Garcia v. Secretary, Department of Corrections et al
Filing
29
ORDER: Garcia's amended petition is denied. The Clerk is directed to enter judgment against Garcia and to close this case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge Kathryn K. Mizelle on 4/16/2021. (MLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JULIO GARCIA, IV,
Petitioner,
v.
Case No. 8:17-cv-2374-T-KKM-AAS
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________/
ORDER
Julio Garcia IV filed a timely1 petition under 28 U.S.C. § 2254 challenging his
state convictions. (Doc. 6). Having considered the petition (id.), the supporting affidavit
(Doc. 7), the response (Doc. 18), and the reply (Doc. 23), the Court denies Garcia’s
petition. Furthermore, a certificate of appealability is not warranted.
I.
BACKGROUND
A.
Procedural History
The State of Florida charged Garcia with aggravated battery with a deadly
weapon on Jesus Rivera (Count One); aggravated battery with a deadly weapon on
Respondent concedes that Grounds One through Eight are timely, but contends that “Grounds nine
and ten raise claims that were not argued below and are procedurally barred” and that because “the
claims cannot now be raised the State courts, the claims are also untimely.” (Doc. 18, p. 5). A
petitioner’s inability to return to state court to raise previously unpresented claims renders those claims
procedurally defaulted, rather than untimely. The Court finds the amended petition timely.
1
Justin Hageman (Count Two); and aggravated battery with a deadly weapon causing
great bodily harm on Tyson Dunlap (Count Three). (Doc. 22, Ex. 1). A jury convicted
Garcia as charged of Counts One and Three and acquitted him of Count Two. (Doc.
22, Ex. 2). The state court sentenced Garcia to consecutive terms of 15 years in prison.
(Doc. 22, Ex. 3). The state appellate court per curiam affirmed the convictions and
sentences. (Doc. 22, Ex. 7).
Garcia moved for postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Doc. 22, Ex. 9). The state court ordered the State to respond to one
claim and summarily denied all other claims. (Doc. 22, Ex. 10). After the State
responded, Garcia moved for leave to amend his postconviction motion and raise new
claims. (Doc. 22, Exs. 11, 12). The state court granted his motion. (Doc. 22, Ex. 14).
When the court did not receive a timely amendment, it entered a final order denying
Garcia’s Rule 3.850 motion. (Doc. 22, Ex. 16). Garcia filed a motion for rehearing,
contending that he had timely filed an amendment. (Doc. 22, Ex. 17). The state court
denied Garcia’s motion for rehearing. (Doc. 22, Ex. 18). The state appellate court per
curiam affirmed the denial of relief. (Doc. 22, Ex. 22).
Garcia also filed a petition under Florida Rule of Appellate Procedure 9.141(d)
alleging ineffective assistance of appellate counsel. (Doc. 22, Ex. 26). The state appellate
court summarily denied Garcia’s Rule 9.141 petition. (Doc. 22, Ex. 28).
2
B.
Factual Background2
Two groups of men spent the evening of January 16, 2013, at Brew Hounds
Sports Bar in Auburndale, Florida. Garcia was at the bar with his friends Justin Griffin
and Armando Tafaro and his cousin Angelo DeJesus. Tafaro drove to the bar in his
Chevrolet Camaro. The second group consisted of friends Tyler Dunlap, Justin
Hageman, and Jesus Rivera.3 Dunlap drove to the bar in his Dodge Challenger.
The two groups did not interact inside the bar. Later, in the parking lot, some of
the men began talking about racing the Camaro and the Challenger. The discussions
became heated and, by the end of the incident, Dunlap, Hageman, and Rivera were all
injured. Hageman suffered a cut to the back of his head, requiring nine stitches. Rivera
was cut on his arm and across his face, requiring forty-two stitches in total. Dunlap was
stabbed in the torso, causing a punctured lung that required surgery. At trial, the State
and the defense presented different versions of the events leading to these injuries.
1.
State’s Version
The State presented evidence that, when Dunlap, Hageman, and Rivera left the
bar, they saw Garcia, Tafaro, and Griffin standing outside. Dunlap walked over to his
car. Hageman, Rivera, Garcia, and Tafaro began talking about the cars. Griffin hung
back behind Garcia and Tafaro and did not say anything. As the men began to discuss
2
The factual background is based on the trial transcript and appellate briefs.
3
Rivera is referred to in the record as both “Jesus” and “Jesse”.
3
racing the cars and how much they would wager on the outcome of a race, the
conversation became more intense and turned into “trash talking.” Garcia was standing
across from Rivera, and Tafaro was standing across from Hageman.
The State presented evidence that Garcia either pushed or punched Rivera.
Rivera pushed Garcia back. Dunlap saw Garcia holding a knife. Garcia swung at Rivera
and Rivera put his hands up. After a matter of seconds, Rivera grabbed his face and
walked towards Dunlap’s car, where he lowered his hands to reveal a large cut across
his face and also a cut on his arm. Rivera then proceeded to his truck to get a towel.
As Garcia and Rivera’s confrontation became physical, Tafaro used his belt and
belt buckle to hit Hageman. Tafaro and Hageman began fighting. Around that time,
Dunlap saw Garcia approach Hageman and hit Hageman “in his back.” (Doc. 22, Ex.
31, Vol. II, p. 179). Hageman, holding his head, came up to Dunlap, who observed that
Hageman’s shirt was bloody. Hageman was lapsing in and out of consciousness but
could tell he was bleeding.
Tafaro then swung the belt and belt buckle at Dunlap. Dunlap grabbed the belt
away from Tafaro, who tackled Dunlap and the two began “rolling around” in the
parking lot. (Doc. 22, Ex. 31, Vol. II p. 182). They ended up back on their feet wrestling
but neither could break free. Dunlap saw Garcia approaching him with a knife and was
stabbed and collapsed near his car. Garcia, Tafaro, Griffin, and DeJesus left the bar in
Tafaro’s Camaro.
4
Dunlap stated that he had a pocketknife from work on him, but did not use it.
Neither Rivera nor Hageman had a weapon. Kaitlyn Hobbs, a manager at the bar,
testified that when she heard a commotion outside in the parking lot, she opened the
door and saw Garcia driving the Camaro away from the bar. She did not see a pool cue
outside or see anyone with a pool cue. Dunlap, Rivera, and Hageman likewise testified
that they did not see a pool cue. As Garcia and his acquaintances drove away in Tafaro’s
car, 4 Hageman wrote down the license plate of Tafaro’s car using soap stone he had in
his work clothes, which he was still wearing.
2.
The Defense’s Version
Garcia argued at trial that he acted in self-defense. He testified that he and Tafaro
were trying to deescalate the situation and leave, but that the other group was aggressive
and intimidating. Griffin testified that one member of the other group pushed Garcia
several times, that another member “started going for” Tafaro, and that the third person
went back into the bar and retrieved a pool cue before returning to the parking lot and
fighting with DeJesus. (Doc. 22, Ex. 31, Vol. IV, p. 458). Griffin conceded though that,
when he made a statement to police two days after the incident, he did not mention a
pool cue.
Hageman testified that a fourth person, apparently Angelo DeJesus, was far away from the others
and that he only saw this person yelling and running past him before the Camaro left.
4
5
Griffin denied ever seeing Garcia with a knife during the fight, but acknowledged
that Garcia carries a knife and that Garcia had his knife on him that night. Griffin
testified that Garcia later—when the group was returning to Garcia’s home from the
bar and discussing what happened—stated that he pulled out his knife because he did
not know whether anyone in the other group had a weapon.
Garcia testified at trial that after the conversation became acrimonious, Garcia
called Hageman a racial epithet and that this offended Hageman. Garcia stated that, at
that time, Rivera either punched or pushed him and that he saw Hageman running
towards him. Afterwards, he moved past Hageman and picked up a knife that was on
the ground. Garcia testified that he did not have his knife that night.
According to Garcia, Hageman ran over and swung a pool cue at him and “that’s
how [Hageman] got cut in the back of the head.” (Doc. 22, Ex. 31, Vol. IV, pp. 51819). Garcia testified that after Rivera tried to punch him again, he cut Rivera in the face.
Then Rivera “attacked me again. That’s how . . . he got sliced in the shoulder.” (Id., p.
519).
Garcia also testified that he observed Dunlap fighting with Tafaro. At one point,
he saw Dunlap straddling Tafaro and beating Tafaro with the belt. Per Garcia, he
stabbed Dunlap because he was trying to protect Tafaro; he meant only to “cut” Dunlap
and did not realize that he had stabbed Dunlap. Garcia admitted that he did not provide
all the details of the altercation between Dunlap and Tafaro in his interview with police,
6
which was played for the jury. According to Garcia, he withheld some information
because he was scared during the interview.
Garcia denied telling Griffin that he had cut the victims with his knife. During
his police interview, Garcia stated that he dropped the knife on the ground near the
Camaro and that the knife was still in the parking lot when he left. Garcia testified that
when they returned to his home, he went to sleep and did not participate in any further
conversation about what had happened. Garcia maintained that he never wanted to
become involved in the incident and that, from the beginning, he simply wanted to go
home. Garcia remained constant at trial that he used the knife to protect himself and
Tafaro.
II.
STANDARDS OF REVIEW FOR A SECTION 2254 APPLICATION
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
this proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas
relief under the AEDPA may 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
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(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.
For purposes of § 2254(d)(1), 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 a set of materially indistinguishable facts.” Williams v. Taylor,
529 U.S. 362, 413 (2000). The phrase “clearly established Federal law” encompasses the
holdings only of the United States Supreme Court “as of the time of the relevant
state-court decision.” Id. at 412. 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.
For purposes of § 2254(d)(2), a state court’s findings of fact are presumed
correct. See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) (“The factual findings
of the state court, including the credibility findings, are presumed to be correct . . . .”).
A petitioner can rebut the presumption of correctness afforded to a state court’s factual
findings only by clear and convincing evidence. § 2254(e)(1).
The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that
state-court convictions are given effect to the extent possible under law.” Bell v. Cone,
535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s
8
application of clearly established federal law is objectively unreasonable,” as “an
unreasonable application is different from an incorrect one.” Id. at 694. As a result, to
obtain relief under the AEDPA, “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); see also
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application of
clearly established federal law must be objectively unreasonable” for a federal habeas
petitioner to prevail and that the state court’s “clear error” is insufficient).
When the last state court to decide a federal claim explains its decision in a
reasoned opinion, a federal habeas court reviews the specific reasons as stated in the
opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct.
1188, 1192 (2018) (“[A] federal habeas court simply reviews the specific reasons given
by the state court and defers to those reasons if they are reasonable.”). When the
relevant state-court decision is not accompanied with reasons for the decision—such
as a summary affirmance without discussion—the federal court “should ‘look through’
the unexplained decision to the last related state-court decision that does provide a
relevant rationale [and] presume that the unexplained decision adopted the same
reasoning.” Id. The State may contest “the presumption by showing that the
9
unexplained affirmance relied or most likely did rely on different grounds than the lower
state court’s decision . . . .” Id.
In addition to satisfying the deferential standard of federal court review of a state
court adjudication, a federal habeas petitioner must exhaust his claims by raising them
in state court before presenting them in a federal petition. See 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.”). A petitioner satisfies this exhaustion requirement if he
fairly presents the claim in each appropriate state court and alerts that court to the
federal nature of the claim. Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010).
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). A petitioner shows cause for a procedural default when he
shows “that some objective factor external to the defense impeded the effort to raise
the claim properly in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir.
1999). A petitioner shows prejudice by proving that “there is at least a reasonable
probability that the result of the proceeding would have been different” absent the
constitutional violation. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). “A
10
‘fundamental miscarriage of justice’ occurs in an extraordinary case, where a
constitutional violation has resulted in the conviction of someone who is actually
innocent.” Id.
III.
INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD
Garcia brings several claims for ineffective assistance of counsel under the Sixth
Amendment. Under the well-known, two-part standard articulated in Strickland v.
Washington, 466 U.S. 668 (1984), to succeed, he must show both deficient performance
by his counsel and prejudice resulting from those errors. Id. at 687.
The first part “requires showing that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. The lynchpin of this analysis is whether counsel’s conduct “was
reasonable considering all the circumstances.” Id. at 688. A petitioner establishes
deficient performance if “the identified acts or omissions [of counsel] were outside the
wide range of professionally competent assistance.” Id. at 690. A court “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. “[C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Id.
The second part requires showing that the deficient performance prejudiced the
defense. Id. at 687. “An error by counsel, even if professionally unreasonable, does not
11
warrant setting aside the judgment of a criminal proceeding if the error had no effect
on the judgment.” Id. at 691. To demonstrate prejudice, a petitioner 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.
“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)). Consequently, federal petitioners rarely
prevail on claims of ineffective assistance of counsel 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 (quotation and citations omitted).
IV.
DISCUSSION
A.
Ground One
Garcia contends that the trial court erred in denying his motion for new trial,
filed under Florida Rule of Criminal Procedure 3.600. In the motion, Garcia alleged that
“[t]he verdict is contrary to the weight of the evidence, to wit: the Defendant presented
a case of justifiable use of deadly force and the testimonial evidence supported this
defense.” (Doc. 22, Ex. 33, Motion for New Trial).
12
Rule 3.600(a) permits the granting of a new trial when a verdict is against the
weight of the evidence. “[T]he test is the weight, as distinguished from the sufficiency,
of the evidence. Weight ‘is a determination of the trier of fact that a greater amount of
credible evidence supports one side of an issue or cause than the other.’” State v. Shearod,
992 So. 2d 900, 904 (Fla. 2d DCA 2008) (quoting Tibbs v. State, 397 So. 2d 1120, 1123
(Fla. 1981)). Under Florida law, a motion for new trial is meant to provide a “safety
valve” when technically sufficient evidence proves the criminal charge but the weight
of the evidence does not appear to support the verdict. Id. at 905. “[T]he appropriate
function of the trial court in deciding a motion for new trial which alleges that the
verdict is contrary to the weight of the evidence” is to “weigh the evidence and
determine the credibility of witnesses so as to act, in effect, as an additional juror.” Moore
v. State, 800 So. 2d 747, 749 (Fla. 5th DCA 2001) (citation omitted). The trial court
denied Garcia’s motion without analysis. (Doc. 22, Ex. 33, Order Denying Defendant’s
Motion for New Trial). Garcia argues that the state court erred in not “conduct[ing] a
thorough weighing of the testimony and evidence” because “the weight of the evidence
is of such a nature that it supported acquittal.” (Doc. 6, p. 7).
Whether the state court erred in deciding the motion for new trial under the
weight of the evidence standard applicable to a Rule 3.600 motion is a question of state
law. Thus, Garcia’s claim is not cognizable on federal habeas review. See Wilson v.
Corcoran, 562 U.S. 1, 5 (2010) (“[I]t is only noncompliance with federal law that renders
13
a State’s criminal judgment susceptible to collateral attack in the federal courts.”) (italics
in original). Indeed, a federal habeas court cannot grant relief on the basis that a state
court jury verdict is contrary to the weight of the evidence. See Young v. Kemp, 760 F.2d
1097, 1105 (11th Cir. 1985) (“A federal habeas court has no power to grant habeas
corpus relief because it finds that the state conviction is against the ‘weight’ of the
evidence[.]”).
Garcia’s characterization of the claim as involving violations of his federal rights
to due process and a fair trial does not affect the Court’s determination that his claim
is not cognizable. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) (stating that
“a habeas petition grounded on issues of state law provides no basis for habeas relief. .
. . This limitation on federal habeas review is of equal force when a petition, which
actually involves state law issues, is ‘couched in terms of equal protection and due
process.’” (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)).
The Court notes that in his federal habeas petition, Garcia argues that his
“Fourteenth Amendment rights to due process and a fair trial . . . were violated when
the state courts denied relief based on Petitioner’s challenge to the sufficiency of the
evidence.” (Doc. 6, p. 4). But the sufficiency of the evidence and the weight of the
evidence are distinct legal questions. Because the gravamen of Garcia’s claim concerns
the denial of his Rule 3.600 motion for a new trial under the weight of the evidence
standard, the Court does not construe Ground One to raise a distinct challenge to the
14
sufficiency of the evidence. Even granting Garcia that broad reading of Ground One,
Respondent correctly contends that such a claim is unexhausted in state court.
Garcia did not expressly challenge the sufficiency of the evidence on appeal. No
part of Garcia’s argument alleged with specificity that the State’s evidence was legally
insufficient to prove his guilt beyond a reasonable doubt. (Doc. 22, Ex. 5, pp. 24–42).
Instead, he argued that the weight of the evidence provided “greater support for
acquittal than guilt” under the Rule 3.600(a) standard. (Doc. 22, Ex. 5, p. 24). As Garcia
did not allege that the State’s evidence was insufficient to convict him, Garcia failed to
fairly present to the state appellate court a sufficiency of the evidence claim, under either
state or federal law.5
Accordingly, any federal sufficiency of the evidence claim is unexhausted. Garcia
cannot now return to state court to present the claim in a successive appeal. See Fla. R.
App. P. 9.140(b)(3) (stating that an appeal must be taken within 30 days of the date a
sentence is rendered). Therefore, the claim is procedurally defaulted. See Smith, 256 F.3d
at 1138. Nor has Garcia established that an exception applies to excuse the default. See
id. Consequently, any independent federal claim challenging the sufficiency of the
Garcia cites federal-court decisions holding that proof of a criminal charge beyond a reasonable
doubt is constitutionally required. He also makes a cursory reference to the Fourteenth Amendment.
But, as explained, Garcia failed to expressly argue that the State’s evidence was legally insufficient to
support his convictions. See, e.g., McNair v. Campbell, 416 F.3d 1291, 1303–04 (11th Cir. 2005) (holding
that a petitioner’s citation to a single federal district court decision and a passing reference to
constitutional amendments were insufficient to satisfy the exhaustion requirement).
5
15
State’s evidence is barred from federal habeas review. Garcia is not entitled to relief on
Ground One.
B.
Ground Two
Garcia alleges that trial counsel was ineffective in not filing a motion asserting
immunity from prosecution under Florida’s “Stand Your Ground” law. See
§ 776.032(1), Fla. Stat. (providing that a person who uses force as permitted by Florida
law “is immune from criminal prosecution.”). The state court denied this claim when
Garcia raised it in his Rule 3.850 postconviction motion. The court ruled that even if
Garcia’s counsel filed a pretrial “Stand Your Ground” motion, Garcia would not have
received immunity because testimony at trial established that Garcia was the aggressor
in the incident and that he “escalated the situation by brandishing a knife.” Based on
multiple witnesses’ testimony about Garcia’s actions during the altercation, the state
court concluded that a pretrial motion to dismiss based on “Stand Your Ground” would
not have been granted. As a result, the court concluded that Garcia failed to prove
deficient performance or prejudice. (Doc. 22, Ex. 10, p. 109) (court’s record citations
omitted).
Garcia is not entitled to habeas relief on Ground Two. The underlying question
of whether a motion to dismiss under Florida’s Stand Your Ground law would have
succeeded is a matter of state law. This Court must defer to the state court’s
determination that a motion to dismiss would not have been granted. See Bradshaw v.
16
Richey, 546 U.S. 74, 76 (2005) (“[The United States Supreme Court has] repeatedly held
that a state court’s interpretation of state law . . . binds a federal court sitting in habeas
corpus.”); Pinkney v. Secretary, DOC, 876 F.3d 1290, 1295 (11th Cir. 2017) (“[A]lthough
‘the issue of ineffective assistance—even when based on the failure of counsel to raise
a state law claim—is one of constitutional dimension,’ [a federal court] ‘must defer to
the state’s construction of its own law’ when the validity of the claim that . . . counsel
failed to raise turns on state law.” (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291
(11th Cir. 1984))).
Because the state court has determined that a motion to dismiss would not have
been granted, this Court cannot reevaluate a motion’s chance of success under Florida
law. See 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)). Therefore, this Court
cannot conclude that counsel was ineffective in not filing a motion to dismiss, or that
Garcia suffered prejudice as a result of counsel’s omission. Garcia has not met his
17
burden of showing that the state court unreasonably applied Strickland or unreasonably
determined the facts in denying his claim. 6
Within Ground Two, Garcia appears to argue that the postconviction court erred
in not granting him an evidentiary hearing or obtaining a statement from trial counsel
prior to denying his claim. These claims are not cognizable on federal habeas review.
See Carroll, 574 F.3d at 1365 (“[A] challenge to a state collateral proceeding does not
undermine the legality of the detention or imprisonment—i.e., the conviction itself—
and thus habeas relief is not an appropriate remedy.”); Quince v. Crosby, 360 F.3d 1259,
1262 (11th Cir. 2004) (“[W]hile habeas relief is available to address defects in a criminal
defendant’s conviction and sentence, an alleged defect in a collateral proceeding does
not state a basis for habeas relief.”). Accordingly, Garcia is not entitled to relief on
Ground Two.
C.
Ground Three
Garcia alleges that trial counsel was ineffective in not impeaching prosecution
witnesses Justin Hageman and Jesus Rivera with their prior inconsistent statements.
(Doc. 6, p. 13). Garcia contends that the alleged inconsistencies “would have
demonstrated their dishonesty on matters critical for the jury to determine whether
Petitioner was acting in self-defense” and “was paramount to Petitioner in order to
Garcia argues that the state postconviction court failed to consider his trial testimony and his version
of events in its order. Garcia’s argument goes to whether the state court correctly applied state law,
which the Court may not determine on habeas review.
6
18
show that he and Tafaro were outnumbered and over matched, thus necessitating
justifiable use of force.” (Doc. 6, pp. 13, 14).
1.
Justin Hageman
a.
Statements about Dunlap
Garcia asserts that Hageman made inconsistent statements about whether he
knew who Tyson Dunlap was fighting. Garcia contends that Hageman testified at his
deposition that he could not remember who Tyson fought:7
Q.
Do you remember who Tyson was fighting?
A.
No.
(See Doc. 6, p. 14).
Garcia argues that the above testimony is inconsistent with Hageman’s testimony
at trial where Hageman said he could see Tyson fighting someone:
Q.
Okay. Are you kind of dazed or stunned?
A.
Yes, sir.
Q.
Do you see anybody? Do you see Tyson or do you see - -
A.
I see Tyson and that other dude fighting.
Q.
Sir?
A.
I see Tyson and another guy fighting.
Transcripts of Hageman’s and Rivera’s depositions are not in the record before the Court. For
purposes of reviewing Ground Three, the Court accepts Garcia’s representation of the transcripts.
7
19
(Doc. 22, Ex. 31, Vol. II, pp. 227–28).
The state court found that Hageman’s testimonies were not inconsistent. Instead,
the state court found that the testimonies were vague because Hageman never said who
he specifically saw fighting. (Doc. 22, Ex. 10, p. 111) (court’s record citations omitted).
The state court did not unreasonably find that Hageman’s deposition testimony
that he did not know who Dunlap was fighting and Hageman’s trial testimony that
Dunlap was fighting “that other dude” or “another guy” were not inconsistent. Whether
the statements were inconsistent involves an underlying determination of state law that
this Court will not disturb on federal habeas review. See Pearce v. State, 880 So. 2d 561,
569 (Fla. 2004) (“To be inconsistent, a prior statement must either directly contradict
or be materially different from the expected testimony at trial. The inconsistency must
also involve a material, significant fact rather than mere details.”). Thus, Garcia has not
established that the state court unreasonably applied Strickland or unreasonably
determined the facts in rejecting his claim.
b. Statements about Whether Garcia Pushed Rivera
Garcia asserts that Hageman made inconsistent statements about whether he saw
Garcia push Rivera. Garcia states that at his deposition, Hageman testified:
Q.
So you’re saying you saw Mr. Garcia push.
A.
Jesse.
Q.
- - Jesse?
20
A.
Yes.
(See Doc. 6, p. 14).
It appears that the state court relied on the following portion of Hageman’s direct
examination testimony, which Garcia did not cite in his Rule 3.850 motion:
Q. [ ] How did [the physical fighting] start?
A. It just kept escalating and you could tell that tempers were getting
hotter. And then I seen the defendant go at Jesse and I seen the guy with
the hat - Q. Let me stop you. The defendant go at Jesse?
A. Yes, sir.
Q. What did he do to Jesse?
A. I just seen him - - I thought he was hitting like a girl, like that. I didn’t,
you know - Q. Hitting - - hitting him like this, it looked like?
A. Well, I just seen him go like that. My attention was on the other guy.
Q. Okay. Because at the same time that that was happening, the other guy
was doing what?
A. Taking off his belt.
(Doc. 22, Ex. 3, Vol. II, p. 225).
The state court determined that counsel was not ineffective in failing to impeach
Hageman based on these portions of the record:
Defendant . . . argues that Mr. Hageman in deposition says Defendant
pushed Mr. Rivera but did not state this at trial. At trial Mr. Hageman
21
testified that the Defendant was going at Mr. Rivera “like a girl” and
referenced some action that was not recorded. Again, the Court does not
find that the inconsistency is so great that it would make a difference at
trial.
(Doc. 22, Ex. 10, p. 111) (court’s record citation omitted).
The state court did not unreasonably deny postconviction relief. Garcia has not
shown a reasonable probability that impeaching Hageman with any inconsistency
between the testimonies would have resulted in a different outcome. As the state court’s
order suggests, Garcia does not show that the statements were “materially different” or
involved a “material, significant fact.” See Pearce, 880 So. 2d at 569. Nor does Garcia
demonstrate that impeaching Hageman would have damaged his credibility before the
jury enough to change the outcome. Garcia has not demonstrated that the state court
unreasonably applied Strickland or unreasonably determined the facts in denying his
claim regarding Hageman.
The state court’s order did not address the portion of Hageman’s trial testimony
that Garcia identified in both his Rule 3.850 motion and his federal habeas petition.
Garcia claims that the following portion of Hageman’s cross-examination testimony is
inconsistent with his deposition testimony:
Q.
So the next thing you see as things are getting escalated, you’re
saying you saw Mr. Garcia swing a punch at Jesse?
A.
Step towards him and swing, yes.
Q.
All right. Did he ever push him?
22
A.
No.
Q.
No. So you never saw Mr. Garcia push yourself?
A.
No.
Q.
You never saw Mr. Garcia push Jesse?
A.
No, not that I recall, no.
(Doc. 22, Ex. 31, Vol. II, p. 242).
To the extent Garcia argues that counsel at this point should have impeached
Hageman with his deposition, the Court concludes that Garcia has not established
entitlement to relief under Strickland.8 Garcia does not establish that counsel performed
deficiently in not impeaching Hageman. While the testimonies contain conflicting
statements as to whether Hageman saw Garcia “push” Rivera, Garcia does not establish
that the kind of action Garcia took was a “material, significant fact” rather than a “mere
detail[ ].” Pearce, 880 So. 2d at 569. Therefore, Garcia fails to show that impeaching
Hageman when he made the challenged statement during his cross-examination was
permissible under state law. See Caruso v. State, 645 So. 2d 389, 394 (Fla. 1994) (“It is
well established that if a witness is cross-examined concerning a collateral or irrelevant
The Court reviews de novo Garcia’s ineffective assistance of counsel claim based on this portion of
the record. Ordinarily, when a state court addresses some claims raised by a defendant, but not a claim
that is later raised in a federal habeas proceeding, the federal habeas court presumes that the state
court denied the claim on the merits. Johnson v. Williams, 568 U.S. 289 (2013). This presumption is
rebuttable though, and de novo review of such a claim is appropriate when “the evidence leads very
clearly to the conclusion that a federal claim was inadvertently overlooked in state court[.]” Id. at 303.
It appears that the state court overlooked Garcia’s specific argument because the state court resolved
his claim based on another part of the record that Garcia did not address.
8
23
matter, the cross-examiner must ‘take’ the answer, is bound by it, and may not
subsequently impeach the witness by introducing extrinsic evidence to contradict the
witness on that point.”).
Even assuming that impeachment was appropriate, Garcia cannot establish
prejudice under Strickland. Regardless of whether Hageman described Garcia’s motion
as a “push” or a “swing,” he consistently testified that Garcia initiated physical contact
with Rivera. Whether Garcia initiated physical contact—as opposed to the precise
action he took in doing so—was critical to the State’s evidence of guilt and to Garcia’s
theory of self-defense. Further, Garcia fails to show that impeaching Hageman would
have impacted his credibility such that there is a reasonable probability of a different
outcome. Given these considerations, and in the light of the totality of the State’s
evidence of guilt, Garcia has not demonstrated a reasonable probability of a different
outcome at trial had counsel impeached Hageman as Garcia suggests. Garcia has not
shown entitlement to relief under Strickland.
2.
Jesus Rivera
Garcia argues that Rivera made inconsistent statements as to whether he raised
the topic of money. Garcia contends that at deposition, Rivera testified:
Q.
Who brought the racing up?
A.
I don’t remember. I don’t remember who brought the racing up.
Q.
So it could have been you or it could have been Justin or Tyson?
24
A.
I don’t think I did it. I don’t think – I don’t think Tyson would have
because Tyson really doesn’t talk about his car. He just brought the
car to have the car. I mean it could have been – I mean I don’t
know. Really, don’t know.
Q.
Okay. But someone – someone started the conversation about
racing?
A.
Yes.
Q.
All right. And was money brought up?
A.
Yea, the money was brought up.
Q.
Who brought up the money?
A.
I actually brought up the money.
Q.
Okay what did you say?
A.
I said I’d bet a thousand bucks that Tyson’s car would win.
(See Doc. 6 at 13).
Garcia claims that the following portion of Rivera’s trial testimony was
inconsistent with his deposition testimony:
Q.
[ ] [A]t some point you turned the tone of the conversation, right,
to racing and money, right?
A.
No. I didn’t.
Q.
You didn’t?
A.
No.
(Doc. 22, Ex. 31, Vol. III, p. 292).
25
The state court rejected Garcia’s claim that counsel was ineffective in not
impeaching Rivera. The court found that Rivera’s statements were not inconsistent
because, in his deposition, Rivera said he did not know who first discussed racing, but
he knew it was not him or Dunlap. At trial, Rivera said that everyone was talking about
racing except Dunlap and that money was discussed and Rivera said he would place
money on the race. Because the court found those statements not “truly inconsistent,”
Garcia failed to prove that he was prejudiced. (Doc. 22, Ex. 10, p. 111).
Garcia does not show entitlement to relief. Whether the statements were
inconsistent is a determination of state law to which this Court must defer.
Moreover, the state court did not unreasonably conclude that Garcia failed to
show prejudice as a result of counsel’s performance even if it were deficient. Garcia
does not demonstrate that the question of who began discussing money was a “material,
significant fact” in this case. See Pearce, 880 So. 2d at 569. Nor does Garcia establish that
impeaching Rivera on this matter would have so greatly impacted Rivera’s credibility
that there is a reasonable probability of a different outcome at trial. As Garcia has not
established that the state court’s decision involved an unreasonable application of
Strickland or was based on an unreasonable factual determination, he is not entitled to
relief on Ground Three.9
Garcia asserts that counsel’s failure to impeach these witnesses was “compounded” by the
prosecutor’s statement during closing argument that the victims’ testimonies were “consistent.” (Doc.
6, p. 15). The prosecutor suggested that Garcia’s trial testimony and statement to police contained
inconsistencies, and stated “the three victims[] their testimony was consistent.” (Doc. 22, Ex. 31, Vol.
9
26
D.
Ground Four
Garcia argues that newly discovered evidence in the form of an affidavit from
Armando Tafaro would result in an acquittal at a re-trial.10 Tafaro’s affidavit provides
that the other group was aggressive and initiated physical contact and that Tafaro was
being strangled. (Doc. 7, p. 2). Garcia contends that if the jury had heard this
information, they “would have acquitted Petitioner on each and every count because of
self-defense in every material respect.” (Doc. 6, p. 18).
Garcia’s newly discovered evidence claim is not cognizable on federal habeas
review. See Herrera v. Collins, 506 U.S. 390, 400 (1993) (“ ‘[T]he existence merely of newly
discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on
federal habeas corpus.’ This rule is grounded in the principle that federal habeas courts
sit to ensure that individuals are not imprisoned in violation of the Constitution—not
to correct errors of fact.” (quoting Townsend v. Sain, 372 U.S. 293, 317 (1963)); Brownlee
v. Haley, 306 F.3d 1043, 1065 (11th Cir. 2002) (“It is not our role to make an
independent determination of a petitioner’s guilt or innocence based on evidence that
V, p. 623). Garcia did not raise these facts in support of his Strickland prejudice argument in his Rule
3.850 motion. (Doc. 22, Ex. 9, pp. 36–40). Accordingly, this aspect of the claim is unexhausted. See
Kelley v. Sec’y, Dep’t of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004) (stating that the prohibition against
raising an unexhausted claim in federal court extends to the broad theory of legal relief and the specific
factual contention). Notwithstanding the lack of exhaustion and resulting procedural default, the
Court finds that Garcia has not met his burden of showing that he was prejudiced by counsel’s failure
to object.
Respondent misconstrues Garcia’s claim as alleging ineffective assistance of trial counsel under
Strickland for not calling Tafaro as a witness at trial. Garcia has not alleged ineffective assistance of
trial counsel in Ground Four.
10
27
has emerged since the trial.”); Swindle v. Davis, 846 F.2d 706, 707 (11th Cir. 1988)
(“Newly discovered evidence which goes only to the guilt or innocence of the petitioner
is not sufficient to require habeas relief.”). To be sure, the Eleventh Circuit has
repeatedly and recently held there is there is no federal “habeas relief based on a
prisoner’s assertion that he is actually innocent of the crime of conviction absent an
independent constitutional violation occurring in the underlying state criminal
proceeding.” Raulerson v. Warden, 928 F.3d 987, 1004 (11th Cir. 2019) (internal quotation
marks omitted).
Garcia contends that the state postconviction court violated his federal due
process rights by denying his newly discovered evidence claim “without evaluation of
the totality of the evidence.” (Doc. 6, p. 17). This argument goes to whether the
postconviction court properly applied a state law standard in reviewing Garcia’s newly
discovered evidence claim, as he argued on collateral appeal. (Doc. 22, Ex. 20, pp. 9–
15).11 This argument is not cognizable on federal habeas review, despite Garcia’s
framing it as involving a federal constitutional violation. See Branan, 861 F.2d at 1508.
Accordingly, Ground Four warrants no relief.
E.
Ground Five
See Jones v. State, 709 So. 2d 512, 521–22 (Fla. 1998) (stating that to determine whether newly
discovered evidence would probably produce an acquittal on retrial, the reviewing court must consider
all newly discovered evidence that would be admissible, and evaluate the weight of the newly
discovered evidence and the evidence adduced at trial) (citing Jones v. State, 591 So. 2d 911, 916 (Fla.
1991)).
11
28
Garcia argues that trial counsel was ineffective in failing to object to the State’s
use of a peremptory strike on prospective juror Maldonado—whom Garcia identifies
as the only Hispanic person on the jury panel—and to request a race-neutral reason for
the strike. The record shows that the State struck Maldonado without objection from
the defense. (Doc. 22, Ex. 31, Vol. I, p. 98). A criminal defendant has “the right to be
tried by a jury whose members are selected pursuant to nondiscriminatory criteria.”
Batson v. Kentucky, 476 U.S. 79, 85–86 (1986). Therefore, the exclusion of a juror because
of race violates a defendant’s federal constitutional right to equal protection. Id. at 86.
Garcia claims that counsel’s omission resulted in a violation of his right to equal
protection and in the failure to preserve the claim for appeal.
The postconviction court found Garcia’s ineffective assistance claim
procedurally barred. (Doc. 22, Ex. 16, p. 175). That court determined that “counsel’s
failure to make a Neil objection is not cognizable as a Rule 3.850 claim” and cited two
Florida appellate court decisions for support. (Id.). A petitioner’s failure to comply with
state procedural rules governing the proper presentation of a claim generally bars
federal review of that claim in a subsequent federal habeas proceeding. See Coleman v.
Thompson, 501 U.S. 722, 729 (1991) (“This Court will not review a question of federal
law decided by a state court if the decision . . . rests on a state law ground that is
independent of the federal question and adequate to support the judgment.”); Caniff v.
29
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 rejection of a petitioner’s federal constitutional claim on
procedural grounds will only preclude federal review if the state procedural ruling rests
upon [an] ‘independent and adequate’ state ground.” Ferguson v. Sec’y, Dep’t of Corr., 580
F.3d 1183, 1212 (11th Cir. 2009); see also Kimbrough v. Sec’y, Fla. Dep’t of Corr., 809 F.
App’x 684, 691-92 (11th Cir. 2020); Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).
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.” Id. (citing Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)).
A rule must be firmly established and regularly followed by state courts to be considered
adequate to foreclose review of a federal claim. Lee v. Kemna, 534 U.S. 362, 376 (2002).
Respondent argues that Garcia’s claim is procedurally barred from federal habeas
review. Garcia contends that the state court incorrectly applied the state procedural bar.
See, e.g., Bailey v. Nagle, 172 F.3d 1299, 1302 (11th Cir. 1999) (stating that a procedural
default may occur “where the state court correctly applies a procedural default principle
30
of state law to arrive at the conclusion that the petitioner’s federal claims are barred[.]”)
(emphasis added). Garcia contends that he properly raised his ineffective assistance of
trial counsel claim in his postconviction motion. See King v. State, 211 So. 3d 866, 886–
87 (Fla. 2017) (discussing merits of a postconviction claim alleging ineffective assistance
of counsel in failing to preserve a challenge to a potential Batson violation); Carratelli v.
State, 961 So. 2d 312 (Fla. 2007) (same).
Presuming that Garcia is correct and that he is therefore entitled to a review of
his claim on the merits, he has not shown entitlement to relief. The state court further
addressed Garcia’s ineffective assistance claim, finding that Garcia failed to show
prejudice under Strickland. Garcia does not show that the state court’s ruling was
unreasonable under the AEDPA’s deferential standard. The state court adopted and
incorporated the state’s response, and agreed with the State’s argument that Garcia’s
claim should be denied. (Doc. 22, Ex. 16, pp. 174–75). In that response, the State argued
that Garcia failed to establish prejudice because he failed to show that a biased juror
served on his jury. (Doc. 22, Ex. 11) (state court record citations omitted) (emphasis in
original).
The state court did not unreasonably deny Garcia’s ineffective assistance of trial
counsel claim on Strickland’s prejudice prong when Garcia did not show that an actually
biased juror served at his trial. See King, 211 So. 3d at 887 (“[W]hen considering the
failure to preserve a challenge to potential jurors in voir dire, the reviewing court should
31
focus on the defendant’s trial, not his appeal. Under such circumstances, [the Florida
Supreme Court] held that a defendant must show that biased juror served during the
defendant’s trial to satisfy Strickland’s requirement of showing a reasonable probability
of a more favorable result.”) (citations omitted).
While Garcia alleges that counsel’s lack of objection resulted in the failure to
preserve a potentially meritorious issue for appeal, the state court’s ruling on the
prejudice at trial, rather than any effect of counsel’s performance on a later appeal, did
not involve an unreasonable application of Strickland. See Strickland, 466 U.S. at 696
(“[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding
whose result is being challenged. In every case the court should be concerned with
whether, despite the strong presumption of reliability, the result of the particular
proceeding is unreliable”); see also Carratelli v. Stepp, 382 F. App’x 829, 832 (11th Cir.
2010) (stating, in the context of a claim that trial counsel was ineffective in failing to
preserve a Batson challenge by renewing the objection after raising it initially, “there is
no clearly established federal law by the Supreme Court specifically addressing whether
the federal court should examine the prejudice on appeal rather than at trial[.]”). Garcia
therefore fails to meet his burden under the AEDPA of demonstrating that the state
court unreasonably applied Strickland or unreasonably determined the facts in rejecting
his ineffective assistance of trial counsel claim.
32
Finally, within Ground Five, Garcia appears to contend that the state
postconviction court erred in not conducting an evidentiary hearing on this claim. This
argument does not warrant relief. See Carroll, 574 F.3d at 1365; Quince, 360 F.3d at 1262.
Accordingly, Ground Five warrants no relief.
F.
Grounds Six and Seven
Grounds Six and Seven involve allegations of prosecutorial misconduct. In
Ground Six, Garcia argues that trial counsel was ineffective in not objecting to the
prosecutor’s allegedly improper comments. In Ground Seven, Garcia argues that the
prosecutor violated his federal constitutional right to a fair trial by making the allegedly
improper comments.
1.
Law on Prosecutorial Comments
To obtain relief on a claim challenging the propriety of a prosecutor’s statements,
Garcia must demonstrate that the comments were both improper and prejudicially
affected his substantial rights. Sexton v. Howard, 55 F.3d 1557, 1559 (11th Cir. 1995).
“[I]t is not enough that the prosecutors’ remarks were undesirable or even universally
condemned. The relevant question is whether the prosecutor’s comments so infected
the trial with unfairness as to make the resulting conviction a denial of due process.”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks and citations
omitted). A defendant’s substantial rights “are prejudicially affected [by improper
prosecutorial comments] when a reasonable probability arises that, but for the remarks,
33
the outcome [of the trial] would have been different.” United States v. Hall, 47 F.3d 1091,
1098 (11th Cir. 1995) (citing Kennedy v. Dugger, 933 F.2d 905, 914 (11th Cir. 1991)).
A reviewing court must evaluate an allegedly improper comment in the context
of both the prosecutor’s entire closing argument and the trial as a whole. Id.; see also
United States v. Young, 470 U.S. 1, 11 (1985) (“[A] criminal conviction is not to be lightly
overturned on the basis of a prosecutor’s comments standing alone, for the statements
or conduct must be viewed in context; only by so doing can it be determined whether
the prosecutor’s conduct affected the fairness of the trial.”). “If a reviewing court is
confident that, absent the improper remarks, the jury’s decision would have been no
different, the proceeding cannot be said to have been fundamentally unfair.” Tucker v.
Kemp, 802 F.2d 1293, 1296 (11th Cir. 1986) (en banc).
As a general matter, a prosecutor may argue about a witness’s credibility when
such argument is based on the evidence adduced at trial. See United States v. Rivera, 780
F.3d 1084, 1100 (11th Cir. 2015) (stating that the prosecutor was permitted to argue
that a defendant’s denials of involvement were not credible when the prosecutor was
urging the jury to draw certain conclusions from the evidence); United States v. Lopez,
590 F.3d 1238, 1256 (11th Cir. 2009) (stating that the prohibition on vouching does not
forbid prosecutors from arguing credibility). However, “[a] prosecutor is expected to
refrain from offering his personal views on a defendant’s guilt or on the evidence.”
Rivera, 780 F.3d at 1100; see also Jackson v. State, 89 So. 3d 1011, 1018 (Fla. 4th DCA
34
2012) (stating that “it is improper for an attorney to express a personal opinion as to
the credibility of a witness” but that “an attorney is allowed . . . to argue credibility of
witnesses or any other relevant issue so long as the argument is based on the evidence.”)
(citations omitted).
Attorneys may comment on the evidence during their opening statements and
closing arguments. Opening statements set out what the attorneys expect the evidence
will show. See United States v. Lizon-Barias, 252 F. App’x 976, 978 (11th Cir. 2007) (“An
opening statement gives counsel the opportunity to state what evidence will be
presented in order to make it easier for the jurors to understand what is to follow, and
is not an occasion for argument.”). And “the ‘sole purpose of closing argument is to
assist the jury in analyzing, evaluating and applying the evidence.’” United States v.
Pearson, 746 F.2d 787, 796 (11th Cir. 1984) (quoting United States v. Dorr, 636 F.2d 117,
120 (5th Cir. 1981)). A prosecutor may comment on the evidence and express the
conclusions he contends that the jury should draw from the evidence. United States v.
Johns, 734 F.2d 657, 663 (11th Cir. 1984) (finding that remarks were not improper when
the prosecutor only “urged the jury to draw inferences from the evidence produced at
trial.”); see also Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007) (stating closing argument
is an opportunity for attorneys “to review the evidence and to explicate those inferences
which may be reasonably drawn from the evidence.”); McArthur v. State, 801 So. 2d
1037, 1040 (Fla. 5th DCA 2001) (“The courts generally allow wide latitude in closing
35
argument by permitting counsel to advance all legitimate arguments and draw logical
inferences from the evidence.”).
.
2.
Ground Six
In Ground Six, Garcia contends that trial counsel was ineffective in failing to
object to the prosecutor’s allegedly prejudicial comments and in failing to move for a
mistrial based on the comments.
a. Statements Concerning “Cut” Versus “Stab”
Garcia contends that the prosecution erroneously stated that Rivera and
Hageman were stabbed, when in fact they were cut. (Doc. 6-1, p. 3).12 Garcia also argues
that the prosecutor intimated that Garcia stabbed more than one of the victims, when
only Dunlap received a stab wound. (Doc. 6-1, p. 3). Garcia argues that these remarks
were part of a prosecutorial “campaign throughout to overstate and mischaracterize the
nature and severity” of the victims’ wounds and suggested that he deliberately stabbed,
rather than accidentally cut, the victims. (Doc. 6-1, pp. 3–4).
First, Garcia identifies the prosecutor’s opening statement as problematic:
At the same time, the Defendant quickly comes up with a knife and slices
Jesse in the face across the forehead and through the nose, stabs him in
the arm, cuts him in the arm, very quickly. And he’s doing it in this motion.
(Indicates motion.) Very quickly, slicing, stabbing, cutting.
Rivera testified that he received a cut to his face and right biceps. (Doc. 22, Ex. 31, Vol. III, p. 285).
Hageman did not specify the nature of his injury, although he answered questions describing his
wound as a “cut” without correcting that description. (Doc. 22, Ex. 31, Vol. II, pp. 235, 252).
12
36
(Doc. 22, Ex. 31, Vol. II, pp. 121–22).
Garcia also points to the prosecutor’s closing argument:
Finally, today, he comes into court and he admits it, that he stabbed Tyson,
he sliced Rivera’s face, stabbed him in the arm, and cut Justin Hageman
in the back of the head.
...
That’s clear. He came in today and he finally admitted to you, yes. I cut
and stabbed each of these three victims and it was against their will.
(Doc. 22, Ex. 31, Vol. V, pp. 622–23, 653).
In addition, Garcia notes that when the prosecutor cross-examined him, the
prosecutor asked several questions that referred to Garcia having stabbed Rivera:
Q.
Okay. After you cut him he just stands there?
A.
He - - he was stood - - he was stunned. He stood there for a second.
Q.
Okay. Okay. Did you stab him and cut him in the arm then or was
that later?
A.
I didn’t - - I didn’t stab anyone. I didn’t attempt to stab anyone. I
didn’t - -
Q.
But you did, right?
A.
I didn’t stab - - I did not stab - - I didn’t stab Mr. - - Mr. Rivera.
(Doc. 22, Ex. 31, Vol. IV, pp. 587–88).
The state court found that counsel was not ineffective in failing to object because the
prosecutor’s mischaracterization of Rivera’s arm injury as a stab rather than a cut was
not prejudicial. And the state court found that the prosecutor’s reference to Garcia
37
stabbing Rivera and committing multiple stabbings was not prejudicial because Garcia
actually cut Rivera and Hageman and stabbed Dunlap. (Doc. 22, Ex. 10, p. 110) (state
court’s record citations omitted).
The state court did not unreasonably conclude that Garcia was not prejudiced by
counsel’s failure to object to any mischaracterization of the victims’ injuries by the
prosecutor. The jury heard the evidence, including the descriptions of the victims’
wounds, and could independently assess the nature of the injuries based on the
evidence. The jury was instructed that they were to look only to the evidence introduced
at trial for proof of guilt, and that the attorneys’ statements were not evidence. (Doc.
22, Ex. 31, Vol. II, p. 116; Vol. V, pp. 619, 663).
The jury is presumed to have followed these instructions. See Brown v. Jones, 255
F.3d 1273, 1280 (11th Cir. 2001) (“We have stated in numerous cases . . . that jurors are
presumed to follow the court’s instructions.”); Raulerson v. Wainwright, 753 F.2d 869, 876
(11th Cir. 1985) (“Jurors are presumed to follow the law as they are instructed.”).
Accordingly, Garcia fails to show that the state court unreasonably applied Strickland or
unreasonably determined the facts in denying his claim.
b. Statements about Another Weapon
Garcia identifies several remarks during the prosecutor’s closing argument
asserting that no one other than Garcia had a weapon. Garcia argues the remarks
improperly stated the prosecutor’s personal opinion that Garcia was not credible:
38
[Garcia is] the one that felt that a knife or some other weapon needed to
be used, and that was before, even - - according with the Defendant’s own
statement, before anybody went and got a broken pool cue, which I
suggest to you did not occur.
...
[T]hat was before any mention or any even possibility of any weapon, even
an imagined weapon, was used against him.
...
I don’t think there’s any evidence that says he had to use that knife because
somebody was using a knife against him or some other deadly weapon
except for this story that we’re hearing about the broken pool cue, which,
again, I suggest to you that’s all it is, is a story.
(Doc. 22, Ex. 31, Vol. V, pp. 621–22, 633–34).
The state court rejected Garcia’s claim because it found that the
prosecutor made reasonable inferences and argued facts in evidence. (Doc. 22,
Ex. 10, p. 110) (state court’s record citations omitted).
Garcia does not show that the state court unreasonably rejected his claim.
Considered in context, the prosecutor’s remarks concerned the plausibility of the selfdefense theory. Garcia does not show any impropriety in the prosecutor’s argument
that conflicts in the evidence cast doubt on Garcia’s version of events. See Davis v. State,
136 So. 3d 1169, 1203 (Fla. 2014) (“While a prosecutor may not ‘ridicule or otherwise
improperly attack the defense’s theory of the case,’ a prosecutor is permitted to suggest
to the jury that ‘based on the evidence of the case, they should question the plausibility
of the defense’s theory.’” (quoting Valentine v. State, 98 So. 3d 44, 55–56 (Fla. 2012)).
39
Garcia fails to show that the state court unreasonably applied Strickland or unreasonably
determined the facts in denying this part of his claim.
c. Statements about Credibility of Defense Witnesses
Garcia contends that counsel should have objected to statements concerning the
credibility of his testimony and Griffin’s testimony. Garcia identifies the following
portions of the prosecutor’s closing argument:
[Garcia] says that because it doesn’t fit in with his events of what
happened. Nothing fits in with the way he says anything happened.
...
Now, we can say, well, how did that happen? I would suggest to you - - I
would suggest to you that they got together that night that’s the one thing
[Griffin] was truthful about.
...
The knife should be right there. Well that knife should have been - - if you
believe [Garcia’s] story.
...
[T]hey were in the front yard for an hour or two getting their story straight
about the cue stick and about the knife and about - - but they didn’t do a
good job. They did not.
And I suggest to you it happened neither way, neither the way the
Defendant says it happened and not the way that his witness said that it
happened.
(Doc. 22, Ex. 31, Vol. V, pp. 627–28, 629, 631).
40
The state court denied Garcia’s claim because it found that the prosecutor argued
facts in evidence and inconsistencies in witness testimony. (Doc. 22, Ex. 10, p. 110)
(state court’s record citations omitted).
Garcia does not demonstrate that the state court unreasonably denied his claim.
Garcia has not established that the prosecutor’s remarks were impermissible
expressions of personal opinion. The state court did not unreasonably conclude that
the prosecutor appropriately argued how the jury should interpret and evaluate conflicts
in the evidence. These conflicts included inconsistencies between the State’s evidence
and the defense evidence, as well as conflicts between Griffin’s testimony and Garcia’s
testimony. Moreover, as addressed, a prosecutor is not prohibited from commenting
on witness credibility while arguing about conclusions the jury should draw from the
evidence. See Rivera, 780 F.3d at 1100; Jackson, 89 So.3d at 1018. Garcia does not show
that any comment went beyond the bounds of permissible argument into personal
opinion. Therefore, Garcia does not establish entitlement to federal habeas relief on
this issue.
d. Ineffective Assistance in Not Moving for Mistrial
The state court did not address Garcia’s argument that counsel was ineffective
in not moving for a mistrial based on the prosecutor’s comments. The Court presumes
that the state court ruled on the merits of this claim. See Johnson, 568 U.S. 289. Garcia
does not show that the state court unreasonably applied Strickland or unreasonably
41
determined the facts in denying the claim. Whether a mistrial was warranted is a matter
of state law and this Court must defer to the state court’s implicit resolution of this state
law question. See Pinkney, 876 F.3d at 1295; Herring, 397 F.3d at 1354–55. Garcia has
not shown that the state court unreasonably applied Strickland or unreasonably
determined the facts in rejecting his claim.
Alternatively, even assuming that the state court simply overlooked Garcia’s
claim, leading to de novo review, Garcia has failed to show entitlement to relief under
Strickland. In Florida, a mistrial “is warranted only when the error is so prejudicial that
it vitiates the entire trial.” Somers v. State, 162 So. 3d 1077, 1079 (Fla. 5th DCA 2015).
Garcia has failed to show a reasonable probability that a mistrial would have been
granted based on the identified comments. For the same reasons discussed above,
Garcia does not show that the comments were improper. Nor does he show that, even
if the comments were improper, they were “so prejudicial” that they “vitiate[d] the
entire trial.” Id. Thus, he has not shown that counsel performed deficiently in not
moving for a mistrial, or that he suffered resulting prejudice. Ground Six warrants no
relief.
3.
Ground Seven
Garcia argues that the prosecutor committed misconduct by making improper
remarks, resulting in a violation of his federal constitutional right to a fair trial. (Doc. 6-
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1, p. 6). Garcia identifies the same statements that he raised in Ground Six. (See Doc. 61, p. 7).
Garcia alleged in his Rule 3.850 motion that the prosecutor committed
misconduct, but he did not allege a violation of his federal constitutional rights. (Doc.
22, Ex. 9, pp. 27–32). Therefore, Garcia did not exhaust a federal prosecutorial
misconduct claim. Because Garcia cannot return to state court to present the claim, the
claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Garcia has not established
that an exception applies to overcome the resulting procedural default. See id.
Notwithstanding the default, Garcia fails to show entitlement to relief on his standalone prosecutorial misconduct claim. For the same reasons discussed in Ground Six,
Garcia fails to show that the arguments were improper. Further, he does not establish
that, even if improper, when considered in the context of both the entire closing
argument and the entire trial, they so infected the trial with error of constitutional
dimension as to warrant relief. See Darden, 477 U.S. at 181. Garcia is not entitled to relief
on Ground Seven.
G.
Ground Eight
Garcia argues that appellate counsel was ineffective in not arguing that the trial
court erred in refusing to provide a jury instruction on the justifiable use of non-deadly
force. Respondent contends that this claim is unexhausted because Garcia did not fairly
present the federal nature of the claim to the state court in his petition alleging
43
ineffective assistance of counsel under Florida Rule of Appellate Procedure 9.141.
Respondent’s argument is not convincing. In his Rule 9.141 petition, Garcia cited
Strickland and clearly alleged that his appellate counsel was ineffective. (Doc. 22, Ex.
26). Garcia therefore fairly presented the federal claim of ineffective assistance of
appellate counsel to the state appellate court.
Notwithstanding its preservation for federal review, Garcia’s claim fails. The
question of whether Garcia would have prevailed on appeal had appellate counsel
challenged the trial court’s omission of the jury instruction rests on an application of
state law.13 This Court must defer to the state appellate court’s determination that
Garcia would not have succeeded on appeal had appellate counsel raised this state law
issue. See Pinkney, 876 F.3d at 1295; Herring, 397 F.3d at 1354-55.
Garcia fails to show that the state court’s rejection of his claim involved an
unreasonable application of Strickland or was based on an unreasonable factual
determination. Accordingly, he is not entitled to relief on Ground Eight.
H.
Grounds Nine and Ten
In Ground Eight, Garcia contends that he would have prevailed on appeal had appellate counsel
raised the question of the trial court’s refusal to provide a jury instruction on non-deadly force. In
Ground Nine, Garcia makes the contradictory claim that trial counsel was ineffective in not objecting
when the trial court refused to give the instruction, thereby failing to preserve the matter for appeal.
In other words, Garcia’s argument in Ground Nine recognizes that his trial counsel argued for a jury
instruction on non-deadly force—an argument Garcia says in Ground Eight trial counsel never put
forth. See Castor v. State, 365 So. 2d 701, 703 (Fla. 1978) (“Where the alleged error is giving or failing
to give particular jury instruction, we have invariably required the assertion of a timely objection.”).
Regardless of whether the state appellate court’s ruling involved the merits of the jury instruction
question or was based on a lack of preservation, the ruling turned on an application of underlying state
law.
13
44
In Ground Nine, Garcia contends that trial counsel was ineffective in failing to
object or to move for a mistrial when the trial court denied his request to instruct the
jury on the justifiable use of non-deadly force. Garcia contends that counsel’s failure to
object meant that the issue was not preserved for appeal. (Doc. 6-1, p. 13). In Ground
Ten, Garcia argues that trial counsel was ineffective in not objecting to an error in the
jury instruction on the justifiable use of deadly force, resulting in a due process violation.
(Doc. 6-1, p. 16).
Garcia’s Rule 3.850 motion, filed November 30, 2015, did not raise these
ineffective assistance claims. (Doc. 22, Ex. 9). Garcia moved for leave to amend his
motion. (Doc. 22, Ex. 12). On July 11, 2016, the state court granted Garcia leave to
amend his motion to raise any new claims for relief within 30 days. (Doc. 22, Ex. 14).
On September 21, 2016, the court entered a final order denying the Rule 3.850 motion.
(Doc. 22, Ex. 16). The order noted that the court had not received an amendment and
that “any additional claims are procedurally barred.” (Id., p. 174–75).
On September 29, 2016, Garcia filed a motion for rehearing in which he stated
that he timely filed his amended claims by mailing his amendment on August 3, 2016.
(Doc. 22, Ex. 17). 14 The state court denied his motion for rehearing. With respect to
the additional claims, the state court concluded that because it had already issued a final
Under the mailbox rule, a prisoner is deemed to have filed a paper when he loses control over it
by providing it to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 276 (1988).
14
45
order denying the motion, Garcia’s additional claims were “successive and procedurally
barred.” (Doc. 22, Ex. 18).
Respondent contends that Garcia’s claims are barred from federal habeas review
because the state court rejected them on an independent and adequate state procedural
basis when Garcia presented them in his motion for rehearing. The state court applied
the firmly established and regularly followed procedural rule barring successive
postconviction claims. See Fla. R. Crim. P. 3.850(h)(2) (stating that a second or
successive motion is an extraordinary pleading and that a court may dismiss such a
motion if the failure of the defendant to raise the claims in an earlier motion was without
good cause or was an abuse of procedure); see also Owen v. Crosby, 854 So. 2d 182, 187
(Fla. 2003) (“A second or successive motion for postconviction relief can be denied on
the ground that it is an abuse of process if there is no reason for failing to raise the
issues in the previous motion. . . . [C]laims that could have been raised in a prior
postconviction motion are procedurally barred”); Christopher v. State, 489 So. 2d 22, 24
(Fla. 1986) (recognizing that Rule 3.850 allows a court to summarily deny a successive
postconviction motion that raises new grounds).
Garcia contends that the state court incorrectly applied this procedural bar. See
Bailey, 172 F.3d at 1302. Garcia argues that the state court’s decision was wrong because
he “filed a timely amended 3.850 motion within the 30-day time limit set by the
postconviction court.” (Doc. 6-1, pp. 13, 16). Garcia does not establish that the state
46
court erroneously applied the state procedural bar such that this Court can conclude
the bar is not adequate to foreclose federal habeas review. Garcia alleges that, “as shown
herein,” he timely filed his amended motion. (Id.). But he did not offer any evidence to
the state court or to this Court that he in fact timely filed the amendment by providing
it to prison officials. Nor does Garcia identify any authority under which the state court
was required to accept the allegation in his unsworn motion for rehearing as evidence
that he timely filed his amendment.
Therefore, Garcia fails to identify a basis upon which this Court can determine
that the state court improperly applied a state procedural bar to reject his claim.15 The
state court’s application of an independent and adequate state procedural bar results in
the procedural default of the claims raised in Grounds Nine and Ten.
Garcia’s claims can only be considered if he establishes that either the cause and
prejudice or the fundamental miscarriage of justice exception applies. Garcia does not
argue that he meets the fundamental miscarriage of justice exception. But he does insist
that he has established cause for the default in that the failure of his timely-filed
amendment to reach the state court was a circumstance beyond his control. The Court
does not find Garcia’s unsupported and conclusory allegation sufficient to establish
See, e.g., Hagg v. State, 591 So. 2d 614, 617 n.3 (Fla. 1992) (“Unless it appears on the face of the
pleading that it was timely received by the prison officials, our opinion [adopting the prison mailbox
rule discussed in Houston] does not mean that the court must inquire into whether every late-filed pro
se petition meets the test of the mailbox rule. Upon denial of the petition, the burden is on the pro se
inmate to timely assert and prove that the petition was delivered to prison authorities within the requisite
time limits.”) (emphasis added).
15
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cause. See McCoy v. Newsome, 953 F.2d 1252, 1260 (11th Cir. 1992) (“[A] federal habeas
corpus petitioner bears the burden of demonstrating cause for his procedural default in
state court” and must “establish that an objective impediment, not of his own making”
prevented him from properly bringing the claim in state court.). As Garcia does not
make this showing, he fails to meet his burden of establishing cause. Garcia does not
excuse the default of Grounds Nine and Ten. As a result, these claims are barred from
federal habeas review.
It is therefore ORDERED that Garcia’s Amended Petition for Writ of Habeas
Corpus (Doc. 6) is DENIED. The CLERK is directed to enter judgment against
Garcia and to CLOSE this case.
It is further ORDERED that Garcia 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.” 28 U.S.C.
§ 2253(c)(2). To obtain a certificate of appealability, Garcia must show that reasonable
jurists would find debatable both the merits of the underlying claims and the procedural
issues he seeks to raise. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Garcia has not
made the requisite showing. Finally, because Garcia is not entitled to a COA, he is not
entitled to appeal in forma pauperis.
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ORDERED in Tampa, Florida, on April 16, 2021.
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