United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell United States District Judge.
William Del Toro, a Florida inmate, filed an amended petition
for writ of habeas corpus under 28 U.S.C. § 2254
challenging his Hillsborough County convictions. Respondent
agrees that the amended petition is timely. (Dkt 10). Del
Toro did not file a reply. Upon consideration, the petition
will be DENIED.
Toro was convicted after a jury trial of sexual battery on a
person less than 12 years of age (count one) and lewd or
lascivious molestation on a person less than 12 years of age
(count two). (Dkt. 13, Ex. 2, pp. 146-47). He was sentenced
to life imprisonment on count one and 30 years'
imprisonment on count two. (Id., pp. 163-65). The
state appellate court per curiam affirmed the
judgment and sentences. (Dkt. 13, Ex. 9). The state appellate
court also per curiam affirmed the denial of Del
Toro's motion and amended motion for postconviction
relief under Florida Rule of Criminal Procedure 3.850. (Dkt.
13, Exs. 12, 13, 15, 19, 21).
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs this proceeding. See Penry
v. Johnson, 532 U.S. 782, 792 (2001). Habeas relief can
only be granted if a petitioner is in custody “in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). Section
2254(d) provides that federal habeas relief cannot be granted
on a claim adjudicated on the merits in state court unless
the state court's adjudication:
(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.
decision is “contrary to” clearly established
federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question
of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). A decision is an
“unreasonable application” of clearly established
federal law “if the state court identifies the correct
governing legal principle from [the Supreme] Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case.” Id. at 413.
AEDPA was meant “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).
Accordingly, “[t]he focus . . . is on whether the state
court's application of clearly established federal law is
objectively unreasonable, and . . . an unreasonable
application is different from an incorrect one.”
Id. at 694. See also Harrington v. Richter,
562 U.S. 86, 103 (2011) (“As a condition for obtaining
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
state appellate court affirmed the denial of postconviction
relief in a per curiam decision. This decision
warrants deference under § 2254(d)(1) because “the
summary nature of a state court's decision does not
lessen the deference that it is due.” Wright v.
Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See
also Richter, 562 U.S. at 99 (“When a federal
claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the
Of State Court Remedies; Procedural Default
federal habeas petitioner must exhaust his claims for relief
by raising them in state court before presenting them in his
petition. 28 U.S.C. § 2254(b)(1)(A); 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.”).
requirement of exhausting state remedies as a prerequisite to
federal review is satisfied if the petitioner “fairly
presents” his claim in each appropriate state court and
alerts that court to the federal nature of the claim.
Picard v. Connor, 404 U.S. 270, 275-76 (1971).
“If the petitioner has failed to exhaust state remedies
that are no longer available, that failure is a procedural
default which will bar federal habeas relief, unless either
the cause and prejudice or the fundamental miscarriage of
justice exception is established.” Smith v.
Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
Assistance Of Counsel
of ineffective assistance of counsel are analyzed under
Strickland v. Washington, 466 U.S. 668 (1984). Del
Toro must demonstrate that his counsel performed deficiently
in that “counsel's representation fell below an
objective standard of reasonableness.” Id. at
687-88. However, “counsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.” Id. at 690. “[A] court
deciding an actual ineffectiveness claim must judge the
reasonableness of counsel's challenged conduct on the
facts of the particular case, viewed as of the time of
counsel's conduct.” Id.
Toro must also show that he suffered prejudice by
demonstrating “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
Obtaining relief on a claim of ineffective assistance of
counsel is difficult because federal habeas review is
“doubly” deferential to counsel's performance
and the state court's decision. Richter, 562
U.S. at 105. Accordingly, “[w]hen § 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.”
Toro alleges that trial counsel was ineffective in failing to
move to suppress his statements to police, which were
introduced through Detective Jacqueline Potenziano's
testimony. He claims that his statements should have been
suppressed because the State offered no independent evidence
to corroborate Detective Potenziano's testimony. He
contends that counsel did not realize the State intended to
introduce his statements because counsel failed to conduct
sufficient discovery and research. This claim is unexhausted
because Del Toro did not present it in his postconviction
motions. (Dkt. 13, Ex. 12, pp. 42-44; Ex. 13, pp. 67-69). As
Del Toro cannot return to state court to raise the claim in
an untimely postconviction motion, see Fla. R. Crim.
P. 3.850(b), the claim is procedurally defaulted. See
Smith, 256 F.3d at 1138. Del Toro does not demonstrate
that an exception applies to overcome the default.
the default, Del Toro fails to establish entitlement to
relief. Florida law provides a hearsay exception for a
party's admissions. § 90.803(18), Fla. Stat. But
this law does not require the admissions to be corroborated
by independent proof, see id., and Del Toro has not
cited any authority to support his contention. Additionally,
his claim that counsel was unaware that the prosecution would
introduce the statements is entirely speculative. See,
e.g., Wilson v. United States, 962 F.2d 996, 998 (11th
Cir. 1992) (“Conclusory allegations of ineffective
assistance are insufficient.” (quotation marks and
citation omitted)); Tejada v. Dugger, 941 F.2d 1551,
1559 (11th Cir. 1991) (vague, conclusory, or unsupported
allegations cannot support an ineffective assistance of
counsel claim). Further, the record indicates that co-counsel
was prepared to cross-examine Detective Potenziano about Del
Toro's statements. (Dkt. 23, pp. 304-13, 319-21). Del
Toro has not shown that counsel was ineffective in failing to
move to suppress his statements or that he was prejudiced by
Ground One, Del Toro addresses his Miranda warnings.
Accordingly, his claim is liberally interpreted as raising
the claim presented in ground one of his postconviction
motion. There, Del Toro argued that counsel was ineffective
in not seeking to suppress his statements to police because
his Miranda warnings were insufficient. He alleged
that he was provided the Tampa Police Department's
standard warnings, which Florida courts later found
inadequate to inform suspects of their right to counsel
during questioning. The state court denied this claim:
After reviewing the allegations, the court file, and [sic]
the Court finds Defendant's allegations are facially
insufficient, as he failed to allege prejudice. In Powell
v. State, 969 So.2d 1060, 1064-65 (Fla. 2d DCA 2007),
the Second District Court of Appeal held that
Miranda warnings given to defendant failed to
adequately inform him of his constitutional right to have an
attorney present throughout interrogation. This decision was
affirmed by the Florida Supreme Court in State v.
Powell, 998 So.2d 531 (Fla. 2008). However, in
Florida v. Powell, 130 S.Ct. 1195, 1204-05 (2010),
the Supreme Court of the United States reversed the decision
of the Florida Supreme Court, holding that the form of
Miranda warnings given by city police officers to
the suspect reasonably conveyed to the suspect that the right
to counsel applied “during” interrogation.
Because Defendant alleges he was given the same
Miranda warnings at issue in Powell, and
the United States Supreme Court held the Miranda
warnings given in Powell reasonably conveyed to the
suspect his constitutional right to have an attorney,
Defendant has failed to allege prejudice. . . . Accordingly,
Defendant is not entitled to any relief on claim one.
(Dkt. 13, Ex. 21, p. 21).
Second District Court of Appeal did not invalidate the Tampa
Police Department's standard Miranda warnings
until October 2007, after Del Toro's March 2007 trial.
See Powell v. State, 969 So.2d 1060 (Fla. 2d DCA
2007). Therefore, it would have appeared to counsel that the
warnings were constitutionally adequate at the time she could
have filed a motion to suppress. Further, as the state court
addressed, the warnings were approved by the United States
Supreme Court. Florida v. Powell, 559 U.S. 50
(2010). Accordingly, Del Toro has not shown that the state
court's decision involved an unreasonable application of
Strickland, or was based on an unreasonable
determination of fact. Del Toro is not entitled to relief on
Toro claims that counsel was ineffective in eliciting
information about his prior convictions. The victim was Del
Toro's daughter, who alleged that Del Toro sexually
battered her when she was in second grade. In his amended
postconviction motion, Del Toro cited the following portion
of counsel's cross-examination of the victim's
Q. One of the reasons why there was a long period of time
after E.D.C. [the victim] was born which you didn't live
with Mr. Del Toro is because he was in prison, is that right?
Q. And are you aware of the nature of the crimes for which he