MERCEDES-CASTRO v. JONES
Filing
40
ORDER: Mercedes-Castro's amended petition 9 is DENIED. The CLERK is directed to enter judgment against Mercedes-Castro and to CLOSE this case. A certificate of appealability and leave to appeal in forma pauperis are DENIED. Signed by Judge Virginia M. Hernandez Covington on 7/14/2023. (MWC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HANSEL MERCEDES-CASTRO,
Petitioner,
v.
Case No. 8:16-cv-3347-VMC-AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER
Hansel Mercedes-Castro, a Florida prisoner, filed an amended petition for writ
of habeas corpus under 28 U.S.C. § 2254. (Doc. 9.) Respondent filed a response
opposing the amended petition. (Doc. 17.) Mercedes-Castro filed a reply. (Doc. 38.)
Upon consideration, the amended petition is DENIED.
I.
Procedural History
A state-court jury convicted Mercedes-Castro of first-degree murder, burglary
of a dwelling or structure with a firearm, and attempted robbery with a firearm. (Doc.
18-2, Ex. 1a, pp. 172-74.) The state trial court sentenced Mercedes-Castro to
concurrent terms of life imprisonment on the first-degree murder count, life
imprisonment on the burglary count, and fifteen years’ imprisonment on the
attempted-robbery count. (Id., Ex. 1, pp. 136-37.) The state appellate court per curiam
affirmed the convictions. (Id., Ex. 4.)
1
Mercedes-Castro then sought postconviction relief under Florida Rule of
Criminal Procedure 3.850. (Id., Ex. 13, pp. 23-75, 94-110, 142-47, 162-67.) The state
trial court held an evidentiary hearing and denied Mercedes-Castro’s claims. (Id., pp.
80-86, 118-24, 150-52, 159-61, 171-72, 175-76, 405-17.) The state appellate court per
curiam affirmed the denial of relief. (Id., Ex. 18.) Mercedes-Castro also filed a petition
alleging ineffective assistance of appellate counsel under Florida Rule of Appellate
Procedure 9.141(d). (Id., Exs. 10, 11.) The state appellate court denied the petition.
(Id., Ex. 12.) Mercedes-Castro subsequently sought federal habeas relief in this Court. 1
(Docs. 1, 9.)
II.
Facts; Trial Testimony 2
In the early morning hours of November 29, 2005, Derek Phillips was killed
when gunshots were fired into his bedroom in Poinciana, Florida. The medical
examiner concluded that a shot to Phillips’s face was immediately fatal. Following the
shooting, police found cash, a “large amount of marijuana,” and drug paraphernalia
in the house. (Doc. 18-2, Ex. 1c, pp. 327-28.)
Jose Cerrato worked as a barber in the Kissimmee and Poinciana area. His
clients included Mercedes-Castro, Juan Carlos Cruz, Carlos Valentin, Edwin Lugo,
and Jose Tejeda. Valentin owned a registered AK-47. In November 2005, Valentin
In December 2016, this action was stayed pending the state court’s resolution of Mercedes-Castro’s
successive Rule 3.850 motion. (Doc. 8.) The state trial court denied the motion in April 2019, and the
state appellate court affirmed the denial of relief in April 2020. (Doc. 18-2, Ex. 23, p. 54; Doc. 18-2,
Ex. 26.) Following the conclusion of the state-court proceedings, the Court reopened this action and
set a briefing schedule on Mercedes-Castro’s amended petition. (Docs. 10, 11.)
1
2
This summary is based on the trial transcript.
2
wanted to sell the AK-47; Lugo, his friend and coworker, agreed to arrange a sale.
Valentin gave Lugo the rifle. The same month, while Cerrato was cutting Lugo’s hair,
Mercedes-Castro, Cruz, and another man, Raza Rizvi, came into the barbershop and
said they were looking for guns. Lugo stopped the haircut and went outside with the
three men.
Rizvi’s wife, Janice Ponce, saw Rizvi with Mercedes-Castro and Cruz around
this time. Ponce and Rizvi lived in a hotel in Kissimmee. One evening shortly after
Thanksgiving, Mercedes-Castro and Cruz came to the hotel. The men were dressed in
black, wearing gloves on their hands and black stockings on their faces. Ponce heard
Mercedes-Castro tell Rizvi and Cruz that they were going to rob a drug dealer in
Poinciana. She also heard that Mercedes-Castro was “supposed to hold” an AK-47
during the robbery. (Id., Ex. 1d, p. 525.) The men left around midnight. The following
night, Mercedes-Castro and Cruz returned to the hotel to meet with Rizvi. Ponce
learned that the three men had not robbed the drug dealer, apparently because “[t]he
plan went wrong.” (Id., p. 527.) The men discussed the robbery again. Wearing the
“same clothing” as the night before, the men left the hotel in Ponce’s white four-door
car. (Id.)
Jose Tejeda was friends with Mercedes-Castro and Cruz. Tejeda received a call
from Cruz one night in late November 2005. Cruz offered Tejeda money for a ride to
Poinciana. Tejeda went to pick up Cruz on a street corner. Tejeda also saw MercedesCastro, Rizvi, and an unidentified fourth man inside a white car. Mercedes-Castro and
Rizvi left in the white car; Cruz and the unidentified man got into Tejeda’s car and
3
told him to follow the white car. Tejeda heard the unidentified man say that they were
going to do a “lick,” meaning a robbery. (Id., p. 603.) After the white car got a flat tire,
Tejeda saw the men remove what he believed to be guns wrapped in a blanket from
the trunk of the white car to the trunk of Tejeda’s car. They then got in Tejeda’s car.
Mercedes-Castro and the unidentified man gave Tejeda directions.
Mercedes-Castro, Cruz, Rizvi, and the unidentified man—all of whom were
dressed in black and wearing masks—got out of the car and went to the trunk before
walking away. As Tejeda waited for them, he heard two or three gunshots and then
saw them running back to his car. Tejeda drove away until the men told him to stop
and open the trunk. The men got out and put the firearms in the trunk. Next, they
directed Tejeda to stop at a hotel, where all four passengers got out of the car and
removed the guns.
Ponce woke to find Mercedes-Castro, Cruz, and Rizvi in the hotel room. Ponce
told Cruz to “step outside” because she did not “like him.” (Id., p. 539.) She noticed
that Mercedes-Castro and Rizvi were acting “very paranoid.” (Id., p. 540.) In response
to Ponce’s questions about “what had happened,” Mercedes-Castro explained that
Rizvi “broke the window,” whereupon the victim attempted to defend himself by
shooting at the robbers. (Id.) Mercedes-Castro claimed that he “shot at [the victim] and
just ran off.” (Id.) He also said that, if the men were “questioned,” they would say
“they were at a bar.” (Id., p. 541.)
Mercedes-Castro later returned to Jose Cerrato’s barbershop with a black trash
bag that looked like it contained a long, heavy object. Mercedes-Castro told Cerrato
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to give the bag to Edwin Lugo, the friend and co-worker of Carlos Valentin who had
agreed to arrange a sale of Valentin’s AK-47. Cerrato went to the business where Lugo
and Valentin worked together. Lugo was not there, so Cerrato and Valentin opened
the bag. They saw Valentin’s AK-47 inside. Valentin took the rifle. Cerrato
subsequently arranged to purchase the AK-47. But after Cerrato acquired it, a man
nicknamed “Mouse” told him that it might have been used in a homicide. Cerrato
wanted to get rid of the gun as quickly as possible, so he sold it to an acquaintance.
Following this sale, Special Agent Lisa Rousseau of the Florida Department of
Law Enforcement (“FDLE”), under the supervision of Special Agent Robert Ura,
worked with a confidential informant to purchase two AK-47s from a residence in
Kissimmee. An FLDE technician determined that one of the guns was used to fire the
bullet that killed Phillips. A check of the firearm’s serial number revealed that it was
registered to Valentin.
Following his arrest, Mercedes-Castro spoke to Rousseau and Detective Ivan
Navarro. During the interview, he “said that Raza Rizvi must have been the individual
to tell agents and law enforcement that [Mercedes-]Castro was involved in the
homicide, and that Raza Rizvi talk[ed] too much.” (Id., Ex. 1c, p. 355.) The officers
told Mercedes-Castro that they were “in possession of his latent fingerprints,” and that
“the gun could still be traced and looked at for fingerprints.” (Id., p. 356.) In response,
Mercedes-Castro said, “[I]f you have my prints, then you need to check for everyone
else’s prints to include Raza Rizvi’s.” (Id.) The officers also mentioned “a rumor on
the street that the victim had actually fired the first shots at the group.” (Id., p. 357.)
5
Mercedes-Castro said the rumor was “only half true before they put the spin on it.”
(Id.) The “spin,” according to Mercedes-Castro, was that he “had fired the shot.” (Id.)
Mercedes-Castro called three alibi witnesses at trial: Mercedes Mercedes (his
mother), Joseph Principe (a friend), and Miguel Orengo (another friend). Mercedes
Mercedes testified that Mercedes-Castro was home on the night of the robbery.
Principe and Orengo likewise testified that, on the night of the robbery, they were with
Mercedes-Castro in a FEMA trailer parked outside his house.
III.
Standards of Review
A.
AEDPA
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
can be granted only 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) provides
that federal habeas relief cannot be granted on a claim adjudicated on the merits in
state court unless the state court’s adjudication:
(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.
A decision is “contrary to” clearly established federal law “if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than [the Supreme] Court has on
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a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
A decision involves an “unreasonable application” of clearly established federal law
“if the state court identifies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s
case.” Id.
AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that statecourt convictions are given effect to the extent possible under law.” Bell v. Cone, 535
U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s
application of clearly established federal law is objectively unreasonable, and . . . an
unreasonable application is different from an incorrect one.” Id. at 694; see also
Harrington v. Richter, 562 U.S. 86, 103 (2011) (“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.”).
The state appellate court affirmed Mercedes-Castro’s convictions, as well as the
denial of postconviction relief, without discussion. These decisions warrant deference
under § 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.
2002). When a state appellate court issues a silent affirmance, “the federal court should
‘look through’ the unexplained decision to the last related state-court decision that
7
does provide a relevant rationale” and “presume that the unexplained decision
adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
B.
Ineffective Assistance of Counsel
Mercedes-Castro alleges ineffective assistance of trial counsel. Ineffectiveassistance-of-counsel claims are analyzed under the test established in Strickland v.
Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient
performance by counsel and resulting prejudice. Id. at 687. Deficient performance is
established if, “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.
Mercedes-Castro must show 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. To demonstrate prejudice, Mercedes-Castro must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
Obtaining relief on a claim of ineffective assistance of counsel is difficult on
federal habeas review because “[t]he standards created by Strickland and § 2254(d) are
8
both highly deferential, and when the two apply in tandem, review is doubly so.”
Richter, 562 U.S. at 105 (internal quotation marks and citations omitted); see also Burt
v. Titlow, 571 U.S. 12, 15 (2013) (stating that this doubly deferential standard of review
“gives both the state court and the defense attorney the benefit of the doubt”). “The
question [on federal habeas review of an ineffective-assistance claim] ‘is not whether a
federal court believes the state court’s determination’ under the Strickland standard
‘was incorrect but whether that determination was unreasonable—a substantially
higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)).
C.
Exhaustion of State Remedies; Procedural Default
A federal habeas petitioner must exhaust his claims in state court before
presenting them in his federal habeas petition. 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 exhaustion requirement 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. Picard v. Connor, 404 U.S. 270, 275-76 (1971).
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
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1135, 1138 (11th Cir. 2001). 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 v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). 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). A petitioner demonstrates
prejudice by showing that “there is at least a reasonable probability that the result of
the proceeding would have been different” absent the constitutional violation.
Henderson, 353 F.3d at 892.
IV.
Discussion
A.
Ground One, Sub-Claim A
Mercedes-Castro contends that trial counsel was ineffective for failing to “object
to a general jury verdict [form]” on the grounds that “a special verdict form” was
required. (Doc. 9, p. 5.) In his Rule 3.850 motion, Mercedes-Castro argued that “the
verdict form for [the first-degree murder] count was defective in that it cannot be
determined whether the jury convicted [him] based on the felony murder theory or
premeditated murder.” (Doc. 18-2, Ex. 13, p. 40.) He claimed that counsel should have
requested a “special verdict form” requiring the jury to “make a special finding” that
“the conviction was for either felony murder or premeditated murder.” (Id.)
Additionally, Mercedes-Castro faulted counsel for not objecting to the verdict form on
the grounds that (1) it “failed to reference the charging document by stating that [he]
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was ‘guilty as charged,’” and (2) it “failed to interrogate the jury to make the required
determination that [he] actually possessed a firearm during the course of committing
the alleged offenses.” (Id., p. 39.)
The state court denied this claim:
The Defendant alleges that the verdict form was defective because it can’t
be determined if his conviction was based on felony murder or
premeditated murder. A special verdict form is not required
demonstrating which theory the jury based its verdict on. See Bedford v.
State, 589 So. 2d 245 (Fla. 1991). The Court finds no legal reason to
conclude that counsel’s performance was deficient in not requesting a
special verdict form for the jury to determine if the Defendant actually
discharged a firearm or to insist that the jury verdict form use the words
“guilty as charged” in the indictment. The Court finds no basis to
conclude that counsel’s performance fell below an objective standard of
reasonableness with respect to [this ground] of the Defendant’s Motion.
(Id., p. 83.)
The state court reasonably rejected this ineffective-assistance claim. First,
counsel was not deficient for failing to request a special verdict form requiring the jury
to indicate whether Mercedes-Castro was guilty of first-degree felony murder or
premeditated first-degree murder. 3 The indictment charged Mercedes-Castro with
first-degree murder under both theories, alleging that he “unlawfully did kill a human
being” “from a premeditated design to effect the death of a human being, or while
engaged in the commission or attempt to commit a robbery or burglary.” (Id., Ex. 1,
p. 60.) Likewise, the trial court instructed the jury on both “First Degree Premeditated
Under Florida law, “[t]here are two ways in which a person may be convicted of first degree murder.
One is known as premeditated murder and the other is known as felony murder.” Prudent v. State, 974
So. 2d 1142, 1143 (Fla. 3d DCA 2008).
3
11
Murder” and “First Degree Felony Murder.” (Id., pp. 151-52.) The verdict form did
not, however, require the jury to distinguish between these two theories. Instead, it
simply asked the jury to determine whether Mercedes-Castro was “guilty of First
Degree Murder.” (Id., Ex. 1a, p. 172.)
Counsel had no basis to object to this portion of the verdict form. Under Florida
law, “a special verdict to determine whether a defendant’s first-degree murder
conviction is based upon premeditated or felony murder is not required.” Haliburton v.
State, 561 So. 2d 248, 250 (Fla. 1990). The same is true of federal law. See Harrison v.
Inch, No. 3:18-cv-2100-RV-CAS, 2019 WL 2077858, at *7 (N.D. Fla. Apr. 4, 2019)
(“[T]he U.S. Supreme Court has held that the U.S. Constitution does not require
separate verdict forms for alternative theories of premeditated and felony murder.”
(citing Schad v. Arizona, 501 U.S. 624, 645 (1991))), adopted by 2019 WL 2076399 (N.D.
Fla. May 10, 2019); Vilme v. McNeil, No. 08-23138-CIV, 2010 WL 430762, at *29 (S.D.
Fla. Feb. 5, 2010) (“The contention that a general guilty verdict that fails to
differentiate between premeditated and felony murder is constitutionally inadequate
has been rejected as meritless by the [United States] Supreme Court.”). Because the
proposed objection is meritless, counsel was not ineffective for failing to raise it at trial.
See Chandler v. Moore, 240 F.3d 907, 917 (11th Cir. 2001) (“[C]ounsel was not
ineffective for failing to raise a nonmeritorious issue.”).
Second, counsel was not deficient for failing to object that the verdict form did
not “reference the charging document by stating that [Mercedes-Castro] was ‘guilty as
charged.’” (Doc. 18-2, Ex. 13, p. 39.) Contrary to Mercedes-Castro’s assertion, the
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verdict form did cite the “charging document.” Specifically, each page of the form
contained the following introductory language: “We, the jury, find as follows, as to
Count One[, Two, or Three] of the Indictment.” (Id., Ex. 1a, pp. 172-74 (emphasis
added).) Moreover, Mercedes-Castro cites no authority—and this Court is aware of
none—requiring a verdict form to contain the words “guilty as charged.” Accordingly,
counsel was not ineffective for failing to raise this meritless objection.
Third, counsel did not provide ineffective assistance by failing to ensure that the
jury determined whether Mercedes-Castro “actually possessed a firearm during the
course of committing the alleged offenses.” (Id., Ex. 13, p. 39.) For the armed burglary
and attempted armed robbery counts, the verdict form did ask the jury to determine
whether Mercedes-Castro personally possessed or used a firearm during the
commission of the offenses. (Id., Ex. 1a, pp. 173-74.) With respect to the first-degree
murder count, the verdict form did not require the jury to determine whether
Mercedes-Castro possessed or used a firearm in committing the offense. (Id., p. 172.)
But no such interrogatory was required, because “[c]arrying [or using] a weapon in the
course of committing the crime [is] not an essential element of first-degree murder.”
Downs v. State, 977 So. 2d 572, 574 (Fla. 2007). Thus, counsel was not ineffective for
failing to raise this meritless issue.
For all of these reasons, Ground One, Sub-Claim A is denied.
B.
Ground One, Sub-Claim B
Mercedes-Castro argues that trial counsel was ineffective for failing to request
that the jury be instructed “solely . . . on the felony murder theory.” (Doc. 9, p. 5.)
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After the state rested, counsel moved for judgment of acquittal on all counts. Although
the court denied the motion, it indicated that it “tend[ed] to agree that there’s not
evidence of premeditation. [But] [t]here’s evidence of felony murder rule.” (Doc. 182, Ex. 1d, p. 640.) Counsel then stated that she “would request the [first-degree
murder] instructions be read in [their] entirety.” (Id.) The court agreed, reasoning that
“the instructions make more sense if we read them as they are.” (Id., p. 642.) As noted
above, the court ultimately instructed the jury on both first-degree felony murder and
premeditated first-degree murder. Mercedes-Castro argues that counsel rendered
ineffective assistance by asking the court to instruct the jury on both theories of firstdegree murder.
Respondent contends that this claim is procedurally defaulted because
Mercedes-Castro failed to exhaust it in state court. The Court need not decide this
issue because, even assuming the claim was exhausted, it would fail on the merits. See
Dallas v. Warden, 964 F.3d 1285, 1307 (11th Cir. 2020) (“[A] federal court may skip
over the procedural default analysis if a claim would fail on the merits in any event.”).
Mercedes-Castro cannot show that he was prejudiced by the inclusion of the
instructions on premeditated murder. To establish prejudice, Mercedes-Castro “has to
demonstrate that there is a reasonable probability that, but for the [challenged]
instruction[s], the outcome of the trial would have been different.” Torres v. Sec’y, Dep’t
of Corr., 843 F. App’x 203, 212 (11th Cir. 2021). This he cannot do. Where “a trial
court instruct[s] a jury on two different legal theories, one supported by the evidence,
the other not,” the jury is “likely to disregard an option simply unsupported by
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evidence.” Sochor v. Florida, 504 U.S. 527, 538 (1992); see also Turbi v. Sec’y, Dep’t of
Corr., No. 8:18-cv-40-VMC-CPT, 2018 WL 3772090, at *6 (M.D. Fla. Aug. 9, 2018)
(“[Petitioner] has not established prejudice as a result of counsel’s failure to object to
the stealthy entry instruction. As the state court’s order indicates, a jury will likely
discount an inapplicable instruction.”), aff’d, 800 F. App’x 773 (11th Cir. 2020).
Here, even assuming that the premeditated-murder instruction was unsupported
by the facts, the prosecution presented ample evidence of first-degree felony murder.
“First-degree murder includes the unlawful killing of a person when committed by
someone engaged either in the perpetration of, or in the attempt to perpetrate, a
robbery [or a burglary].” Rocker v. State, 122 So. 3d 898, 902 (Fla. 2d DCA 2013).
Ponce, the wife of one of the suspects, testified that she overheard Mercedes-Castro
and the other suspects discussing a plan to rob a drug dealer in Poinciana. Tejeda
testified that he drove Mercedes-Castro and the other suspects to the house they
planned to rob. When they arrived, Mercedes-Castro was one of the men who got out
of the car. He and the other suspects came running back to the vehicle after Tejeda
heard two or three gunshots. Moreover, Ponce testified that Mercedes-Castro told her
he had “shot at [the victim]” and run off. (Doc. 18-2, Ex. 1d, p. 540.)
Based on this evidence, a reasonable jury could find beyond a reasonable doubt
that Mercedes-Castro “caused [the victim’s] death during the commission of” an
attempted robbery. Sexton v. State, 221 So. 3d 547, 559 (Fla. 2017). Accordingly, the
evidence was sufficient to support a conviction for first-degree felony murder. As a
result, there is no “reasonable probability” that, had counsel persuaded the court to
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exclude the instruction on premeditated murder, “the outcome of the trial would have
been different.” Torres, 843 F. App’x at 212; see also Binder v. Pancack, No. CIVA 06-59
KSF, 2007 WL 549929, at *12 (E.D. Ky. Feb. 16, 2007) (“[I]t is clear that the failure
of petitioner’s counsel to object to a factually unsupported theory of guilt contained in
the jury instructions does not warrant habeas relief.”). Thus, Ground One, Sub-Claim
B is denied.
C.
Ground Two
Mercedes-Castro contends that trial counsel provided ineffective assistance by
“misadvising [him] to waive his right to a 12 person jury.” (Doc. 9, p. 7.) As a result
of this alleged advice, Mercedes-Castro “went with a six person jury.” (Id.) According
to Mercedes-Castro, counsel “failed to reasonably explain the functioning of a twelve
person jury to the extent necessary to permit [him] to make an informed decision on
whether to waive his rights to a twelve person jury.” (Id.) Mercedes-Castro elaborated
on this claim in his Rule 3.850 motion, asserting that (1) “counsel made an
unreasonable decision by suggesting that [he] should waive his statutory right to a
twelve-person jury in order to shorten the jury selection process,” and (2) counsel
caused him to “unknowingly and unintelligently waive his right to a twelve-person
jury, where she failed to inform [him] that he had a statutory right to a twelve-person
jury.” (Doc. 18-2, Ex. 13, p. 64.) Mercedes-Castro also claimed that “scholarship and
16
data” suggest that the “function and purposes of a jury cannot constitutionally be
fulfilled by a jury of six.” 4 (Id., p. 65.)
The state court denied this claim, reasoning that the trial transcript “show[ed]
that [Mercedes-Castro] knowingly and willingly waived the right to have a twelve
person jury.” (Id., pp. 122-23.) The court cited the following portion of the transcript:
[TRIAL COUNSEL]: We will go with a jury of six. My client is
agreeable with that.
THE COURT: Raise your right hand. Do you solemnly swear or affirm
the testimony you are about to give will be the truth?
MR. CASTRO: Yes, sir.
THE COURT: State your name for the record.
MR. CASTRO: Hansel Mercedes-Castro.
THE COURT: You can put your hand down. I’m not sure she can hear
you. You are soft spoken so make sure you speak loudly. You’ve had an
opportunity to discuss this issue with Ms. Williamson, your attorney?
MR. CASTRO: Yes sir.
THE COURT: And you’re satisfied with the advice she’s given you?
MR. CASTRO: Yes, sir.
THE COURT: It’s your decision—you personally made the call that you
are willing to go with six?
MR. CASTRO: Yes, sir.
It is well established that a “12-member jury [is] not required by the Constitution.” United States v.
Walsh, 75 F.3d 1, 6 (1st Cir. 1996); see also Edgemon v. Lockhart, 768 F.2d 252, 256 (8th Cir. 1985)
(“States are not required by the federal Constitution to try criminal cases to juries of twelve people . .
. .”).
4
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THE COURT: You understand that in a capital case, you are entitled to
a jury of twelve?
MR. CASTRO: Yes, sir.
THE COURT: And like any other rights you have, you can waive that
right?
MR. CASTRO: Yes, sir.
THE COURT: And you’re willing to waive that right and go with six?
MR. CASTRO: Yes, sir.
(Id., Ex. 1b, pp. 221-22.)
The state court reasonably rejected this ineffective-assistance claim. 5 Even
assuming that counsel performed deficiently, Mercedes-Castro cannot establish that
he was prejudiced by counsel’s conduct. To demonstrate prejudice, Mercedes-Castro
must show “a reasonable probability that an acquittal or hung jury would have resulted
had [his] counsel insisted on twelve jurors.” Cabberiza v. Moore, 217 F.3d 1329, 1334
(11th Cir. 2000). Mercedes-Castro has not made the required showing. Indeed, “[t]he
Supreme Court itself has said that ‘neither currently available evidence nor theory
suggests that the 12-man jury is necessarily more advantageous to the defendant than
a jury composed of fewer members.’” Id. at 1335 (quoting Williams v. Florida, 399 U.S.
78, 101-02 (1970)). Accordingly, Mercedes-Castro’s “claim of prejudice is entirely
speculative because he relies entirely on the mere possibility at least one of the six
additional jurors would have voted to acquit him.” Joseph v. Sec’y, Fla. Dep’t of Corr.,
The Court need not address Respondent’s exhaustion argument because, even if unexhausted,
Ground Two fails on the merits.
5
18
No. 3:15-cv-1363-MMH-JRK, 2018 WL 5024180, at *14 (M.D. Fla. Oct. 17, 2018);
see also Jimenez-Solano v. Sec’y, Fla. Dep’t of Corrs., No. 16-10073-CIV, 2018 WL
9801185, at *7-8 (S.D. Fla. Mar. 12, 2018) (“[T]he record is devoid of evidence that
an acquittal or hung jury would have resulted had defense counsel insisted on twelve
jurors. . . . Thus, there is a reasonable argument that petitioner cannot show prejudice
under Strickland.”), adopted by 2018 WL 9801134 (S.D. Fla. Aug. 30, 2018).
Because there is no basis to conclude that Mercedes-Castro suffered prejudice,
the state court correctly rejected his ineffective-assistance claim. 6 Ground Two is
denied.
D.
Ground Three
Mercedes-Castro contends that trial counsel was ineffective for “failing to
impeach” Ponce, the wife of one of the suspects. (Doc. 9, p. 8.) He contends that,
during a “termination of parental rights” hearing, Ponce claimed she “knew nothing
about the murder of” the victim. (Id.) At her deposition and at trial, however, Ponce
testified that “she heard the planning of the of the alleged attempted robbery.” (Id.)
Mercedes-Castro claims that counsel should have impeached Ponce based on these
inconsistent statements.
The state court denied this claim:
In his Amended Supplement, the Defendant alleges that Janice Ponce
was asked during a termination of parental rights proceeding whether she
knew anything about the murder of [the victim] and she responded,
“No.” However, in a deposition Ms. Ponce claimed that she overheard
the planning of the alleged attempted robbery between her husband, Mr.
6
The Court would reach the same conclusion even if de novo review applied to this claim.
19
Cruz, and the Defendant. He alleges that “she further claimed to have
seen the Defendant with two AK-47 rifles, and that Defendant admitted
to her that he entered the home of the deceased and that the deceased
fired a shot at him, and he shot back and fatally wounded [the victim].
Moreover, at trial, Janice Ponce testified that she had ‘lied’ at the
‘Termination Parental Rights Trial’ when she was asked if she knew
anything about the murder for which her husband was arrested because
it suited her to ‘lie’.”
The Defendant alleges that his counsel’s failure to properly impeach Mrs.
Ponce based on the difference between the statements she made at the
termination of parental rights proceeding and in her deposition may have
allowed the jury to place greater weight on the in court testimony which
was prejudicial to the Defendant. He alleges her in court testimony
directly conflicts with her testimony at the parental rights proceeding.
The Defendant’s claim that his attorney did not properly impeach Mrs.
Ponce is conclusory. A review of the appellate record does not support
the Defendant’s argument. Defense counsel brought to the attention of
the jury that Mrs. Ponce had testified that she did not know anything
about the murder when she gave testimony at the termination of Parental
Rights proceeding. When counsel questioned Mrs. Ponce, Mrs. Ponce
acknowledged that it suited her to lie at the termination of parental rights
proceeding. The Court finds that defense counsel’s performance with
regard to [this ground] of the Defendant’s Motion did not fall below an
objective standard of reasonableness.
(Doc. 18-2, Ex. 13, p. 119 (record citations omitted).)
The state court reasonably rejected this ineffective-assistance claim. As the state
court explained, counsel did impeach Ponce with the testimony she gave at the familycourt proceeding:
Q. Did you appear in court in Osceola County on February 26, 2007?
A. For what?
Q. For a child custody issue?
A. Yes.
Q. Okay. Were you asked in court about this murder?
20
A. Yes.
Q. And did you deny that you knew anything?
A. Yes, because it was not concerned to do with none of what I was in
court for [sic].
...
Q. But you were asked by the Department of Children and Family
lawyer, “do you know anything about the murder that he is currently
arrested on?” And your answer was, “no.”
A. Yes.
...
Q. Okay. So you lied in court?
A. Yes.
Q. Because you didn’t think it was important that anybody know the
truth?
A. Yes.
Q. And it suited you to lie?
A. Yes.
(Id., Ex. 1a, pp. 575-77.)
Because counsel impeached Ponce with the inconsistent statements identified
by Mercedes-Castro, there is no basis to find either deficient performance or prejudice.
See Mitchell v. Sec’y, Dep’t of Corr., No. 8:20-cv-1214-CEH-MRM, 2023 WL 3596406,
at *8 (M.D. Fla. May 23, 2023) (rejecting ineffective-assistance claim because, “[a]s
the state court correctly recounted, trial counsel impeached Boehm with the prior
21
inconsistent statements [petitioner] identifies”); Wright v. Sec’y, Dep’t of Corr., No. 8:10cv-770-VMC-TGW, 2011 WL 2731079, at *12 (M.D. Fla. July 13, 2011) (“[Petitioner]
alleges that defense counsel was ineffective for failing to impeach Ms. Smith. This
allegation is [] refuted by the record, as defense counsel did impeach Ms. Smith on
cross-examination.”). Ground Three is denied.
E.
Ground Four
Mercedes-Castro contends that trial counsel was ineffective for failing to call
three witnesses at trial: Detective Dustin Kendrick, April Grindrod, and Jean
Mercedes-Castro (his brother). Detective Kendrick allegedly would have testified that
“there was no direct evidence of an intent to take money or other property from the
victim.” (Doc. 9, p. 10.) Grindrod, the girlfriend of the victim, allegedly “would have
given testimony that was inconsistent with the State’s theory as to the events that
occurred.” (Doc. 18-2, Ex. 13, p. 70.) Finally, Jean Mercedes-Castro allegedly would
have served as another alibi witness.
Following an evidentiary hearing, the state court denied this claim. The court
first addressed counsel’s failure to call Grindrod:
The Defendant alleges that the State’s [k]ey witness, Jose Tejeda, testified
that he drove the alleged co-defendants within several blocks of the
alleged crime and waited in the car for the men to return. He alleged that
when they returned they came running back. The Defendant alleges that
Ms. Grindrod would have given testimony inconsistent with Mr.
Tejeda’s testimony and inconsistent with the State’s version of events.
The Defendant alleges that Ms. Grindrod would have offered an
alternative motive for the murder and her testimony could have pointed
to a different possible murderer.
22
The Defendant alleges that [Grindrod] had knowledge of a strained
relationship between the vict[i]m and Barbara Valentin[, the victim’s
spouse, from whom he was separated,] and that there was some suspicion
that Barbara Valentin might have something to do with the murder. The
Defendant alleges that information about a possible connection between
Ms. Valentin and the owner of the gun that killed the victim would have
been of interest to the jury.
Ms. Grindrod testified at the evidentiary hearing that she was in bed with
the victim when she heard the sound of breaking glass and two gunshots.
She felt the victim get out of bed. She heard a grunt outside the window
and thought the grunt might be from a black male. She heard a car door
slam and a car pull away. She thought it might be the victim getting into
his Ford Expedition to go after the perpetrator. Ms. Grindrod testified
that at the time, the victim[] was separated from his wife, Barbara
Valentin. She testified that the victim had just returned from New York.
The day before the shooting the victim told her that Barbara Valentin
would be stopping by with her mother and sister, and later that day told
her that Barbara Valentin had stopped by. She testified that she had been
told by the victim to leave the residence so she would not be there when
they came because it would just cause problems. Ms. Grindrod testified
that someone had told her that Barbara Valentin had previously stabbed
the victim. She testified that nothing was taken from the residence that
night by the perpetrator and she never saw anybody in the house other
than herself and the victim.
To a certain extent Ms. Grindrod’s testimony points at Barbara Valentin
as possibly having some connection to the murder. However, the Court
notes that Ms. Grindrod testified at the evidentiary hearing that she did
not think Ms. Valentin had any connection to the victim’s murder at the
time of the homicide and that was still her opinion at this time. To a
certain extent, Ms. Grindrod’s testimony contradicts the testimony of
Mr. Tejeda at trial regarding where the vehicle of the perpetrators stopped
in relationship to the residence. The Court does not find that the
Defendant has shown that counsel’s performance fell below an objective
standard of reasonableness with regard to the Defendant’s claims . . . .
However, to the extent it could be argued that counsel was deficient in
this regard, the Court sees no reasonable probability that the result of the
proceeding would have been different but for counsel’s deficiency given
the strength of the State’s case against the Defendant.
(Id., pp. 415-16 (record citations omitted).)
23
The state court reasonably concluded that counsel was not ineffective for failing
to call Grindrod at trial. “Which witnesses, if any, to call, and when to call them, is
the epitome of a strategic decision, and it is one that [courts] will seldom, if ever,
second guess.” Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). To establish
prejudice, Mercedes-Castro must show “a reasonable probability that, but for counsel’s
[failure to call Grindrod as a witness], the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. The burden of establishing prejudice “is heavy
where the petitioner alleges ineffective assistance in failing to call a witness.” Sullivan
v. DeLoach, 459 F.3d 1097, 1109 (11th Cir. 2006). Nevertheless, the failure to call an
exculpatory witness is “more likely prejudicial when a conviction is based on little
record evidence of guilt.” Fortenberry v. Haley, 297 F.3d 1213, 1228 (11th Cir. 2002).
Mercedes-Castro cannot show that he was prejudiced by the failure to call
Grindrod. Before the state court, Mercedes-Castro argued that Grindrod’s testimony
would have cast doubt on his responsibility for the murder by pointing to the victim’s
estranged wife as a potential suspect. As the state court explained, however, Grindrod
herself testified that she did not believe the victim’s wife was involved in the murder.
Notably, Grindrod also stated at the evidentiary hearing that, although she was present
during the attempted robbery, she “kept [her] eyes closed the whole time.” (Doc. 182, Ex. 13, p. 281.) Thus, any testimony she might have offered about the incident
would have been of limited value. For that reason, and in light of the overwhelming
evidence of Mercedes-Castro’s guilt, there is no reasonable probability that, had
Grindrod testified at trial, the outcome would have been different. See United States v.
24
Andrews, 953 F.2d 1312, 1327 (11th Cir. 1992) (rejecting ineffective-assistance claim
based on failure to call exculpatory witnesses because, “even had the witnesses’
testimony been presented to the jury, the verdict would have remained the same”).
The state court also concluded that counsel was not ineffective for failing to call
Jean Mercedes-Castro as an alibi witness:
In the Defendant’s “Amended Supplement to Motion To Vacate, Set
Aside, Or Correct Sentence, And Request For An Evidentiary Hearing,”
filed on November 22, 2010, the Defendant says his brother, Jean
Mercedes-Castro[,] would have testified at trial that the Defendant was
with him on the night of the alleged crime, and it would have been
impossible for the Defendant to have been in two places at the same time.
Jean Mercedes-Castro testified at the evidentiary hearing by telephone
from a Federal Correctional Institution in Fort Worth, Texas. He testified
that his incarceration has nothing to do with the Defendant’s case. Mr.
Castro testified that he realized in August 2006 that his brother was with
him at the time the murder occurred. He said this information was
conveyed to his brother’s attorney Julia Williamson in September or
October 2006. He testified that he was with the Defendant in a FEMA
trailer all night when this murder occurred. He agreed that from what he
heard, his testimony would have corroborated the testimony of three
other witnesses. He testified that he and a Mr. Principe brought three girls
back to the trailer on the Monday night after Thanksgiving. He testified
that the Defendant and another of his friends were at the trailer and later
that night his mother also showed up. He testified that the guys and the
girls spent the whole night listening to music, drinking, and having fun.
He testified that he didn’t sleep that night and his brother did not leave
his sight. Mr. Castro testified that during his brother’s trial Ms.
Williamson wanted him stay in the [c]ourtroom and offer moral support
to his brother rather than be a witness. He said that Ms. Williamson said
they already had three witnesses and maybe his testimony would not add
as much value to the defense. Mr. Castro testified that he was not present
for the whole trial because the Court kicked him out of the courtroom for
looking at and intimidating the victim’s ex-wife.
At the Defendant’s trial Joseph Principe, Miguel Orengo, and the
Defendant’s mother testified that the Defendant was with them at the
trailer on the night of the homicide. According to their testimony at the
25
trial, these witnesses waited until November 2007 to come forward with
their information regarding an alibi for the Defendant. The Defendant
had been arrested in July 2006. Jean Mercedes-Castro’s testimony
differed from their testimony to the extent he claims he informed Ms.
Williamson about the alibi in September or October 2006. Otherwise,
Jean Mercedes Castro’s testimony about his brother’s whereabouts on
the night of the murder is similar to the three witnesses that were called
in respect to the alibi. The jury in the trial obviously did not find the
testimony of these three witnesses to be credible from the standpoint of
providing an alibi for the Defendant. Similarly, the Court does not find
[] Jean Mercedes-Castro[’s] testimony regarding the whereabouts of his
brother on the night of the murder to be credible. The Court also does not
find it credible that Jean Mercedes-Castro gave alibi information to trial
counsel in September or October 2006. The defense counsel has the
ultimate authority as to whether to have a witness testify at trial. See
Puglisi v. State, 112 So. 3d 1196 (Fla. 2013). The Defendant’s counsel
chose to have Mr. Principe, Mr. Orengo, and the Defendant’s mother
provide information as to an alibi. The Court does not find that Counsel’s
performance fell below an objective standard of reasonableness in not
calling the Defendant’s brother as an alibi witness.
(Doc. 18-2, Ex. 13, pp. 416-17.)
The state court reasonably rejected the ineffective-assistance claim based on the
failure to call Mercedes-Castro’s brother as an alibi witness. “A petitioner cannot
establish ineffective assistance by identifying additional evidence that could have been
presented when that evidence is merely cumulative.” Van Poyck v. Fla. Dep’t of Corr.,
290 F.3d 1318, 1324 n.7 (11th Cir. 2002). “[E]vidence presented in postconviction
proceedings is ‘cumulative’ or ‘largely cumulative’ to or ‘duplicative’ of that presented
at trial when it tells a more detailed version of the same story told at trial or provides
more or better examples or amplifies the themes presented to the jury.” Tanzi v. Sec’y,
Fla. Dep’t of Corr., 772 F.3d 644, 660 (11th Cir. 2014) (quoting Holsey v. Warden, 694
F.3d 1230, 1260-61 (11th Cir. 2012)).
26
As the state court correctly found, Jean Mercedes-Castro’s testimony would
have been cumulative of the testimony given by the three other alibi witnesses at trial.
Indeed, all four individuals claimed that Mercedes-Castro was home on the night of
the murder. In addition, the state court concluded that Jean Mercedes-Castro’s
testimony was not credible. “Determining the credibility of witnesses is the province
and function of the state courts, not a federal court engaging in habeas review.”
Consalvo v. Sec’y for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011). Mercedes-Castro
has not shown by “clear and convincing evidence” that the state court’s credibility
determination was erroneous. 28 U.S.C. § 2254(e)(1). Accordingly, because “the
testimony would have been cumulative and the jury could have viewed the testimony
as incredible,” Mercedes-Castro “failed to show that counsel’s decision not to call his
brother as a witness was unreasonable or that the result of his trial would have been
different if his brother had testified.” Walker v. Sec’y, Fla. Dep’t of Corr., 495 F. App’x
13, 17 (11th Cir. 2012).
Finally, the state court rejected Mercedes-Castro’s claim that counsel was
ineffective for failing to call Detective Kendrick at trial:
The Defendant alleged that his counsel was ineffective for not
investigating, deposing, and calling Detective Dustin Kendrick as a
witness. The Defendant alleged that Detective Kendrick would have
been available to testify. The Defendant alleged that Detective Kendrick
would have testified that there was no sign of forcible entry or direct
evidence that someone tried to enter or remain in the victim’s residence
with an intent commit an offense therein. The Defendant also indicates
Detective Kendrick’s testimony would have shown there was no direct
evidence of an intent to take money or other property from the victim.
The Defendant alleges that Detective Kendrick’s testimony would have
27
provided evidence that no first-degree felony murder, armed burglary[,]
or attempted robbery occurred.
Detective Kendrick was not called as a witness at the evidentiary hearing.
Counsel for the Defendant indicated to the Court that she was going to
file an affidavit she had seen which had been executed by Detective
Kendrick attesting that there were no signs of forced entry at the
residence. In her written closing argument, counsel for the Defendant
advised the Court that she was unable to locate any such affidavit or
sworn report authored by Detective Kendrick. The Defendant has failed
to provide any evidence in support of [this ground] of his Motion, and
the Court is unable to tell if Detective Kendrick would have provided any
relevant information with regard to [this claim].
(Doc. 18-2, Ex. 13, p. 417.)
The state court reasonably rejected this ineffective-assistance claim. “[A]
petitioner’s own assertions about whether and how a witness would have testified are
usually not enough to establish prejudice from the failure to interview or call that
witness.” McKiver v. Sec’y, Fla. Dep’t of Corr., 991 F.3d 1357, 1365 (11th Cir. 2021)
(collecting cases); see also United States v. Guerra, 628 F.2d 410, 413 (5th Cir. 1980)
(affirming denial of ineffective-assistance claim because “[n]one of the alleged
witnesses were called at the § 2255 hearing and no one knows what they would have
testified to”). Here, Mercedes-Castro presented no evidence beyond his “own
assertions” that Detective Kendrick would have testified in the manner he suggested.
McKiver, 991 F.3d at 1365. Accordingly, the state court reasonably found that
Mercedes-Castro not prejudiced by the failure to call Detective Kendrick as a witness.
See id. at 1366 (“The only evidence before the state appellate court was [petitioner’s]
own conclusory testimony about what the witnesses would have said and whether they
would have been available and willing to testify. This testimony is precisely the kind
28
of evidence that we—and other courts—have held to be simply inadequate to
undermine confidence in the outcome of the proceeding.”).
For all of these reasons, Ground Four is denied.
F.
Ground Five
Mercedes-Castro contends that trial counsel was ineffective for failing to object
to several instances of alleged “prosecutorial misconduct” at trial. (Doc. 9, p. 11.) The
prosecution allegedly engaged in misconduct by (1) “comment[ing] on [MercedesCastro’s] right to remain silent” and “attempt[ing] to shift” the burden of proof to him;
(2) “stat[ing] to the jury that that there was no issue that there was a burglary and that
there was no issue with respect to the manner of [] death of [the victim]”; (3) vouching
for “the credibility of Jose Tejeda”; and (4) suggesting that Mercedes-Castro’s alibi
witnesses were “lying.” (Doc. 18-2, Ex. 13, pp. 51-56.)
The state court denied this claim:
Although [this ground] was one of the claims that was part of the
evidentiary hearing, this claim was not pursued to any extent at the
evidentiary hearing. The Defendant alleges in his Motion that his counsel
provided ineffective assistance in not objecting to testimony from Lisa
Rousseau that the Defendant said he did not want his interview tape
recorded. The Defendant also alleges that counsel was ineffective in not
objecting to [] Rousseau’s testimony that the Defendant never said that
he was not at the scene where [the victim] was killed. The Defendant
claims that the prosecutor was violating his right to remain silent, and he
claims that the State was shifting the burden of proof. The Court does not
find that counsel’s performance fell below an objective standard of
reasonable[ness] in not objecting to these comments. However, to the
extent it could be argued that counsel was deficient in this regard, the
Court sees no reasonable probability that the result of the proceeding
would have been different but for counsel’s deficiency.
29
The Defendant claims in his Motion that the prosecutor engaged in
misconduct when he advised the jury that there was no issue that there
was a burglary and no issue with respect to the manner of death of [the
victim]. The Court finds that this argument has no legal merit. The
Defendant alleges the prosecutor engaged in misconduct by vouching for
the credibility of Jose Tejeda. A review [of] the prosecutor’s comments
regarding the relative culpability of Mr. Tejeda does not demonstrate
improper bolstering of a witness. The Defendant claims that when the
prosecutor argued that the statements of his alibi witnesses were not
reasonable[,] he was improperly vouching for his own witnesses and
invading the province of the jury. The Court finds no legal merit in this
argument.
For the most part the Defendant’s argument of prosecutorial misconduct
seems to be based on fair comment by the State on the evidence presented
at trial. The Court does not find that counsel’s performance fell below an
objective standard of reasonableness with regard to the claims made by
the Defendant in [this ground] of []his Motion. Additionally, to the
extent it could be argued that counsel was deficient in not objecting to
some of the comments of the prosecution, the Court finds no reasonable
probability that the result of the proceedings would have been different
but for counsel’s deficiency. The State presented compelling evidence of
the Defendant’s involvement in the crimes that he was charged with. The
testimony of Jose Tejeda and Janice Ponce were particularly significant
in tying the Defendant to the crimes he was convicted of.
(Id., pp. 413-14 (record citations omitted).)
The state court reasonably rejected this ineffective-assistance claim. 7 First,
counsel was not ineffective for failing to object to Rousseau’s testimony that MercedesCastro did not want his conversation with law enforcement to be tape recorded. Before
the state court, Mercedes-Castro argued that this testimony amounted to a “comment[]
on [his] right to remain silent.” (Id., p. 31.) The Supreme Court has never addressed
whether “a defendant’s refusal to allow his statements to police to be memorialized
The Court need not address Respondent’s exhaustion argument because, even if unexhausted,
Ground Five fails on the merits.
7
30
may be commented upon by the state at trial.” Wilson v. Sec’y, DOC, No. 2:12-cv-265SPC-CM, 2014 WL 7251671, at *8 (M.D. Fla. Dec. 19, 2014). Moreover, “[t]he courts
that have addressed similar ‘failure to memorialize’ issues are divided.” Id. (collecting
cases). Because the law on this issue was “unsettled” at the time of trial, counsel was
not ineffective for failing to object. Jones v. United States, 224 F.3d 1251, 1258 (11th Cir.
2000); see also Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999) (“[A]s an
acknowledgment that law is no exact science, the rule that an attorney is not liable for
an error of judgment on an unsettled proposition of law is universally recognized.”);
Broomfield v. United States, No. 3:14-cr-156-TJC-PDB, 2020 WL 4582725, at *5 (M.D.
Fla. Aug. 10, 2020) (“Where the law is at best unsettled, as it was here, counsel does
not perform deficiently by failing to raise an argument that was not clearly supported
by established law.”).
Second, counsel was not ineffective for failing to object to Rousseau’s testimony
that, during his interview with law enforcement, Mercedes-Castro never denied that
he was “at the scene where [the] victim was killed.” (Doc. 18-2, Ex. 1c, p. 366.)
Mercedes-Castro contends that this testimony violated his “right to remain silent” and
shifted the burden of proof to him. (Doc. 9, p. 11.) Although counsel did not object to
Rousseau’s testimony while she was on the stand, counsel did raise an objection when
the prosecutor cited her testimony in closing argument. Specifically, the prosecutor
stated: “I asked Rousseau, Lisa Rousseau, did he ever tell you that he wasn’t there?
No. Never said that. That is so fundamental to that conversation.” (Doc. 18-2, Ex. 1e,
p. 782.) Counsel immediately objected:
31
[TRIAL COUNSEL]: Your Honor, I object to the State’s going into this
fundamental issue on the right to silence by my client. And in the police
report, my client did deny it. I did not cross-examine the officer about
that because I didn’t want to open the door to the further comments that
were made. But my client did deny it, and it was in the police report that
he denied it. Then when they went back in and questioned him more,
there were other things said, so I don’t cross her or object to that issue.
But the State is misrepresenting facts and then he’s making a big deal out
of his right to silence and fundamental issues. I think it’s inappropriate.
(Id., p. 783.) The court overruled the objection but cautioned the prosecutor to “be
careful using the term ‘fundamental’ much more as related to [Mercedes-Castro’s]
statements, and kind of move on.” (Id., p. 784.)
Mercedes-Castro cannot show that counsel’s conduct—refraining from
objecting while Rousseau was on the stand but raising an objection when the testimony
was cited in closing argument—fell “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. Had counsel objected during the
examination, she might have drawn attention to Mercedes-Castro’s failure to deny his
presence at the scene of the crime. See Insignares v. Sec’y, Fla. Dep’t of Corr., 755 F.3d
1273, 1284 (11th Cir. 2014) (“[T]here are many reasons why defense counsel might
not object to [] a statement, including [that] the objection may draw attention to the
statement.”); Sharpe v. Jones, No. 4:14-cv-550-RH-CAS, 2017 WL 1856284, at *10
(N.D. Fla. Mar. 8, 2017) (“Attorneys sometimes decline to raise valid objections in
order to avoid drawing the jury’s attention to an objectionable comment which the
jury might otherwise have regarded as unimportant.”), adopted by 2017 WL 1855755
(N.D. Fla. May 4, 2017). Accordingly, the Court cannot say that “no competent
32
counsel would have taken the action that [Mercedes-Castro’s] counsel did take.”
Zakrzewski v. McDonough, 455 F.3d 1254, 1258 (11th Cir. 2006). 8
Third, counsel did not provide ineffective assistance by failing to object to the
prosecutor’s statements during closing argument that (1) “[t]here’s no issue that [the
victim] died as a result of a gunshot wound to the head,” and (2) “[t]here’s no issue
that it was a burglary.” (Doc. 18-2, Ex. 1e, p. 770.) During closing argument, “[a]
prosecutor is not limited to a bare recitation of the facts, but instead, may comment on
the evidence and express the conclusions he contends the jury should draw from the
evidence.” Crenshaw v. Sec’y, Fla. Dep’t of Corr., No. 16-17735-D, 2017 WL 6761058, at
*6 (11th Cir. Oct. 18, 2017) (citing United States v. Johns, 734 F.2d 657, 663 (11th Cir.
1984)). Thus, “[a] prosecutor may comment on the uncontradicted or uncontroverted
nature of the evidence . . . during closing argument to the jury.” Braddy v. Inch, No.
4:17-cv-478-RH-EMT, 2019 WL 8510071, at *11 (N.D. Fla. Apr. 11, 2019), adopted by
2020 WL 550260 (N.D. Fla. Feb. 4, 2020). Because the challenged remarks were fair
comments on the evidence presented at trial, counsel was not ineffective for failing to
object.
Furthermore, even if the challenged remarks did shift the burden of proof to Mercedes-Castro, he
still would not be entitled to relief. Following closing arguments, the court instructed the jury that (1)
the prosecution had “the burden of proving [that] the crime with which [Mercedes-Castro was]
charged was committed and [that Mercedes-Castro was] the person who committed the crime”; and
(2) Mercedes-Castro “was not required to present evidence or prove anything.” (Doc. 18-2, Ex. 1e, p.
844.) The Eleventh Circuit has made clear that any “prejudice from the comments of a prosecutor
which may result in a shifting of the burden of proof can be cured by a court’s instruction regarding
the burden of proof.” United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992).
8
33
Fourth, counsel did not perform deficiently by failing to argue that the
prosecutor improperly vouched for the credibility of Jose Tejeda during closing
argument. The prosecutor sought to explain to the jury why Tejeda—the man who
drove the suspects to the robbery—was not prosecuted for felony murder:
A decision has to be made about responsibility for the death of [the
victim] and those individuals most responsible being held accountable.
Having the benefit of Mr. Tejeda’s testimony and the information that he
has, and hav[ing] him available as a witness to the events leading up,
immediately leading up to [the victim’s] death, was absolutely critical.
Mr. Tejeda told you that no promises were made to him. And none were.
There’s no evidence of that in this case. But the decision was made that
it was more important for you to have the benefit of that testimony, rather
than to treat someone with minimal involvement as a defendant and not
have his testimony available for you. He told the police immediately,
when he was contacted, what he did and what happened. And in order
to properly seek justice in this case, Mr. Tejeda was treated as a witness
to a great extent because everything that he said, everything that he said
was corroborated by people that he did not even know.
(Doc. 18-2, Ex. 1e, pp. 790-91.)
The prosecution in this case did not engage in improper vouching. Vouching for
a witness’s credibility is improper when the prosecution “place[s] the prestige of the
government behind the witness, by making explicit personal assurances of the witness’
veracity,” or when it indicates “that information not presented to the jury supports the
testimony.” United States v. Sims, 719 F.2d 375, 377 (11th Cir. 1983). Here, the
prosecutor did not make “explicit personal assurances of [Tejeda’s] veracity,” nor did
he suggest that “information not presented to the jury support[ed] the testimony.” Id.
Instead, the prosecutor argued that the jury should credit Tejeda’s testimony based on
“facts in evidence and reasonable inferences from those facts.” United States v. Gonzalez,
34
834 F.3d 1206, 1226 (11th Cir. 2016). Because the prosecution did not improperly
vouch for Tejeda’s credibility, counsel was not ineffective for failing to raise the issue.
Fifth, counsel did not perform deficiently by failing to object when the
prosecution suggested during closing argument that Mercedes-Castro’s alibi witnesses
were untruthful. The prosecutor sought to undermine these witnesses’ credibility by
emphasizing that they did not come forward until over a year after Mercedes-Castro’s
arrest. (Doc. 18-2, Ex. 1e, p. 796.) The prosecutor then stated:
I am not at this point prepared to tell you that they are intentionally lying,
but what I will tell you is that they want that to be true so badly that there
is an absolute distortion of when those events had taken place and the
date that it had taken place.
Six days before the trial, the anticipation, the agony, the worry that is
taking place is what generated, generated, gave the genesis to this alibi.
They could not keep straight who told who what. And what has
happened is, is that they want those events to have occurred on that night,
and they have convinced one another, at a minimum they have
convinced one another, that that is a fact. That is what happened.
(Id., p. 797.)
Counsel had no basis to object to these remarks because they were not improper.
“A prosecutor may argue during closing arguments that a witness is lying if the
evidence supports his remarks.” United States v. Schneider, 853 F. App’x 463, 467 (11th
Cir. 2021) (citing United States v. Schmitz, 634 F.3d 1247, 1270 (11th Cir. 2011)). Here,
the prosecutor simply “urg[ed] the jury to conclude that [Mercedes-Castro’s alibi] was
untrue based on a consideration of the relevant evidence”—most importantly, the
lengthy delay between Mercedes-Castro’s arrest and the alibi witnesses’ decision to
35
come forward. United States v. Sosa, 777 F.3d 1279, 1297 (11th Cir. 2015). Counsel was
not ineffective for failing to raise this meritless issue. 9
Even assuming that counsel was deficient for failing to object to each instance
of alleged prosecutorial misconduct, the ineffective-assistance claim would still fail for
lack of prejudice. As explained above, the prosecution presented overwhelming
evidence of Mercedes-Castro’s guilt. “Considering the overwhelming evidence of
[Mercedes-Castro’s] guilt, the state trial court’s finding that [he] is unable to
demonstrate prejudice as required by Strickland is neither an unreasonable application
of, nor contrary to, federal law.” Atwater v. Crosby, 451 F.3d 799, 811 (11th Cir. 2006)
(citation omitted); see also Bates v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1300 n.9 (11th
Cir. 2014) (noting that “[t]he overwhelming evidence of [petitioner’s] guilt [] makes it
obvious that [he] cannot show Strickland prejudice” from counsel’s failure to object to
allegedly improper testimony).
Accordingly, Ground Five is denied.
G.
Ground Six
Mercedes-Castro contends that trial counsel was ineffective for failing to
properly litigate his motion to suppress the statements he gave to law enforcement. He
faults counsel for entering a “stipulation agreement with the State” that excluded only
In his Rule 3.850 motion, Mercedes-Castro also argued that counsel should have objected “during
the State’s opening statement,” when “the prosecutor [allegedly] engaged in misconduct [by]
bec[oming] an unsworn witness not subject to cross-examination.” (Doc. 18-2, Ex. 13, p. 52.) The
prosecutor did not make any improper remarks in his opening statement. Thus, counsel had no basis
to object.
9
36
a portion of his statements to the police. (Doc. 9, p. 12.) According to MercedesCastro, counsel should have sought to exclude his entire statement on the grounds that
he “unequivocally invoked his right to counsel” at the beginning of the interview, and
thus his Miranda 10 rights were violated when the interrogation continued. (Id.)
The state court denied this claim following an evidentiary hearing:
The Defendant was arrested and interrogated by Detective Ivan Navarro
and FDLE agent Lisa Akahaven (Lisa Rousseau at the time of trial) at
the Osceola County Jail on July 15, 2006. The Defendant alleges that
after he was advised of his Miranda rights, he invoked his rights, but the
interrogation continued. Although there seems to be no copy of a Motion
to Suppress Statements And Admissions in the Court file, it is clear that
a hearing was held on such a motion on June [5], 2007. The Court
reviewed a CD recording of that hearing. The Defendant’s counsel
sought suppression of statements or admissions ma[d]e by the Defendant
on July 15, 2006, to Detective Navarro and Agent [Rousseau], while he
was under arrest at the Osceola County Jail. An “Order Granting
Defendant’s Motion To Suppress” was filed on June 13, 2007. That
Order indicates that at the hearing on June 5, 2007, counsel for the
Defendant, Julia J. Williamson, Esq., and Assistant State Attorney,
Robert J. Antonello, counsel for the State[,] stipulated on the record that
portions of a police report authored by FDLE agent Lisa [Rousseau]
would be offered into evidence as testimony of Agent [Rousseau] for
purposes of the hearing, and portions of a police report authored by
Detective Ivan Navarro would be offered into evidence as testimony of
Detective Navarro for purposes of the hearing. Paragraphs 4 and 5 of the
Order indicated what part of the statements referenced in the police
reports should be suppressed:
4. [Rousseau’s] report subsequent to, and including, the
statement beginning at page 515, line 9 reading “CASTRO
replied that before he would tell the Agents his side of the
story he wanted to talk with an attorney” should be
suppressed.
5. All statements of the Defendant referenced in Detective
Navarro’s report subsequent to, and including, the
10
Miranda v. Arizona, 384 U.S. 436 (1966).
37
statement beginning at page 440, last sentence of the fourth
full paragraph reading “Castro said since he wasn’t getting
out, it was not worth it to talk or say anything,[”] should be
suppressed.
The Defendant alleges that counsel entered into this stipulation with the
State without informing him. He alleges counsel should have tried to
suppress all of the alleged statements, admissions, and confessions
contained in the police reports as inadmissible hearsay. The Defendant
seems to be alleging that his due process rights were violated in not
having a full hearing to suppress the statements he made in his
interrogation.
At the evidentiary hearing, the Defendant testified that he asked for a
lawyer from the beginning of his interrogation. At the evidentiary hearing
on July 18, 2013, Detective Ivan Navarro[] testified that he read the
Defendant his Miranda [r]ights prior to interviewing him, and the
Defendant agreed to talk with them. He asked the Defendant if he wanted
a recorded statement, and the Defendant refused. Detective Navarro was
asked about some comments the Defendant made with regard to a[n]
AK-47. Detective Navarro confirmed that the Defendant made a
comment during his interview, “You have my prints on it.” Detective
Navarro also confirmed that [] the Defendant made another comment,
“Check everyone’s prints.” Detective Navarro agreed that at some point
after these comments, the Defendant asked for an attorney.
Lisa Rousseau testified at the Defendant’s trial, but Detective Navarro
did not testify at the trial. Ms. Rousseau’s testimony at the trial also
indicated that the Defendant had talked with them after being given his
Miranda rights and did not indicate a desire to invoke any rights during
the first part of the questioning.
Although[] the Defendant alleges that he tried to invoke his Miranda
[r]ights from the beginning of the interrogation, the Court finds that the
testimony of Detective Navarro at the [e]videntiary hearing, and the
testimony of Ms. Rousseau from the trial, indicating that the Defendant
invoked his rights later in the questioning, to be more credible. Should
trial counsel have tried to have the Defendant’s entire statement to the
detectives be suppressed, the Court finds no reasonable possibility that
she would have been successful. The stipulation agreement with the State
appears to be a reasonable action on the part of counsel to limit some of
the Defendant’s statements from disclosure. The Court finds that the
Defendant’s claim that his attorney told him not to worry about the
38
stipulation because they would have a later hearing to get everything
suppressed is not credible.
In his Motion, the Defendant also cites Powell v. State, 969 So. 2d 1060
(Fla. 2d DCA 2007), and he claims that the Miranda warning given to
him was flawed because it did not adequately inform the Defendant of
his constitutional right to have an attorney present throughout [the]
interrogation. The Defendant did not pursue an argument or provide
evidence with regard to his Powell claim at the evidentiary hearing. The
Court notes that the decision of the Second District Court of Appeal was
quashed and the case remanded by the Florida Supreme Court in State v.
Powell, 66 So. 3d 905 (Fla. 2011).
The Court finds that counsel’s performance did not fall below an
objective standard of reasonableness with regard to the Defendant’s
claims. . . .
(Doc. 18-2, Ex. 13, pp. 411-13 (record citations omitted).)
The state court reasonably rejected this ineffective-assistance claim. MercedesCastro contends that counsel should have sought suppression of his entire statement
on the grounds that the interview continued despite his request for an attorney at the
beginning of the conversation. Miranda “condition[s] the admissibility at trial of any
custodial confession on warning a suspect of his rights: failure to give the prescribed
warnings and obtain a waiver of rights before custodial questioning generally requires
exclusion of any statements obtained.” Missouri v. Seibert, 542 U.S. 600, 608 (2004). By
contrast, “giving the warnings and getting a waiver has generally produced a virtual
ticket of admissibility; maintaining that a statement is involuntary even though given
after warnings and voluntary waiver of rights requires unusual stamina, and litigation
over voluntariness tends to end with the finding of a valid waiver.” Id. at 608-09.
39
Here, the state court credited the officers’ testimony that Mercedes-Castro
“talked with them after being given his Miranda rights and did not indicate a desire to
invoke any rights during the first part of the questioning.” (Doc. 18-2, Ex. 13, p. 412.)
As noted above, “[d]etermining the credibility of witnesses is the province and function
of the state courts, not a federal court engaging in habeas review.” Consalvo, 664 F.3d
at 845. Mercedes-Castro has not shown by “clear and convincing evidence” that the
state court’s credibility determinations were erroneous. 28 U.S.C. § 2254(e)(1). Having
found that Mercedes-Castro voluntarily waived his Miranda rights before questioning
began, the state court reasonably concluded that there was no basis to suppress the first
part of the interview. “[I]t goes without saying that counsel is not ineffective for failing
to file a meritless suppression motion.” United States v. Curbelo, 726 F.3d 1260, 1267
(11th Cir. 2013).
The state court also reasonably rejected Mercedes-Castro’s Powell claim. That
claim rested on the assertion that “the Miranda warning given to [Mercedes-Castro]
was flawed because it did not adequately inform [him] of his constitutional right to
have an attorney present throughout [the] interrogation.” (Doc. 18-2, Ex. 13, p. 413.)
In Powell, the Second District Court of Appeal held that the Miranda warnings at issue
were “constitutionally deficient” because they merely advised the defendant that he
could talk to a lawyer “before questioning.” 11 Powell v. State, 969 So. 2d 1060, 1065-66
The defendant in Powell received the following Miranda warnings: “You have the right to remain
silent. If you give up the right to remain silent, anything you say can be used against you in court. You
have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a
11
40
(Fla. 2d DCA 2007). The court reasoned that “the person in custody must be clearly
advised of the right to have an attorney present not only before interrogation but during
interrogation as well.” Id. at 1065. Although the Florida Supreme Court affirmed this
decision, the United States Supreme Court granted certiorari and reversed, holding
that the warnings, “in their totality, satisfied Miranda.” Florida v. Powell, 559 U.S. 50,
61 (2010). On remand, the Florida Supreme Court quashed the Second District’s
decision, concluding that “the Miranda warnings at issue [] sufficiently advised the
[defendant] of his rights.” State v. Powell, 66 So. 3d 905, 910 (Fla. 2011).
Thus, because Mercedes-Castro cannot show that his Powell argument would
succeed under current law, he has failed to satisfy Strickland’s prejudice prong. See
Lockhart v. Fretwell, 506 U.S. 364, 366 (1993) (holding that counsel’s failure to make
“an objection that would have been supported by a decision which subsequently was
overruled” does not “constitute[] ‘prejudice’ within the meaning of” Strickland”); Allen
v. Sec’y, Fla. Dep’t of Corr., 611 F.3d 740, 754 (11th Cir. 2010) (“The Fretwell decision
requires that [petitioner] must show not only that he could have successfully
challenged PCR DNA testing in 1993, but also that the basis of the challenge would
be recognized as valid under current law.”).
For all of these reasons, Ground Six is denied. 12
lawyer, one will be appointed for you without cost and before any questioning. You have the right to
use any of these rights at any time you want during this interview.” Powell, 969 So. 2d at 1064.
To the extent that Mercedes-Castro faults counsel for not seeking exclusion of his statements under
the hearsay rule, the Court notes that any such objection would have failed. “Relevant, out-of-court
statements of a party opponent, [such as] the statement[s] at issue [here], are admissible in evidence .
12
41
H.
Ground Seven
Finally, Mercedes-Castro contends that the trial court violated his right to due
process by denying his motion for judgment of acquittal as to the armed-burglary
count. He argues that “there was no evidence that the [window] had been broken by a
part of his body or the instruments which would have consummated the felony.” (Doc.
9, p. 13.) Moreover, according to Mercedes-Castro, “there was inconsistent testimony
of whether the weapon [] used in breaking the window was also used to shoot the
victim.” (Id.) Thus, Mercedes-Castro contends, the prosecution “failed to prove every
element of burglary beyond a reasonable doubt.” (Id.)
Respondent correctly contends that Mercedes-Castro failed to exhaust this
claim. Proper exhaustion requires a petitioner to “make the state court aware that the
claims asserted present federal constitutional issues.” Jimenez v. Fla. Dep’t of Corr., 481
F.3d 1337, 1342 (11th Cir. 2007). “A litigant wishing to raise a federal issue can easily
indicate the federal law basis for his claim in a state-court petition or brief, for example,
by citing in conjunction with the claim 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
‘federal.’” Baldwin v. Reese, 541 U.S. 27, 32 (2004). A petitioner must do more,
however, than “scatter some makeshift needles in the haystack of the state court
record.” McNair v. Campbell, 416 F.3d 1291, 1303 (11th Cir. 2005). Moreover, a
. . and thus are an exception to the hearsay rule.” State v. Elkin, 595 So. 2d 119, 120 (Fla. 3d DCA
1992).
42
petitioner “does not ‘fairly present’ a claim to a state court if that court must read
beyond a petition or a brief” to find the “federal claim.” Baldwin, 541 U.S. at 32.
Mercedes-Castro failed to squarely present his federal constitutional claim on
direct appeal. In his initial brief, Mercedes-Castro argued that he “must be acquitted
of the charge of armed burglary” because “the circumstantial evidence was not
inconsistent with the reasonable hypothesis that there was only a breaking and not an
entering.” (Doc. 18-2, Ex. 2, p. 9.) But Mercedes-Castro did not cite the United States
Constitution or any other source of federal law. Nor did he “label[] the claim ‘federal.’”
Baldwin, 541 U.S. at 32. Instead, Mercedes-Castro relied entirely on Florida caselaw
to support his argument that the evidence was insufficient to support his burglary
conviction. Because Mercedes-Castro “did not raise any federal claims or cite to any
federal cases in state court when presenting his argument on the sufficiency of the
evidence,” he “failed to fairly present his federal sufficiency-of-the-evidence claim to
the Florida state courts and thus did not exhaust his state court remedies as to that
claim.” Cascante v. Florida, 816 F. App’x 429, 431 (11th Cir. 2020); see also Preston v.
Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 459 (11th Cir. 2015) (holding that federal
sufficiency-of-the-evidence claim was not exhausted because petitioner “asserted in his
[state appellate] brief that his conviction rested on insufficient evidence, without
clarifying whether he intended to bring a federal or a state sufficiency of the evidence
claim”).
Mercedes-Castro cannot return to state court to present his unexhausted claim
in a second, untimely direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a
43
notice of appeal must be filed within thirty days of the rendition of a sentence). As a
result, this claim is procedurally defaulted. See Smith, 256 F.3d at 1138 (“If 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.”). And
because Mercedes-Castro has not shown that an exception applies to overcome the
default, the claim is barred from federal habeas review. Accordingly, Ground Seven is
denied.
It is therefore ORDERED that Mercedes-Castro’s amended petition (Doc. 9) is
DENIED. The CLERK is directed to enter judgment against Mercedes-Castro and to
CLOSE this case. 13
Certificate of Appealability
and Leave to Appeal In Forma Pauperis Denied
It is further ORDERED that Mercedes-Castro 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 COA must first issue. 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).
Mercedes-Castro seeks an evidentiary hearing on his claims. The Court determines that an
evidentiary hearing is not warranted. See Schriro, 550 U.S. at 474 (“[I]f the record refutes the applicant’s
factual allegations or otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.”); Landers v. Warden, 776 F.3d 1288, 1295 (11th Cir. 2015) (“[B]efore a habeas
petitioner may be entitled to a federal evidentiary hearing on a claim that has been adjudicated by the
state court, he must demonstrate a clearly established federal-law error or an unreasonable
determination of fact on the part of the state court, based solely on the state court record.”).
13
44
To obtain a COA, Mercedes-Castro must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Mercedes-Castro has not made the requisite showing. Finally, because MercedesCastro is not entitled to a COA, he is not entitled to appeal in forma pauperis.
ORDERED in Tampa, Florida, on July 14, 2023.
45
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