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Serrano v. Secretary, Department of Corrections

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

July 30, 2018

ANTHONY TORIN SERRANO, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE

         Petitioner Anthony Torin Serrano, a Florida prisoner, filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) and supporting memorandum (Dkt. 3), challenging his Hillsborough County convictions. In the response (Dkt. 12), Respondent agrees that the petition is timely. Serrano filed a reply. (Dkt. 16). Upon review, the petition will be DENIED.

         Procedural History

         Serrano was convicted after a jury trial of one count of felon in possession of a firearm. (Dkt. 14, Ex. 1, Vol. I, p. 60). The state court sentenced him to 15 years in prison. (Id., p. 75). The state appellate court per curiam affirmed the conviction and sentence. (Dkt. 14, Ex. 5). The state court denied Serrano's motion and amended motions for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. (Dkt. 14, Exs. 8, 9, 12, 13). The state appellate court per curiam affirmed the denial of relief. (Dkt. 14, Ex. 17).

         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.”). When a state appellate court issues a silent affirmance, “the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale” and “presume that the unexplained decision adopted the same reasoning.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

         Ineffective Assistance Of Counsel

         Serrano alleges ineffective assistance of trial counsel. His claims are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Serrano 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. Additionally, “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.

         Serrano 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.

         Discussion

         Ground One

         The State alleged that Serrano sold three firearms to an undercover detective, Mark Gilbertson. Serrano argues that counsel was ineffective in failing to inform the jury that his brother, Devon Serrano (“Devon”), confessed to having sold the firearms to Detective Gilbertson. The state court denied this claim after an evidentiary hearing:

In his initial and amended motions, Defendant alleges ineffective assistance of counsel due to trial counsel's failure to interview, investigate, and call witness Devon Serrano, the Defendant's brother, at trial. The Court previously denied Claim One of the Initial and Amended Motions finding “counsel contacted, investigated, interviewed Defendant's brother Devon Serrano and made a strategic decision to not call Devon to testify at trial, and thus Defendant's claim that counsel failed to contact, investigate, interview and call Devon to testify is conclusively refuted from the record” and that “counsel's decision to not call Devon to testify was reasonable trial strategy that the Defendant consented to.”
In his Second Amended Motion, Defendant added one paragraph to Claim One alleging the jury should have been advised that Devon Serrano gave a full confession, under oath, at a deposition before Defendant's counsel and the Assistant State Attorney. Defendant alleges counsel's failure to present the confession to the jury was ineffective.
At the evidentiary hearing, Defendant's brother Devon Serrano (hereinafter “Devon”) testified that he provided a statement to law enforcement in which he admitted to selling guns to “Mark” (referring to Detective Mark Gilbertson) around the time period Defendant was arrested and charged. Devon testified he does not recall where he gave the statement but that he remembers giving a statement that as far as he knew, his brother was not involved in the sale of any firearms. Devon testified that he does not remember any of the dates that he sold the guns but that selling guns was what he did at that time period. Devon testified he couldn't remember the dates because [there] were so many transactions of selling guns and that he was on drugs during the time period. Defendant submitted no other evidence of Devon's alleged confession.
A review of the record reflects Devon possibly testifying at trial and admitting to committing the offenses Defendant was charged with was specifically discussed on the record by trial counsel, Defendant, the prosecutor, and the court. The record reflects trial counsel chose not to call Devon as a witness at trial citing strategic reasons and Defendant consented to this strategic decision.
As stated in this Court's September 26, 2013 Order, the record demonstrates that “counsel contacted, investigated, interviewed Defendant's brother Devon Serrano and made a strategic decision to not call Devon to testify at trial.” After considering Devon's evidentiary hearing testimony and the record, the Court is uncertain of the existence and substance of Devon's alleged confession. However, the Court finds given counsel's strategic decision to not call Devon as a defense witness which Defendant consented to, there was no legal venue for counsel to have admitted ...

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