Heredia v. Secretary, Department of Corrections et al

Filing 14

ORDER: The petition for writ of habeas corpus 1 is DENIED. The Clerk is directed to enter judgment in favor of Respondents and against the Petitioner, terminate any pending motions, and close this file. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 4/9/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSE ANTONIO HEREDIA,
Petitioner,
v.

CASE NO: 8:11-CV-211-T-30TBM

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

ORDER
Petitioner, Jose Antonio Heredia, an inmate in the Florida penal system proceeding
pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1).
The Court has considered the petition, Respondent’s response (Dkt. #7) and Heredia’s reply
(Dkt. #13). Upon review of the arguments of the parties and the record, the Court concludes
that the petition should be denied.
BACKGROUND
Heredia was convicted by a jury for sexual battery of Shelley James. James testified
that she went to Heredia’s house one evening in June 2006 to smoke crack and drink beer
with Heredia, whom she considered a friend.

After smoking the crack, which James brought with her, and drinking some beer,
James got up and went to the bathroom. When she returned, she noticed her beer “tasted
funny.” Heredia repeatedly asked her for sex and she repeatedly said no.
James testified that when she tried to leave, Heredia grabbed her by the arm, dragged
her into the bedroom, threw her on the bed, and removed her shorts. She did not remember
anything after that until about three hours later when she woke up on the couch, completely
naked, and saw Heredia standing over her, trying to put his penis into her mouth; she then
bit him. Around that time, two girls knocked on the door and Heredia threw James’ clothes
at her and told her to get dressed.
James dressed and left Heredia’s house. Her mother took her to the hospital where
she was swabbed for evidence. The sample from her vagina showed DNA from at least two
people, one of which was her own DNA. Heredia could not be excluded as the other
contributor. The swab of her perineum tested positive for Heredia’s DNA.
Heredia’s defense was consensual sex. His testimony was that James and he had
consensual sex on a fairly regular basis for over a year prior to the incident in question.
James denied having sex with Heredia either before or after this incident.
Having exhausted all of his state appeals and post-conviction motions, Heredia now
timely brings this petition for writ of habeas corpus relief raising one ground:
Petitioner was denied his constitutional right to effective counsel where trial
counsel failed to object or move for a mistrial when the alleged victim testified
about an uncharged crime allegedly committed by the Petitioner.
Petition (Dkt. #1), p. 5.
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The “uncharged crime” Heredia references was James’ testimony that her beer was
spiked causing her to black out. The post-conviction court denied this claim on Strickland’s1
prejudice prong.
STANDARD OF REVIEW
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), effective as of April 24, 1996, "a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws of the United States." 28 U.S.C. § 2254(a). The Supreme Court has
cautioned that § 2254 does not make federal courts "forums in which to relitigate state trials."
Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 77 L.Ed.2d 1090 (1983).
Where a state court initially considers the issues raised in the petition and enters a
decision on the merits, Section 2254(d) governs the review of those claims. See Penry v.
Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 150 L.Ed.2d 9 (2001). A federal court may
grant a § 2254 petition only if (1) the state decision 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) the state decision was "based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding."

1

Strickland v. Washington, 466 U.S. 668 (1984).

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28 U.S.C. § 2254(d). See Price v. Vincent, 538 U.S. 634, 638, 123 S. Ct. 1848, 155 L.Ed.2d
877 (2003); Maharaj v. Sec'y for the Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).
The Eleventh Circuit Court of Appeals discussed the meaning of the "contrary to" and
"unreasonable application" clauses 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 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 case. Id.
Section 2254 establishes a highly deferential standard for reviewing state court
judgments. Parker v. Sec'y for the Dep't of Corr., 331 F.3d 764, 768 (11th Cir. 2003). If a
federal court concludes that a state court applied federal law incorrectly, it may grant habeas
relief only if that application was "objectively unreasonable." Id. See also Yarborough v.
Gentry, 540 U.S. 1, 124 S. Ct. 1, 4, 157 L.Ed.2d 1 (2003). Moreover, under Section
2254(e)(1), a state court's factual findings shall be presumed correct, and the habeas
petitioner can rebut the presumption of correctness only by clear and convincing evidence.
See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The law regarding ineffective assistance of counsel claims is well settled and well
documented. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), the Supreme Court set forth a two-part test for analyzing ineffective assistance of
counsel claims. First, the defendant must show that counsel's performance was deficient.
This requires showing that counsel made errors so serious that counsel was not functioning
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as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This 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, 104 S. Ct. 2052; Sims v. Singletary, 155 F.3d 1297,
1305 (11th Cir. 1998).
Strickland requires proof of both deficient performance and consequent prejudice.
Strickland, 466 U.S. at 697 ("There is no reason for a court deciding an ineffective assistance
claim . . . to address both components of the inquiry if the defendant makes an insufficient
showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to
dispose of ineffectiveness claims on either of its two grounds."). "[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[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. Strickland requires that "in light of all the circumstances, the identified
acts or omissions were outside the wide range of professionally competent assistance." Id.
at 690.
Petitioner must demonstrate that counsel's error prejudiced the defense because "[a]n
error by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691-92.
To meet this burden, Petitioner must show "a reasonable probability that, but for counsel's
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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.
DISCUSSION
Ground One:

Petitioner was denied his constitutional right to effective counsel where
trial counsel failed to object or move for a mistrial when the alleged
victim testified about an uncharged crime allegedly committed by the
Petitioner.

Heredia claims that his counsel was ineffective for failing to object and move for a
mistrial when James mentioned that her beer had been spiked. In support, he states:
During opening statements the prosecutor stated that the victim could not
recall everything that happened because her beer was drugged. (Tr. 89).
The victim then testified extensively about the fact that her beer had been
spiked by the Petitioner before the sexual battery. (Tr. 103, 117, 119, 120,
121, 122, 123, 124).
Finally, during closing argument, the state said that the victim blacked out
because of something she ingested. (Tr. 278).
Administering a drug to a victim of sexual battery which mentally or
physically incapacitates the victim is a much more serious offense than that
with which Petitioner was charged: Fla. Stat. § 794.011(4)(d) (2006), a firstdegree felony.
Petition (Dkt. #1), pp. 5-6.
The state’s opening and closing arguments are not in the record, but apparently the
prosecutor referred to James’ testimony. The trial testimony to which Heredia contends his
counsel should have objected and moved for mistrial related, almost entirely, to James’
responses to defense counsel’s questions on cross. For example, on direct, James made only
one brief reference to her beer “tasting funny:”
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Q.

Now, when you were sitting at his kitchen table and he asked you for
sex, you said - - did you say that he had asked you more than once?

A.

Yes, he did.

Q.

And what did you say each time?

A.

No.

Q.

Was this - - what happened at that time? After you said no, what
happened?

A.

Then I got up to go to the bathroom and I come back out and my beer
started tasting funny.

Q.

Do you know what it taste like or it didn’t taste right?

A.

It didn’t taste right.

Q.

And what happened after that?

A.

And he asked me again and I said no.

Q.

And what happened after you said no again?

A.

Then I got up to leave and he would not let me leave. He grabbed me
by my left arm and dragged me into his bedroom.

Respondent’s Ex. 14, p. 103.
James then made multiple references to her beer being spiked in response to defense
counsel’s questions on cross. Because the defense was that the sex was consensual, it
appears that defense counsel attempted to convince the jury that James had oral sex with
Heredia before the incident in question. In her interview with the police, James stated that
she had performed oral sex on Heredia before the incident in question - - a point defense
counsel attempted to emphasize to the jury:
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Q.

It was morning still when you left?

A.

Yes, it was morning time.

Q.

Okay.

A.

Because they had took me to the emergency room. But, see, when I
was there at 7:00, I was smoking crack, then I started drinking the beer
and it started tasting funny and then I blacked out after that. I don’t
remember nothing in between that time because the beer that I was
drinking tasted funny.

Q.

You said that.
Did you ever indicate to him that you wanted to stay?

A.

No. It was about 10:00 and I wanted to go home and he grabbed me by
the arm and dragged me into the bedroom and I kept telling him no.

Q.

Okay. But that’s like three hours after you got there, right?

A.

It was only 7:00 when I got there.

Q.

I know. But 10:00 would be three hours later?

A.

Yes. I wanted to get up and leave and he wouldn’t let me leave,
dragged me into the bedroom.

Q.

So what happened in that three-hour period?

A.

I don’t remember because of the beer tasted funny.

Q.

Well, was there more beer or more crack during that three-hour period?

A.

No.

Q.

Or what were you doing during that three hours?

A.

No, there was no more crack. There was no more crack. It was already
smoked up. It was a quart beer. It was one of them quart bottle beers.

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Q.

Okay. You said there were two, right?

A.

Yeah. One for me, one for me.

Q.

So you picked up the beer?

A.

Yes.

Q.

Okay.

A.

And I started - - no, I didn’t pick up the beer. The beer was already at
his house.

Q.

No, I don’t mean buy it. I mean when you went to drink the beer you
picked it up, picked up the bottled.

A.

Yes. Picked it up and it tasted funny.
MR. BOLDT:

Judge, if I can have just a moment with my client.
Thank you.

THE COURT:

Okay.

Q.

I would like to give you a chance to clear something up if you could for
me, Ms. James. You indicated you didn’t have any kind of sexual
contact with Tony at all before this evening, whenever it was in June,
right?

A.

No, right.

Q.

Nothing? I mean no kind of oral sex, nothing like that at all?

A.

No.

Q.

Do you remember giving a statement to law enforcement? Do you
remember talking to them on tape?

A.

I remember talking to them on tape, but I was so incoherent I didn’t
know what I was doing, didn’t know what I was saying because I was
still coming down from the, from the - - I was still coming off the,
whatever he put in my beer.
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Q.

Well - - okay. Obviously you didn’t see anything get put in that beer,
did you?

A.

No, I didn’t.

Q.

But we know that you were smoking crack and we know that you were
drinking the beer?

A.

Yeah, and the beer tasted funny.

Q.

I understand. And when you talked to law enforcement, were you
telling them the truth?

A.

Yes, I was.

Q.

Okay. Did you tell them that you had oral sex with him before?

A.

I don’t remember.

Q.

Okay. Would it be - - would you be surprised to hear that you told
them that you had, using your words, given him blow jobs before?

A.

I don’t recall.

Q.

Okay. So that would surprise you to hear - -

A.

Yeah.

Q.

- - that you told the cops that?

A.

Yes.

Q.

Now, would that be the truth or would it not be? Let me rephrase that.
When you told the cops you had given him blow jobs before, was that
true or not?

A.

I don’t recall.

Q.

No. You are misunderstanding my question. When you told the police
that you gave him blow jobs before, had you done that before?

Page 10 of 14

A.

No.

Q.

Okay. So when you told the police that, it wasn’t true?

A.

Right.

Respondent’s Ex. 14, pp. 119-23.
Heredia argues that James’ testimony served no purpose in the trial, other than to
prove his bad character. He also argues that the unfair prejudice resulting from the testimony
substantially outweighed the probative value and would have been excluded had his counsel
objected.
Heredia’s complaint that his counsel should have objected to this “bad character”
evidence is, under federal law, governed by Federal Rule of Criminal Evidence 404(b) which
provides:
(b) Other Crimes, Wrongs, of Acts. -- Evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request by the
accused, the prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good
cause shown, of the general nature of any such evidence it intends to introduce
at trial.
28 U.S.C. § 404(b).
Heredia is incorrect about the application of Rule 404(b) to the evidence in his case.
Rule 404(b) applies to wrongful acts unconnected with the charged crime. If the wrongful
acts arise out of the same transaction or series of transactions as the charged offense, it is
“intrinsic” to the offense and is admissible.
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The Eleventh Circuit explained this distinction in United States v. Leichtman, 742 F.
2d 598 (11th Cir. 1984). In Leichtman, the defendants were charged with kidnapping and
conspiracy; they sold on consignment to Bayles, a drug dealer, 5000 pounds of marijuana for
$1,000,000. Bayles took the marijuana to Illinois where he sold 500 pounds on consignment
and stored the remaining 4,500 pounds in a farmhouse. The marijuana at the farmhouse was
stolen. The defendants kidnapped Bayles and beat him to determine what really happened
to the marijuana. The defendants claimed the trial court committed error in the kidnapping
trial when it admitted evidence concerning the earlier marijuana transaction. The Eleventh
Circuit disagreed:
The defendants contend that the admission of evidence concerning the
marijuana aspects of the case was an abuse of discretion because it concerned
an extrinsic criminal offense that was inadmissible under both Fed. R .Evid.
403 and 404(b). They suggest that the trial court could simply have instructed
the jury at the start of the trial that Bayles was indebted to Leichtman and
Villazon for the sum of $1 million and thereby avoided prejudicing their trial
defense.
The marijuana evidence was not evidence of an extrinsic offense. As we have
previously indicated, “evidence of an uncharged offense arising out of the
same transaction or series of transactions as the charged offense is not an
‘extrinsic’ offense within the meaning of Rule 404(b).” U.S. v. Kloock, 652
F. 2d 492, 494 (5th Cir. 1981) (Unit B); see U.S. v. Killian, 639 F. 2d 206, 211
(5th Cir.), cert. denied, 451 U.S. 1021, 101 S. Ct. 3014, 69 L. Ed. 2d 394
(1981); U. S. V. Aleman, 592 F. 2d 881, 885 (5th Cir. 1979); see also U.S. v.
McCrary, 699 F. 2d 1308, 1311 (11th Cir. 1983) (“other crime” evidence
admissible if “inextricably intertwined with the evidence used to prove the
crime charged”). Evidence of the original marijuana transaction was necessary
to complete the story of the kidnaping. It explained the motive of the
defendants; it put the trip from Miami to Springfield in context; it evidenced
the pre-existing debt and thereby corroborated the victims’ story that their
ransom was $1 million in drugs or money.

Page 12 of 14

Id. at 603-4 (footnote omitted).
Here, James’ testimony about her beer being spiked was “intrinsic” to the charged
offense. That is, it was part of the same transaction, a series of events leading to a sexual
assault. And, even if James’ testimony was considered “extrinsic,” it still would have been
admissible because it showed intent or plan, exceptions to Rule 404(b). Of course, this
testimony would be subject to the balancing required under Rule 403, but, under that test, its
probative value would clearly outweigh any prejudicial impact to Heredia. See United States
v. Crawford, 413 F. 3d 873 (8th Cir. 2005).
In sum, because James’ testimony about her beer “tasting funny” was intrinsic to the
crime charged, her testimony was admissible under federal law. Had Heredia’s counsel
objected to the testimony and moved for mistrial, it would have been denied. Therefore, his
performance was not deficient and Heredia was not prejudiced. And the state postconviction court did not unreasonably apply federal law in denying this claim on Heredia’s
post-conviction motion.
It is therefore ORDERED AND ADJUDGED that:
1.

The petition for writ of habeas corpus (Dkt. #1) is DENIED.

2.

The Clerk is directed to enter judgment in favor of Respondents and against
the Petitioner, terminate any pending motions, and close this file.

Page 13 of 14

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED

IT IS FURTHER ORDERED that Petitioner 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). Id. "A [COA] may issue...only if the
applicant has made a substantial showing of the denial of a constitutional right." Id. at §
2253(c)(2). To make such a showing, Petitioner "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) (quoting Barefoot v. Estelle, 463
U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these
circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida on April 9, 2012.

Copies Furnished To:
Counsel/Parties of Record
F:\Docs\2011\11-cv-211.deny 2254 Heredia.wpd

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