United States District Court, M.D. Florida, Orlando Division
G. BYRON, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on a Petition for Writ of Habeas
Corpus filed pursuant to 28 U.S.C. § 2254 by Jorge
Nieves, Jr. (“Petitioner” or
“Nieves”). (Doc. 1, filed July 13, 2016). In
compliance with this Court's Order (Doc. 6), Respondents
filed a Response to the Petition. (Doc. 10). Nieves filed a
Reply (Doc. 15), and the Petition is ripe for review. For the
reasons set forth below, the Petition will be denied.
Background and Procedural History
March 14, 2012, Nieves was charged by information with one
count of second degree murder, in violation of Florida
Statute §§ 782.04(2) and 775.087(1). (Doc. 11-1 at
41). Prior to trial, Nieves filed a motion to suppress the
statements he made to the police. (Id. at 53). The
trial court held a hearing on Nieves' motion to suppress.
(Doc. 11-33 at 56). After the hearing, the trial court denied
the motion in a written order. (Doc. 11-2 at 11-13).
found Nieves guilty as charged with a separate finding that
he used a weapon during the commission of the crime. (Doc.
11-28 at 38). Nieves was sentenced to forty years in prison.
(Doc. 11-29 at 1-2). His conviction and sentence were
affirmed by Florida's Fifth District Court of Appeal
(“Fifth DCA”). (Doc. 11-35 at 37); Nieves v.
State, 162 So.3d 1037 (Fla. 5th DCA 2014).
August 28, 2015, Nieves filed a motion for post-conviction
relief pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure (“Rule 3.850 Motion”). (Doc.
11-35 at 40). The post-conviction court denied the motion in
a detailed written order. (Id. at 62). On appeal,
Nieves argued only that the post-conviction court erred by
failing to hold an evidentiary hearing on one of his issues,
and Florida's Fifth DCA affirmed per curiam.
(Doc. 11-37 at 15). Thereafter, Nieves filed a state petition
for writ of habeas corpus in Florida's First District
Court of Appeal. (Doc. 10 at 3). Nieves did not serve a copy
of the petition on the State. (Id.). The state court
dismissed the petition because it was unauthorized and filed
in the wrong court. (Doc. 11-37 at 33).
The Antiterrorism Effective Death Penalty Act
to the AEDPA, federal 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 standard is both mandatory and
difficult to meet. White v. Woodall, 134 S.Ct. 1697,
1702 (2014). Notably, a state court's violation of
state law is not sufficient to show that a
petitioner is in custody in violation of the
“Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254; Wilson v.
Corcoran, 562 U.S. 1, 16 (2010).
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 issued its decision. White, 134
S.Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74
(2006) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)). That said, the Supreme Court has also explained that
“the lack of a Supreme Court decision on nearly
identical facts does not by itself mean that there is no
clearly established federal law, since ‘a general
standard' from [the Supreme Court's] cases can supply
such law.” Marshall v. Rodgers, 133 S.Ct.
1446, 1449 (2013) (quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004)). State courts “must
reasonably apply the rules ‘squarely established'
by [the Supreme] Court's holdings to the facts of each
case.” White, 134 S.Ct. at 1706 (quoting
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).
there is clearly established federal law on point, habeas
relief is only appropriate if the state court decision was
“contrary to, or an unreasonable application of,
” that federal law. 29 U.S.C. § 2254(d)(1). A
decision is “contrary to” clearly established
federal law if the state court either: (1) applied a rule
that contradicts the governing law set forth by Supreme Court
case law; or (2) reached a different result from the Supreme
Court when faced with materially indistinguishable facts.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010);
Mitchell v. Esparza, 540 U.S. 12, 16 (2003).
court decision involves an “unreasonable
application” of the Supreme Court's precedents if
the state court correctly identifies the governing legal
principle, but applies it to the facts of the
petitioner's case in an objectively unreasonable manner,
Brown v. Payton, 544 U.S. 133, 134 (2005);
Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir.
2000), or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent to a
new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Bottoson, 234 F.3d at 531 (quoting
Williams, 529 U.S. at 406). The petitioner must show
that the state court's ruling was “so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White, 134 S.Ct. at
1702 (quoting Harrington v. Richter, 562 U.S. 86
(2011)). Moreover, “it is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.”
Knowles, 556 U.S. at 122.
even when the opinion of a lower state post-conviction court
contains flawed reasoning, the federal court must give the
last state court to adjudicate the prisoner's
claim on the merits “the benefit of the doubt.”
Wilson v. Warden, Ga. Diagnostic Prison, 834 F.3d
1227, 1235 (11th Cir. 2016), cert granted Wilson v.
Sellers, No. 16-6855, 137 S.Ct. 1203 (2017). A state
court's summary rejection of a claim, even without
explanation, qualifies as an adjudication on the merits which
warrants deference. Ferguson v. Culliver, 527 F.3d
1144, 1146 (11th Cir. 2008). Therefore, to determine which
theories could have supported the state appellate court's
decision, the federal habeas court may look to a state
post-conviction court's previous opinion as one example
of a reasonable application of law or determination of fact;
however, the federal court is not limited to assessing the
reasoning of the lower court. Wilson, 834 F.3d at
when reviewing a claim under § 2254(d), a federal court
must bear in mind that any “determination of a factual
issue made by a State court shall be presumed to be correct[,
]” and the petitioner bears “the burden of
rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. §
2254(e)(1); Burt v. Titlow, 134 S.Ct. 10,
15 (2013) (“[A] state-court factual determination is
not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first
instance.”) (quoting Wood v. Allen, 558 U.S.
290, 293 (2010)) .
Ineffective Assistance of Counsel
Strickland v. Washington, the Supreme Court
established a two-part test for determining whether a
convicted person is entitled to relief on the ground that his
counsel rendered ineffective assistance. 466 U.S. 668, 687-88
(1984). A petitioner must establish that counsel's
performance was deficient and fell below an objective
standard of reasonableness and that the deficient performance
prejudiced the defense. Id. This is a “doubly
deferential” standard of review that gives both the
state court and the petitioner's attorney the benefit of
the doubt. Burt, 134 S.Ct. at 13 (citing Cullen
v. Pinholster, 131 S.Ct. 1388, 1403 (2011)).
focus of inquiry under Strickland's performance
prong is “reasonableness under prevailing professional
norms.” Strickland, 466 U.S. at 688-89. I n
reviewing counsel's performance, a court must adhere to a
strong presumption that “counsel's conduct falls
within the wide range of reasonable professional
assistance.” Id. at 689. Indeed, 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 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, ” applying a “highly deferential”
level of judicial scrutiny. Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000) (quoting Strickland, 466
U.S. at 690).
the prejudice prong of the Strickland standard,
Petitioner's burden to demonstrate prejudice is high.
Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir.
2002). Prejudice “requires showing that counsel's
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. That is, “[t]he
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. A reasonable probability is “a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
AEDPA precludes federal courts, absent exceptional
circumstances, from granting habeas relief unless a
petitioner has exhausted all means of available relief under
state law. Exhaustion of state remedies requires that the
state prisoner “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) (citing Picard v.
Connor, 404 U.S. 270, 275-76 (1971)). 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. Snowden v. Singletary, 135
F.3d 732 (11th Cir. 1998).
addition, a federal habeas court is precluded from
considering claims that are not exhausted and would clearly
be barred if returned to state court. Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (if a petitioner
has failed to exhaust state remedies and the state court to
which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find
the claims procedurally barred, there is a procedural default
for federal habeas purposes regardless of the decision of the
last state court to which the petitioner actually presented
a federal court must dismiss those claims or portions of
claims that have been denied on adequate and independent
procedural grounds under state law. Coleman, 501
U.S. at 750. If a petitioner attempts to raise a claim in a
manner not permitted by state procedural rules, he is barred