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Toro v. Secretary, Department of Corrections

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

April 27, 2018



          Charlene Edwards Honeywell United States District Judge.

         Petitioner 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.

         Procedural History

         Del 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).

         Standard Of Review

         The 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; 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.

         A 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.

         The 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 disagreement.”).

         The 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 contrary.”).

         Exhaustion Of State Court Remedies; Procedural Default

         A 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.”).

         The 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).

         Ineffective Assistance Of Counsel

         Claims 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.

         Del 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.” Id.


         Ground One

         Del 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.

         Notwithstanding 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 counsel's conduct.

         Within 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.[1] 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).

         The 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 Ground One.

         Ground Two

         Del 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 mother:

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?
A. Yes.
Q. And are you aware of the nature of the crimes for which he ...

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