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Maiorano v. Inch

United States District Court, N.D. Florida, Tallahassee Division

May 30, 2019

ANTHONY MAIORANO, Petitioner,
v.
MARK S. INCH, Secretary, Department of Corrections, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE

         On January 29, 2018, Anthony Maiorano filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. On September 12, 2018, Respondent filed an answer, with exhibits. ECF No. 13. Thereafter, Petitioner filed an amended § 2254 petition. ECF No. 19. Respondent filed an answer to the amended petition on March 21, 2019. ECF No. 24. Petitioner has not filed a reply, although he was given the opportunity to do so. See ECF No. 23.

         The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration, the undersigned has determined no evidentiary hearing is required for the disposition of this matter. See Rule 8(a), R. Gov. § 2254 Cases. The pleadings before the Court show the petition should be denied.

         Procedural Background

         On December 30, 2008, in case number 08-0472CF, the State of Florida filed an information in the Second Judicial Circuit, Wakulla County, charging Petitioner Anthony Joseph Maiorano with one count of possession of more than twenty (20) grams of cannabis, a third degree felony, in violation of section 893.13(6)(a), Florida Statutes. Ex. C2.[1] That same day, in case number 08-0486CF, the State filed an information charging Maiorano with three counts: (1) trafficking in cocaine, a first degree felony, in violation of section 893.135, Florida Statutes; (2) possession of cannabis with intent to sell, a third degree felony, in violation of section 893.13(1)(a)2., Florida Statutes; and (3) possession of drug paraphernalia, a first degree misdemeanor, in violation of section 893.147(1), Florida Statutes. Ex. C1 at 1. On January 9, 2009, in case number 08-0480CF, the State of Florida filed an information charging Maiorano with one count of sale of a substance in lieu of cocaine, a third degree felony, in violation of section 817.563, Florida Statutes. Ex. C3.

         At proceedings held June 10, 2009, Maiorano entered open pleas of no contest in all three cases. See Ex. C1 at 10-15 (signed plea forms); 41-49 (transcript of hearing). Maiorano also admitted to violating probation in case number 2007-CF-366. Ex. B at 3-10; Ex. C1 at 8-9, 63-64. The judge conducted a plea colloquy and then accepted Maiorano's pleas. Ex. C1 at 48. The defense stipulated to a factual basis. Id. at 49. The court accepted the stipulation, found a factual basis existed to support the charges, and found Maiorano entered the pleas freely, knowingly, and voluntarily. Id. Regarding sentencing, the court heard testimony from Maiorano's mother, his wife, and Maiorano himself. Id. at 49-55, 62-63. The State asked for a sentence of thirty (30) years in prison. Id. at 48, 61. In 2007-CF-366, the court revoked probation and sentenced Maiorano to five (5) years in prison, with credit for 192 days' time served. Id. at 64. In cases 2008-CF-472 and 2008-CF-480, the court sentenced Maiorano to five (5) years in prison, with credit for 192 days' time served, to run concurrent. Id. In 2008-CF-496, the court sentenced Maiorano to twenty (20) years in prison on Count 1, with a minimum mandatory term of three (3) years; five (5) years in prison on Count 2; and time served on Count 3; to run concurrent to the sentences imposed in the other two cases. Id. at 65-66.

         On June 12, 2009, Maiorano's counsel filed a motion for reduction or mitigation of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Ex. I. In an order rendered September 11, 2009, the state trial court denied the motion with a citation to Mitchell v. State, 719 So.2d 1258 (Fla. 1st DCA 1998). Ex. J.

         On January 21, 2010, Maiorano filed a pro se petition for writ of habeas corpus in the First District Court of Appeal (First DCA), seeking a belated appeal from his convictions and sentences in all four cases. Ex. A at 103-07. The First DCA granted this petition in an opinion filed October 6, 2010. Ex. D. Maiorano's counsel filed an initial brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicating no issues of arguable merit existed. Ex. E. Maiorano filed a pro se brief. Ex. G. On October 31, 2011, the First DCA per curiam affirmed the case without a written opinion. Ex. H; Maiorano v. State, 75 So.3d 273 (Fla. 1st DCA 2011).

         In the meantime, on June 4, 2010, Maiorano filed a pro se motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Ex. K at 1-9. The State filed a response, id. at 10-14, and Maiorano filed a reply, id. at 19-24. By order rendered August 6, 2010, the state trial court denied the motion. Id. at 25. Maiorano appealed to the First DCA, assigned case number 1D10-4908. Id. at 33. On November 16, 2010, the First DCA affirmed the case without a written opinion and denied Maiorano's motion for rehearing. Exs. N, O; Maiorano v. State, 53 So.3d 1029 (Fla. 1st DCA 2011).

         On February 1, 2012, Maiorano filed a pro se motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Ex. P at 1-22. He subsequently filed supplements to the motion. Id. at 23-32. The State filed responses. Id. at 41-46, 79-81. In an order rendered February 13, 2013, the state post-conviction trial court summarily denied the Ground 1. Id. at 82-112. Maiorano filed a motion for rehearing and, after a hearing thereon, the court granted rehearing by order on June 11, 2014, setting an evidentiary hearing on all grounds raised. Ex. P at 126.

         The evidentiary hearing on the Rule 3.850 motion took place December 17, 2015, and Maiorano was represented by counsel. Ex. Q. At the start of the hearing, Maiorano, through counsel, waived Grounds 2, 4, and 5. Id. at 8. The court, counsel, and Maiorano discussed the grounds and confirmed the waiver. Id. at 8-13. Thereafter, they proceeded only on Grounds 1 and 3, both of which alleged ineffective assistance of counsel. Id. at 13. Both Maiorano and the State presented witnesses, and counsel for both sides made arguments. Ex. Q at 18-91, 91-143, 143-78. In an order rendered July 7, 2016, the court denied the Rule 3.850 motion. Ex. P at 145-50.

         Maiorano appealed the denial of post-conviction relief to the First DCA and filed a pro se brief, assigned case number 1D16-3542. Ex. P at 179; Ex. S. The State filed an answer brief, Ex. T, and Maiorano filed a reply, Ex. U. On November 17, 2017, the First DCA affirmed the case without a written opinion. Ex. V; Maiorano v. State, 236 So.3d 1010 (Fla. 1st DCA 2017). The mandate issued December 11, 2017. Ex. V.

         As indicated above, Maiorano filed his § 2254 petition on January 29, 2018, ECF No. 1, and he subsequently filed an amended § 2254 petition, ECF No. 19. In the amended § 2254 petition, Maiorano raises four grounds, including two claims of ineffective assistance of counsel (IAC):

(1) Trial Court Error/Violation of Due Process - Consideration of Uncharged Offenses: “Consideration of uncharged offenses or unsubstantiated information prior to imposing sentence is impermissible; a violation of fundamental due process. After the plea had been accepted, the prosecutor presented information that would support additional uncharged crimes and uncorroborated hearsay facts for the court to consider prior to imposing the sentence.” ECF No. 19 at 6.
(2) IAC - No. Objection to Consideration of Uncharged Facts/Hearsay: “A state law procedure that creates a liberty interest is entitled to the procedural protections of the due process clause of the Fourteenth Amendment. At Petitioner's sentencing hearing, counsel failed to object to the court's consideration of impermissible sentencing factors in aggravation and the court's prohibition of the Petitioner's right to allocution/rebuttal.” Id. at 9.
(3) Post-Conviction Trial Court Error - No. Application of Strickland: “Claims of ineffective assistance by counsel are reviewed and decided by applying the rule established in Strickland. Here, although the postconviction court provided record facts in arriving at what it concluded to be sufficient representation, the Strickland standard was not employed.” Id. at 13.
(4) IAC - No. Objection to Harsher Sentence: “A determination of whether a sentence resulted from vindictiveness is conducted reviewing the totality of the circumstances. Originally the Petitioner agreed to a 10 year plea offer; but at the plea hearing decided to plea open to the court. Was counsel ineffective for failing to object, and due process violated, where a sentence of 20 years was imposed and the record lacks explanation for the harsher sentence?” Id. at 15-16.

Respondent has filed an answer and exhibits, ECF No. 13, as well as an answer to the amended § 2254 petition, ECF No. 24. Maiorano has not filed a reply, although give the opportunity to do so. See ECF No. 23.

         Analysis

         Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody. Section 2254(d) 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 with respect to any claim that was adjudicated on the merits in State court proceedings 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; 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.

28 U.S.C. § 2254(d). See, e.g., Cullen v. Pinholster, 563 U.S. 170, 180-83 (2011); Gill v. Mecusker, 633 F.3d 1272, 1287-88 (11th Cir. 2011). “This is a ‘difficult to meet' and ‘highly deferential standard for evaluating state- court rulings, which demands that state-court decisions be given the benefit of the doubt.'” Cullen, 563 U.S. at 181 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011), and Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). This Court's review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Id.

         For claims of ineffective assistance of counsel (IAC), the United States Supreme Court has adopted a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This 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 v. Washington, 466 U.S. 668, 687 (1984). To demonstrate ineffectiveness, a “defendant must show that counsel's performance fell below an objective standard of reasonableness.” Id. at 688. To demonstrate prejudice, a 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.” Id. For this Court's purposes, importantly, “[t]he question ‘is not whether a federal court believes the state court's determination' under the Strickland standard ‘was incorrect but whether that determination was unreasonable - a substantially higher threshold.'” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “And, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Id. It is a “doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.” Id.

         Ground 1: Trial Court Error/Violation of Due Process - Consideration of Uncharged Offenses

         In his first ground, Petitioner Maiorano argues the trial court violated due process in considering “uncharged offenses or unsubstantiated information prior to imposing sentence.” ECF No. 19 at 6. In particular, Maiorano asserts that, after the trial judge accepted the pleas and proceeded to sentencing, the prosecutor provided information, in support of his argument for a 30-year sentence, describing “evidence of additional offenses that were not charged or included in the Petitioner's plea, nor was the information intertwined with the offenses to which the Petitioner was charged; specifically the described allegations of selling drugs to minors and possession of a firearm.” Id. at 7. Further, the prosecutor stated Petitioner “is one of the most prolific drug dealers in Wakulla County.” Id.; Ex. C1 at 57. When defense counsel and Petitioner questioned the information, the prosecutor indicated he was “explaining the facts of the probable cause as they were cited.” Ex. C1 at 60; ECF No. 19 at 7. Petitioner asserts this information was hearsay and “the state was required to present the probable cause/police report, law enforcement testimony/law enforcement's transcribed depositions to refute the Petitioner's challenge - or other evidence in support of the trustworthiness of the hearsay, ” but “the state never offered evidence in corroboration of the hearsay and the court failed to hold the state to its burden of production to verify the hearsay.” ECF No. 19 at 7. Petitioner asserts the judge “misconstrued Petitioner's attempt to clarify and contest the veracity of the assertions made by the state as an attack on the plea.” Id. at 8.

         Maiorano raised a similar claim in state court, in his pro se brief filed in connection with his Anders appeal. In particular, he there asserted, “Appellant's due process rights were violated when Appellee introduced two (2) unsubstantiated allegations, possession of a firearm by a convicted felon, and unlawful sale of a controlled substance by a person 18 years of age or older to a person under the age of 18 to the trial court prior to imposing sentence, for which the record supports the trial court impermissibly considered prior [to] imposing a sentence almost five (5) times greater than the lowest permissible sentence.” Ex. G at 7-8. The First DCA per curiam affirmed the appeal without a written opinion. Ex. H.

         Maiorano entered a straight-up, open plea to the trial court on June 10, 2009. Ex. C1 at 41-68 (transcript of plea and sentencing hearing), 10-15 (written and signed plea forms). At the start of the plea and sentencing hearing, defense counsel, Justin Givens, stated:

Judge, Mr. Maiorano is going to enter a plea to the bench today. He has got a few people that would like to speak. I don't know if you want to set it off to the end here or let him go ahead and do it now.

Id. at 42. An off-the-record discussion occurred after which the judge asked, “Is there any understanding or agreement with the State?” Id. The prosecutor answered, “No, sir.” Id. Discussion ensued regarding the Rule 3.992(a) Criminal Punishment Code Scoresheet. Id. at 42-43. The lowest permissible prison sentence in Maiorano's case was 44.775 months according to the scoresheet. Ex. C1 at 37. The highest possible sentence was 50 years. Id. The judge specifically questioned defense counsel and Maiorano about Maiorano's understanding of the score sheet computation and possible sentence:

THE COURT: All right. So he understands that his score point total is 87.7, which reflects under the code a sentencing range of 44 months - 44.75 months in the State penitentiary up to a maximum of 50 years. And that Count 1 in Case 2008-486 requires a minimum mandatory sentence of three years, plus a $50, 000 fine. Does he understand that?
MR. GIVENS: He does, Judge.
THE COURT: All right. And he understands that absent any basis for departure - there can, of course, be no departure from any minimum mandatory. But absent a legal basis for a departure and demonstrated evidence to support by a preponderance that there would be an entitlement, there is no ...

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