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Ortega v. Florida Attorney General and Secretary

United States District Court, M.D. Florida, Ocala Division

December 5, 2017

Octavio Torres Ortega, Petitioner,
v.
Florida Attorney General and Secretary, DOC, Respondents.

          MEMORANDUM AND ORDER

          Paul A. Magnuson United States District Court Judge

         This 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.

         BACKGROUND

         On 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.)

         In 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.)

         Also in 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.)

         Ortega 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.)

         On 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.

         The 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.)

         DISCUSSION

         Under 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; or
(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 ...


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