United States District Court, M.D. Florida, Ocala Division
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2254. (Pet. (Docket No. 1).)
For the reasons that follow, the Petition is denied.
January 21, 2010, a Florida state-court jury convicted
Petitioner Octavio Torres Ortega of Sexual Battery on a child
under 12, and he was sentenced to life in prison without
parole. (App'x Exs. 1H, 1I.) Ortega appealed his
conviction and sentence, arguing that the trial court erred
by denying a motion for judgment of acquittal and admitting
the victim's hearsay statements into evidence because
there was insufficient evidence that they were reliable and
trustworthy. (App'x Ex. 2A at 11, 27.) The court of
appeals affirmed per curiam. Ortega v. State, 57
So.3d 857 (Fla. Dist. Ct. App. 2011) (table). Mandate issued
on April 12, 2011. (App'x Ex. 2D.)
2011, Ortega filed a petition for belated appeal under Fla.
R. App. P. 9.141. (App'x Ex. 5C at 1, 15.) The petition
alleged that appellate counsel was ineffective for failing to
preserve constitutional violations and to argue that the
trial court prejudiced Ortega's trial by admitting the
victim's videotaped testimony into evidence.
(Id. at 4, 11.) The court of appeals denied the
petition and Ortega's motion for rehearing. Ortega v.
State, 81 So.3d 427 (Fla. Dist. Ct. App. 2011) (table).
(App'x Ex. 5I.)
2011, Ortega filed a postconviction motion under Fla. R.
Crim. P. 3.850, raising seven grounds of ineffective
assistance of counsel. (App'x Ex. 3A at 18, 33.) Ortega
contended that trial counsel was ineffective for failing to
(1) call expert witnesses for the defense to rebut the
state's expert witnesses, (2) pursue a speedy trial
violation, (3) file a motion to suppress the victim's
videotaped testimony when the victim also testified at trial,
(4) file a motion to withdraw and appoint a Spanish-speaking
attorney, (5) communicate with Ortega from 2006 to 2010, (6)
object to the victim's mother's testimony that
impermissibly bolstered the victim's credibility, and (7)
object to Sergeant Timothy Fisher's testimony that
impermissibly bolstered the victim's credibility.
(Id. at 5-14.) The trial court denied his
postconviction motion. (App'x Ex. 3E at 19.) A motion for
rehearing was also denied. (App'x Ex. 3G at 1.)
appealed the denial of his postconviction motion.
Ortega's appeal seemed to argue that the trial court
erred in finding that trial counsel was not ineffective
because the State did not prove that his claims failed to
establish ineffective assistance of counsel. (App'x Ex.
4A.) The court of appeals affirmed per curiam. Ortega v.
State, 152 So.3d 578 (Fla. Dist. Ct. App. 2014) (table).
A motion for rehearing was also denied. (App'x Ex. 4D.)
Mandate issued on November 19, 2014. (App'x Ex. 4E.)
February 17, 2015, Ortega filed this Petition, raising ten
grounds for relief. The first ground argues that the
admission of the victim's hearsay statements into
evidence violated his federal due process rights because
there was insufficient evidence that the child's
statements were reliable and trustworthy. The second ground
contends that his federal due process rights were violated
because there was insufficient evidence to convict him. The
third ground alleges that appellate counsel was ineffective
for failing to argue on direct appeal that the trial court
prejudiced Ortega's trial by admitting the victim's
videotaped testimony into evidence. The remaining seven
grounds raise the same ineffective assistance of counsel
claims that Ortega raised in his state postconviction motion.
State argues that Ortega has not exhausted his state remedies
as to his first two claims, and that, to the extent that he
is claiming a violation of federal speedy trial rights in
ground five, such claim is unexhausted because he only argued
ineffective assistance of counsel on the speedy trial
violation before the trial court. (Resp. to Pet. (Docket No.
14) at 17-18, 32-35, 41-43.)
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2241 et seq., a
federal court's “review is greatly circumscribed
and is highly deferential to the state courts.”
Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir.
2002). Indeed, AEDPA “modified a federal habeas
court's role in reviewing state prisoner applications in
order to prevent federal habeas ‘retrials' and to
ensure that state-court convictions are given effect to the
extent possible under law.” Bell v. Cone, 535
U.S. 685, 693 (2002) (citation omitted). The AEDPA restricts
the Court's review to state-court judgments that:
(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). Further, § 2254 states that
“a determination of a factual issue made by a State
court shall be presumed to be correct.” Id.
§ 2254(e)(1). The burden is on the petitioner to
“rebut the presumption ...