Gutierrez v. Secretary, Department of Corrections et al
ORDER denying 1 --petition for writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the Clerk to ENTER JUDGMENT against Gutierrez and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/31/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CASE NO. 8:10-cv-853-T-23TGW
SECRETARY, Department of Corrections,
Gutierrez applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1)
and challenges his convictions for second degree murder with a weapon, for which
conviction Gutierrez serves twenty-five years in prison. Numerous exhibits
(“Respondent’s Exhibit __”) support the response. (Doc. 14) The respondent argues
that some grounds are not fully exhausted and, as a consequence, are procedurally
barred from federal review. The respondent admits the application’s timeliness.
(Response at 4, Doc. 14)
Gutierrez, the victim, and one of the witnesses were roommates. Gutierrez and
the victim were outside their trailer “drinking.” A neighbor testified that she observed
This summary of the facts derives from Gutierrez’s brief on direct appeal. (Respondent’s
the victim insult Gutierrez and attempt to initiate a fist-fight with Gutierrez, who
backed away until a friend of the victim intervened. The neighbor testified that
Gutierrez entered his trailer and upon his return to the scene, the victim started to
again “throw punches” but never struck Gutierrez. The victim started backing away
with his hands raised when, as a third witness testified, Gutierrez hit the victim in the
chest and, as Gutierrez pulled his hand back from the victim’s chest, the witness saw
something shiny like a knife in Gutierrez’s hand. The roommate heard a “turmoil”
outside and, as he exited the trailer, he saw the victim bleeding and Gutierrez
standing over the victim. Gutierrez was both visually angry and verbally insulting the
bleeding victim. All three witnesses saw Gutierrez flee and leave the victim bleeding.
The knife was found on the ground a few feet from the victim.
Two days later Gutierrez was found hiding in a trailer a couple of miles away.
Blood stains on the shorts that Gutierrez was wearing matched the victim’s blood.
The medical examiner testified (1) that the victim had no defensive wound; (2) that
the victim died from the loss of blood, which was caused by a knife wound to the
chest; (3) that the victim’s blood-alcohol level was 0.3, “a little less than half the legal
limit for a DUI;” and (4) that additional damage at the entrance wound was caused
by the base of the knife’s handle and indicated that the entire blade of the knife was
thrust into the body. The wound penetrated the lung and injured a vein near the
Gutierrez claimed that he acted in self-defense. Gutierrez testified that he
attempted to avoid the fight and told the victim to “calm down.” Gutierrez claimed
that the victim both had a weapon and threatened to kill him. In fear for his life,
Gutierrez picked-up a knife, pointed the knife at the victim, and told the victim to
“back off.” When the victim lunged at him, Gutierrez extended the knife toward the
victim and stabbed him. Gutierrez testified that he was scared and that he fled the
scene because he was shocked at what had happened.
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly
deferential standard for federal court review of a state court adjudication, states in
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
(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
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court
interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a
federal habeas court to grant a state prisoner’s application for a
writ of habeas corpus with respect to claims adjudicated on the
merits in state court. Under § 2254(d)(1), the writ may issue only if
one of the following two conditions is satisfied--the state-court
adjudication resulted in a decision that (1) “was contrary to . . .
clearly established Federal Law, as determined by the Supreme
Court of the United States” or (2) “involved an unreasonable
application of . . . clearly established Federal law, as determined
by the Supreme Court of the United States.” Under the “contrary
to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court
on a question of law or if the state court decides a case differently
than this 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 this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter, ___
U.S. ___, 131 S. Ct. 770, 786-87 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313
(11th Cir. 2001) (“It is the objective reasonableness, not the correctness per se, of the
state court decision that we are to decide.”). 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. at 412.
The purpose of federal review is not to re-try the state case. “The [AEDPA]
modified a federal habeas court’s role in reviewing state prisoner applications in order
to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given
effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694. A federal court
must afford due deference to a state court’s decision. “AEDPA prevents defendants –
and federal courts – from using federal habeas corpus review as a vehicle to
second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766,
130 S. Ct. 1855, 1866 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct.
1388, 1398 (2011) (“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard
for evaluating state-court rulings, which demands that state-court decisions be given
the benefit of the doubt’ . . . .”) (citations omitted).
In a per curiam decision without a written opinion the state appellate court on
direct appeal affirmed Gutierrez’s convictions and sentence. (Respondent’s Exhibit 4)
Similarly, in another per curiam decision without a written opinion the state appellate
court affirmed the denial of Gutierrez’s subsequent Rule 3.850 motion to vacate.
(Respondent’s Exhibit 12) The state appellate court’s per curiam affirmances warrant
deference under Section 2254(d)(1) because “the summary nature of a state court’s
decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245,
1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub
nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784-85
(“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the
contrary.”), and Bishop v. Warden, ___ F.3d ___, 2013 WL 4020264 at *8 (11th Cir.
August 8, 2013) (explaining the difference between an “opinion” or “analysis” and a
“decision” or “ruling” and confirming that the state court’s “decision” or “ruling”
warrants deference even absent an “opinion” or an “analysis”).
Review of the state court decision is limited to the record that was before the
We now hold that review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits. Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a decision that was
contrary to, or “involved” an unreasonable application of,
established law. This backward-looking language requires an
examination of the state-court decision at the time it was made.
It follows that the record under review is limited to the record in
existence at that same time, i.e., the record before the state
Pinholster, 131 S. Ct. at 1398. Gutierrez bears the burden of overcoming by clear and
convincing evidence a state court factual determination. “[A] determination of a
factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness
applies to a finding of fact but not to a mixed determination of law and fact. Parker v.
Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state
court’s rejection of Gutierrez’s post-conviction claims warrants deference in this case.
(Order Denying Motion for Post-Conviction Relief, Respondent’s Exhibits 7 and 8)
DIRECT APPEAL CLAIMS OF
TRIAL COURT ERROR
Gutierrez asserts error in the trial court’s denial of his motion for a judgment of
acquittal and in the trial court’s denial of his motion that requested either a mistrial or
a new trial.
Gutierrez argues that the trial court should have granted his motion for a
judgment of acquittal because the state’s evidence proved that the death was only a
manslaughter and not a murder in the second degree. Gutierrez raised this issue on
direct appeal as a claim of insufficiency of the evidence, but he raised the claim only
as a violation of state law and not as a violation of federal law. Nevertheless,
exhaustion is complete because, as Mulnix v. Sec’y, Dep’t of Corr., 254 Fed. App’x 763,
764-65 (11th Cir. 2007), explains, the state standard of review for a sufficiency-of-theevidence claim is identical to the federal standard of review.
Florida courts assess the sufficiency of the evidence used to
convict criminal defendants under a legal standard identical to
the one used by federal courts in deciding federal due process
challenges to the sufficiency of the evidence.
In this case, the state court analyzed [petitioner]’s due process
sufficiency of the evidence claim using a standard identical to
the one required under federal law. Under these circumstances,
we conclude [petitioner]’s federal claim has been exhausted.
A sufficiency-of-the-evidence claim is based on the Due Process Clause of the
Fourteenth Amendment, which prohibits a criminal conviction “except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime.” In re
Winship, 397 U.S. 358, 364 (1970). Jackson v. Virginia, 443 U.S. 307, 324 (1979),
establishes the standard of review in a federal habeas corpus proceeding in which a
petitioner challenges the sufficiency of the evidence.
We hold that in a challenge to a state criminal conviction
brought under 28 U.S.C. § 2254 – if the settled procedural
prerequisites for the claim have otherwise been satisfied – the
applicant is entitled to habeas corpus relief if it is found that
upon the record evidence adduced at the trial no rational trier of
fact could have found proof of guilt beyond a reasonable doubt.
The governing question is whether a rational trier of fact could have found proof
beyond a reasonable doubt and not whether the habeas court believes the evidence.
Jackson v. Virginia, 443 U.S. at 318-19 (“[T]his inquiry does not require a court to
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