Carrillo v. Secretary, Florida Department of Corrections

Filing 19

ORDER ADOPTING 11 Report and Recommendation of Magistrate Judge, DENYING 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. sec. 2254, and CLOSING case. Signed by Judge Joan A. Lenard on 7/23/2010. (mhz)

C a r r i l l o v. Secretary, Florida Department of Corrections

D o c . 19

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 08-22977-CIV-LENARD/WHITE

R A U L CARRILLO, P e t i t io n e r , v. W A L T E R A. MCNEIL, Secretary, F lo rid a Department of Corrections, Respondent. ________________________________/ O R D E R ADOPTING REPORT AND RECOMMENDATION (D.E. 11) AND D E N Y I N G PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U .S .C . § 2254 (D.E. 1) T H I S CAUSE is before the Court on the Report and Recommendation of Magistrate J u d g e Patrick A. White ("Report," D.E. 11), issued on September 9, 2009, recommending d e n ia l of Petitioner Raul Carrillo's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition," D.E. 1). Petitioner filed objections to the Report ("Objections," D.E. 16) o n October 19, 2009. Having reviewed the Report, Objections, Petition, related pleadings, a n d the record, the Court finds as follows. I. B a c k gro u n d

O n August 2, 2000, a grand jury in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, indicted Petitioner for first-degree murder with a f ire a rm and aggravated stalking with a firearm. Petitioner was charged with the murder of h is girlfriend after she ended their relationship. The case proceeded to trial and jury selection

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b e g a n in late March 2005. A. V o ir Dire

D u rin g voir dire, prospective jurors were asked whether "yourself, a close friend or f a m ily member have ever been a victim of a crime." (D.E. 9, App. A at 192.) In response to this question, the following exchange occurred with one of the prospective jurors, Paul S o u le ("Soule"): C o u rt: M r . Soule: C o u rt: M r . Soule: C o u rt: M r . Soule: C o u rt: M r. Soule: C o u rt: M r. Soule: C o u rt: ...Ju ry [sic] No. 3, Mr. Soule. You listed two incidents, auto th e f t and armed robbery. How long ago? A u t o theft last few years -- couple of times in the last few years. C lo s e friend on armed robbery. H o w long ago was that? P r o b a b l y 10 years. B o th in Miami-Dade County? Y es. A n yth in g about any of those incidents that affect [sic] your a b ility to be fair and impartial in this case? I can't answer it that way. Y o u must answer it that way. I'm sorry. I don't mean to put you on the spot but this is the only o p p o rtu n ity we get to explore some of your life experiences with yo u and an answer like "I don't know," while it may be very h o n e s t and an appropriate answer because it probably is the first tim e you've been asked this question, you haven't had a chance to reflect on it, an answer like "I don't know, I don't think so" m a y not be conclusive enough for us. If you select a jury to sit th ro u g h two weeks of evidence and testimony and go back to the ju ry room and turn to one of our jurors, I told the Judge and a tto r n e y a week and a half ago that while I have life experiences, I didn't think that it will affect my ability to be fair and im p a rtia l. Now that I have heard all the evidence and testimony, a t that point into later [sic] who are they. While I don't mean to [ sic ] on the spot. I don't mean to put you on the spot, as well the o th e r group who are thinking about this that to see if we can get 2

M r. Soule: C o u rt: M r. Soule: C o u rt: M r. Soule: C o u rt: M r. Soule: C o u r t: M r. Soule: C o u rt: M r. Soule: C o u rt:

m o re definitive may have been choice words and your part as to w h e th e r or [illegible] experiences affect your ability to be [ ille g ib le ] impartial in this case? W e had a long discussion [illegible] I'm sure life experiences h a s an effect. A b so lu tely. There isn't a question that you can question what a w itn e ss says, and can you set that aside. I honestly do not believe that those life experiences would affect m y ability in this case. O k a y, thank you. B u t I don't think so. I do have a question, your Honor. O k a y. Y o u mention [sic] that this is a murder trial and that the death p en alty is not on the table. Why is that, sir? B e c a u s e it is. W e 'll never know. N o , you'll never know. I don't mind if you answer the question. T h e state of Florida does not seek the death penalty in this case. It's as simple as that.

(Id . at 193-96.) Later on during voir dire, defense counsel read an instruction to the p ro s p e c tiv e jurors regarding their responsibility to weigh the reliability of evidence. (Id. at 7 2 1 -2 3 .) Defense counsel then proceeded to ask the jurors individually whether, "if it was s h o w n that a witness had been convicted of a felony, would you consider that in assessing w h e t h e r you believe him?" and "[w]hat if he had been convicted of [sic] more than one tim e ? " (Id. at 723.) When presented with this question, Soule responded, "[y]ou have to w e ig h that in your consideration. Just as it said in the instructions you read, you have to w eigh that into [your] consideration." (Id. at 724.) B. J u r y Selection 1. C h a l le n g e s for Cause 3

A t the conclusion of voir dire, sixteen prospective jurors, out of a panel of fifty, were e x c u s e d for cause. (See D.E. 9, Ex. A at 156-57.) The trial court initially sua sponte re m o v e d seven jurors for cause. (See D.E. 9, Ex. T at 736-38.) The State then challenged th irte e n jurors for cause, four females and nine males. (Id. at 738-46.) The trial court denied th e State's challenges as to four of the male jurors (Nos. 22, 32, 33, 40), but permitted the o t h e rs to be removed. As a result, the State successfully challenged four female jurors (Nos. 7 , 9, 17, 19) and five male jurors (Nos. 1, 20, 25, 26, 28) for cause. 2. P e r em p t o r y Challenges

T h e defense exercised nine peremptory challenges to exclude six female jurors (Nos. 1 0 , 11, 14, 29, 38, 41).1 Petitioner also unsuccessfully attempted to exercise peremptory strik e s against two additional female jurors, Danielle Linton (No. 24) and Consuela Germain (N o . 36).2 In turn, the State exercised nine peremptory challenges to exclude eight male juro rs (Nos. 3, 4, 5, 12, 22, 23, 33, 40) and one female juror (No. 42).3 Of the State's p ere m p tory challenges, Petitioner unsuccessfully objected to four as based on race or gender. T h e State exercised one of its peremptory challenges to "backstrike" Juror No. 3, Paul S o u le , and the following exchange took place:

Three of Petitioner's peremptory challenges were used on jurors Petitioner had unsuccessfully sought to remove for cause. The State had initially objected to Petitioner's use of a peremptory challenge as to Juror No. 14, Nerva Gonzalez, but subsequently withdrew that objection. (Id. at 752-54.) In addition, three of the State's peremptory challenges were used on jurors the State had unsuccessfully sought to remove for cause. 4
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S t a te : C o u rt: S ta te : D efense: C o u rt: D e f en se :

Court: S t a te :

D e f en se : C o u rt: S t a te : D e f en se : S t a te : D e f en se : C o u rt: S t a te : D e f en se : S t a te : C o u rt:

S trik e No. 3. N u m b e r 3? Y es. I didn't hear her, I'm sorry. T h re e . J u ro r 3. Your honor, I object. He's a man. She wants to get m o re women on the jury. And he's been sitting there since we b e g a n and there is absolutely no answer he gave that would even h in t to be anything other than an excellent juror. He was mature a n d very experienced. Y e a h . But he's not part of any suspect class for which to raise a n y Neil/Slappy/Melbourne inquiry. J u d g e , just for the record, he actually affirmatively asked why th e death penalty is not on the table, He [sic] muttered under his b rea th in response thereto, which I noted. He also -W h a t was his -- I didn't hear his response. N o b o d y here did. A n d about the convicted felon testifying. I'm sorry, what was that last thing? T h e court even asked him just for the record. W h a t was that about? What was the last one? She's not s p e a k in g up. T h a t he muttered under his breath on the response to the death p e n a lty being put on the table. There wasn't any from him. H e actually raised it in front of the question of -W h a t's wrong with that? That's a very legitimate question. It's not a legitimate question for someone on this jury, Judge. T h a t's the State's eighth.

(Id . at 764-66.) Thus, the State successfully used its eighth peremptory strike to remove S o u le from the jury. Ultimately, the jury that was sworn in was composed of five males and s e v e n females, with one male alternate and one female alternate. C. C o n v ic tio n

A f te r approximately one week of trial, the jury convicted Petitioner on both counts. P e titio n e r received a sentence of life imprisonment, with a mandatory-minium sentence of 5

f if ty years, for the murder, and five years imprisonment for the aggravated stalking charge, to run concurrent. (See Report at 4; D.E. 9, App. A at 228-231.)4 Petitioner appealed his c o n v ic tio n on the grounds that the trial court erred in striking Soule over defense objection a n d without making a finding that the reasons offered by the State were non-pretextual. D. A ppeal

O n August 8, 2007, the Third District Court of Appeals affirmed Petitioner's c o n v ictio n . A majority of the panel found that: O n appeal, the Defendant argues that the trial court's statement that men are n o t a protected class constitutes prima facie proof that the court never engaged in a genuineness analysis. We cannot agree. Despite the trial court's off-thec u f f remark, the State offered a gender-neutral reason for the strike, and the tria l court engaged in a discussion with counsel regarding the genuineness of the strike. Specifically, the State expressed its concerns with the juror's q u e stio n about the reason the State did not seek the death penalty, and the ju ro r's comment in response to a voir dire inquiry that a convicted felon is not a very reliable witness. While the trial court in the instant case was incorrect th a t men are not a suspect class, the State's proffer of a gender-neutral reason f o r the strike and the ensuing discussion with the Court, affirmatively indicate th a t the trial court implicitly underwent a genuineness inquiry and found the S tate 's proffered reason to be non-pretextual. C arrillo v. State, 962 So.2d at 1016. The appellate court further found that "[t]he record d e m o n s tra te s that the State sought to strike both women and men from the panel and that no o th e r juror asked why the Defendant was not facing the death penalty." Id. at 1017. The d is s e n tin g opinion found the record did not support a "finding-by-implication." Id. at 1017 (J. Ramirez, dissenting). Rather, the dissent noted that prior to striking Soule, the State For a discussion of the evidence presented at trial see the state appellate court's decision at Carrillo v. State, 962 So.2d 1013, 1014 (Fla. 3d DCA 2007). 6
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m o v e d to strike eight male jurors and on three occasions challenged Petitioner's use of p e re m p to ry strikes against female jurors. Id. at 1017-18. Additionally, the dissent noted that " th e trial judge here seemed to be very cognizant of its requirements by repeatedly making g e n u in e n e ss and pretextual findings when ruling on the objections as to jurors Escarilla and R eyes (the defense objections) and jurors Gonzalez, Germain, and Linton (the State's o b j e c t io n s ) ." Id. at 1019. The dissent found that "the trial court's comments about not h e a rin g the juror's response, or muttering under his breath, does not remotely imply that the c o u rt (1) agreed with the reasons, (2) was receding from its position that Soule did not belong to a suspect class, or (3) found the reasons genuine and non-pretextual." Id. Furthermore, th e dissent noted that Soule's concern regarding the death penalty appeared to make him m o re favorable to the State and there was no evidence in any event that the trial court c o n sid e re d the make-up of the venire, prior strikes used against males, strikes based on re a so n s equally applicable to other jurors, or the singling out of a juror for special treatment. Id . at 1020. In conclusion, the dissent opined that, "it is clear that the State was

s ys te m a tic a lly striking males from the venire." Id. On November 26, 2007, the Florida S u p re m e Court declined to accept jurisdiction and denied Petitioner's petition for review. C a rr illo v. State, 973 So.2d 1119 (Fla. 2007). E. P e titio n

P e titio n e r then came to this Court, filing the instant pro se petition for writ of habeas c o rp u s pursuant to 28 U.S.C. § 2254. (See D.E. 1.) Petitioner again argues the trial court

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erred in striking Soule without making a finding that the reasons offered by the State were g e n u in e . II. T h e Report and Objections

T h e Report recommends denial of the Petition on the merits 5 and finds the state c o u rt's findings were not contrary to nor an unreasonable application of Batson v. Kentucky, 4 7 6 U.S. 79 (1986). The Report first acknowledges, "[t]he trial court erred when it stated m a le s are not protected from discrimination during jury selection." (Report at 8 (citing J.E.B. v . Alabama, ex rel. T.B., 511 U.S. 127 (1994)).) Nonetheless, the Report finds "this s ta te m e n t did not end the matter" as the State proffered gender-neutral reasons and " [ d ]e f en s e counsel did not explain why these reasons were pretextual or compare the juror a t issue to a similar female juror who the State did not strike." (Id.) The Magistrate Judge f o u n d that the record supported the state court's finding in that the "juror at issue tenaciously q u estio n ed the trial court about the death penalty, and commented on a convicted felon's c re d ib ility." (Id. at 8-9.) Because defense counsel failed to refute the State's proffered rea so n s, the Magistrate Judge determined "[t]he State appellate court's finding the trial court im p licitly found the reason to be genuine is based on a reasonable determination of the facts a n d is not contrary to or an unreasonable application of Batson." (Id. at 9 (citing Atwater v. C ro s b y, 451 F.3d 799, 807 (11th Cir. 2006); Valle v. Sec'y, Dep't of Corr., 459 F.3d 1206 (1 1 th Cir. 2006); McNair v. Campbell, 416 F.3d 1291, 1311 (11th Cir. 2005); United States The Report notes, and Respondent concedes, that the Petition is timely and properly exhausted. (Report at 6.) 8
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v . Alston, 895 F.2d 1374 (11th Cir. 1990)).) Petitioner's Objections to the Report mimic the a p p e lla te court's dissenting opinion. III. S t a n d a r d of Review

T h e Antiterrorism and Effective Death Penalty Act ("AEDPA"), greatly limits the ab ility of federal courts to review state court convictions. Pursuant to 28 U.S.C. § 2254(d), a federal court may not grant an application for a writ of habeas corpus on behalf of a person h e ld in custody pursuant to a claim adjudicated on the merits in a state court unless the state c o u rt's adjudication of the claim, "(1) resulted in a decision that was contrary to, or involved a n unreasonable application of, clearly established Federal law, as determined by the S u p r e m e Court of the United States; or (2) resulted in a decision that was based on an u n rea so n ab le determination of the facts in light of the evidence presented in the State court p r o c e e d in g ." Regarding the first prong, "[a] state court decision is `contrary to' clearly established f e d e ra l law where the state court either applied a rule in contradiction to governing Supreme C o u rt case law or arrived at a result divergent from Supreme Court precedent despite m a ter ially indistinguishable facts." Hannon v. Dep't. of Corr., 562 F.3d 1146, 1150 (11th C ir. 2009) (citing Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006)). A federal court m a y also grant relief "if the state court identifies the correct governing legal principle from [ th e Supreme] Court's decisions but unreasonably applies that principle to the facts of the p ris o n e r's case." Williams v. Taylor, 529 U.S. 362, 413 (2000). Nevertheless, "[a] federal

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h a b e as court may not issue the writ simply because that court concludes in its independent j u d g m e n t that the relevant state-court decision applied clearly established federal law e rro n e o u sly or incorrectly," rather "that application must also be unreasonable." 6 Id. at 411. A federal habeas court's inquiry "should ask whether the state court's application of clearly e sta b lis h e d law was objectively unreasonable." Id. at 410. In addition, findings of fact made b y the state court are presumed correct and may only be rebutted by clear and convincing ev iden ce . See 28 U.S.C. § 2254(e)(1); Crowe v. Hall, 490 F.3d 840, 844 (11th Cir. 2007). IV . D is c u s s io n

T h e evaluation of a prosecutor's gender-neutral explanation under Batson is a "pure issue of fact . . . peculiarly within the trial judge's province." McGahee v. Alabama Dep't o f Corr., 560 F.3d 1252, 1255 (11th Cir. 2009) (citing McNair, 416 F.3d at 1310). " T h e re f o re , a Batson claim at habeas is often analyzed under AEDPA § 2254(d)(2), and is o n ly granted `if it was unreasonable to credit the prosecutor's race-neutral explanations.'" Id . at 1256 (citing Rice v. Collins, 546 U.S. 333, 338 (2006)). However, "[w]here the c o n c ern is that a state court failed to follow Batson's three steps, the analysis should be under A E D P A § 2254(d)(1), which requires the federal court find that the state court rendered a d e c is io n that was `contrary to, or involved an unreasonable application of, clearly established f e d e ra l law.'" Id. In J.E.B. v. Alabama, ex rel. T.B., 511 U.S. 127, 146 (1994), the United States One authority defines "unreasonable" as "[n]ot guided by reason; irrational or capricious." BLACK'S LAW DICTIONARY 1537 (7th ed. 1999). 10
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Supreme Court established that, "the Equal Protection Clause prohibits discrimination in jury se lec tio n on the basis of gender." Thus, the three-step analysis employed under Batson is a p p lic a b le to peremptory challenges based on gender. See Trawick v. Allen, 520 F.3d 1264, 1 2 6 6 (11th Cir. 2008). The Eleventh Circuit has explained: A s with a claim of racial discrimination, a party making a J.E.B. challenge b e a rs the burden of proving a prima facie case of gender discrimination by s h o w in g "`that the totality of the relevant facts gives rise to an inference of d isc rim in a to ry purpose.'" Johnson v. California, 545 U.S. 162, 168, 125 S. Ct. 2 4 1 0 , 162 L. Ed. 2d 129 (2005) (quoting Batson, 476 U.S. at 93-94); see also J .E .B ., 511 U.S. at 144-45. Once a party establishes a prima facie case of g e n d e r discrimination, the burden shifts to the prosecutor to offer g e n d er-n eu tral explanations which are not pretextual for the challenged strikes. J .E .B ., 511 U.S. at 144-45. The third step in the Batson/J.E.B. framework then re q u ire s the trial judge to decide whether the opponent of the strike has proven p u rp o s e f u l discrimination. Johnson, 545 U.S. at 168. Id . at 1266-67. In conducting the third step of the Batson analysis, courts must consider "all re lev a n t circumstances." See McGahee, 560 F.3d at 1260-61. Nevertheless, nothing in B a ts o n requires trial courts to explicitly state their findings as to each step. See id. at 1259 n .7 ("Although the trial judge did not explicitly find that the defendant had made out a prima f a c ie case of discrimination . . . `where the trial court requires the prosecution to explain its p e re m p to ry challenges without first finding the existence of a prima facie showing of d is c rim in a tio n , we may fairly conclude that the inquiry implied such a finding, and shifted th e burden of justification to the prosecutor.'"); Atwater, 451 F.3d at 807 (affording d e f ere n c e to state-court decision where the third step of the Batson analysis was "touched"). U ltim a tely, the burden of persuasion to demonstrate purposeful discrimination never shifts

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fro m the opponent of the strike. Purkett v. Elem, 514 U.S. 765, 768 (1995). T h e Court finds that the state appellate court did not unreasonably apply Batson in a f f irm in g Petitioner's conviction. Rather, the Third District Court of Appeals correctly a p p lie d the Batson/J.E.B. framework in evaluating the implicit findings of the trial judge and th e record. First, nothing in Batson requires trial courts to explicitly recite any magic words o r incantations. In McGahee, the Eleventh Circuit noted that the trial court's finding of a p r im a facie case under Batson was implicit in the court's inquiry of the prosecutor. 560 F.3d a t 1259 n.7. In Atwater, the Eleventh Circuit similarly determined that the state appellate c o u rt did not unreasonably apply Batson where the trial judge engaged in "some evaluation" o f the prosecutor's reasons and "the third step of the Batson analysis was touched," despite th e trial judge failing to make an explicit finding as to whether purposeful discrimination was s h o w n . 451 F.3d at 807. In this case, the Third District Court of Appeals, stressing the need to avoid elevating form over substance, determined that based upon the State's proffered r e a so n s (Soule's questions about the death penalty and demeanor, as well as his response re g a rd in g the credibility of witnesses with felony convictions) and the "ensuing discussion w ith the Court," the trial court implicitly performed Batson's third step. Carrillo, 962 So.2d a t 1016. The record also supports this finding in that the trial court discussed the matter (" T h a t he muttered under his breath on the response to the death penalty being put on the ta b le . There wasn't any from him") and explicitly granted the State's peremptory challenge (" T h a t's the State's eighth"). Given the great deference afforded state court determinations

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u n d er § 2254, the Court cannot conclude that the state court's assessment that the trial court m a d e implicit Batson findings was objectively unreasonable. Second, the appellate court properly considered all of the relevant circumstances in e v a lu a tin g Petitioner's Batson's challenge.7 Specifically, the appellate court found that, " [ t]h e record demonstrates that the State sought to strike both women and men from the panel a n d that no other juror asked why the Defendant was not facing the death penalty." Carrillo, 9 6 2 So.2d at 1017. Soule's persistent questioning of the trial judge as to why the case did n o t involve the death penalty was a gender-neutral reason that did not equally apply to any u n c h a lle n g e d juror. Under Batson, the prosecutor's proffered reason "need not rise to the lev e l justifying exercise of a challenge for cause," and there was no evidence presented to in d ic a te that this reason was pretextual. 476 U.S. at 97. In response to the State's proffered re a so n s , Petitioner's counsel's principal contention was that the juror's questioning of the ju d g e was "legitimate." Additionally, the appellate court considered the fact that the State u s e d peremptory strikes against both groups. Id. at 1017. Ultimately, Petitioner shouldered th e burden of demonstrating purposeful discrimination and the appellate court concluded that b a se d on the record this burden was not met. Thus, the state appellate court's application of B a ts o n to the facts of this case was not objectively unreasonable. V. C o n c lu s io n

T h e state appellate court correctly identified the applicable federal law and did not act Even assuming the trial court failed to conduct the third step under Batson, the appellate court's application of Batson was not unreasonable. 13
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u n re a so n a b ly in determining that the trial judge implicitly performed the third step under B a ts o n . Additionally, the state appellate court's determination that Batson was not violated b ase d upon the State's proffered reasons which were unique to this juror and the State's p a tte rn of strikes, was not unreasonable. Accordingly, the Court finds the state court did not u n re a s o n a b ly apply federal law and it is hereby ORDERED AND ADJUDGED that: 1. C o n s is te n t with the analysis and supplemental findings made in this Order, the R e p o rt and Recommendation of Magistrate Judge Patrick A. White (D.E. 11) is ADOPTED; 2. The Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (D.E. 1 ) is DENIED; 3. T h is case is now CLOSED.

D O N E AND ORDERED in Chambers at Miami, Florida this 23rd day of July, 2010.

____ _ _ _ _ _ _ _ _ _ _ _ ____________________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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