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Jose M. Rafael v. Secretary

November 9, 2011

JOSE M. RAFAEL, PETITIONER,
v.
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENTS.*FN1



OPINION AND ORDER

I. Status

Petitioner Jose Rafael (hereinafter "Petitioner" or "Rafael") initiated this action by filing a pro se Petition for Writ of Habeas Corpus ("Petition," Doc. #1) pursuant to 28 U.S.C. § 2254 and memorandum of law ("Memorandum," Doc. #2) on June 19, 2010.*fn2

The Petition challenges Petitioner's December 2, 2005 judgment of conviction for trafficking in heroin, 28 grams or more, which was entered in the Twentieth Judicial Circuit, Lee County, Florida (case number 04-001054CF). Petition at 1.*fn3

Respondent filed a Response to the Petition (Doc. #13, Response). Respondent moves for summary judgment based upon Petitioner's failure to raise a federal constitutional issue, or failure to satisfy his burden under 28 U.S.C. § 2254(d) and (e). Respondent filed exhibits (Exhs. 1-31) in support of his Response, including the record on direct appeal (Exh. 1). Petitioner filed a Reply (Doc. #14, Reply) to the Response and a supporting "points and authorities" (Doc. #15) on January 27, 2011.

On June 29, 2011, Petitioner filed a motion to expand the record and incorporated a motion for an evidentiary hearing. Pursuant to the Court's Order (Doc. #19, Motion), Respondent filed a Response (Doc. #21, Response) opposing the Motion on July 20, 2011. Petitioner filed a Reply (Doc. #22), without first seeking leave from the Court.*fn4 Prior to turning to the merits of the Petition, the Court will address Petitioner's motion to expand the record.

In the June 29 Motion, Petitioner requests that the Court expand the record to include a copy of the transcript from the trial court's pre-trial hearing held on February 24, 2005, a copy of which Petitioner does not attach to his Motion. See Motion; docket history. Petitioner submits that Respondent's exhibits do not include a copy of this Brady hearing. Id. at 2. Petitioner claims that the Court needs a copy of this transcript to review his claim discussed in his Reply. Id. Petitioner further requests that the Court hold an evidentiary hearing to determine the merits of his Petition. Id.

Respondent opposes Petitioner's Motion in its entirety, noting that the Petition does not make any reference to the February 24, 2005 hearing. Response at 1. Instead, Respondent notes that Petitioner's ineffective assistance of appellate counsel claim based on the failure to raise the denial of the motion to suppress on direct appeal refers to testimony and evidence taken on March 10, 2005, November 30, 2005, and February 4, 2005. Nowhere does the Petition refer to testimony and evidence from the February 24, 2005 hearing. Further, Respondent submits that the transcript of the February 24, 2005 hearing was not included in the record of appeal. Id. at 1-2. Therefore, Respondent argues that Petitioner is barred from seeking to introduce new evidence that was not before the State court reviewing his claim. Id. at 2. Respondent further submits that Petitioner is not entitled to a federal evidentiary hearing. Id. The Court will deny Petitioner's Motion.

Rules 7(a) of the Rules Governing Section 2254 Cases concerns expansion of the record. Rule 7(a) states:

If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition. The judge may require that these materials be authenticated.

Id. (emphasis added). Thus, if the District Court determines from the record that it cannot summarily rule on the Petition, then the Court may direct that the record be expanded.

To the extent that a petitioner seeks to supplement the record with new evidence, a petitioner must comply with the statutory requirements applicable to requests for an evidentiary hearing under 28 U.S.C. § 2254(e)(2)(A). Ward v. Hall, 592 F.3d 1144, 1162-63 (11th Cir. 2010). Thus, a petitioner must demonstrate either that his claim relies on a retroactive rule of constitutional law, or that the factual predicate of his claim could not have been discovered through the exercise of due diligence. Id.

Petitioner seeks to expand the record to include a copy of the transcript from the pre-trial hearing held on February 24, 2005 concerning a Brady violation, but the Petition does not raise a claim that relies on this record. Petitioner's claims include appellate counsel's ineffective assistance for failing to argue that the trial court erred in denying his motion to suppress and a due process violation stemming from the post-conviction court not allowing Petitioner to file an amended post-conviction motion. Thus, the February 24, 2005 hearing is unrelated to the grounds raised in the Petition and will not assist the court in ruling on these claims. Significantly, a copy of this part of the transcript was not before any of the post-conviction courts when reviewing Petitioner's claims for post-conviction relief. The Court has a copy of the pre-trial transcript of the motion to suppress hearing held on March 10, 2005. Exh. 3. Therefore, Petitioner's Motion to Expand the Record to include a copy of the February 25, 2005 pre-trial hearing is denied.

This Court has carefully reviewed the record and, for the reasons set forth below, concludes no evidentiary proceedings are required in this Court. Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 1939-40 (2007). Petitioner does not proffer any evidence that would require an evidentiary hearing, Chandler v. McDonough, 471 F.3d 1360 (11th Cir. 2006), and the Court finds that the pertinent facts of the case are fully developed in the record before the Court. Schriro, 550 U.S. at 474. The Court now turns to the merits of the Petition.

II. Procedural History

Information and Trial*fn5 On May 7, 2004, the State filed an Information charging Petitioner and his co-defendant, German Gustavo Franco, with one count of Trafficking in Heroin, 28 Grams or More. Exh. 1, Vol. I at 1-2. On December 1, 2005, the case proceeded to trial before Circuit Judge Frederick Hardt. Petitioner was represented at trial by private counsel, Rebecca M. Hodge and Michael Schneider. The jury returned a verdict finding Petitioner guilty as charged. Exh. 1, Vol. 4 at 543. On December 2, 2005, the court adjudicated Petitioner guilty and sentenced him to twenty-five years in prison. Exh. 1, Vol. 1 at 3-14.

Motion to Suppress

Prior to trial, on January 19, 2005, Petitioner's attorney filed a motion to suppress the drugs found based on an unlawful search and seizure. Exh. 2. An evidentiary hearing was conducted by the trial court on March 10, 2005. Exh. 3. After considering the testimony of the witnesses and other evidence, the court took the matter under advisement. On April 7, 2005, the court issued a written order denying Petitioner's motion to suppress. Exh. 4. The court concluded that the traffic officers had probable cause to stop Petitioner's vehicle and that under all of the circumstances the subsequent detention of Petitioner prior to the alert by the drug dog was not unreasonable. In addition, the court found that the drugs would have been found under the inevitable discovery doctrine. Id.

Direct Appeal

Petitioner, through counsel, pursued a direct appeal raising three issues: (1) the trial court erred in instructing the jury that it could not consider the sentence given to Carlos Lopez, the confidential informant; (2) the trial court erred in not conducting a Richardson hearing as to the failure to disclose the results of the fingerprint comparison; and (3) the trial court erred in not granting appellant's motion for judgment of acquittal. Exh. 5. The State filed an answer brief. Exh. 6. On December 15, 2006, the appellate court per curiam affirmed Petitioner's conviction and sentence. Exh. 7; Rafael v. State, 944 So. 2d 993 (Fla. 2d DCA 2006)[table]. The mandate was issued on January 8, 2007.

Rule 3.850 Motions

On January 8, 2008, Petitioner filed a pro se motion for post-conviction relief pursuant to Rule 3.850. Exh. 9.*fn6 Petitioner raised one claim of ineffective assistance of trial counsel stemming from counsel's failure to allege a discovery violation and for not attempting to obtain missing discovery items that were critical to the defense.

On January 30, 2008, the post-conviction court entered an order dismissing Petitioner's Rule 3.850 motion on the basis that Petitioner failed to allege any supporting facts to specify how Petitioner was prejudiced or how the outcome would have been different, as required by the two-prong test of Strickland v. Washington. Exh. 10.

On February 20, 2008, Petitioner's attorney filed a photocopy of the original Rule 3.850 Motion, with a memorandum in support. Exh. 11. On February 24, 2008,*fn7 the trial court issued an order denying the duplicate motion as successive. Exh. 12. Petitioner appealed the orders. Different appellate case numbers were assigned, but the cases progressed together. Exh. 14. On September 24, 2008, the appellate court per curiam affirmed the trial court's February 24, 2008 order of denial. Exh. 15; Rafeal v. State, 993 So. 2d 527 (Fla. 2d DCA 2008)[table]. Petitioner filed a motion for rehearing, which the appellate court denied on October 21, 2008. Exh. 16, Exh. 17. The court issued mandate on November 7, 2008. Exh. 18.

Petition Alleging Ineffective Assistance of Appellate Counsel

On July 24, 2008, while Petitioner's Rule 3.850 Motion was pending, Petitioner filed a pro se petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. Exh. 19. The sole claim raised in the petition was that appellate counsel rendered ineffective assistance when he failed to brief the issue that the trial court erred in failing to suppress the narcotics discovered during the search of Petitioner's vehicle. Petitioner contended that law enforcement officers fabricated an excuse to effect the stop and search of his vehicle. Id.

On August 12, 2008, in case number 2D08-3721, the appellate court filed an order denying the petition for writ of habeas corpus without discussion. Exh. 12; Rafael v. State, 989 So. 2d 1193 (Fla. 2d DCA 2008)[table]. Petitioner filed a motion for rehearing. Exh. 21. The appellate court denied rehearing on September 16, 2008. Exh. 22.

Third Rule 3.850 Motion

On November 17, 2008, Petitioner, proceeding pro se, filed a third Rule 3.850 Motion. Exh. 23. Petitioner alleged twelve claims of ineffective assistance of trial counsel. Pursuant to the trial court's order to show cause, the State filed a response to Petitioner's Rule 3.850 Motion with attachments, arguing that the grounds were successive or constituted an abuse of the judicial process under Rule 3.850(f) and should be denied. Exh. 24. Petitioner filed a reply to the State's Response. Exh. 25.

On September 1, 2009, the post-conviction court entered an order denying, as procedurally-barred, Petitioner's third Rule 3.850 Motion. Exh. 26. The post-conviction court agreed with the State that one ground (Ground 7) was successive, and the remaining eleven grounds were an abuse of procedure. The post-conviction court also stated in a footnote, that contrary to Petitioner's contentions that the post-conviction court did not give him an opportunity to amend his original motion pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), Petitioner filed a subsequent motion in an attempt to cure the deficiencies to no avail. Exh. 26 at 1, fn. 1.

Petitioner appealed the order denying relief. Exh. 27. Petitioner filed a pro se initial brief, claiming the trial court erred under state law by denying his post-conviction motions without leave to amend. Exh. 28. The State was not required to file a brief in response. Exh. 29.

On March 3, 2010, in Case Number 2D09-4604, the appellate court per curiam affirmed the post-conviction court's order denying Petitioner's third Rule 3.850 Motion. Exh. 30, Rafael v. State, 29 So. 3d 303 (Fla. 2d DCA ...


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