Cartagena-Rivera v. Secretary, Department of Corrections et al

Filing 16

ORDER that Cartagena-Rivera's petition is denied. The Clerk is directed to enter judgment against Cartagena-Rivera and to close this case. COA and IFP on appeal denied. Signed by Judge Virginia M. Hernandez Covington on 12/30/2016. (MLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
FRIEDE CARTAGENA-RIVERA,
Petitioner,
v.

Case No. 8:15-cv-2443-T-33AAS

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
________________________________/
ORDER
Petitioner Friede Cartagena-Rivera, an inmate in the Florida Department of
Corrections proceeding pro se, initiated this action by filing a petition for writ of habeas
corpus under 28 U.S.C. § 2254. (Doc. 1.) He challenges his convictions entered by the
Circuit Court for the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. In
the response (Doc. 7), Respondent agrees that the petition is timely. Cartagena-Rivera
filed a reply. (Doc. 14.) Upon review, the petition must be denied.
PROCEDURAL HISTORY
The State charged Cartagena-Rivera with first degree murder (count one) and
tampering with physical evidence (count two). (Doc. 9, Ex. 1, pp. 35-36.) A jury convicted
him as charged on count two but could not reach a verdict on count one. (Doc. 9, Ex. 10,
pp. 616, 621-22.) Accordingly, the trial court declared a mistrial on count one. (Id., p.
622.) Upon retrial, a jury convicted Cartagena-Rivera of second degree murder with a
firearm.

(Doc. 9, Ex. 2, pp. 238-39.)

He received concurrent sentences of life

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imprisonment on count one and five years in prison on count two. (Id., pp. 258-67.) The
state appellate court per curiam affirmed Cartagena-Rivera’s convictions and sentences.
(Doc. 9, Ex. 13.)
The state appellate court rejected Cartagena-Rivera’s state habeas petition filed
under Florida Rule of Appellate Procedure 9.141. (Doc. 9, Exs. 15, 18.) Cartagena-Rivera
then filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.
(Doc. 9, Ex. 20, pp. 33-58.) The state court summarily denied two claims, and denied
Cartagena-Rivera’s remaining claims after conducting an evidentiary hearing. (Id., pp. 24153, 189-200; Doc. 9, Ex. 21, pp. 201-285.) The state appellate court per curiam affirmed
the rejection of postconviction relief. (Doc. 9, Ex. 24.)
The state appellate court denied Cartagena-Rivera’s second state habeas petition.
(Doc. 9, Exs. 26, 27.) His motion to correct illegal sentence filed under Florida Rule of
Criminal Procedure 3.800(a) was denied by the state court. (Doc. 9, Exs. 30, 31.)
Cartagena-Rivera did not appeal the denial.
DISCUSSION
Grounds One(B), Two, And Three
In his reply, Cartagena-Rivera expressly waives the claims raised in Grounds
One(B), Two, and Three. (Doc. 14, pp. 7-8.) Accordingly, the Court will not consider these
grounds further.
Ground One(A)
Cartagena-Rivera argues that the trial court’s refusal to allow testimony from Yosnel
Bonet and Obamy Coellon Roca violated his right to present a defense. Specifically, he

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claims that the court violated his Sixth Amendment right to a fair trial and his Fourteenth
Amendment right to due process.
Cartagena-Rivera theorized that Eduardo Perez committed the murder. At the
retrial, Perez testified that he did not tell anyone that he murdered the victim or that he “did
the shooting.” (Doc. 9, Ex. 4, pp. 349-50.) Cartagena-Rivera sought to present testimony
from Bonet and Coellon Roca that they heard Perez make prior inconsistent statements
confessing to the shooting. After counsel proffered testimony from Bonet and Coellon
Roca, however, the trial court granted the State’s motion in limine to exclude this testimony
from trial. (Doc. 9, Ex. 6, pp. 584-616.)
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). Habeas relief can only be granted if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Before a district court can grant habeas relief to a state prisoner under § 2254,
however, the petitioner must exhaust all state court remedies that are available for
challenging his conviction. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on
his claims before he presents those claims to a federal court in a habeas petition.”). The
requirement of exhausting state remedies as a prerequisite to federal review is satisfied if
the petitioner “fairly presents” his claim in each appropriate state court and alerts that court
to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270,
275-76 (1971).
Cartagena-Rivera’s allegation of trial court error is unexhausted because he did not
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fairly present the constitutional dimension of the claim on direct appeal. When CartagenaRivera raised this claim, he presented it exclusively in terms of state law. (Doc. 9, Ex. 11,
pp. 34-45.) In particular, Cartagena-Rivera’s argument focused on § 90.614(2), Fla. Stat.,
which concerns the admissibility of extrinsic evidence of a prior inconsistent statement by
a witness. But he did not cite any federal authority, refer to any federal constitutional
provisions, or raise any argument that the trial court’s actions violated his federal
constitutional rights.
In his reply, Cartagena-Rivera appears to concede that he failed to expressly raise
a federal claim in state court, but argues that he nevertheless exhausted a federal claim
because “[t]he raising of the claim on the state level serves to exhaust an analogous and
identical Federal claim.” (Doc. 14, p. 3.) Cartagena-Rivera’s argument is unavailing. The
Eleventh Circuit Court of Appeals has stated, “[a]s we see it, it is not at all clear that a
petitioner can exhaust a federal claim by raising an analogous state claim.” Preston v.
Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 460 (11th Cir. 2015). Rather, “[t]he crux of the
exhaustion requirement is simply that the petitioner must have put the state court on notice
that he intended to raise a federal claim.” Id. at 457. Therefore, “[t]he exhaustion doctrine
requires the petitioner to ‘fairly present’ his federal claims to the state courts in a manner
to alert them that the ruling under review violated a federal constitutional right.” Pearson
v. Sec’y, Dep’t of Corr., 273 Fed. App’x 847, 849-50 (11th Cir. 2008) (citing Duncan v.
Henry, 513 U.S. 364, 365-66 (1995)).
“The Supreme Court has suggested that a petitioner can exhaust his claim by, for
example, ‘including ... the federal source of law on which he relies or a case deciding such
a claim on federal grounds, or by simply labeling the claim [as a federal one].’ ” Preston,
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785 F.3d at 457 (quoting Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351 (11th Cir.
2012)). “It is not, however, ‘sufficient merely that the federal habeas petitioner has been
through the state courts, nor is it sufficient that all the facts necessary to support the claim
were before the state courts or that a somewhat similar state-law claim was made.’ ” Id.
(quoting Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004)). Because
Cartagena-Rivera failed to inform the state appellate court that he intended to bring a
federal claim, the exhaustion requirement remains unsatisfied.
State procedural rules do not provide for successive direct appeals. See Fla. R.
App. P. 9.140. The federal claim Cartagena-Rivera now presents in Ground One(A) is
therefore procedurally defaulted. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.
2001) (the doctrine of procedural default provides that “[i]f the petitioner has failed to
exhaust state remedies that are no longer available, that failure is a procedural default
which will bar federal habeas relief, unless either the cause and prejudice or the
fundamental miscarriage of justice exception is established.”). Cartagena-Rivera does not
argue or demonstrate that either the cause and prejudice or fundamental miscarriage of
justice exception applies to overcome the default. Accordingly, Claim One(A) is barred
from review.
Accordingly, it is
ORDERED that Cartagena-Rivera’s petition for writ of habeas corpus (Doc. 1) is
DENIED. The Clerk is directed to enter judgment against Cartagena-Rivera and to close
this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
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It ORDERED that Cartagena-Rivera is not entitled to a certificate of appealability
(COA). 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 COA.

Id.

To merit a COA, Cartagena-Rivera must demonstrate that

reasonable jurists would find debatable whether the Court's procedural ruling was correct
and whether the § 2254 petition stated “a valid claim of the denial of a constitutional right.”
Id.; Slack v. McDaniel, 529 U.S. 473, 484 (2000). To make a substantial showing of the
denial of a constitutional right, Cartagena-Rivera “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, 529 U.S. at 484), 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)). Cartagena-Rivera has not made the requisite showing in these circumstances.
Finally, because Cartagena-Rivera is not entitled to a COA, he is not entitled to appeal in
forma pauperis.
ORDERED at Tampa, Florida, on December 30, 2016.

Friede Cartagena-Rivera
Counsel of Record

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