Herrera-Martinez v. Secretary, Department of Corrections et al
Filing
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OPINION AND ORDER. Herrera-Martinez's petition 1 is DENIED. The CLERK is directed to enter judgment against Herrera-Martinez and to CLOSE this case. It is further ORDERED that Herrera-Martinez is not entitled to a certificate of appealab ility. 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). A certificate of appealability must first issue. Id. To obtain a certificate o f appealability, Herrera-Martinez 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, 5 29 U.S. 473, 484 (2000). Herrera-Martinez has not made the requisite showing. Since Herrera-Martinez is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 10/30/2020. (BGS)
Case 8:17-cv-02518-CEH-AEP Document 14 Filed 10/30/20 Page 1 of 5 PageID 78
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CORNELIO HERRERA-MARTINEZ,
Petitioner,
v.
Case No. 8:17-cv-2518-T-36AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________________/
ORDER
This cause is before the Court on Cornelio Herrera-Martinez’s timely-filed pro se petition
for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1). Respondent filed a response opposing
the petition. (Doc. 11). Herrera-Martinez did not reply. Upon consideration, the petition will be
DENIED.
Procedural History
Herrera-Martinez was convicted after a jury trial of one count of sexual battery and
sentenced to life in prison. (Doc. 13, Ex. 1, pp. 56, 59-62). The state appellate court per curiam
affirmed the conviction and sentence. (Doc. 13, Ex. 5). The state appellate court also per curiam
affirmed the summary denial of Herrera-Martinez’s motion for postconviction relief under Florida
Rule of Criminal Procedure 3.850. (Doc. 13, Exs. 7, 8, 10).
Standard Of Review; Exhaustion of State Remedies
The Antiterrorism and Effective Death Penalty Act governs this proceeding. Carroll v.
Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner
is in custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
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§ 2254(a). A federal habeas petitioner must exhaust his claims by raising them in state court before
presenting them in his 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 1135, 1138 (11th Cir. 2001).
Discussion
Grounds One, Two, And Three
Herrera-Martinez presents three claims of trial court error. In Ground One, HerreraMartinez contends that the trial court violated his federal due process rights when it allowed the
State to elicit testimony from a prosecution witness that Herrera-Martinez “approached her and
made advances to her.” (Doc. 1, p. 3). In Ground Two, Herrera-Martinez claims that the trial court
violated his federal due process rights by preventing defense counsel from questioning the victim’s
brother about Herrera-Martinez’s statements. In Ground Three, Herrera-Martinez argues that the
trial court violated his federal due process rights by curtailing counsel’s closing argument.
Respondent contends that these claims are unexhausted because Herrera-Martinez did not
present the federal nature of the claims on direct appeal. The Court agrees. Herrera-Martinez’s
brief relied solely on state law in raising these claims. (Doc. 13, Ex. 3, pp. 18-22, 25-28). He did
not cite any federal law, federal constitutional provision, or other federal authority. (Id.). Because
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Herrera-Martinez failed to notify the state appellate court that he was presenting federal claims, he
did not satisfy the exhaustion requirement. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (“If
state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights,
they must surely be alerted to the fact that the prisoners are asserting claims under the United States
Constitution.”); Preston v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 457 (11th Cir. 2015) (“The
crux of the exhaustion requirement is simply that the petitioner must have put the state court on
notice that he intended to raise a federal claim.”); Pearson v. Sec’y, Dep’t of Corr., 273 F. App’x
847, 849-50 (11th Cir. 2008) (“The exhaustion doctrine requires the petitioner to ‘fairly present’
his federal claims to the state courts in a manner to alert them that the ruling under review violated
a federal constitutional right.”).
Herrera-Martinez cannot return to state court to exhaust the federal claims because state
procedures do not provide for successive direct appeals. See Fla. R. App. P. 9.140(b)(3) (stating
that a notice of appeal must be filed within 30 days of the rendition of the sentence). Accordingly,
Herrera-Martinez’s claims are procedurally defaulted. See Smith, 256 F.3d at 1138. HerreraMartinez has not argued or demonstrated that either the cause and prejudice or the fundamental
miscarriage of justice exception applies to excuse the default. See id. Consequently, Grounds One,
Two, and Three are barred from federal habeas review.
Ground Four
Herrera-Martinez asserts that §§ 794.011 and 800.04, Fla. Stat., are unconstitutional
because they contain identical language. 1 He contends that the statutes are confusing and
misleading. He further claims that the statutes “shifted the burden of proof in favor of the State”
and hindered him in preparing a defense. (Doc. 1, p. 8). Herrera-Martinez concedes that he did not
1
Herrera-Martinez was convicted under § 794.011, Fla. Stat., which governs sexual battery. Section 800.04, Fla. Stat.,
governs lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.
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present this claim in state court. Therefore, he has failed to exhaust this claim. Herrera-Martinez
cannot return to state court to raise it in a second direct appeal. Even assuming that the claim is
cognizable on collateral review, 2 Herrera-Martinez cannot return to state court to raise it in an
untimely, successive postconviction motion. See Fla. R. Crim. P. 3.850(b), (h). Accordingly,
Herrera-Martinez’s claim is procedurally defaulted.
In support of Ground Four, Herrera-Martinez cites Martinez v. Ryan, 566 U.S. 1 (2012).
This citation is interpreted as an argument that Herrera-Martinez can meet the cause and prejudice
exception to overcome the default. However, Martinez only concerns the default of claims alleging
ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9 (holding that “[i]nadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.”); Chavez v. Sec’y, Fla. Dep’t of
Corr., 742 F.3d 940, 945 (11th Cir. 2014) (“[T]he equitable rule established in Martinez applies
only to excusing a procedural default of ineffective-trial-counsel claims[.]”) (internal quotation
marks and citation omitted); Gore v. Crews, 720 F.3d 811, 816 (11th Cir. 2013) (“By its own
emphatic terms, the Supreme Court’s decision in Martinez is limited to claims of ineffective
assistance of trial counsel that are otherwise procedurally barred due to the ineffective assistance
of post-conviction counsel.”).
Accordingly, Martinez does not apply to excuse the default of Herrera-Martinez’s
challenge to the constitutionality of state statutes. Herrera-Martinez does not argue or demonstrate
that another basis exists to excuse the default. Ground Four is barred from federal habeas review.
2
A facial challenge to the constitutionality of a state statute must be raised on direct appeal. See Delancy v. Tucker,
88 So.3d 1036, 1037 (Fla. 1st DCA 2012) (“A direct appeal is the proper avenue for a facial constitutional challenge
to a criminal statute.”). However, it might be possible to raise an as-applied challenge in postconviction proceedings.
See, e.g., Charlemagne v. State, 168 So.3d 245 (Fla. 5th DCA 2015) (affirming a judgment and sentence on direct
review when the appellant failed to preserve an as-applied constitutional challenge to a state statute but noting that the
affirmance was without prejudice to the appellant raising “the claim” in a postconviction motion).
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It is therefore ORDERED that Herrera-Martinez’s petition (Doc. 1) is DENIED. The
CLERK is directed to enter judgment against Herrera-Martinez and to CLOSE this case.
It is further ORDERED that Herrera-Martinez is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). A certificate of appealability must
first issue. Id. To obtain a certificate of appealability, Herrera-Martinez 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).
Herrera-Martinez has not made the requisite showing. Since Herrera-Martinez is not entitled to a
certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida, on October 30, 2020.
Copies furnished to:
All parties of record including unrepresented parties, if any
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