VAZQUEZ v. MCNEIL

Filing 25

ORDER DENYING THE PETITION re 1 Petition for Writ of Habeas Corpus filed by GEORGE VAZQUEZ - "The petition is DENIED with prejudice". Signed by JUDGE ROBERT L HINKLE on 9/21/2011. (erl)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

GEORGE VAZQUEZ,
Petitioner,
v.

CASE NO. 4:08cv359-RH/GRJ

SECRETARY, DEPT. OF
CORRECTIONS,
Respondent.
_________________________________/

ORDER DENYING THE PETITION

The petitioner George Vasquez seeks a writ of habeas corpus under 28
U.S.C. § 2254 invalidating his state-court jury-trial conviction of child abuse and
child neglect. The case is before the court on the magistrate judge’s report and
recommendation, ECF No. 20, and the objections, ECF No. 23. I have reviewed
de novo the issues raised by the objections.
I
The petition raises a number of evidentiary issues that would carry
considerable weight on a direct appeal. The trial court admitted other-act evidence

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offered by the state and excluded other-act evidence offered by the defense. The
trial court admitted a recording of a telephone conversation in which Mr. Vazquez
referred to an unrelated cocaine charge that was pending against him.
This is not, however, a direct appeal. This is a § 2254 proceeding governed
by the substantial restrictions accurately described at some length in the report and
recommendation.
The first restriction is the requirement to exhaust state judicial remedies. See
28 U.S.C. § 2254(b)(1)(A). Mr. Vazquez now characterizes these evidentiary
claims as rooted in the United States Constitution, and at some point issues like
these do indeed take on a federal constitutional dimension. But in state court Mr.
Vazquez did not assert the claims under the Constitution—or even come close
enough, as he now asserts. The report and recommendation correctly concludes
that the claims must be dismissed for failure to exhaust state judicial remedies.
If not dismissed on this basis, the claims still would fail. Relief under
§ 2254 is available only when the state courts’ rejection of a claim “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” id. § 2254(d)(1), or “was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Id. § 2254(d)(2). The state courts’
rejection of Mr. Vazquez’s evidentiary claims does not meet this standard.
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II
Mr. Vazquez says the jury saw him in shackles and that his appellate
attorney rendered ineffective assistance by failing to raise the issue on appeal.
It is settled that a defendant has a right not to be seen in shackles by the jury
absent sufficient security concerns. See, e.g., Deck v. Missouri, 544 U.S. 622, 626
(2005) (“The law has long forbidden routine use of visible shackles during the guilt
phase; it permits a State to shackle a criminal defendant only in the presence of a
special need.”); Illinois v. Allen, 397 U.S. 337, 344 (1970) (stating that trying a
shackled defendant “arouses a feeling that no person should be tried while
shackled and gagged except as a last resort”); Zygadlo v. Wainwright, 720 F.2d
1221, 1223 (11th Cir. 1983) (“Many considerations dictate that the use of shackles
to restrain a defendant at trial should rarely be employed as a security device.”).
Here the defendant was not shackled during the one-day trial. But the jury
did not reach a verdict that day, and the jurors were brought back into the
courtroom before they were allowed to resume deliberations the next day. The
reason, the judge said, was so that the attorneys and Mr. Vazquez could see that the
jurors were all back. (Tr. 353.) The jurors were in the courtroom only very
briefly—long enough for the judge to make comments that were reported in just
seven lines of transcript.

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The record includes not a hint that anything happened between the end of the
first day and the beginning of the second that increased any security concerns.
That the defendant could safely sit through the first day of trial without being
shackled thus seems to indicate he could sit through a very brief appearance at the
beginning of the next day. And in any event, the record includes no evidence to
the contrary. As a matter of settled federal constitutional law, if the defendant was
to be shackled, the burden was on the state to establish a basis for doing so. The
state did not carry the burden. Moreover, whether or not there was a need to
shackle, there plainly was no need to bring the jury back into the courtroom.
Mr. Vazquez’s trial attorney raised the shackling issue before the jury was
brought into the courtroom. Her request, though, was only that the judge instruct
the prosecutor not to stand as the jurors came and went; the attorney seemed to
indicate that so long as Mr. Vazquez remained seated, the shackles would not be
visible. It was an imminently reasonable request. Indeed, it is hard to understand
how a prosecutor would not immediately acquiesce. The choices were to remain
seated or risk an obviously substantial constitutional claim of the kind now before
this court. An insistence on the right to stand under these circumstances brings to
mind the old saw that the government always wins when justice is done.
The judge’s response was equally difficult to understand. The judge said the
trial was over. (Tr. 353.) But the jury was still deliberating, so the risk of
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prejudice from shackling obviously remained; indeed, the risk might have been at
its zenith. The judge said he thought everyone should always remain seated as
jurors came and went. But, he said, the state attorney insisted his prosecutors
stand, and they continued to do it. This, the judge said, was voluntary. When
defendants and defense attorneys stood, the judge said, it was also voluntary. And
so, the judge said, the attorneys could do as they pleased in this case. (Tr. 352.)
The judge seemed to miss entirely the point of the objection: that the defendant
was shackled and should not be seen that way by the jurors, nor should he have to
show less respect than the prosecutor.
It is altogether understandable that prosecutors and all others stand as jurors
enter and leave a courtroom. This court’s local rules require it, and it is the
mandatory practice in most courts. Standing underscores to the jury that what they
are doing is important. This judge’s practice, in contrast, was not to require it. As
a matter of courtroom management, that was his prerogative. Still, standing shows
respect even when not mandatory; it is understandable that the state attorney insists
on it. Here, though, there was an entirely different problem. An unnecessarily
shackled Mr. Vazquez was sitting in the courtroom. It was constitutionally
required that the judge not allow the jurors to see Mr. Vazquez’s shackles. The
prosecutor should have agreed to remain seated. When the prosecutor did not
agree, the judge should have ordered it. This should have been easy.
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But the issue in this § 2254 case is not whether the prosecutor should have
remained seated. The issue is whether Mr. Vazquez received ineffective assistance
when his appellate attorney chose not to raise the issue on direct appeal. As
accurately set out in the report and recommendation, an ineffective-assistance
claim can succeed only upon a showing both that the attorney rendered objectively
unreasonable assistance and that the defendant suffered prejudice. See Strickland
v. Washington, 466 U.S. 668, 687-88 (1984).
The appellate attorney was dealt this hand on this issue. The record
established that Mr. Vazquez was shackled but that the shackles would not be
visible to the jury if Mr. Vazquez remained seated. The judge said Mr. Vazquez
did not need to stand. The record did not indicate whether he stood, but a
reasonable inference was that he did not. Why would he stand? The only reason
suggested by his trial attorney was that the defense did not want to seem less
respectful of the jury than the prosecutor seemed. That is a worthy goal, but hardly
one that would warrant allowing the jury to see Mr. Vazquez in shackles. In the
absence of anything in the record suggesting Mr. Vazquez stood—and with the
only logical inference that he did not—there was no reasonable prospect of
prevailing on this issue on direct appeal. Failing to raise the issue was not
objectively unreasonable, and doing so almost surely caused no prejudice.

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Another way to approach the issue is this. Mr. Vazquez was given a choice
to remain seated or, instead, to stand and let the jury see him in shackles. Absent a
sufficient security issue, a defendant cannot be required to appear before the jury in
shackles. This is so as a matter of clearly established federal law as determined by
the Supreme Court. But no clearly established federal law entitles a defendant to
stand as the jury enters and leaves the courtroom, at least absent any reason to
believe the jury will infer he is shackled. And there is no reason to believe any
jury—let alone this one—would be so shallow as to decide a case based on
whether the prosecutor stood while the defendant did not. In short, requiring Mr.
Vazquez to show the jury his shackles would have been unconstitutional. Giving
Mr. Vazquez a choice to remain seated and thus keep his shackles hidden was not
unconstitutional. Allowing the jury to see him sitting down—even while the
prosecutor stood—was not unconstitutional. It was just bad practice.
Mr. Vazquez says that whether the jury saw him in shackles is a disputed
factual issue on which he is entitled to an evidentiary hearing in this court. This is
so, he says, because he was denied an evidentiary hearing in state court. But the
issue here is whether Mr. Vazquez’s attorney rendered ineffective assistance on
direct appeal. On direct appeal, the issue would not have been whether Mr.
Vazquez actually stood and the jury actually saw him in shackles. The issue would
have been whether the record showed that he stood and the jury saw his shackles—
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whether, on the record as it existed at that point, he was entitled to relief. The
answer is no. And in any event, a reasonable attorney could decide not to raise this
issue on direct appeal because the record did not support the claim and there were
other issues—including the evidentiary issues referred to in section I of this
order—that could be pursued with a better chance of success.
III
One of the defense theories was that injuries to the child at issue—the child
that Mr. Vazquez was accused of abusing and neglecting—were caused not by Mr.
Vazquez but by someone at the child’s day-care center. Mr. Vazquez’s attorney
learned during the trial that a juror had been seen waving to—and perhaps further
communicating with—the owner of the day-care center. (Tr. 149-53.) The
attorney advised the judge, who inquired of the juror on the record and allowed the
attorneys to inquire as well. Id. The juror said she knew the owner. (Tr. 154.)
And the juror said she had been sending her child to the day-care center for three
months. Id. The juror said she could nonetheless be fair. Id. The judge decided
to keep the juror but to make her the alternate. (Tr. 155.) Mr. Vazquez’s attorney
asked the judge to instruct the jurors not to discuss the case until the trial was over
and they retired to deliberate, but the judge noted that he had already so instructed
the jury, and he declined to give the instruction again. (Tr. 156.) The judge had
indeed already so instructed the jury. (Tr. 89.)
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Mr. Vazquez now claims that his trial attorney rendered ineffective
assistance by failing to request that that the juror be excused during the trial.
Whether this claim should be rejected without an evidentiary hearing is a
close question. The juror posed a risk of bias in favor of the state, despite the
statement that she could be fair. Indeed, the judge said that had the information
been known during jury selection, the juror probably would have been excused for
cause. (Tr. 155.) But the juror did not deliberate; she was the alternate and thus
was excused when the other jurors began deliberations. Mr. Vazquez has proffered
no evidence—and has suggested no reason to believe—that the jurors disregarded
the instruction not to discuss the case during the trial. Mr. Vazquez has proffered
no evidence—and has suggested no reason to believe—that this juror’s presence
during the remainder of the trial as an alternate made any difference.
In addition, there are offsetting factors that a reasonable trial attorney would
consider before asking that this juror be excused. Trials do not always go well for
the state; sometimes they go well for the defense. Going bare—proceeding
without an alternate—creates a risk that a juror will be unable to continue and a
mistrial will result. If the trial has gone well for the defense, a mistrial can be a
bad development—sometimes the difference between winning and losing the case.
An evidentiary hearing might cast light on why this attorney did what she did, but

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it would not change the fact that an objectively reasonable attorney could choose
not to object to the judge’s approach.
IV
Mr. Vazquez asserts his trial attorney rendered ineffective assistance by
failing to request that the jury be polled after it returned its verdict. The law of the
circuit has long been settled that in the absence of a reason to believe the jury was
uncertain of its verdict, the failure to request a poll is not ineffective assistance:
Costa argues that his counsel's failure to poll the jury amounted to
ineffective assistance. Since there is nothing in the record to indicate
any juror was uncertain of the verdict, counsel's failure to request a
poll does not fall outside the range of competence expected of
attorneys in criminal cases. See United States v. Gerardi, 586 F.2d
896 (1st Cir. 1978).
United States v. Costa, 691 F.2d 1358, 1363-64 (11th Cir. 1982). The report and
recommendation concludes that this claim was not exhausted, but whether that is
so does not matter. The claim fails on the merits.
V
Finally, Mr. Vazquez contends that he was sentenced as an habitual offender
based on facts found by the judge instead of the jury and that this violated his
rights under the Sixth Amendment.
The Supreme Court has held that under the Sixth Amendment, a fact—other
than a prior conviction—that increases a statutory maximum sentence must be
admitted by a defendant, proved to a jury beyond a reasonable doubt, or so proved
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to a judge if the defendant waives a jury trial on the issue. See, e.g., United States
v. Booker, 543 U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004);
Apprendi v. New Jersey, 530 U.S. 466 (2000). But under Supreme Court decisions
that have not been overruled, this principle does not apply to a fact that merely
increases a statutory minimum sentence, not a statutory maximum, see Harris v.
United States, 536 U.S. 545, 555-56 (2002), nor to the fact of a prior conviction,
see Almendarez-Torres v. United States, 523 U.S. 224, 243-44 (1998).
Whether the Supreme Court would adhere to these exceptions today is less
than clear. Indeed, at one point five justices had expressed their disagreement with
Almendarez-Torres. See Almendarez-Torres, 523 U.S. at 248 (Scalia, J., dissenting
for four justices not including Justice Thomas); Apprendi, 530 U.S. at 519-22
(Thomas, J., concurring) (receding from the decision to join the AlmendarezTorres majority). But the uncertainty about the continuing validity of these
decisions does not help Mr. Vazquez, at least in this court. The state courts’
rejection of his position was not “contrary to, or [based on] an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). To the contrary, the rejection
of Mr. Vazquez’s position was consistent with and indeed mandated by Supreme
Court decisions that have not been overruled.

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It bears noting, too, that while a jury right and the burden of proof on a
factual dispute about prior convictions will sometimes make a difference—it is
sometimes unclear in an immigration case, for example, whether the defendant is
indeed the same person who was convicted in a prior case—there is no reason to
believe it would have made any difference here. Mr. Vazquez has proffered
nothing that suggests that it would serve any purpose to now require the state to
prove to a jury that Mr. Vazquez was indeed previously convicted as the state
asserts.
Mr. Vazquez is not entitled to relief on this claim.
VI
A district court must “issue or deny a certificate of appealability when it
enters a final order adverse to” a § 2254 petitioner. Rule 11(a) of the Rules
Governing § 2254 Cases in the U.S. Dist. Ct.. A certificate of appealability may be
issued only if a petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). See Miller-El v. Cockrell, 537 U.S.
322, 335-38, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (explaining the meaning of
this term); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595, 146 L. Ed.
2d 542 (2000) (same); Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383,
77 L. Ed. 2d 1090 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13, 120

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S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (setting out the standards applicable to a §
2254 petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a
substantial showing of the denial of a constitutional right, a
demonstration that, under Barefoot, includes showing that reasonable
jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were “adequate to deserve encouragement to proceed
further.”
Slack, 529 U.S. at 483-84, quoting Barefoot, 463 U.S. at 893 n.4. Further, in order
to obtain a certificate of appealability when dismissal is based on procedural
grounds, a petitioner must show, “at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. at 484.
Mr. Vazquez has made the required showing on the issues set out below.
VII
For these reasons,
IT IS ORDERED:
1. The clerk must enter judgment stating, “The petition is DENIED with
prejudice.”
2. A certificate of appealability is entered on these issues:

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(a) Whether Mr. Vazquez adequately exhausted his constitutional claims
arising from (i) the admission of the state’s other-act evidence, (ii) the admission
of evidence of a pending unrelated charge against Mr. Vazquez, and (iii) the
exclusion of Mr. Vazquez’s other-act evidence; and, if Mr. Vazquez did properly
exhausted these claims, whether he is entitled to relief on them;
(b) Whether Mr. Vazquez’s shackling claim was properly denied without a
federal evidentiary hearing; and
(c) Whether Mr. Vazquez is entitled to relief on the claim that his trial
attorney rendered ineffective assistance when she failed to request during the trial
the exclusion of the juror who knew and did business with a prosecution witness.
The clerk must close the file.
SO ORDERED on September 21, 2011.
Robert L. Hinkle
United States District Judge

Case No: 4:08cv359-RH/GRJ