Nieves v. Secretary, Department of Corrections et al
Filing
19
ORDER dismissing case with prejudice. Petitioner is denied a certificate of appealability. The Clerk of Court is directed to terminate any pending motions, enter judgment accordingly, and close this case. Signed by Judge Paul G. Byron on 2/26/2018. (LTG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JORGE NIEVES, JR.,
Petitioner,
v.
Case No: 6:16-cv-1258-Orl-40TBS
SECRETARY, DEPARTMENT OF
CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents.
/
ORDER
THIS CAUSE is before the Court on a Petition for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2254 by Jorge Nieves, Jr. (“Petitioner” or “Nieves”). (Doc. 1, filed
July 13, 2016). In compliance with this Court’s Order (Doc. 6), Respondents filed a
Response to the Petition. (Doc. 10). Nieves filed a Reply (Doc. 15), and the Petition is ripe
for review. For the reasons set forth below, the Petition will be denied.
I.
Background and Procedural History
On March 14, 2012, Nieves was charged by information with one count of second
degree murder, in violation of Florida Statute §§ 782.04(2) and 775.087(1). (Doc. 11-1 at
41). Prior to trial, Nieves filed a motion to suppress the statements he made to the police.
(Id. at 53). The trial court held a hearing on Nieves’ motion to suppress. (Doc. 11-33 at
56). After the hearing, the trial court denied the motion in a written order. (Doc. 11-2 at
11-13).
A jury found Nieves guilty as charged with a separate finding that he used a
weapon during the commission of the crime. (Doc. 11-28 at 38). Nieves was sentenced
to forty years in prison. (Doc. 11-29 at 1-2). His conviction and sentence were affirmed
by Florida’s Fifth District Court of Appeal (“Fifth DCA”). (Doc. 11-35 at 37); Nieves v.
State, 162 So. 3d 1037 (Fla. 5th DCA 2014).
On August 28, 2015, Nieves filed a motion for post-conviction relief pursuant to
Rule 3.850 of the Florida Rules of Criminal Procedure (“Rule 3.850 Motion”). (Doc. 11-35
at 40). The post-conviction court denied the motion in a detailed written order. (Id. at
62). On appeal, Nieves argued only that the post-conviction court erred by failing to hold
an evidentiary hearing on one of his issues, and Florida’s Fifth DCA affirmed per curiam.
(Doc. 11-37 at 15). Thereafter, Nieves filed a state petition for writ of habeas corpus in
Florida’s First District Court of Appeal. (Doc. 10 at 3). Nieves did not serve a copy of the
petition on the State. (Id.).
The state court dismissed the petition because it was
unauthorized and filed in the wrong court. (Doc. 11-37 at 33).
II.
A.
Legal Standards
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.
2
28 U.S.C. § 2254(d). This standard is both mandatory and difficult to meet. White v.
Woodall, 134 S. Ct. 1697, 1702 (2014). Notably, a state court’s violation of state law is not
sufficient to show that a petitioner is in custody in violation of the “Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254; Wilson v. Corcoran, 562 U.S. 1, 16 (2010).
“Clearly established federal law” consists of the governing legal principles, rather
than the dicta, set forth in the decisions of the United States Supreme Court at the time
the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70,
74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). That said, the Supreme Court
has also explained that “the lack of a Supreme Court decision on nearly identical facts
does not by itself mean that there is no clearly established federal law, since ‘a general
standard’ from [the Supreme Court’s] cases can supply such law.” Marshall v. Rodgers,
133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). State
courts “must reasonably apply the rules ‘squarely established’ by [the Supreme] Court’s
holdings to the facts of each case.” White, 134 S. Ct. at 1706 (quoting Knowles v. Mirzayance,
556 U.S. 111, 122 (2009)).
Even if there is clearly established federal law on point, habeas relief is only
appropriate if the state court decision was “contrary to, or an unreasonable application
of,” that federal law. 29 U.S.C. § 2254(d)(1). A decision is “contrary to” clearly established
federal law if the state court either: (1) applied a rule that contradicts the governing law
set forth by Supreme Court case law; or (2) reached a different result from the Supreme
3
Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144,
1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
A state court decision involves an “unreasonable application” of the Supreme
Court’s precedents if the state court correctly identifies the governing legal principle, but
applies it to the facts of the petitioner’s case in an objectively unreasonable manner, Brown
v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or
“if the state court either unreasonably extends a legal principle from [Supreme Court]
precedent to a new context where it should not apply or unreasonably refuses to extend
that principle to a new context where it should apply.” Bottoson, 234 F.3d at 531 (quoting
Williams, 529 U.S. at 406). The petitioner must show that the state court’s ruling was “so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” White, 134 S. Ct. at
1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)).
Moreover, “it is not an
unreasonable application of clearly established Federal law for a state court to decline to
apply a specific legal rule that has not been squarely established by [the Supreme] Court.”
Knowles, 556 U.S. at 122.
Notably, even when the opinion of a lower state post-conviction court contains
flawed reasoning, the federal court must give the last state court to adjudicate the
prisoner’s claim on the merits “the benefit of the doubt.” Wilson v. Warden, Ga. Diagnostic
Prison, 834 F.3d 1227, 1235 (11th Cir. 2016), cert granted Wilson v. Sellers, No. 16-6855, 137S.
Ct. 1203 (2017). A state court’s summary rejection of a claim, even without explanation,
qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver,
4
527 F.3d 1144, 1146 (11th Cir. 2008). Therefore, to determine which theories could have
supported the state appellate court’s decision, the federal habeas court may look to a state
post-conviction court’s previous opinion as one example of a reasonable application of
law or determination of fact; however, the federal court is not limited to assessing the
reasoning of the lower court. Wilson, 834 F.3d at 1239.
Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind
that any “determination of a factual issue made by a State court shall be presumed to be
correct[,]” and the petitioner bears “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134
S. Ct. 10, 15 (2013) (“[A] state-court factual determination is not unreasonable merely
because the federal habeas court would have reached a different conclusion in the first
instance.”) (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)) .
B.
Ineffective Assistance of Counsel
In Strickland v. Washington, the Supreme Court established a two-part test for
determining whether a convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must
establish that counsel’s performance was deficient and fell below an objective standard
of reasonableness and that the deficient performance prejudiced the defense. Id. This is a
“doubly deferential” standard of review that gives both the state court and the
petitioner’s attorney the benefit of the doubt. Burt, 134 S. Ct. at 13 (citing Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011)).
5
The focus of inquiry under Strickland’s performance prong is “reasonableness
under prevailing professional norms.” Strickland, 466 U.S. at 688-89. I n reviewing
counsel’s performance, a court must adhere to a strong presumption that “counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Indeed, the petitioner bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable[.]” Jones v. Campbell, 436 F.3d
1285, 1293 (11th Cir. 2006). A court must “judge the reasonableness of counsel’s conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct,” applying
a “highly deferential” level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477
(2000) (quoting Strickland, 466 U.S. at 690).
As to the prejudice prong of the Strickland standard, Petitioner’s burden to
demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002).
Prejudice “requires showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That
is, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A reasonable probability is “a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
C.
Exhaustion
The AEDPA precludes federal courts, absent exceptional circumstances, from
granting habeas relief unless a petitioner has exhausted all means of available relief under
state law. Exhaustion of state remedies requires that the state prisoner “fairly presen[t]
6
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. Connor, 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).
In addition, a federal habeas court is precluded from considering claims that are
not exhausted and would clearly be barred if returned to state court.
Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner has failed to exhaust state remedies
and the state court to which the 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).
A petitioner can avoid the application of procedural default by establishing
objective cause for failing to properly raise the claim in state court and actual prejudice
from the alleged constitutional violation. Spencer v. Sec’y, Dep’t of Corr., 609 F.3d 1170,
1179–80 (11th Cir. 2010). To show cause, a petitioner “must demonstrate that some
objective factor external to the defense impeded the effort to raise the claim properly in
7
state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999); Murray v. Carrier, 477 U.S.
478 (1986). To show prejudice, a petitioner must demonstrate there is a reasonable
probability the outcome of the proceeding would have been different. Crawford v. Head,
311 F.3d 1288, 1327–28 (11th Cir. 2002).
A 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, 477 U.S. at 479-80. 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). “To 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).
III.
Analysis
Nieves raises ten claims in his habeas petition. In Claims One, Two, and Seven, he
argues that the trial court erred by denying his motion to suppress; by comparing jury
duty to military service; and by failing to rule on his pre-trial stand-your-ground motion.
In Claims Three through Six and Eight, Nieves urges that trial counsel was ineffective for
failing to: (1) object to the prosecutor’s closing argument regarding the jury instructions
on excusable homicide and self-defense; (2) have the jury instructed on self-defense; (3)
set a hearing on Nieves’ stand-your-ground motion; (4) object to the medical examiner’s
opinion testimony; and (5) stay awake throughout Nieves’ entire trial. In Claim Nine,
8
Nieves asserts that the cumulative effect of trial counsel’s errors resulted in a
constitutional violation. (Doc. 1 at 12-18). Each claim is addressed below.
A.
Claim One
Nieves asserts that the trial court erred when it denied his motion to suppress his
statement to the police. (Doc. 1 at 12). He claims that he was under heavy medication
during the questioning, and was “force[d] to sign waiver of rights, interrogated by
detectives, and answers later used to convict Petitioner.” (Id.). Nieves raised this issue
in a pre-trial motion to suppress (Doc. 11-1 at 43), and the trial court held an evidentiary
hearing. (Doc. 11-33 at 56). The trial court heard testimony from Investigator Olga
Cortizo, Investigator Rachel Rados, and Nieves. The court also reviewed a recording of
the investigators’ interview with Nieves. Thereafter, the trial court issued a written order
finding that Nieves was in custody during the interrogation, was read the Miranda1
warnings, understood the warnings, and voluntarily waived his right to remain silent:
The Defendant argues the statements should be suppressed
claiming violation of the Fifth Amendment, alleging
Investigator Cortizo and/or Rados never read the Defendant
his Miranda rights prior to questioning him. The Defendant
further alleges he was under the influence of medications at
the time of questioning. He argues [even] if he was read
Miranda, that based upon the circumstance, he did not
Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the United States Supreme Court
concluded that a suspect who has been advised of his rights against self-incrimination
“may waive effectuation of these rights, provided the waiver is made voluntarily,
knowingly and intelligently.” Id. at 444. It is not necessary for the accused to be read his
rights verbatim as stated in the Miranda opinion; the important inquiry is whether the
warnings, however worded, conveyed to the accused his rights. California v. Prysock, 453
U.S. 355, 360–61 (1981).
1
9
understand them and was unable to make a voluntary
statement.
Meanwhile, on the date in question, the investigators were
initially contacted by the hospital nurse that the defendant
was available for an interview and lucid, as he had not had
medications in at least 4 hours. The investigators responded
to ORHS to Mr. Nieves’ hospital room. According to the
testimony, Investigator Cortizo, who is fluent in Spanish, read
Jorge Nieves his Miranda Rights in Spanish. Investigator
Rados observed Investigator Cortizo reading it to the
defendant. The defendant acknowledged that he understood
his rights. The investigators had him sign the Miranda card
to demonstrate his acknowledgement. The Court listened to
the complete recording of the Defendant's interview entered
in evidence. On the recording, the defendant acknowledged
that he was read his Miranda Rights in Spanish and
understood those rights.
The court further addresses whether Jorge Nieves was under
the influence at the time of his questioning and able to
provide a knowing and voluntary waiver of his rights. The
defendant testified at the hearing that he did not understand
the rights read to him. This Court does not find this testimony
credible. His testimony was inconsistent with the other
evidence at the hearing. The Defendant was questioned
several hours after his surgery. The hospital contacted the
sheriff’s office because he appeared lucid and had not had any
medications for at least four hours. There is insufficient
evidence as to any amount of medication given. It is evident
in the recording and by way of testimony, the Defendant
appeared coherent, forthcoming and responsive during
questioning. He acknowledged that he was read his Miranda
Rights in Spanish and he understood them. This is further
evident by his signature on the Miranda Card, which was
signed prior to making his statement. Based on the foregoing,
this Court finds there is competent, substantial evidence that
the Defendant understood his rights as they were read to him;
and his statements were freely and voluntarily given.
(Doc. 11-2 at 11-13). Florida’s Fifth DCA affirmed the trial court’s decision without a
written opinion. (Doc. 11-35 at 37). The silent affirmance of the post-conviction court is
10
entitled to deference, and this Court must determine whether any arguments or theories
could have supported the appellate court’s decision. Wilson, 834 F.3d at 1235.
Whether a suspect in custody was informed of his Miranda rights is a question of
fact; however, whether the suspect knowingly and intelligently waived his rights and
whether his statements were voluntary are questions of law. Mincey v. Head, 206 F.3d
1106, 1131 (11th Cir. 2000); Miller v. Fenton, 474 U.S. 104, 115 (1985) (whether a confession
is voluntary under the Fourteenth Amendment is a question of law and a state-court's
finding of fact on this issue is not entitled to a presumption of correctness); Thompson v.
Keohane, 516 U.S. 99, 111 (1995) (assessing the predecessor of § 2254(e)(1)). The United
States Supreme Court has explained:
[S]ubsidiary questions, such as length and circumstances of
the interrogation, the defendant's prior experience with the
legal process, and familiarity with the Miranda warnings,
often require the resolution of conflicting testimony of police
and defendant. The law is therefore clear that state-court
findings on such matters are conclusive on the habeas court if
fairly supported in the record. . . . But once such underlying
factual issues have been resolved, and the moment comes for
determining whether, under the totality of the circumstances,
the confession was obtained in a manner consistent with the
Constitution, the state-court judge is not in an appreciably
better position than the federal habeas court to make that
determination.
Miller, 474 U.S. at 117.
In the instant case, the trial court did not believe Nieves’ assertions that he was not
given complete Miranda warnings; that he did not understand the Miranda warnings; and
that he could not have understood the warnings because he was recovering from surgery.
Federal habeas courts have “no license to redetermine credibility of witnesses whose
11
demeanor has been observed by the state trial court, but not by them.” Marshall v.
Lonberger, 459 U.S. 422, 434 (1983). Therefore, the state court's factual finding that Nieves
was advised of his constitutional rights under Miranda is a question of fact that is
presumed correct. 28 U.S.C. § 2254(e)(1).
The trial court also found that Nieves understood his Miranda rights and
voluntarily waived them. (Doc. 11-2 at 12-13). Although this finding is not entitled to
the same presumption of correctness under Miller, a review of the record supports the
state court’s conclusions. At the evidentiary hearing, testimony was heard from
Investigator Olga Cortizo (“Cortizo”) that Nieves was advised in Spanish of his Miranda
rights prior to his statement. (Doc. 11-3 at 64). Nieves also signed a card indicating his
understanding of his rights and agreeing to speak with the police. (Id.). Cortizo testified
that Nieves appeared coherent, understood the questions asked, and was responsive to
the questions. (Id. at 69). Cortizo further testified that Nieves did not appear to be under
the influence of drugs. (Id. at 70). Investigator Rachal Rados (“Rados”) testified that
Nieves was coherent and alert when questioned, understood the questions, and
“provided lots of detail.” (Id. at 86). Rados also testified that Nieves did not appear to
be under the influence of drugs or medication. (Id. at 89). Rados testified that the hospital
had informed the investigators that Nieves was stable and had not been on any
medication for more than three or four hours. (Id. at 95). Both investigators denied that
any promises or threats were made to induce Nieves to speak with them. (Id. at 70, 89).
At the beginning of the recorded interview with Cortizo and Rados, Nieves was asked
12
whether he understood his Miranda rights, and he indicated that he did. (T. at 293).2
During the recorded interview, Nieves appropriately, and without hesitation, answered
the questions asked by the investigators. “As a general proposition, the law can presume
that an individual who, with a full understanding of his or her rights, acts in a manner
inconsistent with their exercise has made a deliberate choice to relinquish the protection
those rights afford.” Berghuis v. Thompkins, 560 U.S. 370, 385 (2010); see also United States
v. Cardwell, 433 F.3d 378, 389–90 (4th Cir. 2005) (“Because [the defendant] had been fully
informed and indicated his understanding of his Miranda rights, his willingness to
answer [the officer]'s question is as clear an indicia of his implied waiver of his right to
remain silent as we can imagine.” (citation omitted)).
The totality of the circumstances supports a conclusion that Nieves understood the
Miranda warnings given by Investigator Cortizo and that his waiver of his Miranda rights
was knowing and voluntary. See United States v. Barbour, 70 F.3d 580, 585 (11th Cir. 1995)
(“Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an
uncoerced choice and the requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived.”) (citation omitted); Miller, 474 U.S. at 117
(noting that a habeas court must look to the totality of the circumstances to determine
whether a waiver was knowing and voluntary). The trial court considered the testimony
of both Nieves and the police and rejected Nieves’ claims that he did not receive or
Although it was not played at the evidentiary hearing on Petitioner’s motion to
suppress, the trial judge said that she had listened to the recording of Petitioner’s
statement, and portions of the recording were played at trial. (T. at 293-313).
2
13
understand his Miranda warnings. Nieves fails to show that the state court decision on
this issue was contrary to, or involved an unreasonable application of, clearly established
federal law. Nieves is not entitled to habeas relief on the ground that he did not receive
proper Miranda warnings. Claim One is denied.
B.
Claim Two
Nieves asserts that his constitutional rights were violated when the trial court
compared jury duty to military service, stating “that both were necessary to protect your
community and keep your community safe and secure.” (Doc. 1 at 12). The complainedof comment, which occurred at the beginning of jury selection, consisted of the trial
court’s attempt to explain to the venire that jury duty was a form of public service:
Like I said, I’d like you to consider this an educational
experience as well as a service to your community. And to
put it in this perspective, there are men and women in this
country who are serving your country and serving overseas
for weeks, months, years at a time, keeping your community
safe and secure. And the justice system is also what keeps
your community safe and secure. And without juries, the
justice system would not work. And all we’re asking for this
week is a few days out of time rather than weeks, months, or
years at a time like those men and women who are fighting
for your community. So I’d like you to put it in that
perspective, if you’re chosen to serve on this case or actually
on any case in this courthouse this week, that we’re asking for
some moments of inconvenience in your lives of your time to
your duty to serve your community.
(T. at 8-9). Nieves argues that the statement was prejudicial because he was the only
person from whom the community could be protected.
(Id.).
He asserts that the
statement tainted the entire jury pool. (Id.). Nieves raised this claim on direct appeal as
14
one of fundamental error (Doc. 11-34 at 52), and it was denied by Florida’s Fifth DCA.
(Doc. 11-35 at 37).
Nieves does not explain how the appellate court’s rejection of Claim Two was
contrary to, or based upon an unreasonable application of, clearly established federal law.
He does not direct this Court towards a Supreme Court case with materially
indistinguishable facts that reached a different result from the state appellate court. Nor
does he allege that the appellate court’s rejection was based upon an unreasonable
determination of the facts.
Presumably then, Petitioner urges that the state court
misapplied the general rule that defendants have a “due process right to a competent and
impartial tribunal.” Peters v. Kiff, 407 U.S. 493 (1972). Under Peters, a state criminal
defendant who can demonstrate that a member of the jury that heard his case was
actually biased or incompetent may be entitled to federal habeas corpus relief. See Rogers
v. McMullen, 673 F.2d 1185, 1189 (11th Cir. 1982). Nieves has not made a showing of juror
bias or incompetence; nor has he attempted to do so. Rather, he merely speculates that
the trial judge’s comment “was prejudicial.” (Doc. 1 at 12). Because Nieves does not
make a showing that any juror was actually biased against him or otherwise unfit to
serve, he is not entitled to habeas corpus relief. Rogers, 673 F.2d 1185, 1189 (11th Cir. 1982)
(defendant’s Sixth Amendment right to a fair and impartial jury was not violated absent
a showing that a jury member hearing the case was actually biased against him); Estiven
v. Sec’y, Dep’t of Corr., No. 16-14056-D, 2017 WL 6806915, at *4 (11th Cir. September 28,
2017) (noting that “speculation cannot form the basis of a valid [habeas] claim”). Claim
Two is denied.
15
C.
Claims Three, Four, Five, and Six
In Claims Three through Six, Nieves asserts that trial counsel was ineffective for
failing to: (1) object to the prosecution’s closing argument that urged the jury to ignore
the instructions on excusable homicide and self-defense; (2) have the jury instructed on
self-defense; (3) set a hearing for a stand-your-ground motion; and (4) object to the
medical examiner’s opinion testimony. (Doc. 1 at 13-15). Nieves raised these claims in
his Rule 3.850 Motion (Doc. 11-35 at 40), and they were summarily denied by the postconviction court. (Id. at 61-64). Although Nieves filed a notice of appeal (Doc. 11-36 at
47), in his brief on appeal, Nieves argued only that the trial court erred when it failed to
hold an evidentiary hearing on his claim that trial counsel was ineffective for failing to
set a hearing on his stand-your-ground motion. (Doc. 11-37 at 1-12).
Respondent urges that claims three through six are unexhausted for federal habeas
review because Nieves did not appeal the post-conviction court’s denial of these claims.
(Doc. 10 at 6). Indeed, in the Fifth DCA, an appellant who files a brief appealing the
summary denial of a post-conviction motion is required to address all arguments in his
brief that he wishes to preserve for appellate review. See Ward v. State, 19 So. 3d 1060,
1061 (Fla. 5th DCA 2009); see also Maxwell v. State, 169 So.3d 1264, 1265 n.1 (Fla. 5th DCA
2015) (on appeal of lower court's summary denial of Rule 3.850 motion without
evidentiary hearing, defendant abandoned two of his three grounds for relief by raising
only one ground in his appellate brief) (citing Ward, 19 So.3d at 1061).
The “one complete round” exhaustion requirement set forth in O'Sullivan v.
Boerckel, 526 U.S. 838 (1999) applies to post-conviction review as well; a prisoner must
16
appeal the denial of post-conviction relief in order to properly exhaust state remedies.
LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1261 (11th Cir. 2005) (as Florida prisoner
failed to properly exhaust claim on direct appeal or Rule 3.850 appeal, it was procedurally
barred, citing Coleman); Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (“Boerckel applies
to the state collateral review process as well as the direct appeal process”); Pruitt v. Jones,
348 F.3d 1355, 1359 (11th Cir. 2003) (“A § 2254 habeas petition ‘shall not be deemed to
have exhausted the remedies available in the courts of the State . . . if he has the right
under the law of the State, to raise, by any available procedure, the question presented.’”)
(citing 28 U.S.C. § 2254(c)).
“A petitioner who fails to exhaust his claim is procedurally barred from pursuing
that claim on habeas review in federal court unless he shows either cause for and actual
prejudice from the default or a fundamental miscarriage of justice from applying the
default.” Lucas v. Sec'y, Dep't of Corr., 682 F.3d 1342, 1353 (11th Cir. 2012). In his reply,
Nieves argues that the default of these claims is excused by the Supreme Court’s holding
in Martinez v. Ryan. (Doc. 15 at 3).3
3
In Martinez v. Ryan, 132 S. Ct. 1309 (2012) the United State Supreme Court held:
Where, under state law, claims of ineffective assistance of trial
counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance
at trial if, in the initial-review collateral proceeding, there was
no counsel or counsel in that proceeding was ineffective.
Id. at 1320. Under Martinez, a petitioner still must establish that his underlying ineffective
assistance claim is “substantial” -- that is, that it has “some merit” before the procedural
default can be excused. Martinez, 132 S. Ct. at 1318-19.
17
In Martinez, the Supreme Court relaxed the Coleman cause-and-prejudice standard
to excuse procedural default in a narrow category of cases. Specifically, the Supreme
Court determined that the procedural default of “an ineffective-assistance claim” by postconviction counsel in an initial-review state-court collateral proceeding should be
excused under a more lenient standard than cause and prejudice under Coleman.
Martinez, 132 S. Ct. at 1318. However, the Court in Martinez was careful to restrict its
holding to ineffective assistance in the initial-review collateral proceeding in state court.
The Court wrote:
The rule of Coleman governs in all but the limited
circumstances recognized here. The holding in this case does
not concern attorney errors in other kinds of proceedings,
including appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions for
discretionary review in a State's appellate courts. It does not
extend to attorney errors in any proceeding beyond the first
occasion the State allows a prisoner to raise a claim of
ineffective assistance at trial, even though that initial-review
collateral proceeding may be deficient for other reasons.
Id. at 1320 (emphasis added)(citations omitted). In the instant case, it is only the appeal
of an initial review collateral proceeding (the Rule 3.850 Motion) that was defaulted.
Therefore, the Martinez exception does not apply. Broadening the rule to excuse Nieves’
failure to exhaust in this case would ignore the Supreme Court’s emphatic statement that
the Martinez rule creates only a narrow exception to Coleman’s general rule. See Martinez,
132 S. Ct. at 1315 (referring to a “narrow exception”); id. at 1320 (referring to the “limited
circumstances” in which its ruling applied and discussing the “limited nature” of the
18
rule); Trevino v. Thaler, 133 S. Ct. 1911, 1921 (2013) (applying Martinez's “narrow
exception”).
Nieves has made none of the requisite showings to excuse the default of Claims
Three, Four, Five, and Six. This failure bars federal habeas review of the claims. Coleman,
501 U.S. at 734–35. Accordingly, Claims Three, Four, Five, and Six are dismissed as
unexhausted and procedurally barred.
D.
Claims Seven and Ten
In Claim Seven, Nieves argues that the trial court erred when it failed to rule on
his stand-your-ground motion. ( Doc. 1 at 16). In Claim Ten, Nieves urges that the
imposition of a forty-year sentence, followed by life probation, violates the Double
Jeopardy Clause of the United States Constitution. (Id. at 19). Nieves raised these claims
in a state petition for writ of habeas corpus that he incorrectly filed in Florida’s First
District Court of Appeal. (Doc. 10 at 6). The petition was dismissed as unauthorized by
Florida’s First DCA pursuant to Baker v. State, 878 So. 2d 1236 (Fla. 2004).4 (Doc. 11-37 at
33).
In Baker v. State, the Florida Supreme Court held that habeas petitions filed by noncapital
defendants should be dismissed as unauthorized if the petition seeks the type of postconviction relief that would be available through a motion filed in the sentencing court
and that: (1) would be untimely if considered as a motion for post-conviction relief under
Rule 3.850 of the Florida Rules of Criminal Procedure; (2) raises claims that could have
been raised at trial, or if properly preserved, on direct appeal; or (3) would be considered
a second or successive Rule 3.850 motion that either fails to allege new or different
grounds for relief or alleges new grounds that were known or should have been known
at the time the first motion was filed. 878 So. 2d at 1245-46.
4
19
Because Nieves attempted to raise these claims in a manner not permitted by state
procedural rules, he is barred from pursuing them in federal court absent a showing of
cause and prejudice. Nieves has made none of the requisite showings to excuse the
default, which bars federal habeas review of Claims Seven and Ten. Coleman, 501 U.S. at
734–35.
Accordingly, these claims are dismissed as unexhausted and procedurally
barred.
E.
Claim Eight
In Claim Eight, Nieves urges that he was “deprived of his right to have the
assistance of counsel when counsel slept through portions of Petitioner’s trial[.]” (Doc. 1
at 17). Initially, Nieves urged that he raised this claim in his state habeas petition, but he
did not provide the Court with a copy of the claim. Nieves’ entire Claim Eight is
summarized in the instant petition as follows:
Throughout the petitioner’s trial, counsel slept through a
substantial portion of petitioner’s trial was equivalent to no
counsel at all. This effected [sic] his ability to properly object
[to] witnesses, prosecution, and evidence adduced at trial and
together evaluate its impact.
(Id.). Although Nieves now admits that this claim is unexhausted, see discussion supra
Claims Seven and Ten, he urges that his failure to exhaust is excused under Martinez v.
Ryan. (Doc. 15 at 17). Under Martinez, a petitioner must still establish that his underlying
ineffective assistance claim is “substantial” — that is, that it has “some merit” — before
the procedural default can be excused. Martinez, 132 S. Ct. at 1318-19. Claim Eight is
unexhausted because it is not “substantial,” and does not fall within Martinez’ equitable
exception to the procedural bar.
20
Upon review of the trial court transcript, the Court can find no instance where trial
counsel was admonished for sleeping; nor does the transcript reflect that trial counsel
was less than attentive at any point. Nieves does not direct this Court to any instance
where counsel should have objected but failed to do so, and he has not explained how he
suffered prejudice from any alleged omission. On habeas review, Nieves bears the
burden of showing that he suffered prejudice from trial counsel’s alleged shortcomings.
See Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010) (“[I]n order to show prejudice, a
petitioner must demonstrate that ‘the errors at trial actually and substantially
disadvantaged his defense so that he was denied fundamental fairness.’”) (quoting
McCoy v. Newsome, 953 F.2d 1252, 1261 (11th Cir. 1992)).
Nieves’ failure to point out a single instance where he suffered actual prejudice as
a result of trial counsel’s slumber is fatal to his claim. Because Claim Eight is not
“substantial,” Martinez does not excuse Nieves’ failure to properly raise it in state court.
Martinez, 132 S. Ct. at 1318-20.
Nor has Nieves presented new, reliable evidence
indicating that the actual innocence exception would apply to excuse his default of this
claim. Claim Eight is dismissed as unexhausted.
F.
Claim Nine
Nieves asserts that the cumulative effect of counsel’s errors and trial court error
deprived him of his right to due process. (Doc. 1 at 18). This Court need not determine
whether this claim is exhausted or whether, under the current state of Supreme Court
precedent, cumulative error claims can ever succeed in showing that the state court's
adjudication on the merits was contrary to or an unreasonable application of clearly
21
established federal law. Nieves has not shown an error of constitutional dimension with
respect to any federal habeas claim. Therefore, he cannot show that the cumulative effect
of the alleged errors deprived him of fundamental fairness in the state criminal
proceedings. See Morris v. Sec ‘y, Dep't of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012)
(refusing to decide whether post-AEDPA claims of cumulative error may ever succeed in
showing that the state court's decision on the merits was contrary to or an unreasonable
application of clearly established law, but holding that petitioner's claim of cumulative
error was without merit because none of his individual claims of error or prejudice had
any merit); Forrest v. Fla. Dep't of Corr., 342 F. App'x 560, 565 (11th Cir. 2009) (noting
absence of Supreme Court precedent applying cumulative error doctrine to claims of
ineffective assistance of counsel, but holding that the petitioner's cumulative error
argument lacked merit because he did not establish prejudice or the collective effect of
counsel's error on the trial); Hill v. Sec’y, Fla. Dep’t of Corr., 578 F. App’x 805 (11th Cir.
2014) (same). Nieves is not entitled to federal habeas relief.
Any of Nieves’ allegations not specifically addressed herein have been found to
be without merit.
Because the petition is resolved on the record, an evidentiary hearing
is not warranted. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
IV.
Certificate of Appealability
Nieves is not entitled to a certificate of appealability. A prisoner seeking a writ of
habeas corpus has no absolute entitlement to appeal a district court's denial of his
petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability (“COA”). “A [COA] may issue . . . only if the applicant has made a
22
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To
make such a showing, Nieves must demonstrate that “reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that
“the issues presented were ‘adequate to deserve encouragement to proceed further.’”
Miller–El v. Cockrell, 537 U.S. 322, 335–36 (2003). Nieves has not made the requisite
showing in these circumstances.
Because Nieves is not entitled to a certificate of appealability, he is not entitled to
appeal in forma pauperis.
ACCORDINGLY, it is hereby ORDERED:
1.
The Petition for Writ of Habeas Corpus filed by Jorge Nieves, Jr. (Doc. 1) is
DENIED, and this case is DISMISSED WITH PREJUDICE.
3.
Nieves is DENIED a certificate of appealability.
4.
The Clerk of Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
DONE AND ORDERED in Orlando, Florida on February 26, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
SA: OrlP-4
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