Canales v. Secretary, Department of Corrections et al
Filing
35
ORDER that Canales's petition is denied. The Clerk is directed to enter judgment against Canales and to close this case. COA and IFP on appeal denied. Signed by Judge Virginia M. Hernandez Covington on 6/29/2017. (MLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AGUSTIN CANALES, JR.,
Petitioner,
v.
Case No. 8:16-cv-574-T-33AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________/
ORDER
Agustin Canales, Jr., a Florida inmate, filed a pro se third amended petition for writ
of habeas corpus under 28 U.S.C. § 2254. (Doc. 26.) He challenges his 2011 convictions
entered by the Circuit Court for the Tenth Judicial Circuit, in and for Polk County.
Respondent filed a response (Doc. 34) and agrees that the petition is timely. Canales filed
a reply. (Doc. 33.) Upon consideration, the petition is denied.
PROCEDURAL HISTORY
Canales was convicted after a jury trial of attempted second degree murder with a
firearm (count one), kidnapping with a firearm (count two), aggravated assault with a
firearm (count four), and fleeing or attempting to elude (count five). (Doc. 9, Ex. 1, Vol. I,
pp. 65-69.) He was sentenced to concurrent prison terms of 30 years on count one, 40
years on count two, five years on count four, and 15 years on count five. (Id, pp. 106-15.)
Canales entered a plea of nolo contendere to possession of a firearm by a convicted felon
(count three) and received a prison sentence of three years. (Id., pp. 126-31.) The state
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appellate court affirmed the convictions and sentences in a written opinion. Canales v.
State, 109 So.3d 1182 (Fla. 2d DCA 2013).
Canales filed a motion and an amended motion for postconviction relief under
Florida Rule of Criminal Procedure 3.850. (Doc. 9, Exs. 6, 8.) The state court summarily
denied relief, and the state appellate court per curiam affirmed. (Doc. 9, Exs. 9, 12.)
Canales also filed a habeas petition under Florida Rule of Appellate Procedure 9.141
alleging ineffective assistance of appellate counsel. (Doc. 9, Exs. 17, 18.) The state
appellate court denied his petition. (Doc. 9, Ex. 19.)
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). 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). Section 2254(d), which sets forth a highly deferential standard for federal court
review of a state court adjudication, states:
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 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.
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this
deferential standard:
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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 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 case.
“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, 694 (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, 562 U.S. 86, 103 (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 [the federal court is] to decide.”).
Canales bears the burden of overcoming by clear and convincing evidence a state court
factual determination. 28 U.S.C. § 2254(e)(1).
The purpose of federal review is not to re-try the 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.” Cone, 535 U.S. at 693. The state appellate court rejected
Canales’s state habeas petition and affirmed the denial of postconviction relief without
discussion. The court’s decisions warrant deference under § 2254(d)(1) because “the
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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). See also Richter, 562 U.S. at 99 (“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.”).
EXHAUSTION OF STATE COURT REMEDIES; PROCEDURAL DEFAULT
A 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.”). See also Henderson v.
Campbell, 353 F.3d 880, 891 (11th Cir. 2003) (“A state prisoner seeking federal habeas
relief cannot raise a federal constitutional claim in federal court unless he first properly
raised the issue in the state courts.”) (citations omitted). A state prisoner “‘must give the
state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process,’ including review by
the state’s court of last resort, even if review in that court is discretionary.” Pruitt v. Jones,
348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O’Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal
and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.
1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal
claims to the state courts in order to give the State the opportunity to pass on and correct
alleged violations of its prisoners’ federal rights.’”) (quoting Duncan v. Henry, 513 U.S. 364,
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365 (1995)). 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). A federal habeas petitioner “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.”
Pruitt, 348 F.3d at 1358.
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.” Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must
demonstrate that some objective factor external to the defense impeded the effort to raise
the claim properly in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999).
See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must
demonstrate not only that the errors at his trial created the possibility of prejudice but that
they worked to his actual and substantial disadvantage and infected the entire trial with
error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The
petitioner must show at least a reasonable probability of a different outcome. Henderson,
353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally
defaulted claim if review is necessary to correct a fundamental miscarriage of justice.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96.
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A
fundamental miscarriage of justice occurs in an extraordinary case where a constitutional
violation has probably resulted in the conviction of someone who is actually innocent.
Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception
requires a petitioner’s “actual” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th
Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of
acquittal absent the constitutional error. Schlup, 513 U.S. at 327.
INEFFECTIVE ASSISTANCE OF COUNSEL
Claims of ineffective assistance are analyzed under the test set forth in Strickland
v. Washington, 466 U.S. 668 (1984).
Strickland requires a showing of deficient
performance by counsel and resulting prejudice.
Id. at 687.
To show deficient
performance, a petitioner must demonstrate that “counsel’s representation fell below an
objective standard of reasonableness.” Id. at 687-88. A court must consider whether, “in
light of all the circumstances, the identified acts or omissions [of counsel] were outside the
wide range of professionally competent assistance.” Id. at 690. However, “counsel is
strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Id. Additionally, “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.
Canales must demonstrate that counsel’s alleged 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 show prejudice, a petitioner must demonstrate “a reasonable
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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.
Sustaining a claim of ineffective assistance of counsel on federal habeas review is
difficult because “[t]he standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at
105 (citations omitted). See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a
petitioner must overcome the “‘doubly deferential’ standard of Strickland and AEDPA.”).
If a claim of ineffective assistance of counsel can be resolved through one of the Strickland
test’s two prongs, the other prong need not be considered. 466 U.S. at 697 (“[T]here 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.”)
DISCUSSION
Ground One
Canales alleges that his appellate counsel was ineffective for failing to argue that
the trial court erred in denying his motion for judgment of acquittal on the charge of
kidnapping with a firearm. Canales raised this claim in his petition alleging ineffective
assistance of appellate counsel.
The Strickland test applies to claims of ineffective assistance of appellate counsel.
Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126, 1130 (11th
Cir. 1991). To demonstrate prejudice, Canales must show a reasonable probability that he
would have prevailed on appeal but for counsel’s deficient performance. Robbins, 528 U.S.
at 285-86. Appellate counsel cannot be deemed ineffective for failing to raise issues
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“reasonably considered to be without merit.” United States v. Nyhuis, 211 F.3d 1340, 1344
(11th Cir. 2000) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)).
To establish the offense of kidnapping, the State had to prove beyond a reasonable
doubt that Canales (1) forcibly, secretly or by threat confined, abducted, or imprisoned the
victim against her will; (2) had no lawful authority; and (3) acted with intent to inflict bodily
harm upon the victim or to terrorize the victim or another person. (Doc. 9, Ex. 1, p. 48.)
Canales contends that the State’s evidence was insufficient to show, under Florida law, that
he acted with intent to inflict bodily harm upon or to terrorize the victim.
A motion for judgment of acquittal challenges the sufficiency of the State’s evidence.
“In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the
evidence adduced, but also admits every conclusion favorable to the adverse party that a
jury might fairly and reasonably infer from the evidence.’” Darling v. State, 808 So.2d 145,
155 (Fla. 2002) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)). Accordingly, “[t]he
courts should not grant a motion for judgment of acquittal unless the evidence is such that
no view which the jury may lawfully take of it favorable to the opposite party can be
sustained under the law.” Id. (quoting Lynch, 293 So.2d at 45).
In determining that appellate counsel was not ineffective for failing to challenge the
trial court’s denial of Canales’s motion, the state appellate court concluded that the
prosecution presented sufficient evidence of kidnapping under Florida law to overcome the
motion for judgment of acquittal. While Canales’s ineffective assistance of counsel claim
is a federal constitutional claim, when “the validity of the claim that [counsel] failed to assert
is clearly a question of state law, . . . we must defer to the state’s construction of its own
law.” Will v. Sec’y, Dep’t of Corr., 278 Fed. App’x 902, 908 (11th Cir. 2008) (citations
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omitted). See also Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354-55 (11th Cir.
2005) (“The Florida Supreme Court already has told us how the issues would have been
resolved under Florida state law had [petitioner’s counsel] done what [petitioner] argues he
should have done . . . It is a ‘fundamental principle that state courts are the final arbiters
of state law, and federal habeas courts should not second-guess them on such matters.”)
(quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)). As deference must be
afforded to the state court’s determination of Florida law, Canales cannot show that his
appellate counsel was ineffective for failing to argue that the state court erred in denying
his motion for judgment of acquittal.
Canales has not shown that the state appellate court’s rejection of his claim was
contrary to or an unreasonable application of clearly established federal law, or was based
on an unreasonable determination of the facts. Accordingly, he is not entitled to relief on
Ground One.
Grounds Two and Seven
Canales alleges that two law enforcement officers improperly discussed the case
in front of the jury. Specifically, he alleges that “while the jury was returning from a recess,
the two police officers, in the immediate presence of the jury, were smiling, and one stated,
‘[Y]a I remember the day this guy shot his girlfriend, and kidnapped her at gunpoint, and
forced her into the car. Then he had us chasing him.’” (Doc. 26, p. 7.)
The Sixth Amendment guarantees a criminal defendant the right to confront
witnesses against him. Crawford v. Washington, 541 U.S. 36 (2004). Canales asserts a
violation of this right, contending that the officers “effectively testified to the jury concerning
the events” but that he did not have the opportunity to cross-examine them. (Doc. 26, p.
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7.) In claim one of both his original and amended postconviction motions, Canales alleged
a violation of his Sixth Amendment right to a fair and impartial trial as a result of the officers’
alleged comments.
Although he did not expressly argue that his rights under the
Confrontation Clause were violated, he asserted in support of his claim that “the officers
had effectively testified to the jury concerning the events on the day of the offense and
corroborated the opening statement the State had just presented without the defendant
receiving the benefit of confronting them through cross-examination.” (Doc. 9, Ex. 6, p. 14;
Ex. 8, p. 191.)
Assuming that this was sufficient to raise and exhaust his Confrontation Clause
claim, however, Canales’s argument is procedurally defaulted. The state postconviction
court rejected Canales’ allegation, finding the claim to be procedurally barred as a matter
that should have been raised on direct appeal. (Doc. 9, Ex. 9, p. 201.)
If a state court’s rejection of a federal constitutional claim on procedural grounds is
based on an “independent and adequate” state ground, federal review of the claim is
barred. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). See also Caniff v. Moore,
269 F.3d 1245, 1247 (11th Cir.2001) (“[C]laims that have been held to be procedurally
defaulted under state law cannot be addressed by federal courts.”). A state court’s
procedural ruling constitutes an independent and adequate state rule of decision if (1) the
last state court rendering a judgment in the case clearly and expressly states that it is
relying on a state procedural rule to resolve the federal claim without reaching the merits
of the claim, (2) the state court’s decision rests solidly on state law grounds and is not
intertwined with an interpretation of federal law, and (3) the state procedural rule is not
applied in an “arbitrary or unprecedented fashion” or in a “manifestly unfair manner.” Judd,
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250 F.3d at 1313 (citing Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)).
Canales’s Confrontation Clause claim was proper for direct appeal. See Reaves v.
State, 826 So.2d 932, 936 n.3 (Fla. 2002) (“We deny the following claims as they either
were raised or should have been raised on direct appeal . . . whether Reaves was denied
his right to confrontation.”). Claims that should be raised on direct appeal generally cannot
be brought in postconviction proceedings. See Schoenwetter v. State, 46 So.3d 535, 561
(Fla. 2010) (“[I]ssues that could have been raised on direct appeal, but were not, are not
cognizable through collateral attack.”) (quoting Torres-Arboleda v. Dugger, 636 So.2d 1321,
1323 (Fla. 1994)).
The state court’s rejection of Canales’s claim thus rested upon an independent and
adequate state procedural bar, and the state appellate court approved the application of
the bar by its per curiam affirmance. Consequently, Canales’s claim is procedurally
defaulted and can only be considered if he demonstrates either cause and prejudice or a
fundamental miscarriage of justice. See Harris v. Reed, 489 U.S. 255, 262 (1989) (“[A]n
adequate and independent finding of procedural default will bar federal habeas review of
the federal claim, unless the habeas petitioner can show” one of these exceptions). As he
does not establish cause and prejudice or a fundamental miscarriage of justice, Canales
does not overcome the procedural default of this claim.1
1
To the extent Canales may intend to bring a claim alleging a Sixth Amendment violation of his right
to a fair trial that is distinct from his Confrontation Clause claim, as raised in claim one of his postconviction
motions, he cannot obtain relief. As addressed, the state court found that claim one was procedurally barred
as a matter that should have been raised on direct appeal. (Doc. 9, Ex. 9, p. 201.) Because the state court’s
rejection of the claim was based on an independent and adequate state procedural ground, the claim would
be procedurally defaulted for the same reasons addressed with respect to Canales’s Confrontation Clause
claim. Canales has not established cause and prejudice or a fundamental miscarriage of justice to overcome
the default.
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Canales further alleges in Grounds Two and Seven that his trial counsel was
ineffective in not objecting and moving for a mistrial when the jury was allegedly exposed
to the officers’ comments. However, his ineffective assistance of trial counsel claim is
unexhausted because he did not raise it in his postconviction motions. (Doc. 12, Exs. 6,
8.) Canales cannot return to state court to file a successive, untimely postconviction
motion. See Fla. R. Crim. P. 3.850(b), (h). Accordingly, his ineffective assistance of trial
counsel claim is procedurally defaulted. See Smith, 256 F.3d at 1138.
Recognizing the procedural default, Canales asserts that he meets the cause and
prejudice exception pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). Generally, ineffective
assistance of postconviction counsel does not constitute cause to overcome a procedural
default.
See Coleman v. Thompson, 501 U.S. 722, 752-55 (1991).
But Martinez
recognizes a narrow, equitable exception to this rule:
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.
Martinez, 566 U.S. at 17.2 A “substantial” claim of ineffective assistance of trial counsel is
one that has “some merit.” Id. at 14. Canales’s claim of ineffective assistance of trial
counsel is insubstantial because it is unsupported by any evidence. See id. at 16 (a claim
2
This exception has been extended to situations in which, even if a state’s procedures technically
permit a defendant to bring a claim of ineffective assistance of trial counsel on direct appeal, “state procedural
framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant
will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.”
Trevino v. Thaler, __U.S.__, 133 S.Ct. 1911, 1921 (2013). In Florida,“[a]s a general rule, claims of ineffective
assistance of counsel are not ordinarily cognizable on direct appeal. The exception is when the error is
apparent on the face of the record, which is rarely the case.” Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d
DCA 2006).
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that is “wholly without factual support” is “insubstantial.”). Canales attached to his first
postconviction motion an affidavit of his mother, Esmeralda Stockstill, describing the
events. (Doc. 9, Ex. 6, Affidavit.) But Ms. Stockstill’s affidavit does not state that she
reported the officers’ statements to counsel or that counsel was present for or otherwise
had any knowledge of the officers’ alleged comments. (Id.) In fact, counsel’s motion for
new trial states that he became aware of the alleged improper comments when Ms.
Stockstill approached him after the trial and sentencing, and that he “was unaware of the
improper contact during the trial and was therefore unable to address the situation with the
Court.” (Doc. 9, Ex. 10, Vol. 2, pp. 308-09.)
Thus, the record refutes Canales’s contention that “[t]rial counsel upon being
informed of this information by Ms. Stockstill stated that he would take care of the matter
and bring it to the attention of the court to be investigated” but failed to do so. (Doc. 26, p.
25.) As he has presented no evidence that counsel knew of any allegedly improper
remarks by the officers while the trial was ongoing, Canales fails to establish that counsel
performed deficiently in failing to object or move for a mistrial on the basis of such remarks.
Canales has not established cause and prejudice to overcome the default of his
ineffective assistance of trial counsel claim. Nor does he demonstrate a fundamental
miscarriage of justice that would overcome the default. Accordingly, his claim is barred
from review. Canales is not entitled to relief on Ground Two or Ground Seven.3
3
Canales argues in his reply that the state postconviction court erred in not allowing him an
opportunity to amend the claims presented in Grounds Two and Four of his federal habeas petition. However,
he may not raise a new claim in his reply. See Herring, 397 F.3d at 1342 (“As we repeatedly have
admonished, ‘[a]rguments raised for the first time in a reply brief are not properly before a reviewing court.’”)
(citations omitted). Furthermore, an allegation of error in state postconviction proceedings does not state a
claim for federal habeas relief. See Carroll v. Sec’y, DOC, 574 F.3d 1354, 1365 (11th Cir. 2009) (“[A]
challenge to a state collateral proceeding does not undermine the legality of the detention or
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Ground Five
Canales asserts that trial counsel was ineffective because he failed to “investigate
and call an expert witness to support that Petitioner could not have formed the specific
intent crimes he was charged with.” (Doc. 26, p. 19.) This claim is unexhausted because
Canales did not raise it in his postconviction motion. (Doc. 9, Exs. 6, 8.) As he cannot
return to state court to present the claim, it is procedurally defaulted. See Smith, 256 F.3d
at 1138. Canales’s argument that he has demonstrated cause under Martinez must fail
because he has not presented a substantial claim of ineffective assistance of trial counsel.
Canales asserts in support of his claim that he was “acting irrational at the time, and
because of his emotional state of mind, he was unable to form the specific intent to commit
the specific intent crimes charged.” (Doc. 26, p. 22.) Canales further alleges that “an
expert witness was available” and that the expert “would have formed the opinion that
Petitioner could not have formed any specific intent at the time the crime occurred due to
his emotional state.” (Id., pp. 22-23.) He does not, however, identify any expert witness
or provide any evidence showing that such a witness would testify as he suggests. This
type of speculation cannot support Canales’s ineffective assistance claim. See United
States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (“[E]vidence about the testimony of a
putative witness must generally be presented in the form of actual testimony by the witness
or on affidavit. A defendant cannot simply state that the testimony would have been
favorable; self-serving speculation will not sustain an ineffective assistance claim.”)
(footnotes omitted).
Accordingly, Canales’s claim is too speculative to demonstrate
imprisonment–i.e., the conviction itself–and thus habeas relief is not an appropriate remedy.”).
Page 14 of 25
ineffective assistance. See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)
(“Johnson offers only speculation that the missing witnesses would have been helpful. This
kind of speculation is ‘insufficient to carry the burden of a habeas corpus petitioner.’”)
(quoting Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)); Tejada v. Dugger, 941
F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot
support an ineffective assistance of counsel claim).
Canales has not demonstrated a substantial claim of ineffective assistance of
counsel as required to establish cause under Martinez. Nor does he demonstrate that a
fundamental miscarriage of justice has occurred. As Canales has not overcome the
procedural default, the claim presented in Ground Five is barred from federal habeas
review.
Ground Three
Canales’s postconviction motion states that trial counsel retained Dr. Robert
Moering, who evaluated Canales prior to trial and found him to be competent.4 Canales
alleges that trial counsel was ineffective for failing to bring his mental instability to the trial
court’s attention and request that the trial court order another competency evaluation.5 He
alleges that counsel should have known he was incompetent because of his mental
illnesses, suicide attempts, substance abuse, and head trauma that he suffered as a result
of shooting himself in the head during the offenses.
4
The conviction of a mentally incompetent defendant violates due process. Pate v. Robinson, 383
U.S. 375 (1966).
5
See Fla. R. Crim. P. 3.210(b) (upon a motion by defense counsel, a trial court may order a criminal
defendant to be examined by experts if the court “has reasonable ground to believe that the defendant is not
mentally competent to proceed.”).
Page 15 of 25
The state court denied his claim, incorporating the State’s response to Canales’s
motion. The State’s response provides:
Defendant takes [the] position that Trial Counsel hired Robert Moering, Psy.
D., to conduct a forensic psychological evaluation on Defendant. Defendant
admits that Dr. Moering found Defendant competent. Defendant’s mother,
Mrs. Stockstill, wanted a second opinion by another psychologist. Trial
Counsel chose not to take that path. Defendant now claims that Trial
Counsel inappropriately relied on Dr. Moering’s evaluation.
...
The standard [for ineffective assistance] is thus:
To establish ineffective assistance of counsel, the movant must
show both counsel’s deficient performance and actual
prejudice. See generally Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
...
To satisfy the deficiency prong based on counsel’s handling of
a competency issue, the postconviction movant must allege
specific facts showing that a reasonably competent attorney
would have questioned competence to proceed. The standard
for competency to proceed is set out in Dusky v. United States,
362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), and
codified in Florida Rule of Criminal Procedure 3.211. The
question is “whether the defendant has sufficient present ability
to consult with counsel with a reasonable degree of rational
understanding and whether the defendant has a rational, as
well as factual, understanding of the pending proceedings.”
Fla. R. Crim. P. 3.211(a)(1). Conclusory allegations of
incompetency are not enough to warrant an evidentiary
hearing. See Atwater v. State, 788 So. 2d 223, 229 (Fla.
2001).
“[N]ot every manifestation of mental illness
demonstrates incompetence to stand trial; rather, the evidence
must indicate a present inability to assist counsel or
understand the charges.” Card v. Singletary, 981 F.2d 481,
487-88 (11th Cir. 1992). “[N]either low intelligence, mental
deficiency, nor bizarre, volatile, and irrational behavior can be
equated with mental incompetence to stand trial.” Medina, 59
F.3d at 1107.
The prejudice standard that applies to a typical claim on
ineffective assistance of counsel, whether a reasonable
Page 16 of 25
probability exists that the outcome of the proceeding would
differ, is ill-suited to a claim of alleged incompetency. The
issue is not whether the outcome of the trial would have
differed. . . . The issue is not whether, had counsel acted
differently, the Court would have been required to hold a
competency hearing under Rule 3.210. The focus of the
prejudice inquiry is on actual prejudice, whether, because of
counsel’s deficient performance, the defendant’s substantive
due process right not to be tried while incompetent was
violated. In order to establish prejudice in a properly raised
ineffective assistance of counsel claim, the postconviction
movant must, as with a substantive incompetency claim, set
forth clear and convincing circumstances that create a real,
substantial and legitimate doubt as to the movant’s
competency.
...
[T]rial counsel is strongly presumed to have provided effective
assistance. Strickland, 466 U.S. at 689; Johnson v. State, 921
So.2d 490, 500 (Fla. 2005). Accordingly, a postconviction
movant is presumed to have been competent, and the burden
is on the movant to show otherwise.
To be entitled to an evidentiary hearing on this type of claim,
the movant must set forth clear and convincing circumstances
that create a real, substantial and legitimate doubt as to
competency. In making this determination, a court may
consider the totality of the circumstances, including (1) the
nature of the mental illness or defect which forms the basis for
the alleged incompetency; (2) whether the movant has a
history of mental illness or documentation to support the
allegations; (3) whether the movant was receiving treatment for
the condition during the relevant period; (4) whether experts
have previously or subsequently opined that defendant was
incompetent; and (5) whether there is record evidence
suggesting that the movant did not meet the Dusky standard
during the relevant time period.
Thompson, 88 So. 3d at 319-320. Here, positive Record refutation exists
regarding Defendant’s claim, and his claim lacks legal sufficiency under
Thompson as well. Defendant is not entitled to an evidentiary hearing.
As to the first Thompson factor, Defendant’s mental illness itself, Defendant
claims without supporting documentation of any kind that Defendant has
been diagnosed with “chronic depression, chemical imbalance, and bipolar
Page 17 of 25
disorder.” He attributes this to Dr. Moering’s evaluation. Dr. Moering found
Defendant competent and sane at the time of the offense. In Thompson, 88
So. 3d at 320, Thompson claimed that he was
borderline retarded (70 IQ) and had a history of depression, as
well as a 20-year history of crack cocaine abuse. As a
teenager, appellant was on several occasions admitted to a
mental hospital for evaluation of oppositional and rebellious
behavior. He had a history of attempted suicide.
Nevertheless, the Thompson court found this insufficient to establish the first
analytical factor. See id. at 320-21.
As to the second Thompson factor, the need for history or other
documentation, Defendant provides no documentation of his claims. Even
if he did, as noted in Thompson, 88 So. 3d at 320-21, the history he claims
is insufficient to require an evidentiary hearing. Defendant simply has not
shown how he was incompetent to proceed below. And as the Court will see,
ample record evidence of his competence exists.
As to the third Thompson factor, that Defendant was not receiving treatment
for his mental condition during the trial, Defendant claimed on the Record,
under oath, during his plea and sentencing in Count 3 on November 15, 2011
that he was suffering from no mental illness that would impair his
understanding of the plea. He clearly was not under treatment, and he is
held to his assertions before the trial judge that he read and understood the
plea form. See Iacono v. State, 930 So. 2d 829 (Fla. 4th DCA 2006); see
also Polk v. State, 56 So. 3d 804, 808 (Fla. 2d DCA 2011).
The fourth Thompson factor questions whether experts have previously
opined that Defendant was incompetent. Dr. Moering specifically found him
competent. Trial counsel is not required to second-guess his expert.
The final Thompson factor questions whether relevant evidence exists that
Defendant did not meet the Dusky standard during trial. Defendant has
presented nothing to show that, at trial, he did not have “sufficient present
ability to consult with counsel with a reasonable degree of rational
understanding and whether the defendant has a rational, as well as factual,
understanding of the pending proceedings.” Fla. R. Crim. P. 3.211(a)(1).
In addition to the Thompson analysis, the Record thoroughly refutes
Defendant’s claim that Trial Counsel should have requested a competency
hearing. First, Defendant’s motion, as set forth supra, shows that Dr.
Moering found Defendant competent. Further, the Record shows that
Defendant was able to function and understood what was happening
Page 18 of 25
throughout his trial. During trial, Defendant consulted with his counsel
regarding the composition of the jury. When the presiding judge queried
Defendant about Trial Counsel’s legal strategy to concede guilt on some
items, Defendant both understood and approved of that strategy. Defendant
chose not to testify and laid out his reasons for that. And at the plea hearing
for Count 3 following trial, Defendant, under oath, informed the presiding
judge that he had read and understood the plea form and was under the
influence of no medications. Defendant entered into a full plea colloquy with
the Court, and discussed civil commitment of Sexually Violent Predators.
Here, Defendant’s claim fails all five Thompson factors. For the first, second,
fourth, and fifth factors, Defendant’s motion lacks legal sufficiency. And as
to the third factor, it is positively refuted by the Record. Defendant’s second
claim should be denied without hearing.
(Doc. 9, Ex. 7, pp. 40-47) (emphasis in original) (footnote and record citations omitted).
Canales has not demonstrated that his counsel was ineffective. As addressed,
Canales stated in his postconviction motion that counsel retained Dr. Moering to evaluate
Canales, and Dr. Moering found that he was competent. Canales does not establish
counsel acted unreasonably in failing to request a second, court-ordered evaluation. See
Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel’s judgments.”).
As the state court noted, Canales does not provide any documentation in support
of his claims concerning his mental status or other conditions. Furthermore, the facts he
alleges do not establish his incompetency. For instance, his history of mental illness does
not demonstrate incompetency. Medina v. Singletary, 59 F.3d 1095, 1107 (11th Cir. 1995)
(“[N]ot every manifestation of mental illness demonstrates incompetence to stand trial;
Page 19 of 25
rather, the evidence must indicate a present inability to assist counsel or understand the
charges.”) (quoting Card v. Singletary, 981 F.2d 481, 487-88 (11th Cir. 1992)).
Additionally, Canales’s prior suicide attempt does not mean that he was incompetent. See
Drope v. Missouri, 420 U.S. 162, 180-81 (a suicide attempt may indicate mental instability,
but does not necessarily signal incompetency to stand trial).
Nor does Canales’s substance abuse compel the conclusion that he was
incompetent to proceed. See, e.g., Ivanovic v. McNeil, 2010 WL 520601 at *9 (S.D. Fla.
2010) (“While Ivanovic has provided documentation of his history of mental health disorders
and substance abuse, he has nonetheless not demonstrated that psychological factors or
a history of substance abuse impaired his ability to enter a knowing and intelligent plea.”).
Lastly, as noted by the state court, Canales’s participation in numerous trial court
proceedings supports the conclusion that he was competent. (Doc. 9, Ex. 1, Vol. I, pp.
116-22; Ex. 1, Vol. II, pp. 124, 135; Ex. 1, Vol. III, pp. 325-26; Ex. 1, Vol. IV, p. 399.)
As the state court recognized, the standard for competency to stand trial is whether
the defendant “has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding–and whether he has a rational as well as factual
understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402
(1960). Canales has not shown, based upon the allegations he presents and in light of Dr.
Moering’s opinion, that counsel had reason to believe Canales might not have met this
standard and therefore should have sought further evaluation.
Canales has not shown that the state court’s rejection of his claim resulted in an
unreasonable application of Strickland, or was based on an unreasonable determination
of the facts. Consequently, he is not entitled to relief on Ground Three.
Page 20 of 25
Grounds Four and Eight
Canales argues that trial counsel was ineffective because he did not investigate and
advance an insanity defense.6 In support, he alleges that he had a history of mental illness
and was diagnosed with “chronic depression, chemical imbalance, and bi-polar disorder”;
that he attempted suicide; that he had a history of substance abuse; and that he was
involuntarily committed under Florida’s Baker Act.7
The state court denied Canales’s claim:
Defendant’s own motion on page 3 states that the Defendant was evaluated
by a psychiatrist, who found that he “was sane at the time of the offense.”
This would directly refute the bare and conclusory allegation that because the
Defendant had a history of mental illness, trial counsel should have
investigated and proffered a defense of insanity. . . . Claim 3 is DENIED.
(Doc. 9, Ex. 9, p. 201).
Canales has not established that counsel was ineffective. He acknowledged in his
postconviction motion that counsel retained Dr. Moering, who opined that Canales was
sane at the time of the offenses. (Doc. 9, Ex. 8, p. 3.) Canales does not show that counsel
should have sought further evaluation. “[A]n accused is not criminally responsible if, at the
time of the alleged crime, the defendant was by reason of mental infirmity, disease, or
defect unable to understand the nature and quality of his act or its consequences or was
incapable of distinguishing right from wrong.” Hall v. State, 568 So.2d 882 (Fla. 1990)
(citing Mines v. State, 390 So.2d 332 (Fla. 1980)). Canales fails to establish any indication,
6
Insanity at the time of the commission of an offense is an affirmative defense under Florida law.
§ 775.027(1), Fla. Stat.
7
See Doe v. State, ___ So.3d ___, 2017 WL 1954981 at *3 (Fla. May 11, 2017) (explaining that
“[s]ection 394.467, [Florida Statutes,] also known as the Baker Act, governs the involuntary inpatient
placement of persons with mental illness.”).
Page 21 of 25
based on his mental health and substance abuse history, that he met the standard for
insanity.
Considering the lack of any such showing, and in light of Dr. Moering’s
conclusion, Canales has not established that counsel was ineffective for failing to further
investigate or present an insanity defense. He fails to demonstrate that the state court’s
rejection of his claim was contrary to or an unreasonable application of clearly established
federal law or was based on an unreasonable determination of the facts.
In addition to the factors listed above that Canales provides in support of his
ineffective assistance claim, his federal habeas petition contains a general assertion that
he did not know right from wrong at the time of the offenses, and states that his intoxication
at the time rendered him insane. However, he did not present these contentions to the
state court. (Doc. 9, Ex. 8, pp. 186-88, 196-98.) Although a federal habeas petitioner is
not required to raise a “verbatim restatement of the claims brought in state court,” he may
not bring a particular factual instance of ineffective assistance of counsel that he did not
present to the state court. McNair v. Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005). If
the federal habeas petition alleges different supporting facts for a claim of ineffective
assistance, the petitioner has not fairly presented his federal claim to the state court. See
Weeks v. Jones, 26 F.3d 1030, 1044-46 (11th Cir. 1994) (rejecting petitioner’s argument
that “the general claim of ineffective assistance in state court preserves for federal review
all alleged instances of ineffectiveness, regardless of whether evidence of a particular act
was presented to the state court.”).
Accordingly, Canales’s ineffective assistance of counsel claim is unexhausted to the
extent it rests on these newly-presented allegations. Because he cannot return to state
court to file a successive, untimely postconviction motion, the claim is procedurally
Page 22 of 25
defaulted. See Smith, 256 F.3d at 1138. Canales has not argued or demonstrated that
either the cause and prejudice or fundamental miscarriage of justice exception applies to
overcome the default.
Alternatively, Canales’s allegations are insufficient to establish ineffective assistance
of counsel. First, his conclusory and self-serving claim that he did not know right from
wrong is offered without any evidence or factual support. Thus, it is too vague and
generalized to show that counsel was deficient for failing to further investigate insanity in
light of Dr. Moering’s evaluation. See Tejada, 941 F.2d at 1559. Second, while involuntary
intoxication may support an insanity defense under Florida law, see Sluyter v. State, 941
So.2d 1178 (Fla. 2d DCA 2006), Canales does not assert that his alleged intoxication was
involuntary. He simply states that he consumed large quantities of drugs and alcohol.
Canales therefore provides no basis upon which counsel should have pursued or presented
the defense of insanity. Accordingly, he is not entitled to relief on Ground Four or Ground
Eight.
Ground Six
Canales asserts that the cumulative effect of counsel’s alleged deficiencies
prejudiced him. This claim is unexhausted because it was not presented in Canales’s
postconviction motions. (Doc. 9, Exs. 6, 8.) Since he cannot return to state court to
present the claim, it is procedurally defaulted. See Smith, 256 F.3d at 1138. Canales
argues that he has established cause to overcome the default under Martinez. Even
assuming that his cumulative error claim constitutes an ineffective assistance of trial
counsel claim that is the proper subject of a Martinez analysis, however, Canales does not
overcome the default. As he has not shown that counsel performed deficiently, Canales
Page 23 of 25
cannot establish any cumulative error. See Morris v. Sec’y, Dept. of Corr., 677 F.3d 1117,
1132 (11th Cir. 2012) (where individual claims of error or prejudice are without merit, “we
have nothing to accumulate.”); United States v. Barshov, 733 F.2d 842, 852 (11th Cir.
1984) (“Without harmful errors, there can be no cumulative effect compelling reversal.”)
Thus, he fails to establish cause. Nor does he demonstrate a fundamental miscarriage of
justice has occurred. Accordingly, as Canales does not overcome the procedural default,
Ground Six is barred from federal habeas review.
It is therefore
ORDERED that Canales’s third amended petition for writ of habeas corpus (Doc. 26)
is DENIED. The Clerk is directed to enter judgment against Canales and to close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
It is ORDERED that Canales 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. “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, Canales “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)). Canales has not made the requisite showing in these circumstances. Finally,
Page 24 of 25
because Canales is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on June 29, 2017.
Agustin Canales, Jr.
Counsel of Record
Page 25 of 25
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