Santiago-Robles v. Attorney General, State of Florida et al
Filing
31
ORDER -- The Amended Petition for Writ of Habeas Corpus (Doc. 7) is DENIED. This case is DISMISSED with prejudice. Petitioner is DENIED a certificate of appealability in this case. Signed by Judge Roy B. Dalton, Jr. on 11/7/2016. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERNESTO SANTIAGO-ROBLES,
Petitioner,
v.
Case No: 6:15-cv-943-Orl-37DAB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS
and ATTORNEY GENERAL, STATE
OF FLORIDA,
Respondents.
/
ORDER
This cause is before the Court on the Amended Petition for Writ of Habeas
Corpus (“Amended Petition,” Doc. 7) filed by Petitioner pursuant to 28 U.S.C. § 2254.
Respondents filed a Response to Petition (“Response,” Doc. 13) in compliance with this
Court's instructions and with the Rules Governing Section 2254 Cases in the United
States District Courts. Petitioner filed a Reply (Doc. 29) to the Response.
For the
reasons set forth herein, the Amended Petition is denied.
I.
PROCEDURAL BACKGROUND
The State Attorney of the Ninth Judicial Circuit charged Petitioner by information
in Orange County, Florida with two counts of lewd or lascivious molestation (counts one
and two) and one count of lewd or lascivious exhibition (count three). (Doc. 14-8 at 1113). A jury found Petitioner guilty of all three counts. (Doc. 14-9 at 23-27). The trial
court adjudicated Petitioner guilty of the crimes and sentenced him to imprisonment for
a term of 127.5 months as to each of counts one and two, with the sentences to run
concurrently, and to probation for a term of 5 years as to count three. (Id. at 28-32;
Doc. 14-10 at 18-22). Petitioner filed a direct appeal with the Florida Fifth District Court
of Appeal (“Fifth District”), which affirmed and remanded for correction of judgment.
(Doc. 14-15 at 28). The Fifth District found that the judgment should have reflected that,
in count three, Petitioner was convicted of lewd or lascivious exhibition.
Petitioner next filed a motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, which the trial court denied. (Doc. 14-16 at 1-96; Doc. 14-17
at 86-89). The Fifth District affirmed per curiam. (Doc. 14-18 at 68).
Petitioner also filed a motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.853, which was denied. The Fifth District affirmed the denial per
curiam. (Doc. 28-1 at 7).
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 statecourt decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
2
“[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. Secretary for
Dep’t. of Corr., 432 F.3d 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.” 1 Id.
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
1
In considering the “unreasonable application” inquiry, the Court must determine
“whether the state court's application of clearly established federal law was objectively
unreasonable.” Williams, 529 U.S. at 409. 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).
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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), 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. 2
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
2
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.
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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).
III.
A.
ANALYSIS
Claims One and Two
Petitioner argues in claim one that he was denied a fair trial when the trial court
erroneously admitted the victim’s bed sheets at trial. (Doc. 7 at 5). He argues that his
due process rights under the Fifth and Fourteenth Amendments were violated. (Id.).
Petitioner argues in claim two that he was denied a fair trial when the trial court
erroneously allowed the introduction of other crimes and bad acts at trial. (Doc. 7 at 8).
He argues that his due process rights under the Fifth and Fourteenth Amendments were
violated. (Id.).
Claims one and two were raised in Petitioner’s direct appeal.
However,
Petitioner only apprised the state court that these claims involved a violation of state
law.
Petitioner made no reference to the federal constitutional issues raised here.
Ziegler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) (finding that the petitioner’s
federal habeas claims were not raised in the state court when the direct appeal made
no reference to the federal constitutional issues raised in the federal habeas petition.
Petitioner did not alert the state court to the fact that he was asserting claims under the
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United States Constitution. “[O]nly claims that were raised as federal constitutional
issues before the state courts have been exhausted in the state courts.” Snowden v.
Singletary, 135 F.3d 732, 736 n.4 (11th Cir. 1998). Thus, claims one and two are
unexhausted.
Moreover, since he would be precluded from now raising these claims in the
state courts, they are procedurally defaulted. 3 Petitioner has not shown either cause or
prejudice that would excuse the default. Likewise, Petitioner has neither alleged nor
shown the applicability of the actually innocent exception. The entire record has been
reviewed, and the Court concludes that Petitioner is unable to satisfy either of the
exceptions to the procedural default bar. Therefore, claims one and two are denied.
B.
Claim Three
Petitioner asserts that the trial court erred when it failed to grant his request for a
continuance. (Doc. 7 at 11). He states that a continuance would have allowed him to
present the testimony of his mother and “other possible defense witnesses.” (Id.). This
claim was raised on direct appeal.
“[A] trial court's ruling on a motion for mistrial [is reviewed] under an abuse of
discretion standard. Such a motion should be granted “only when it is necessary to
ensure that the defendant receives a fair trial.” Mosley v. State, 46 So. 3d 510, 525
(Fla. 2009) (quotation and citations omitted). Under Florida law, in order to prevail on a
3
There are two exceptions to the procedural default bar. The first is the "cause
and prejudice" exception; the second, which is a narrow one, is the "actually innocent"
exception, also known as the "fundamental miscarriage of justice" exception, used in
extraordinary circumstances. See Johnson v. Singletary, 938 F.2d 1166, 1174-75 (11th
Cir. 1991).
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motion for continuance based on the absence of a witness, the defendant must
demonstrate: “(1) prior due diligence to obtain the witness's presence; (2) substantially
favorable testimony would have been forthcoming; (3) the witness was available and
willing to testify; and (4) the denial of the continuance caused material prejudice.” Id.
In the present case, Petitioner’s counsel moved for a continuance on the first day
of testimony, after the jury had been selected and sworn. (Doc. 14-1 at 21). Petitioner’s
counsel advised the trial court that Petitioner wanted his mother to testify at the trial but
that she had left for Puerto Rico before the trial. (Id.). Petitioner’s counsel knew of her
as a potential witness “a long time ago” and attempted to meet with her, but she failed
to show up at the scheduled meeting. (Id. at 21-22).
Petitioner failed to show due diligence in obtaining his mother’s presence, and he
did not demonstrate that his mother would have provided substantially favorable
testimony. Moreover, his mother was unavailable to testify as she was in Puerto Rico,
and there has been showing that the denial of the continuance caused material
prejudice.
Consequently, the Court finds that the trial court did not erroneously deny the
motion for a continuance. As such, Petitioner has failed to demonstrate that the state
court's decision rejecting his claim was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of
the United States. Applying the AEDPA's deferential standard, claim three is denied.
C.
Claim Four
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Petitioner argues that trial counsel was ineffective based on the following: (1)
counsel failed to call potential exculpatory witnesses; (2) counsel failed to have
Petitioner’s DNA compared to the DNA extracted from the victim’s bed sheets; (3)
counsel failed to object when the prosecutor made reference to uncharged crimes and
to irrelevant evidence; (4) counsel failed to investigate certain witnesses; (5) counsel
failed to file a motion in limine and a motion to suppress physical evidence; and (6) the
cumulative effect of counsel’s errors entitles Petitioner to relief.
1.
Issues One and Four
Petitioner states that counsel failed to call potential exculpatory witnesses and to
investigate other witnesses. These issues were raised in Petitioner’s Rule 3.850 motion
and were denied because the testimony elicited from these witnesses would have been
irrelevant and would not have changed the outcome of the trial. (Doc. 14-17 at 86-87).
Petitioner mentions Maria Robles Camacho (his mother), Daisy Soto (his sister),
Alcides Soto (his brother-in-law), Diana Delawrence (his niece), and Luis Gomez (his
previous attorney) as potential witnesses. (Doc. 7 at 13, 19). He contends that these
witnesses would have “contradicted state witness testimony.” (Id. at 13-15).
Petitioner attached the affidavits of Robles, Delawrence, and Daisy Soto to his
Rule 3.850 motion. (Doc. 14-16 at 29-31). Petitioner did not provide affidavits from the
other two witnesses, but he stated that Alcides Soto would have testified that Robles
lived in the same house the entire time the victim lived there and that he had consulted
Gomez for legal advice regarding custody issues concerning the victim. (Id. at 7).
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Petitioner has failed to identify any specific information that any of these
witnesses had regarding the crimes charged in this case. Moreover, Petitioner failed to
show that any of these witnesses would have provided relevant testimony.
Under the circumstances, there has been no showing that counsel acted
deficiently or that Petitioner sustained prejudice. As such, the state court's rejection of
this claim was not contrary to, nor did it involve an unreasonable application of, clearly
established Supreme Court precedent, nor was it based upon an unreasonable
determination of the facts in light of the evidence presented.
As a result, issues one
and four are denied.
2.
Issue Two
Petitioner states that counsel failed to have Petitioner’s DNA compared to the
DNA extracted from the victim’s bed sheets. This issue was raised in Petitioner’s Rule
3.850 motion and was denied because counsel did not act deficiently.
At trial, the trial court admitted the victim’s bed sheet into evidence, and the State
indicated that it would be calling a DNA analyst to show the relevance. (Doc. 14-3 at
25). However, when it was time to call the analyst, the prosecutor informed the trial
court that his office had failed to properly secure the witness’ presence at trial that day.
(Doc. 14-4 at 10). The trial court refused to continue the case, and the State rested
without presenting the testimony of the DNA analyst. (Id. at 12). Petitioner’s counsel
moved to exclude the bed sheet from evidence, and the trial court denied the request.
(Id. at 13-17). When the State asked the trial court for permission to explain why there
was no expert, the trial court denied the request. (Doc. 14-6 at 10-11).
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Petitioner has not shown that counsel acted deficiently or that he sustained
prejudice. First, the State never presented any DNA evidence, and, since the analyst
was never called as a witness, the State was unable to argue about the significance of
the bed sheet.
Second, Petitioner’s counsel took advantage of that situation and
argued at closing that the State had failed to show that Petitioner’s DNA was on the bed
sheet. (Doc. 14-6 at 5). Third, Petitioner has failed to show that a DNA expert would
have testified that the DNA on the victim’s bed sheet did not belong to him. Finally,
Petitioner’s counsel moved to have the bed sheet removed from evidence and
successfully argued to prevent the State from offering any explanation regarding the
bed sheet.
As such, the state court's rejection of this claim was not contrary to, nor did it
involve an unreasonable application of, clearly established Supreme Court precedent,
nor was it based upon an unreasonable determination of the facts in light of the
evidence presented. As a result, issue two is denied.
3.
Issue Three
Petitioner states that counsel failed to object when the prosecutor made
reference to uncharged crimes and to irrelevant evidence. Petitioner raised this issue in
his Rule 3.850 motion, but he did not appeal the denial of this issue to the Fifth District.
The failure to appeal the denial results in a procedural default.
See Leonard v.
Wainwright, 601 F.2d 807, 808 (5th Cir. 1979) (exhaustion requires not only the filing of
a Rule 3.850 motion, but also an appeal of its denial).
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Petitioner has not shown either cause or prejudice that would excuse the default.
Likewise, Petitioner has neither alleged nor shown the applicability of the actually
innocent exception. The entire record has been reviewed, and the Court concludes that
Petitioner is unable to satisfy either of the exceptions to the procedural default bar.
Therefore, issue three denied.
4.
Issue Five
Petitioner states that counsel failed to file a motion in limine and a motion to
suppress physical evidence. He identifies that physical evidence as “DNA evidence,
including bed sheets.” (Doc. 7 at 20). This issue was raised in Petitioner’s Rule 3.850
motion and was denied because “there was no DNA evidence presented by the State,
[and therefore] counsel could not be deemed ineffective for failing to file a motion to
exclude it.” (Doc. 14-17 at 88).
The Court agrees with the trial court.
Since there was no DNA evidence
presented by the State, counsel was not ineffective for moving to exclude it. Further, as
previously discussed, counsel moved to exclude the bed sheet from evidence.
Petitioner has failed to show the counsel acted deficiently or that he sustained prejudice
with regard to this matter.
As such, the state court's rejection of this claim was not contrary to, nor did it
involve an unreasonable application of, clearly established Supreme Court precedent,
nor was it based upon an unreasonable determination of the facts in light of the
evidence presented. As a result, issue five is denied.
6.
Issue Six
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Petitioner states that the cumulative effect of counsel’s errors entitles him to
relief. None of Petitioner's individual claims of error or prejudice have any merit, and
therefore the Court has nothing to accumulate. The Eleventh Circuit Court of Appeals
has made clear that when “[t]here [is] no error in any of the [trial] court's rulings, the
argument that cumulative trial error requires that this Court reverse [the defendant's]
convictions is without merit.” Morris v. Sec'y, Dep't of Corr., 677 F.3d 1117, 1132 (11th
Cir. 2012). As a result, claim six is denied.
Allegations not specifically addressed herein are without merit.
IV.
CERTIFICATE OF APPEALABILITY
This Court should grant an application for a certificate of appealability only if the
petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
' 2253(c)(2). To make such a showing “[t]he 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). However, the petitioner need
not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner fails to demonstrate 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 fails to make a substantial showing of the denial of a constitutional right.
Thus, the Court will deny Petitioner a certificate of appealability.
V.
CONCLUSION
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Accordingly, it is ORDERED and ADJUDGED as follows:
1.
The Amended Petition for Writ of Habeas Corpus (Doc. 7) is DENIED.
2.
This case is DISMISSED with prejudice.
3.
Petitioner is DENIED a certificate of appealability in this case.
4.
The Clerk of the Court is directed to enter judgment in favor of
Respondents and to close this case.
DONE and ORDERED in Orlando, Florida on November 7th, 2016.
Copies furnished to:
Counsel of Record
Unrepresented Party
OrlP-2 11/7
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