Mosca v. Secretary, Department of Corrections et al

Filing 23

ORDER dismissing case Signed by Judge Roy B. Dalton, Jr. on 10/11/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RAFFAELE MOSCA,
Petitioner,
v.

Case No: 6:16-cv-2057-Orl-37TBS

SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS
and ATTORNEY GENERAL, STATE OF
FLORIDA,
Respondents.

/
ORDER

This cause is before the Court on the Petition for Writ of Habeas Corpus
(“Petition,” Doc. 1) filed by Petitioner pursuant to 28 U.S.C. § 2254. Respondents filed a
Response to Petition (“Response,” Doc. 7) 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. 22) to the Response. For the reasons set forth herein, the
Petition is denied.
I.

PROCEDURAL BACKGROUND

The State Attorney of the Ninth Judicial Circuit charged Petitioner by Amended
Information in Orange County, Florida with grand theft of a motor vehicle (Count One),
robbery (Count Two), false imprisonment (Count Three), battery (Count Four), and
grand theft (Count Five). (Doc. 8-1 at 87-90). A jury found Petitioner guilty as to all

counts. (Id. at 116-20). The trial court adjudicated Petitioner guilty of the crimes and
sentenced him to imprisonment for a term of forty years as to Count Two and to five
years as each of the remaining counts, with the sentences to run concurrently. (Id. at
102-08). The trial court subsequently resentenced Petitioner as a violent career criminal
to ten year terms of imprisonment as to each of Counts One, Three, and Four. (Id. at
180-88). Petitioner filed a direct appeal with the Florida Fifth District Court of Appeal
(“Fifth DCA”), which reversed and remanded for the trial court to reimpose the
sentences for Counts One, Three, and Four that were originally entered. (Id. at 1022).
Petitioner next filed a motion for postconviction relief pursuant to Florida Rule of
Criminal Procedure 3.850, which the trial court denied. (Id. at 1025-42, 1067-70). The
Fifth DCA affirmed the denial per curiam. (Doc. 8-2 at 4). Petitioner then filed a petition
for writ of habeas corpus, which the Fifth DCA denied. (Id. at 22-32).
II.
A.

LEGAL STANDARDS

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

The AEDPA governs the Petition. Because Petitioner’s claims were adjudicated
on the merits by the state courts, Petitioner can obtain relief only if that adjudication
was “contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court,” or 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)(1)-(2). A state court's findings of fact are presumed
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correct under AEDPA “unless rebutted by clear and convincing evidence.” McNair v.
Campbell, 416 F.3d 1291, 1297 (11th Cir.2005) (citing 28 U.S.C. 2254(e)(1)).
“A state court decision is ‘contrary to’ clearly established federal law when it
arrives at an opposite result from the Supreme Court on a question of law, or when it
arrives at a different result from the Supreme Court on ‘materially indistinguishable’
facts.” Owens v. McLaughlin, 733 F.3d 320, 324 (11th Cir. 2013) (quoting Williams v.
Taylor, 529 U.S. 362 (2000)). Under the “unreasonable application” clause, habeas relief
may be granted only if “the state court identifie[d] the correct governing legal principle
from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the
facts of the prisoner's case.” Pope v. Sec'y, Fla. Dep't of Corr., 752 F.3d 1254, 1262 (11th
Cir.2014) (quoting Jones v. GDCP Warden, 746 F.3d 1170, 1183 (11th Cir.2014)).
“[A]n unreasonable application [of clearly established federal law] must be
objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, . .
. a state prisoner must show that the state court's ruling on the claim . . . was so lacking
in justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S. Ct.
1697, 1702 (2014) (internal quotation marks omitted).
B.

Standard for Ineffective Assistance of Counsel

To prevail on an ineffectiveness claim, the petitioner must satisfy the twopronged test established in Strickland v. Washington, 466 U.S. 668 (1984). First, the
petitioner must demonstrate that counsel's performance was deficient. To meet this
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prong, the petitioner must show that counsel made errors so serious that he was not
functioning as counsel guaranteed by the Sixth Amendment. Id. at 687. There is a
strong presumption that counsel's conduct fell within the range of reasonable
professional assistance, and, consequently, counsel's performance is deficient only if it
falls below the wide range of competence demanded of attorneys in criminal cases. Id.
at 689. Next, the petitioner must demonstrate that prejudice was suffered as a result of
that performance. Id. at 687. Prejudice is established when there is a “reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.

A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”

Id. at 694.

A habeas petitioner claiming

ineffective assistance of counsel must carry his burden on both Strickland prongs, and a
court need not address both prongs if the petitioner has made an insufficient showing
on one. See id. at 697; Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001).
III.
A.

ANALYSIS

Claim One

Petitioner states that counsel was ineffective for failing to properly explain the
plea offer and how the Violent Career Criminal Act (“VCC”) pertained to the plea offer.
(Doc. 1 at 5). This claim was raised in Petitioner’s Rule 3.850 motion, and it was denied
because Petitioner was aware of the VCC ramifications. (Doc. 8-1 at 1069).
Petitioner states that counsel at “no time . . . explain[ed] to [him] the Violent
Criminal Act and its minimum mandatory requirements and how it effect[ed] [sic] his
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plea.” (Doc. 1 at 5). The record reflects that, prior to trial, the prosecutor set forth the
terms of the plea offer and that Petitioner rejected the offer. (Doc. 8-1 at 1071). The trial
court then thoroughly explained the terms of a VCC sentence to Petitioner, and
Petitioner stated that he understood the explanation and that he still intended to reject
the plea offer. (Id. at 1072). Moreover, prior to trial, the State sent to Petitioner at his
home address a copy of the Violent Career Criminal Notice. (Id.) The Notice set forth
in detail the possible sentences facing Petitioner. The Court finds that Petitioner was
fully informed of the terms of the plea offer and the details of a VCC sentence and that
Petitioner knowingly decided to reject the plea offer.
Under the circumstances, Petitioner has failed to demonstrate that counsel acted
deficiently with regard to this matter or that he sustained prejudice. 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, this Court denies Claim One.
B.

Claim Two

Petitioner states that counsel failed to “call witnesses whose statements,
description of the suspect and photo line-up identification was favorable and totally
contradictory to the State’s witnesses.” (Doc. 1 at 7). According to Petitioner, Jennifer
Lynn Woods, Katherine Rogers Dionne, Adediran Adepeju, and Samuel Ikuejamofo
“gave favorable statements to police and their photo-id identification was favorable.”
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(Id.) This claim was raised in Petitioner’s Rule 3.850 motion, and it was denied because
there was no showing of prejudice.
The law does not favor ineffective assistance of counsel claims based on
complaints of uncalled witnesses. See Gasanova v. United States, 2007 WL 2815696, at *9
(W.D. Tex. September 6, 2007) (citations omitted) (footnotes omitted). The presentation
of witness testimony is essentially strategy, and it is, therefore, within trial counsel's
domain.

Id. Mere speculation as to the testimony an uncalled witness would have

given is too uncertain. Id. A petitioner cannot simply state that the testimony would
have been favorable; self-serving speculation will not sustain an ineffective assistance
claim. Id. In the case of an uncalled witness, at the very least, the petitioner must
submit an affidavit from the uncalled witness stating the testimony he or she would
have given had they been called at trial. Id. To show prejudice, the petitioner must
show not only that the uncalled witness's testimony would have been favorable, but
also that the witness would have testified at trial. Id. Here, Petitioner fails to meet the
prejudice prong of Strickland since he has not demonstrated that the testimony of these
witnesses would have been favorable or that these witnesses would have actually
testified at trial.
Further, Petitioner confessed to committing the crimes during his interview with
Detective April Brunner, and the videotape of this interview was played for the jury
during the trial. (Doc. 8-1 at 718-48). In addition, the discovery in this case revealed

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that the most these witnesses could say was that they could not identify the perpetrator.
(Id. at 1064-66). Therefore, Petitioner cannot establish prejudice.
Under the circumstances, Petitioner has failed to demonstrate that counsel acted
deficiently with regard to this matter or that he sustained prejudice. 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, this Court denies Claim Two.
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.
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Thus, the Court will deny Petitioner a certificate of appealability.
V.

CONCLUSION

Accordingly, it is ORDERED and ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus (Doc. 1) 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 October 11th, 2017.

Copies furnished to:
Counsel of Record
Unrepresented Party
OrlP-2 10/11

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