United States District Court, S.D. Florida
ORDER ON MOTION TO VACATE JUDGMENT AND
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Petitioner Angel Lopez's
(“Petitioner”) Petition to Vacate Judgment and
Sentence pursuant to 28 U.S.C. § 2254, ECF No.  (the
“Petition”), challenging his judgment and
conviction entered in the Seventeenth Judicial Circuit Court
in Broward County, Florida. The Court has carefully
considered the Petition, all supporting and opposing filings,
the relevant authority, and is otherwise duly advised in the
premises. Because the Petition can be resolved on the basis
of the record, an evidentiary hearing is not warranted.
See Schriro v. Landrigan, 550 U.S. 465, 473-474
(2007) (explaining that if the record refutes the factual
allegations in the habeas petition or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing). For the reasons that follow, the
Petition is denied.
case stems from an incident that took place during the late
night hours of October 7, 2006, and into the early morning
hours of October 8, 2006. At around 11:30 p.m. on October 7,
2006, Petitioner and a group of his friends and family were
gathered in the parking lot of an arcade known as
“Boomers.” The group was getting ready to leave
the arcade when they were confronted by a group of several
young men, one of whom was Yahtavian Bellamy
(“Bellamy”). Bellamy and his group were in two
separate vehicles-a silver Mitsubishi and a green Buick. This
confrontation apparently stemmed from an earlier encounter
that took place between Petitioner and one of the individuals
in Bellamy's group. During the confrontation,
Bellamy's group circled Petitioner's group in their
two vehicles, and at least one of the vehicles swerved close
to Petitioner's group. Additionally, individuals in both
vehicles made insinuations to Petitioner's group that
they were carrying weapons.
group eventually left the parking lot area in their two
vehicles along a two-lane road adjacent to the parking lot.
Shortly thereafter, Petitioner's group left the parking
lot area-also in two vehicles-along the same road. Another
confrontation between the two groups then ensued. Individuals
in Petitioner's group, traveling in a black SUV, passed
both the Mitsubishi and the Buick, which was being driven by
Bellamy, by driving over the grass on the side of the road.
Petitioner, driving alone in a black Chevrolet Monte Carlo,
was following the black SUV a short distance behind. At this
point, Petitioner and Bellamy took turns swerving in front of
one another with their respective vehicles. The confrontation
finally came to an end when Petitioner, as Bellamy's
vehicle slowed down or came to a stop in front of him, pulled
up next to Bellamy in the left lane (heading in the wrong
direction of travel), rolled down his passenger-side window,
and fired a weapon he was carrying at the time thirteen to
fourteen times at Bellamy's vehicle, hitting Bellamy in
both of his legs. Petitioner then drove off as Bellamy
pulled over to the side of the road and fell out of his
vehicle. Soon thereafter, Petitioner was arrested a short
distance away by a police officer responding to the incident.
was subsequently charged by information with aggravated
battery with a firearm (Count I) and discharging a firearm
from a vehicle (Count II) in case number 06-cf- 17913. ECF
No. [1-2] at 3. A jury found Petitioner guilty on both
counts. Id. at 5. In accordance with the verdict,
the trial court judge sentenced Petitioner to twenty years
imprisonment on Count I and five years imprisonment on Count
II, running consecutive to the sentence imposed on Count I,
for a total sentence of twenty-five years imprisonment.
See id at 7-12.
through counsel, pursued a direct appeal raising three
grounds for relief: (1) the trial court erred in denying
defense counsel's request to use a peremptory challenge
on a black juror; (2) the trial court erred in allowing the
victim to display his injuries to the jury over the
defense's objection; and (3) reversal for an evidentiary
hearing on ineffective assistance of counsel was warranted.
See id at 14-53. Upon review, the appellate court
affirmed, rejecting the first two grounds without discussion
and denying the third ground on the basis that, on direct
appeal, the ineffective assistance of counsel claim was not
properly raised. Id. at 55-56.
then filed a motion for post-conviction relief pursuant to
Florida Rule of Criminal Procedure 3.850, raising three
claims of ineffective assistance of counsel: (1) trial
counsel was ineffective for failing to appropriately convey a
ten-year plea offer to Petitioner; (2) trial counsel was
ineffective for “failing to develop and utilize the
defense of self defense”; and (3) trial counsel was
ineffective based on cumulative errors-namely, by failing to
conduct meaningful voir dire, relying upon an
“invalid” defense of diminished capacity, and
relying upon insanity as an affirmative defense. See
Id. at 59-79. The State filed a response brief. See
Id. at 82-87. The post-conviction court summarily denied
the Rule 3.850 motion, adopting the reasoning set forth in
the State's response brief. Id. at 81.
appealed the post-conviction court's decision. See
Id. at 104. The appellate court reversed and remanded
for an evidentiary hearing on Petitioner's first
claim-that trial counsel failed to appropriately convey to
him a ten-year plea offer-and affirmed without discussion the
post-conviction court's decision with respect to
Petitioner's second and third claims. Id. at
104-05. The post-conviction court held the evidentiary
hearing on December 4, 2013, and thereafter denied
Petitioner's first claim. Id. at 107.
appealed the post-conviction court's decision, which the
appellate court affirmed per curiam in an opinion
issued on February 25, 2016. Id. at 109. Petitioner
then filed the instant federal habeas Petition on December 1,
2016. ECF No. .
APPLICABLE § 2254 LAW
Deferential Review under AEDPA
Petitioner filed his Petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996), this Court's review of the Petition is governed
by post-AEDPA laws. See Abdul-Kabir v. Quarterman,
550 U.S. 233, 246 (2007); Penry v. Johnson, 532 U.S.
782, 792 (2001); Davis v. Jones, 506 F.3d 1325,
1331, n.9 (11th Cir. 2007).
the governing standard of review, habeas relief may not be
granted with respect to a claim adjudicated on the merits in
state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d). “This is a difficult to
meet and highly deferential standard for evaluating
state-court rulings, which demands that the state-court
decisions be given the benefit of the doubt.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(internal quotation marks and citations omitted); see
also Harrington v. Richter, 562 U.S. 86, 102 (2011)
(pointing out that “if [§ 2254(d)'s] standard
is difficult to meet, that is because it was meant to
respect to what constitutes an “adjudication on the
merits, ” both the Supreme Court and the Eleventh
Circuit employ broad interpretations. See Childers v.
Floyd, 642 F.3d 953, 967-68 (11th Cir. 2011). For
example, a state court's summary rejection of a claim,
even without explanation, qualifies as an adjudication on the
merits that warrants deference by a federal court. Id;
see also Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th
purposes of analyzing a state court's adjudication of a
claim on the merits within the purview of “clearly
established federal law, ” “[a] legal principle
is ‘clearly established' within the meaning of
[§ 2254(d)] only when it is embodied in a holding of
[the United States Supreme] Court.” Thaler v.
Haynes, 559 U.S. 43, 47 (2010); see also Carey v.
Musladin, 549 U.S. 70, 74 (2006) (citing Williams v.
Taylor, 529 U.S. 362, 412 (2000)) (recognizing
“[c]learly established federal law” consists of
the governing legal principles, rather than the dicta, set
forth in the decisions of the United States Supreme Court at
the time the state court issues its decision). “A state
court decision involves an unreasonable application of
federal law when it identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to
the facts of the petitioner's case, or when it
unreasonably extends, or unreasonably declines to extend, a
legal principle from Supreme Court case law to a new
context.” Ponticelli v. Sec'y, Fla. Dep't
of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012) (internal
quotation marks and citations omitted). The
“unreasonable application” inquiry requires a
federal habeas court to conduct the two-step analysis set
forth in Harrington: first, the habeas court
determines what arguments or theories support the state court
decision, and second, the habeas court must determine whether
“fair minded jurists could disagree that those
arguments or theories are inconsistent with the holding in a
prior” Supreme Court decision. 562 U.S. at 86
purposes of analyzing a state court's adjudication of a
claim on the merits in light of the evidence presented in the
state court proceeding, whether a court errs in determining
facts “is even more deferential than under a clearly
erroneous standard of review.” Stephens v.
Hall, 407 F.3d 1195, 1201 (11th Cir. 2005). A habeas
court presumes the findings of fact to be correct, and the
petitioner bears the burden of rebutting that presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Ineffective Assistance of Counsel Claims
assistance of counsel claims are reviewed under the standards
established by 28 U.S.C. § 2254(d). Newland v.
Hall, 527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA,
the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984), remains applicable to the claims of
ineffective assistance of counsel raised in this case.
See Newland, 527 F.3d at 1184.
Strickland, the Supreme Court established a two-part
test to determine whether a convicted person is entitled to
habeas relief on the grounds that his or her counsel rendered
ineffective assistance: (1) whether counsel's
representation was deficient-i.e., the representation
“fell below an objective standard of
reasonableness” “under prevailing professional
norms”- which requires a showing that “counsel
made errors so serious that counsel was not functioning as
the ‘counsel' guaranteed the defendant by the Sixth
Amendment”; and (2) whether the deficient performance
prejudiced the defendant-i.e., there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different-which “requires showing that counsel's
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.” 466 U.S. at
688; see also Bobby v. Van Hook, 558 U.S. 4, 8
(2009); Cullen, 563 U.S. at 189. “A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. . . . [which] requires a
substantial, not just conceivable, likelihood of a different
result.” Cullen, 563 U.S. at 189 (internal
quotation marks and citations omitted). “A habeas
petitioner claiming ineffective assistance of counsel must
carry his burden on both Strickland prongs, and a
court need not address both prongs if the defendant has made
an insufficient showing on one.” Osley v. United
States, 751 F.3d 1214, 1222 (11th Cir. 2014) (citing
Strickland, 466 U.S. at 697, and Johnson v.
Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001)).
may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented, ” but
“the Federal Constitution imposes one general
requirement: that counsel make objectively reasonable
choices.” Van Hook, 558 U.S. at 9 (internal
quotation marks and citations omitted). The petitioner bears
the heavy burden to “prove, by a preponderance of the
evidence, that counsel's performance was
unreasonable.” Jones v. Campbell, 436 F.3d
1285, 1293 (11th Cir. 2006). A habeas court must “judge
the reasonableness of counsel's conduct on the facts of
the particular case, viewed as of the time of counsel's
conduct” and the judicial scrutiny applied “must
be highly deferential[.]” Roe v.
Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting
Strickland, 466 U.S. at 689-90). The habeas court
must adhere to a strong presumption that “counsel's
conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S.
at 689. An attorney is not ineffective for failing to raise
or preserve a meritless issue. Ladd v. Jones, 864
F.2d 108, 109-10 (11th Cir. 1989); United States v.
Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“[A]
lawyer's failure to preserve a meritless issue plainly
cannot prejudice a client.”). “To state the
obvious: the trial lawyers, in every case, could have done
something more or something different. So, omissions are
inevitable. But, the issue is not what is possible or
‘what is prudent or appropriate, but only what is
constitutionally compelled.'” Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000)
(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
Petition raises three grounds for relief. Grounds One and Two
present ineffective assistance of trial counsel claims, and
Ground Three presents a due process violation claim.
Respondent opposes relief on all three grounds. The Court
will address each of Petitioner's claims in turn.
claims that his trial counsel rendered ineffective assistance
by failing to develop and utilize the defense of self
defense, arguing that the record in his case “amply
supported self defense” in light of “substantial
evidence that [he] had a reasonable belief that deadly force
was necessary to prevent great bodily injury to
himself.” ECF No.  at 15, 21. In support, Petitioner
points to “several facts elicited by the defense [that]
established that [he] acted in self defense.”
Id. at 17. Specifically, according to Petitioner,
the record reflects that Bellamy, the victim, was the initial
aggressor. Id. (citing ECF No. [5-1] at 286,
301-02). The defense witnesses all testified that
Bellamy and his group “swerved” the two vehicles
they were in at the time very close to Petitioner and
Petitioner's group while Petitioner and Petitioner's
group were standing in the Boomers parking lot. Id.
(citing ECF No. [5-1] at 642). Shortly thereafter,
Bellamy's group returned to where Petitioner's group
stood in the parking lot and insinuated to Petitioner's
group that at least some of them had a weapon. Id.
at 18-19 (citing ECF No. [5-1] at 578-79, 611, 643, 716).
“The two cars the victim and his friends were in [then]
left the parking lot of Boomers only to continue to threaten
and harass [Petitioner] and his group by completely blocking
the exit road to them.” Id. at 19. Erica
Jayska (“Jayska”), one of the defense witnesses,
testified that upon attempting to exit the Boomers area in
her vehicle-the black SUV-with the rest of Plaintiff s group,
she was forced off the side of the exit road when
Bellamy's vehicle swerved to hit her. Id. at
19-20 (citing ECF No. [5-1] at 612). Petitioner had been
following behind Jayska alone in his vehicle and, moments
after Jayska passed Bellamy's vehicle, Jayska observed in
her rearview mirror Bellamy's vehicle swerving to hit
Petitioner's vehicle and Petitioner having difficulty
passing. Id. at 20 (citing ECF No. [5-1] at 615).
further argues that defense counsel's performance was
deficient not only in that defense counsel failed to develop
and utilize the defense of self defense, but also in that
counsel affirmatively disavowed the defense of self -defense.
Rather, defense counsel presented to the jury an insanity
defense that was without any support in the record. See
Id. at 23-24. In Petitioner's view, “[b]y
presenting a defense that was not viable and affirmatively
disavowing a defense amply supported by the record, counsel
ensured that no defense would work.” Id. at 24
contrast, Respondent contends that the facts of this case are
such that “this was a case that was virtually
indefensible.” ECF No.  at 18. Respondent further
asserts that defense counsel considered both self defense and
insanity as possible defenses, and that it was reasonable for
defense counsel to pursue the insanity defense-a decision
agreed to by Petitioner-which was ultimately based on the
testimony of an expert witness and Petitioner himself.
See Id. at 18-19. Such a strategy, Respondent
contends, “cannot be found to constitute ineffective
assistance of counsel[, ]” especially where “the
facts  do not support self defense[.]” Id.
at 22-23. As such, Respondent argues that Petitioner has
failed to demonstrate either deficient performance or
prejudice, and that the decisions of the State courts denying
Petitioner's ineffective assistance of counsel claim were
neither contrary to, nor an unreasonable application of,
clearly established federal law. See Id. at 18,
denying Petitioner relief on this ineffective assistance of
counsel claim, the postconviction court adopted the reasoning
set forth in the State's response brief. See ECF
No. [1-2] at 81-87. The State argued in its response brief,
in relevant part:
The State would note Defendant is correct the evidence from
the State and Defense witnesses did not support a case for
insanity. However, the State would argue the evidence also
did not present a case for self defense . . . .
The transcripts reflect all of the witnesses testified the
victim and his group were in their cars in close proximity to
Defendant and his group. At one point, the victim may have
confronted Defendant . . . . The witnesses for the Defendant
claimed the victim and his group alluded to having some sort
of weapon . . . . The confrontation ended, the victim and
his group departed the area in which Defendant and his group
were located and they were no longer a threat.
The testimony of the witnesses further established the
shooting occurred on a roadway in close proximity to the
initial encounter between the groups after the victim, who
was in his own vehicle, and his friend in another vehicle
blocked both lanes of traffic on that road. There is no
evidence Defendant had to act in self defense . . . at
the moment of the shooting. A dispute in the testimony
was whether the victim simply blocked the road or if he
swerved his vehicle, which could have resulted in a collision
with Defendant's vehicle. However, there is no evidence
Defendant or anyone else was in harm's way . . . .
Further, the State would argue the transcripts reflect
Defendant agreed with the way in which counsel would present
his case . . . [and that] Defendant even took the stand and
testified consistently with this defense.
There is no evidence of any prejudice which resulted to the
outcome of Defendant's case because the defense, as
presented by Defendant through his own testimony, was
consistent with what counsel represented to the Court.
Defendant cannot blame counsel for presenting his case in
this way especially since he ...