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Tiszai v. United States

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

January 5, 2018

JASON ALLEN TISZAI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JOHN ANTOON II UNITED STATES DISTRICT JUDGE

         This cause is before the Court on Petitioner Jason Allen Tiszai's Petition for Writ of Habeas Corpus (Doc. 1) filed pursuant to Title 28 United States Code Section 2254. Respondents filed a response to the Petition and Appendix of exhibits (Docs. 16, 20) in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner filed a reply to the response. (Doc. 23). For the reasons set forth below, the petition is denied.

         I. PROCEDURAL HISTORY

         On May 13, 2008, Petitioner was charged by Indictment with first degree murder (Count One), burglary of a dwelling with assault or battery (Count Two), and grand theft of a motor vehicle (Count Three). (Doc. 20 Ex. 1 at 6-9). Petitioner was arraigned on March 6, 2009, and waived any time periods. (Id. at 11). In April of 2009, the trial court determined that the effective date for application of the Interstate Agreement on Detainers was October 30, 2008, and calculated the expiration of the 180-day period under the IAD as that day, April 28, 2009. (Id. at 17). Petitioner filed a notice of expiration of speedy trial on April 29, 2009, which the Court found well-taken, and the trial began on May 5, 2009. (Doc. 20 Ex. 1 at 38-39, 42, 46). The jury found Petitioner guilty of first degree murder, burglary of a dwelling with assault or battery, and grand theft of a motor vehicle, and Petitioner was sentenced to the following terms: natural life on Count One, twenty-five years on Count Two (consecutive to Count One), and five years on Count Three (concurrent with Count Two). (Doc. 20 Ex. 3 at 2-4, 6-9).

         Petitioner appealed his judgment and sentence, and the Florida Fifth District Court of Appeal per curiam affirmed. (Doc. 20 Ex. 4 at 2-36, 92). He then filed a motion for rehearing, which was denied. (Id. at 94-95, 97, 99). While the motion for rehearing was pending, he petitioned the Florida Supreme Court for review. (Id. at 101-02). The Florida Supreme Court dismissed the petition for lack of jurisdiction. (Id. at 108). He then filed a motion for postconviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which, as amended, raised fifteen claims. (Doc. 20 Ex. 5 at 2-53). Grounds one through six and eight through fifteen were denied, and ground seven was denied after an evidentiary hearing. (Id. at 76-89; Ex. 6 at 2-28, 30-36). Petitioner subsequently filed a petition for writ of prohibition, which was denied (Doc. 20 Ex. 6 at 81-83; Ex. 7 at 2), and, on request, was permitted a belated appeal of his Rule 3.850 motion. (Doc. 20 Ex. 7 at 4-11, 13). The Florida Fifth District Court of Appeal per curiam affirmed the trial court's denial of Petitioner's Rule 3.850 motion. (Doc. 20 Ex. 8 at 61, 63).

         Petitioner then filed the instant Section 2254 petition for writ of habeas corpus, [1] alleging the following thirteen claims for relief:

GROUND ONE: "Trial Court erred in denying motion for judgment of acquittal on the charge of burglary with an assault or battery and in sentencing him on that charge where the evidence was insufficient to support a conviction." (Doc. 1 at 5).
GROUND TWO: "Appellant is entitled to relief where his failure to comply with the notice requirement of the Interstate Agreement on Detainers Act (IADA) was the result of government negligence in failing t[o] inform of his rights under the Act." (Id. at 7).
GROUND THREE: "Trial Court erred by committing Fundamental error by instructing the jury to convict Appellant of a charge neither included in the indictment nor designated as a lesser included offense to that of indictment." (Id. at 8).
GROUND FOUR: "Prosecutor committed flagrant misconduct during his closing arguments with impermissible arguments." (Id. at 10).
GROUND FIVE: "Counsel was ineffective for failing to object during prosecutor's highly prejudicial arguments." (Id. at 12).
GROUND SIX: "Prosecutor, during closing arguments[, ] committed [i]nexcusable fundamental error by misrepresenting material evidence and making arguments not based on facts in evidence or reasonable inferences that can be drawn therefrom." (Id. at 13).
GROUND SEVEN: "Failure to object to the State's misrepresentation of material evidence and highly prejudicial closing arguments, which had been a decisive factor injury's verdict, constituted [ineffective assistance of counsel]. "(Id. at 15).
GROUND EIGHT: Trial Counsel was ineffective for her failure to request a viable self-defense jury instruction and erroneously advising [Petitioner] to waive such instruction." (Id. at 16).
GROUND NINE: "Trial Counsel's failure to request an evidentiary hearing to determine the probative value of fewer gruesome autopsy photos, where a limited number would have been sufficient for the state's case." (/<sf. at 18).
GROUND TEN: "Trial Counsel's failure to petition and/or obtain psychological examination to determine [Petitioner's] criminal liability at time of crime-when sanity was an issue presented by the defense- constituted [ineffective assistance of counsel]." (Id. at 19).
GROUND ELEVEN: "Trial Counsel's failure to object to the jurors being instructed on Felony murder where it was excluded-failing to include the essential elements of crime, statutory language[, ] or citations-from indictment, clearly constituted [ineffective assistance of counsel]." (Id. at 20).
GROUND TWELVE: "Trial Court erred instructing jurors on a charge not included in Defendant's indictment, therefore constituting a 5th Amendment and 14th Amendment violation (due process violation)." (Id. at 21).
GROUND THIRTEEN: "[Petitioner's] 14th Amendment [] Right to due process [] was violated by being convicted of a charge not sufficiently proved through the evidence produced by the State. (Freedom from a wholly arbitrary deprivation of liberty)." (Id. at 22).

         The Court will address related grounds together.

         II. LEGAL STANDARDS

         A. Habeas Relief Under the Antiterrorism Effective Death Penalty Act (AEDPA).

         AEDPA's standard for habeas relief is clear and unambiguous: relief cannot be granted with respect to a claim adjudicated on the merits in a state court unless the adjudication "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." 28 U.S.C. § 2254(d)(1). AEDPA thus provides two avenues for relief: one based on a determination that the outcome was itself contrary to clearly established federal law; the other based on a determination that the outcome was infected by an unreasonable application of such law to the facts. As the Supreme Court explained:

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Regardless of the avenue taken, however, a prisoner "must show that the state court's ruling on the claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).

         B. Ineffective Assistance of Counsel

         The standard for relief based on ineffective assistance of counsel is also clear and unambiguous: a person is entitled to relief only when counsel's conduct fell below an objective standard of reasonableness and, in addition, there is a reasonable probability that the outcome would have been different if counsel had acted reasonably (i.e., that the departure from objective reasonableness prejudiced the case and, by extension, the client). Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In evaluating counsel's performance, courts apply a "strong presumption" that the representation "fell within the 'wide range' of reasonable professional assistance." Harrington, 562 U.S. at 104. As the Eleventh Circuit explained:

[The test for ineffective assistance] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). It is therefore not an understatement to say that "[s]urmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U.S. 356, 371 (2010).

         C. AEDPA's "Unreasonable Application" Standard and Ineffective Assistance of Counsel Claims

         A state court's application of Strickland to a post-conviction claim of ineffective assistance of counsel is subject to review in a habeas proceeding. But establishing that a state court's application of Strickland was unreasonable for purposes of AEDPA is especially difficult. As the Supreme Court explained:

The standards created by Strickland and [Section] 2254(d) are both "highly deferential" and when the two apply in tandem, review is "doubly so." The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When §2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105 (emphasis added). More to the point:

The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of [Section] 2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Id. at 101 (citation omitted).

         III. ANALYSIS

         A. Ground One

         Petitioner contends that, in violation of his constitutional right to due process, the state trial court erred in denying his motion for judgment of acquittal on the charge of burglary with assault or battery. (Doc. 1 at 5). Petitioner states that evidence at trial demonstrated that he rented a room in the dwelling at issue and was employed by the homeowner, he had his own key to the dwelling, he had travelled out of state but was expected to return, the bedroom he rented still contained his personal property, and there was no forced entry. (Id.). He also asserts that there was no evidence of a physical altercation within the dwelling and that the State failed to prove the essential elements[2] of the crime. (Id.). Petitioner argues that "there was no legal eviction notice nor an injunction between [himself] and the victim. There was no evidence of forced entry" and the State did not present "evidence that his permission to remain therein was ever withdrawn, " that he "remained therein to attempt... a forcible felony, " that he was asked to move out, or that he intended to steal the victim's car. (Doc. 23 at 3).

         Petitioner raised this argument as issue one in his direct appeal (Doc. 20 Ex. 4 at 16-20) and issue eight in his Rule 3.850 motion. (Doc. 20 Ex. 5 at 31, 36). However, as Respondents contend, Petitioner did not allege a violation of his constitutional rights.

         The AEDPA provides, in pertinent part:

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 unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1).

         In order to satisfy the exhaustion requirement, a state petitioner must "fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Conner, 404 U.S. 270, 275-76 (1971)). See also O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). The petitioner must apprise the state court of the federal constitutional issue, not just the underlying facts of the claim or a similar state law claim. See Henderson v. Campbell, 353 F.3d 880, 898 n.25 (11th Cir. 2003) ("Both the legal theory and the facts on which the federal claim rests must be substantially the same for it to be the substantial equivalent of the properly exhausted claim.").

         In both his direct appeal and his Rule 3.850 motion for post-conviction relief, Petitioner challenged the sufficiency of the evidence but did not argue that his constitutional rights were violated in any way; further, he cited only state, rather than federal, case law.[3] (Doc. 20 Ex. 4 at 16-20; Doc. 20 Ex. 5 at 31, 36). See Baldwin v. Reese, 541 U.S. 27, 32 (2OO4)("A litigant... can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing ... the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim 'federal.' "). Because nothing in Petitioner's state court appeal or Rule 3.850 motion presented the federal nature of his claims to the state appellate court, Petitioner failed to exhaust Ground One, and Ground One is denied.

         B. Ground Two

         Petitioner contends that his rights under the Interstate Agreement on Detainers ["IAD"] were violated, entitling him to discharge.

         Among other things, he explains that, while incarcerated to serve a state prison sentence in Michigan, "Orange County, Florida[, ] placed a detainer against him for murder." (Doc. 1 at 7). He "became aware by a prison law clerk that he could invoke Article 3 of the IAD[]" and "followed [Michigan Department of Corrections'] policy and procedure by contacting prison authorities of his wish to invoke Article 3 ... his efforts were disregarded with responses instructing him that 'he' could invoke it himself by contacting the 'Clerk of Court' and/or the 'Law Enforcement Agency' who lodged the detainer." (Id.). He then "exercised due diligence and contacted both the Orange County Sheriffs Dep[artment] and Orange County Circuit Court Clerk-the latter responding there was no case pending.[4] Petitioner continued efforts and eventually caused the courts to respond." (Id.).

         Ultimately, Petitioner sent a letter to the Orange County Sheriff on October 13, 2008, "asking why a detainer was placed on him if there were not pending charges against him, per the response of the court clerk." (Doc. 23 at 5). The Orange County Sheriff forwarded the letter "to the court clerk, who then forwarded it to Judge Marc Lubet, who subsequently forwarded it to the state attorney." (Doc. 23 at 5-6). Petitioner states that, "[d]uring pretrial hearings[, ] [he] presented return mail receipts showing that his 180 days under the IAD[] Article 3 had expired." (Doc. 1 at 7). But, his pro se notice of expiration was stricken, [5] and he "argued for dismissal with prejudice-which was denied on the grounds that [he] never served a copy [on the] State attorney's office." (Id.).

         Petitioner contends that "the burden of compliance [does not] fall on [the] prisoner[], but is governed by law that prison officials [from the sending state] are responsible, " and that the Michigan Department of Corrections' "failure to comply deprived Petitioner of the securities of the IAD[]-Article 3." (Doc. 1 at 7).[6] He raised this claim as issue three on direct appeal and the state appellate court affirmed his convictions and sentences per curiam. (Doc. 20 Ex. 4 at 3, 16, 23-29; Doc. 20 Ex. 4 at 92).

         The IAD, codified at Section 941.45, Florida Statutes, "is a compact among 48 states, the District of Columbia, and the United States. . . . [It] establishes procedures by which one jurisdiction may obtain temporary custody of a prisoner incarcerated in another jurisdiction for the purpose of bringing that prisoner to trial." Cuyler v. Adams, 449 U.S. 433, 435 n. 1 (1981). "[T]he Detainer Agreement establishes procedures under which a prisoner may initiate his transfer to the receiving State and procedures that ensure protection of the prisoner's speedy trial rights." Id.

         Article III of the IAD provides, in pertinent part:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he or she shall be brought to trial within 180 days after the prisoner shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his or her imprisonment and the prisoner's request for a final disposition to be made of the indictment, information, or complaint[.]

IAD, art. Ill(a) (emphasis added).

         As an initial matter, violations of the IAD are not generally cognizable on federal habeas proceedings, absent a showing of prejudice. Seymore v. State of Ala., 846 F.2d 1355, 1359 (11th Cir. 1988). Although the IAD is considered a law of the United States,

not all violations of a "law[ ] of the United States" may be asserted in a habeas corpus proceeding. . . . "the appropriate inquiry [is] whether the claimed error of law [is] a fundamental defect which inherently results in a complete miscarriage of justice, and whether [i]t... present[s] exceptional circumstances where the need ...

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