United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on a petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 by a Florida
state prisoner, Carmelo Andino Sanchez
(“Petitioner”), (Dkt. 1), with a supporting
memorandum of law (Dkt. 8). Respondent, Secretary of the
Florida Department of Corrections, filed a response in
opposition to the petition (Dkt. 10), which is accompanied by
the appendix record of Petitioner's state court
proceedings (Dkt. 11). Petitioner filed a reply to the response
(Dkt. 14). Having carefully considered the parties'
submissions, the Court finds that the petition for writ of
habeas corpus is due to be denied.
April 16, 2009, Petitioner pleaded no contest in the
Thirteenth Judicial Circuit Court in Hillsborough County,
Florida, to home invasion robbery, carrying a concealed
weapon, possession of cocaine, and obstructing an officer
without violence. (Exhibit (“Ex.”) 4B, C, E, F).
In a separate case, he also pleaded to armed burglary with
assault or battery, and two counts of armed robbery.
(Id.). He faced life imprisonment on the burglary
charge and 30 years in prison on the home invasion robbery
charges alone. (Ex. 4L). The judgments and sentences were
filed on July 6, 2009. (Ex. 4C, F). Then, Petitioner was
resentenced on Sept. 14, 2009, after a mitigation motion.
(Ex. 4D, F). On that date, he received a sentence of 20 years
in prison followed by 10 years of probation. (Id.).
Petitioner did not file a direct appeal. (Ex. 4A, p.2).
3, 2010, Petitioner filed a motion to correct illegal
sentence, pursuant to Rule 3.800(a), Florida Rules of
Criminal Procedure, and then filed two supplemental motions.
(Exs. 2, 3, 5, 6). He raised four grounds for relief: 1) the
use and consideration of a BB gun as a weapon resulted in an
illegal sentence; 2) the offenses were incorrectly scored; 3)
the offenses violate section 921.002, Florida Statutes, and
Apprendi and Blakely; and 4)
ineffective assistance due to failure to present mitigating
circumstances at sentencing, including medical evidence of
Defendant's health ailments. (Ex. 6A, 4A).
trial court initially dismissed Petitioner's fourth
ground with leave to amend. (Ex. 6). Petitioner then filed an
amended claim. (Ex. 7). On April 2, 2012, the trial court
ordered the State to respond to all claims (Ex.8), and on
July 11, 2012, the State did so (Ex. 4G). On June 25, 2013,
the trial court issued its final order summarily denying all
of the claims without an evidentiary hearing. (Ex. 4A).
filed a notice of appeal. (Ex. 9). On appeal, he filed an
initial brief (Ex.14) and the State did not file an answer
brief, as it was a summary appeal. (Ex. 12). On March 28,
2014, the Second District Court of Appeal affirmed with a
per curiam opinion. (Ex. 11). The mandate was issued
April 24, 2014. (Ex. 10).
AEDPA Standard of Review
timely filed the instant petition for writ of habeas corpus.
(See Dkt. 10, p. 3, ¶ 3). The petition is
governed by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) effective April 24, 1996. See Lindh
v. Murphy, 521 U.S. 320, 336 (1997). Section 104 of the
AEDPA amended 28 U.S.C. § 2254 by adding the following
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings 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.
2254, as amended by the AEDPA, establishes a highly
deferential standard for reviewing state court judgments.
Parker v. Secretary, Dep't of Corr., 331 F.3d
764 (11th Cir. 2003) (citing Robinson v. Moore, 300
F.3d 1320, 1342 (11th Cir. 2002)). Petitioner filed his
petition for writ of habeas corpus after the enactment of the
AEDPA and, thus, section 104 applies to his petition.
under section 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the
merits. Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a
decision that was contrary to, or “involved” an
unreasonable application of, established law. This language
requires an examination of the state court decision at the
time it was made. It follows that the record under review is
limited to the record in existence at that same time,
i.e., the record before the state court. Cullen
v. Pinholster, 131 S.Ct. 1388, 1398-1401 (2011). In
addition, section 2254(e)(1) “provides for a highly
deferential standard of review for factual determinations
made by a state court.” Robinson, 300 F.3d at
1342. The federal court will presume the correctness of state
court findings of fact, unless the petitioner is able to
rebut that presumption by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1). Having carefully