.
Petitioner states that the police did
She is wrong.
Reginald Roberts, a
deputy sheriff with the Orange County Sheriff’s Office, testified that he obtained a
warrant to search and seize documents in connection with the crimes and that Petitioner
gave her consent (App. S at 242). Therefore, counsel had no basis to move to suppress the
16
search and seizure.
Petitioner has not demonstrated that counsel acted deficiently in
this regard or that prejudice resulted.
Finally, to the extent Petitioner also alleges in this ground she could not have been
convicted of section 817.568(2)(c), Florida Statutes, 8 because she had no intent to commit
the crimes and there was no monetary injury to the victim, her claim is without merit.
Petitioner admitted to police and a private investigator that she used the victim’s
identification without permission to obtain the two mortgages each totaling more than
$100,000 (App. S at 229, 247-50).
Therefore, Petitioner cannot establish that she should
not have been convicted of the crimes.
The state court’s denial of this claim is neither
contrary to, nor an unreasonable application of, clearly established federal law.
Accordingly, this claim is denied.
F.
Claim Seven
Petitioner alleges that trial counsel was ineffective for failing to present mitigating
circumstances at sentencing (Doc. 1 at 27-28).
In support of this claim, Petitioner
contends that counsel failed to call her cardiologist and an attorney from Miami. Id.
Petitioner states that her health, age, and confusion were mitigating factors.
Petitioner raised this claim in her Rule 3.850 motion (App. JJJ).
Id.
The trial court
summarily denied relief, noting that Petitioner represented herself in these proceedings
(App. XXX). The Fifth DCA affirmed per curiam (App. AAAA).
Section 817.568(2)(c) provides for a ten-year minimum mandatory sentence if the
pecuniary benefit of the fraud is $100,000 or more.
17
8
As noted above, Petitioner exercised her right to represent herself. Federal courts
have held that after a defendant elects to proceed pro se pursuant to Faretta, there is no
constitutional right to “standby counsel.” See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984);
Burrow v. Sec’y, Dep’t of Corr., No. 2:11-cv-60-FtM-29UAM, 2014 WL 1092452, at *15 (M.D.
Fla. Mar. 19, 2014).
Therefore, Petitioner cannot show deficient performance or
prejudice arising from standby counsel’s representation. See Wilson v. Parker, 515 F.3d
682, 696-97 (6th Cir. 2008) (stating that the to the extent standby counsel failed to “act
during trial, [Petitioner] merely suffered the consequences of his decision to proceed pro
se” and “[l]ogically, a defendant cannot waive his right to counsel and then complain
about the quality of his own defense.”).
As noted in relation to claim one, the State indicated that it would try to find
Petitioner’s doctor from the Sand Lake Hospital and subpoena him or her for trial.
Petitioner indicated that she did not want the prosecutor’s help in the matter (App. P at
101, 122-24).
Furthermore, Petitioner testified that she was in poor health when the
crimes were committed, had several heart attacks, and experienced confusion regarding
the events (App. S at 354).
circumstances.
Therefore, trial court was aware of these “mitigating”
However, several of the State’s witnesses testified that Petitioner
appeared alert, intelligent, and aware of what she was doing when she signed the
documents to procure the mortgages (App. S at 163-64, 183-84, 271-72).
Consequently,
there is no indication that the failure to present additional evidence resulted in prejudice.
The state court’s denial of this claim was neither contrary to, nor an unreasonable
18
application of, clearly established federal law.
G.
Accordingly, this claim is denied.
Claim Eight
Petitioner asserts that she should have been charged in federal court (Doc. 1 at 32).
Petitioner maintains that the state court did not have jurisdiction over her crimes. Id.
Petitioner premises her claim on the fact that the money received from the mortgages was
transferred to a bank in the Grand Cayman Islands (Doc. 1 at 32).
Petitioner contends
that the State of Florida had no jurisdiction over a bank in the Grand Cayman Islands.
Id.
Petitioner raised this claim in her Rule 3.850 motion (App. JJJ).
The state court
summarily denied the claim, concluding that Petitioner was properly charged in the state
court (App. XXX).
The Fifth DCA affirmed per curiam (App. AAAA).
Petitioner is not entitled to relief.
The crimes, willfully using the victim’s
personal identification without consent, were committed in the State of Florida.
Furthermore, the crimes were committed in or affected two or more judicial circuits
because the events occurred in Orange, Alachua, Miami-Dade, Broward, and Collier
Counties (App. A).
Therefore, the Office of the Statewide Prosecutor, acting on behalf
of the State of Florida, had jurisdiction to charge Petitioner with the offenses. See Thomas
v. State, 125 So. 3d 874, 875 (Fla. 4th DCA 2013); § 16.56(1)(a), Fla. Stat. (2004).
Accordingly, this claim is denied.
H.
Claim Nine
Petitioner alleges that the trial court improperly sentenced her without
19
considering a presentence investigation report (Doc. 1 at 33). Petitioner raised this claim
in her Rule 3.850 motion (App. JJJ). The trial court summarily denied the motion finding
that a presentence investigation report was a matter of judicial discretion pursuant to
Florida law (App. XXX).
The Fifth DCA affirmed per curiam (App. AAAA).
The instant claim does not implicate federal constitutional law, and thus, is not
subject to federal habeas review.
The state court’s determination that the failure to
prepare a presentence investigation report did not violate Florida law is a state law issue.
See McCullough, 967 F.2d at 535 (noting that a state’s interpretation of its own laws or rules
provides no basis for federal habeas relief because no question of a constitutional nature
is involved); Callahan, 427 F.3d at 932. Federal courts “must defer to a state court’s
interpretation of its own rules of evidence and procedure.” Machin v. Wainwright, 758 F.2d
1431, 1433 (11th Cir. 1985) (citing Spencer v. Texas, 385 U.S. 648 (1967)).
Alternatively, Petitioner has not demonstrated that she is entitled to relief on this
claim. Rule 3.710(a) of the Florida Rules of Criminal Procedure provides that a trial
court “may refer the case to the Department of Corrections for investigation and
recommendation” unless a defendant is under the age of eighteen or has been found
guilty of a first felony offense. At the time of sentencing, Petitioner was over the age of
eighteen and had a prior felony conviction. Consequently, the trial court had discretion
regarding the matter. See Wyatt v. State, 714 So. 2d 663 (Fla. 5th DCA 1998). The state
court’s denial of this claim was neither contrary to, nor an unreasonable application of,
clearly established federal law.
Therefore, it is denied.
20
I.
Claim Ten
Petitioner contends that Assistant State Attorney McMillen committed
prosecutorial misconduct when she attended several hearings and the sentencing
proceeding in this case despite the fact that she had been recused for bias (Doc. 1 at 34).
Petitioner raised this claim in her Rule 3.850 motion (App. JJJ).
The trial court
summarily denied the claim, concluding that no prosecutorial misconduct occurred
because McMillen did not recuse herself from the case but instead could not prosecute
Petitioner’s trial because she was required to try another case during the same trial period
(App. XXX).
The Fifth DCA affirmed per curiam (App. AAAA).
Petitioner’s claim is refuted by the record. At a pre-trial hearing the day before
trial commenced, McMillen notified the trial court that she was currently conducting a
trial in another case (App. P at 4-5, 19).
Assistant State Attorneys Bogle, Collins and
Graham prosecuted the action in McMillen’s absence (App. S).
attended the sentencing hearing on behalf of the State (App. AA).
Bogle and Collins
There is no indication
that McMillen recused herself or that there was any basis for recusal.
The state court’s
denial of this claim is neither contrary to, nor an unreasonable application of, clearly
established federal law.
J.
Accordingly, this claim is denied.
Claim Eleven
Petitioner claims that her civil rights have been violated by the Warden of Lowell
Correctional Institution (Doc. 1 at 35).
In support of this claim, Petitioner asserts that
the Warden refuses to sell “regular ball-point pens” at the canteens and has replaced
21
these pens with “security pens” that “last only for about six pages and wreck our hands.
. . .” Id.
Petitioner also states that this a “new ground.” Id.
Respondents contend that this claim is not cognizable in the instant habeas action
(Doc. 12 at 50).
The Court agrees.
Petitioner’s challenge to the conditions of her
confinement should be made in a civil rights complaint.
Section 1983 is the “proper
remedy for a state prisoner who is making a constitutional challenge to the conditions of
his prison life . . . .” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973); see also Tavorn v. Sloane,
No. 5:12-cv-253-MP-GRJ, 2012 WL 5364230, at *1 (N.D. Fla. Oct. 1, 2012) (addressing a
claim that prison officials denied the prisoner numerous personal items, including
writing implements, in a civil rights complaint filed pursuant to 42 U.S.C. § 1983).
Accordingly, this claim is denied.
K.
Claim Twelve
Petitioner argues in her reply that the court reporter submitted a perjured affidavit
claiming that no record of a pre-trial hearing existed and then later, when the tape of the
hearing was found, tampered with the transcript of the hearing (Doc. 19 at 5-6).
Petitioner attributes the court reporter’s perjury to the Assistant State Attorney.
Petitioner raised this claim in her Rule 3.850 motion (App. JJJ).
summarily denied the claim as speculative (App. XXX).
Id. at 6.
The trial court
The Fifth DCA affirmed per
curiam (App. AAAA).
Petitioner, who represented herself on direct appeal, attempted to have the entire
record transcribed for the appellate court. Initially, the court reporter attested that no
22
tape from the September 26, 2005 hearing was contained in the criminal record (App. HH,
Exs. 15, 19).
Eventually, the court reporter located the tape of the September 26, 2005
hearing, and the hearing was transcribed for appeal (App. P).
Petitioner’s claim that the court reporter committed perjury is without merit.
Although the court reporter could not initially locate the tape of the September 26, 2005
hearing, after it was located, the hearing was transcribed.
Additionally, to the extent
Petitioner claims that the transcript was tampered with, the Court concludes that
Petitioner’s allegation is speculative.
See Tejeda, 941 F.2d at 1559.
The state court’s
denial of this claim is not contrary to, or an unreasonable application of, clearly
established federal law.
K.
Accordingly, claim twelve is denied.
Claims Thirteen and Fourteen
Petitioner alleges that her Eight Amendment rights were violated when the trial
court refuse to lower her bond (Doc. 1 at 21).
Petitioner also asserts that her thirty-year
sentence amounts to cruel and unusual punishment. Id.
Petitioner did not raise these claims in the state court, therefore they are
unexhausted.
(Doc. 12).
However, Respondents did not address these claims in their response
Thus, it appears that Respondents have waived the exhaustion requirement
with respect to the claims. McNair v. Campbell, 416 F. 3d 1291, 1304-05 (11th Cir. 2005).
To the extent that the Court may sua sponte invoke exhaustion, the Court declines to do
so.
See Esslinger v. Davis, 44 F.3d 1515, 1524 (11th Cir. 1995) (a “district court may invoke
the [exhaustion] bar sua sponte [only] where . . . requiring the petitioner to return to state
23
court to exhaust his claims serves an important federal interest”).
Petitioner has not demonstrated that she is entitled to relief on her claims.
Petitioner’s claim related to her bond is not properly raised in the instant § 2254 habeas
petition because it does not challenge her underlying judgment of conviction. See Biggs
v. McNeil, No. 08-60428-CIV, 2008 WL 5054342, at *4 n. 5 (S.D. Fla. Nov. 26, 2008) (stating
“[r]elief pursuant to Section 2254 . . . applies only to post-trial situations and affords relief
to a petitioner in custody pursuant to the judgment of a state court”); Love v. Ficano, 19 F.
Supp. 2d 754, 755-56 (E.D. Mich. 1998) (challenges to bond are properly filed in a section
2241 petition prior to trial).
A habeas petitioner must demonstrate that any error in
setting bond resulted in an unconstitutional conviction. See Qawi v. Vasquez, 995 F.2d
232 (9th Cir. 1993).
Petitioner has not met that burden. 9
Furthermore, Petitioner’s sentence falls within the statutory limits, therefore it
does not violate the Eighth Amendment. See United States v. Brandt, 585 F. App’x 754,
9Alternatively,
Petitioner cannot demonstrate that her bond violated the Eighth
Amendment. “The basic test for excessive bail is whether the amount is higher than
reasonably necessary to assure the accused’s presence at trial.” United States v. James, 674
F.2d 886, 891 (11th Cir. 1982). Petitioner merely states, in a conclusory manner, that her
$1,000,000 bond violates the Eighth Amendment. The fact that Petitioner was unable
to pay the bond does not make it excessive. See Harris v. Gee, No. 8:12-cv-790-T-30AEP,
2012 WL 3156589, at *2 (M.D. Fla. Aug. 3, 2012) (citing White v. Wilson, 399 F.2d 596, 598
(9th Cir. 1968)). Petitioner fraudulently obtained two mortgages worth more than
$2,000,000. Petitioner also had previously been convicted of a similar crime in the State
of California. Additionally, Petitioner had overseas bank accounts, the means to flee the
jurisdiction, and had used aliases. The trial court’s bond ensured Petitioner’s presence
at trial. Accordingly, this claim is denied.
24
758 (11th Cir. 2014) (stating that when reviewing Eighth Amendment challenges to a
sentence, a defendant must make a threshold showing that his or her sentence is grossly
disproportionate; however, where a sentence falls within the limits imposed by statute,
one cannot make such a showing) (citing United States v. Johnson, 451 F.3d 1239, 1243 (11th
Cir. 2006)).
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. Sec’y Dep’t of Corr.,
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.
prisoner need not show that the appeal will succeed.
337 (2003).
25
However, a
Miller-El v. Cockrell, 537 U.S. 322,
The Court concludes that Petitioner has not made the requisite showing in these
circumstances.
Petitioner is not entitled to a certificate of appealability.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.
The Petition for Writ of Habeas Corpus filed by Eva Verner-Buchowski
(Doc. 1) is DENIED, and this case is DISMISSED WITH PREJUDICE.
The Clerk of the
Court shall enter judgment accordingly.
2.
Petitioner is DENIED a certificate of appealability.
3.
The Clerk of the Court is directed to close this case.
DONE AND ORDERED in Orlando, Florida, this 1st day of September, 2015.
Copies to:
OrlP-3 9/1
Eva Verner-Buchowski
Counsel of Record
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