Siwanowicz v. Secretary, Department of Corrections et al
ORDER denying 1 Petition for writ of habeas corpus and directing Clerk to enter judgment and close case. A COA and IFP status to appeal are denied. Signed by Judge William F. Jung on 10/16/2020. (CCB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CASE NO. 8:18-cv-698-T-02SPF
Before the Court is Petitioner Brindel Siwanowicz’s pro se petition for
habeas corpus filed pursuant to 28 U.S.C. § 2254. Ms. Siwanowicz is serving 88.2
months in prison for her state conviction of burglary of a dwelling and petit theft.
After careful consideration of the petition (Dkt. 1), the response (Dkt. 4), and the
appendix of the state court records (Dkt. 5), 1 the petition is denied.
Background and Procedural History
On March 23, 2015 mid-afternoon, Ms. Siwanowicz broke into the home of
Joseph and Sonel Wilson, who were brothers. She testified at trial she gained entry
The state courts’ records are found in an appendix in paper format. The appendix contains 28
separate exhibits. Record citations will be denoted using the exhibit number and, if necessary,
the page number.
by throwing a rock or chunk of concrete block through a back window.2 She left
the house through the back with cases of beer and cash. She testified she had been
in a relationship with Joseph Wilson, had been staying at his house, and needed to
retrieve her medicine and other personal belongings. She was identified leaving
the home from a video taken by a neighbor. The Wilson brothers testified they
never saw her before. Exh. 2 at 76, 85, 87, 127. Although she denied taking $700,
which is the amount Joseph Wilson reported to the police, the jury found her guilty
of burglary of a dwelling and petit theft.
The lowest prison term the Petitioner could have received was 44.12 months.
Exh. 2 at 71. The trial court declined to depart downward and sentenced Petitioner
to 88.2 months in prison. The judgment and sentence were per curiam affirmed
without opinion on direct appeal. Exh. 19; Siwanowicz v. State, 202 So. 3d 420
(Fla. 2d DCA 2016). Petitioner then filed in the state circuit court a motion and an
amended motion for postconviction relief pursuant to Florida Rule of Criminal
Procedure 3.850. Exhs. 22, 24. The amended motion was denied, and the denial
was per curiam affirmed without opinion on appeal. Exhs. 25, 27; Siwanowicz v.
State, 241 So. 3d 125 (Fla. 2d DCA 2017). This timely petition followed.
Her entire trial testimony is found at Exh. 2 at 106–27.
Three of Petitioner’s four grounds claim ineffective assistance of counsel
(grounds two through four). The first ground raises the issue of mental
Exhaustion and Procedural Default
The writ of habeas corpus cannot be granted unless the petitioner has
exhausted all available state court remedies. Coleman v. Thompson, 501 U.S. 722,
731 (1991); Lucas v. Sec’y, Fla. Dep't of Corr., 682 F.3d 1342, 1351 (11th Cir.
2012) (citing 28 U.S.C. § 2254(b),(c)).3 Exhausting state remedies requires a
petitioner to “fairly present” her claim in each appropriate state court “thereby
alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S.
27, 29 (2004) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) and Duncan
v. Henry, 513 U.S. 364, 365 (1995) (per curiam)). The petitioner must have “fairly
presented” both the facts and substance of the constitutional federal habeas claim
first to the state court. Anderson v. Harless, 459 U.S. 4, 6 (1982) (citing Picard v.
Connor, 404 U.S. 270, 275 (1971)). A state prisoner must properly raise a federal
constitutional claim by citing the federal source of law, or a case deciding the
claim on federal grounds. Howell v. Mississippi, 543 U.S. 440, 443–44 & n.2
Accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total exhaustion
rule will encourage state prisoners to seek full relief first from the state courts, thus giving those
courts the first opportunity to review all claims of constitutional error.”).
(2005). The state prisoner must have presented the same claim to the state courts
as the one being raised in the federal habeas petition. Picard, 404 U.S. at 276.
Federal habeas review may be precluded in certain circumstances. If the
claim was raised in state court but the state court found the claim was defaulted on
state procedural grounds, the claim is procedurally barred from habeas review.
Coleman, 501 U.S. at 729–30. Under the procedural default doctrine, a claim is
barred if the claim was not raised in state court and “the court to which the
petitioner would be required to present [the] claims in order to meet the exhaustion
requirement would now find the claims procedurally barred.” Coleman, 501 U.S.
at 735 n.1. To avoid a procedural bar, a petitioner must show “either cause for and
actual prejudice from the default or fundamental miscarriage of justice from
applying the default.” Lucas, 682 F.3d at 1353; Smith v. Jones, 256 F.3d 1135,
1138 (11th Cir. 2001).
Respondent argues part of ground one as well as grounds three and four are
barred from review. In this case Petitioner has not alleged cause and prejudice or a
fundamental miscarriage of justice to overcome any of a procedural default.
Petitioner alleges her mental illness was “not properly handled during trial
proceedings.” Dkt. 1 at 3. She claims:
I have been in and out of mental hospitals since the age of six for
paranoid schizophrenia, bi-polar psychosis and major depression. I
have written multiple requests to see a psych doctor before trial. Five
days after trial was put on two anti-depressants (Geodon & Remron). I
was experiencing hallucinations before and during trial.
Dkt. 1 at 3. This claim was perhaps intended to be a procedural due process claim
insofar as it raises the proper handling of her mental illness during the trial.
A claim based on mental competency to stand trial may allege a violation of
either procedural or substantive due process afforded by the Fourteen Amendment.
See Wright v. Sec’y for Dep’t of Corr., 278 F.2d 1245 (11the Cir. 2002).
Generally, a claim asserting a substantive due process claim relating to mental
competency cannot be defaulted. Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d
464, 481 (11th Cir. 2012) (collecting cases); Wright, 278 F.3d at 1259. A
petitioner must meet the high burden of presenting clear and convincing evidence
that demonstrates her incompetency by a preponderance of the evidence. Medina
v. Singletary, 59 F.3d 1096, 1106 (11th Cir. 1995).
The Petitioner’s trial testimony evidences rational communication and an
understanding of the charges against her. She aptly explained her version of the
back story she shared with the Wilson brothers and why her need to break in to
obtain her medicine 4 was justifiable, and also claimed ignorance of the $700 in
cash. Exh. 2 at 108–17, 121. She truthfully testified she was seven times a
She took medication for injuries resulting from a car accident — “I had brain, neck and back
issues, seizures, asthma, COPD.” Exh. 2 at 108.
convicted felon and four times convicted of a crime of dishonesty. Exh. 2 at 106–
She did not testify about her alleged history of mental problems, such as
hospitalizations for paranoid schizophrenia, bi-polar psychosis, and major
depression since the age of six, and the trial court had no reason to doubt her
competency. Even if she had revealed this information, a history of mental illness
is not enough to warrant a competency hearing. See Card v. Singletary, 981 F.2d
481, 485 (11th Cir. 1992) (determining lifelong history of emotional problems did
not require competency hearing); Wright, 278 F.3d at 1259 (determining diagnosis
of chronic schizophrenia alone was insufficient to create doubt of competency to
The Petitioner’s procedural due process claim, however, is procedurally
defaulted. Although in her pro se brief on direct appeal the Petitioner alleged she
suffers from mental illness and was experiencing hallucinations at the time of trial,
she did not assert a federal constitutional violation. Exh. 18. In her initial rule
3.850 motion, which was denied without prejudice based on facial insufficiency,
she raised a vague allegation the she suffered from various health conditions. Exh.
23. In her amended motion for postconviction relief she dropped those allegations,
and on appeal from its denial she did not argue or raise a federal due process claim.
Exhs. 24, 26.
Even if this Court were to consider the procedural due process mental
competency claim on the merits, the Petitioner is not entitled to relief in view of
the deference prescribed in 28 U.S.C. § 2254(d). The state trial court had no
reason to doubt her competency based on her performance at trial. See Medina, 59
F.3d at 1106.
Ineffective Assistance of Counsel
Ineffective assistance of counsel is established by a showing of both 1)
counsel’s deficient performance and 2) prejudice resulting from the deficient
performance. Strickland v. Washington. 466 U.S. 668, 687–88 (1984). Deficient
performance means “that no competent counsel would have taken the same
action.” Preston v. Sec’y, Dep’t of Corr., 745 F. App’x 835, 837 (11th Cir. 2018)
(citing Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 928 (11th Cir. 2011)).
Strickland prejudice requires the petitioner show the reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. (citing Strickland, 466 U.S. at 694).
In the habeas context, this Court’s review is “doubly deferential” as
governed by both Strickland’s “high bar” and 28 U.S.C. § 2254(d), as amended by
the AEDPA.5 Harrington v. Richter, 562 U.S. 86, 105 (2011).6 “[T]he question is
AEDPA is the Anti-Terrorism Effective Death Penalty Act of 1996.
See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (“doubly deferential standard”); Nance
v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (“double deference”).
not whether counsel’s actions were reasonable [but] whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
at 105. The state court’s adjudication of the claims on the merits may be subject to
habeas relief only where the decision was either 1) “contrary to, or involved an
unreasonable application of,” clearly established federal law or 2) based on an
unreasonable determination of the facts. 28 U.S.C. §2554(d). Because the state
postconviction court in Ms. Siwanowicz’s case recognized and applied Strickland,
the “contrary to” test cannot be met.
The two remaining considerations are whether the postconviction court
made an “unreasonable application” of Strickland7or an “unreasonable
determination” of the facts. Given the presumption of correctness of the state
court’s determination of facts, see 28 U.S.C. 2254(e)(1), and the due deference to
the state court’s decision, if not unreasonable, see Renico v. Lett, 559 U.S. 766, 779
(2010), each ground must be analyzed by first examining the state court’s decision
as limited by the “double deference” standard of review discussed above. 8
This Court does not make an independent assessment of whether counsel’s actions were
reasonable. See Putnam v. Head, 268 F.3d 1223, 1244 n. 17 (11th Cir. 2001), cert. denied, 537
U.S. 870 (2002).
That the state appellate court affirmed without an opinion does not lessen the deference due.
Wright v. Moore, 278 F.3d 1245, 1254 (11thCir. Cir.), reh’g and reh’g en banc denied, 278 F.3d
1245 (2002), cert. denied sub nom, Wright v. Crosby, 538 U.S. 906 (2003). A federal claim
presented to and denied by a state court is considered adjudicated on the merits absent “any
indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99.
Petitioner claims her trial counsel was ineffective by failing to address her
medical issues. She alleges:
I have suffered severe beatings to my head and seizures that have
caused cognitive and comprehensive damage. I was TABE tested in
2001 and scored above a tenth grade level, however, in 2016 I scored
below a fourth grade level.
Dkt. 1 at 4. Although perhaps undeveloped in her petition, her rule 3.850 motion
provided more detail, alleging that “[g]iven her continuous psychotic and
demented gibberish, it should have been evident that his client was not fit to stand
trial.” Exh. 24 at 8. The state postconviction court found Petitioner failed to allege
how she was prejudiced by the alleged deficient performance. Exh. 25.
This claim is without merit and refuted by her trial testimony, which
displayed her ability to respond to each question clearly and to convey coherently
her justification for her actions. The state courts’ rejection of this ground of
ineffective assistance of counsel was neither an unreasonable application of
Strickland nor based on an unreasonable determination of the facts in light of the
evidence presented in state court.
Petitioner claims ineffective assistance of trial counsel concerning his
[Counsel] was told of my mental illness and told me not to mention it.
He told me I was facing 45 months and we could downward depart it
so “I’m looking at” 22.5 months and he never explained everything I
was unable to do if I went with a speedy trial.
Dkt. 1 at 5. This claim was raised in her initial 3.850 motion, which was denied
with leave to amend. She failed to reallege this ground. This claim is procedurally
defaulted and also devoid of merit because no Strickland prejudice was alleged.
Petitioner contends her trial counsel rendered ineffective assistance by
failing to raise her history of drug and alcohol abuse which has resulted in a loss of
memory, concentration, and comprehension. Dkt. 1 at 6. She readily admits this
claim was never exhausted before the state courts “due to misadvice of prison law
clerks.” Id. Even if this claim were not procedurally defaulted, Petitioner fails to
allege counsel knew this information, and her trial testimony refutes any hint of
memory loss or lack of concentration or comprehension. As noted by Respondent,
“[i]t is clear from both her testimony and from her request to the court for a
‘furlough’ to arrange care for her children and an elderly relative prior to beginning
her sentence that she understood well what was happening.” Dkt. 4 at 13 (referring
to Exh. 2 at 168–69).
The petition for the writ of habeas corpus (Dkt. 1) is denied. The Clerk shall
enter judgment against Petitioner and close the case.
Certificate of Appealability and Leave to Appeal in Forma Pauperis
Petitioner is not entitled to a certificate of appealability (“COA”) because
she cannot make “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). Having
been denied a COA, Petitioner is not entitled to proceed on appeal in forma
DONE AND ORDERED at Tampa, Florida, on October 16, 2020.
COPIES FURNISHED TO:
Petitioner, pro se
Counsel of Record
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