United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
August 4, 2016, the Court received Petitioner
Monsanto-Berrio's petition under 28 U.S.C. § 2254
for writ of habeas corpus by a person in state custody. Dkt.
1. He seeks relief from a 2007 Florida state court
conviction. Id. at 1. Respondents have filed a
response in opposition, Dkt. 11, and Petitioner has filed a
reply, Dkt. 18. The Court finds that no hearing is necessary
and DENIES the petition.
trial, on November 2, 2007 a jury found Petitioner guilty of
robbery and first-degree murder. Dkt. 20 Ex.
He was sentenced to life in prison. Id. Ex. 3. On
December 15, 2008, the Second District Court of Appeal of
Florida (Second DCA) issued its Mandate, affirming
Petitioner's conviction and sentence. Id. Ex.
framed by Petitioner, the State's case against him
“centered on the theory that Petitioner shot and killed
Antonio Burks during a botched robbery.” Dkt. 1 at 5.
At the time of the shooting, Burks was sitting in the
driver's seat of his car, a Chevrolet Impala, with his
girlfriend, Shauntay Johnson, in the passenger seat. Dkt. 1
at 16. They met with Feras Bataineh inside the vehicle to
ostensibly negotiate a drug deal. Id. Two men
entered the rear of the vehicle whereupon guns were drawn,
words exchanged, and one or both of the two men shot Burks.
the case investigation, Petitioner, Christopher Irizarry, and
Feras Bataineh were charged with killing Burks. Johnson
testified at trial that Petitioner shot Burks first, then
Irizarry shot. She identified Petitioner as the shooter to
the jury. She testified Burks was being robbed by Petitioner
at a drug sale and was shot by Petitioner in the head at
point blank range. Dkt. 20 Ex. 46 at 385-99, 405, 442. At
trial, another individual, Fabian Moreno, testified that he,
Bataineh, and an unknown individual had entered the Impala.
Id. at 1186-88. It was the State's theory that
Moreno was instead the driver for Irizarry and Petitioner.
Another witness, Jesse Hollister, testified that Petitioner
was with her at Jason Ryder's apartment at the time of
the shooting. Dkt. 18 at 8-9; Dkt. 20 Ex. 46 at 1228-29.
Petitioner did not testify and has maintained that he did not
raises nine grounds for relief premised on ineffective
assistance of trial counsel: (1) counsel failed to
investigate, interview, and call co-defendant Irizarry to
testify at trial; (2) counsel did not elicit evidence that
Irizarry had confessed to shooting Burks; (3) counsel did not
move to suppress Petitioner's statements concerning a
fabricated alibi; (4) counsel failed to move to suppress
other statements and telephone records that resulted from the
statements; (5) counsel failed to investigate the distance
between the location of the offense and the cell site towers
presented by the government; (6) counsel failed to locate,
depose, and call key witnesses in support of Petitioner's
defense; (7) counsel failed to request a limiting instruction
on the use of impeachment evidence and failed to object to
the state's misuse of the evidence; (8) counsel failed to
object to the principal theory jury instruction which was
misleading or confusing; and (9) the cumulative effect of the
above deficiencies. Dkt. 1 at 5-13. Petitioner also raises as
his tenth ground for relief a confrontation clause argument
for the introduction of co-defendant Bataineh's hearsay
statement. Dkt. 1 at 22.
filed in state court a motion for postconviction relief along
with a series of amended motions raising the first four
grounds. Dkt. 20 Ex. 16. The postconviction court denied the
motions. Id. Ex. 18. Petitioner's motion for
rehearing was denied, id. Ex. 20, and the Second DCA
per curiam affirmed the judgment, id. Ex. 25.
that appeal was pending, Petitioner filed a second 3.850
motion arguing for relief based on newly discovered evidence,
namely affidavits from individuals who would testify that
Irizarry shot Burks. Id. Ex. 27. The court found
that motion untimely and successive, and that the newly
discovered evidence exception was inapplicable. Id.
Ex. 28. A motion for rehearing was denied, id. Ex.
30, and the Second DCA per curiam affirmed, id. Ex.
34. He then appealed judgment on a motion to correct illegal
sentence and motion for leave to amend motion to correct
illegal sentence, id. Ex. 38, that was also per
curiam affirmed, id. Ex. 42.
acknowledges that the petition is timely. Dkt. 11 at 4.
Respondent instead argues that counsel was not ineffective in
grounds 1-4, that grounds 5-9 are not exhausted, and that the
hearsay in Plaintiff's tenth ground was properly
admitted. Dkt. 11. The Court finds that a hearing is
unnecessary, see Turner v. Crosby, 339 F.3d 1247,
1274-75 (11th Cir. 2003), and will handle the claims in turn.
petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2254. AEDPA “establishes a highly deferential standard
for reviewing state court judgments.” Parker v.
Sec'y for Dep't of Corr., 331 F.3d 764, 768
(11th Cir. 2003) (citation omitted). Relief from a state
court conviction is unavailable for a claim
“‘that was adjudicated on the merits in the State
court proceedings' unless the state court's decision
was ‘(1) . . . contrary to, or involved an unreasonable
application of, clearly established Federal law as determined
by the Supreme Court of the United States; or (2) . . . based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.'”
Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280,
1288 (11th Cir. 2016) (quoting 28 U.S.C. § 2254(d)).
established Federal law” means holdings of the U.S.
Supreme Court “as of the time of the relevant
state-court decision.” Id. at 1288-89
(citation omitted). “Contrary to” requires a
state court 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.”
Id. at 1289 (citations omitted) (alterations in
original). The “unreasonable application” clause
applies only “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.
(citation omitted) (alterations in original).
court's factual determination, meanwhile, “is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first
instance.” Id. (citation omitted). AEDPA
“requires federal habeas courts to presume the
correctness of state courts' factual findings unless
applicants rebut this presumption with ‘clear and
convincing evidence.'” Id. (citation
omitted). This is a “demanding but not insatiable
standard, requiring proof that a claim is highly
probable.” Id. (citation and internal
quotation marks omitted).
ASSISTANCE OF COUNSEL CLAIMS
first to Petitioner's ineffective assistance of counsel
claims, counsel is ineffective under the Sixth Amendment if
“(1) counsel's performance was deficient; and (2)
the deficient performance prejudiced the defense such that
petitioner was deprived of a fair trial.” Dill v.
Allen, 488 F.3d 1344, 1354 (11th Cir. 2007) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)).
But in the habeas context, “[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) (citation and
internal quotation marks omitted). “If there is
‘any reasonable argument that counsel satisfied
Strickland's deferential standard,' then a
federal court may not disturb a state-court decision denying
the claim.” Hittson v. GDCP Warden, 759 F.3d
1210, 1248 (11th Cir. 2014) (citation omitted). Here,
Petitioner fails to establish that the postconviction
court's determination under Strickland was
I. Failure to Call Irizarry to Testify at Trial
to Petitioner, trial counsel did not investigate, interview,
or call Irizarry to testify, even though Irizarry claimed he
was the one who shot Burks. Dkt. 1 at 5. This was over
Petitioner's suggestion that counsel speak to Irizarry.
Id. Counsel purportedly responded that, if called to
testify, Irizarry would just “plead the Fifth.”
has provided an unnotarized affidavit from Irizarry in which
Irizarry states that if he had been called to testify,
“I would have waived my Fifth Amendment privilege in my
then pending case, and I would have testified to the
following: [Petitioner] is innocent of the crimes for which
he was accused. In fact, . . . I was the person who, in
self-defense, shot Antonio Burks from the backseat of his
Chevy Impala. [Petitioner] was not in said vehicle, nor did
he have any involvement in the incident whatsoever.”
Dkt. 1-1 at 2. Petitioner has attached additional affidavits
from other individuals suggesting the same (the very
affidavits presented to the postconviction court), and a
waiver of attorney/client confidential communication from
Irizarry. Dkt. 1-1 at 4-9.
reply, Petitioner argues that, more than just fail to call
Irizarry as a witness, counsel failed to investigate at all.
Dkt. 18 at 3. Petitioner also states that he wanted counsel
to investigate Irizarry before trial and, due at least in
part to this, Petitioner filed a letter to dismiss his court
appointed counsel with the trial court. Id. at
postconviction court held an evidentiary hearing at which
trial counsel testified that because Irizarry's criminal
case was not yet resolved and Irizarry was represented by
counsel, Petitioner's counsel could not communicate or
interview Irizarry. Dkt. 20 Ex. 18 at 250. Irizarry's
counsel also testified he would not allow Irizarry to testify
if called as a witness in Petitioner's case. Id.
The court concluded that “there is not a reasonable
probability Irizarry would have been an ‘available'
witness for Defendant. As such, the Court finds that counsel
cannot be deemed deficient as alleged.” Id. at
251. The court further found that there was no reasonable
probability that Irizarry's testimony would have affected
the outcome of the trial because Petitioner “stated in
his Motion that Irizarry would have testified that he had
killed the victim, but Irizarry did not testify to such-and,
after observing Irizarry's demeanor in court and hearing
his testimony, this Court does not find Irizarry to be a
credible witness.” Id.
Court cannot find that the postconviction court's
application of Strickland was unreasonable.
Irizarry's affidavit stating that he would have testified
if asked is of no import because Petitioner's trial
counsel was unaware of this at the time of trial. Indeed, the
postconviction court credited counsel's testimony that he
would be unable to communicate with Irizarry because Irizarry
was represented. Further, Irizarry's counsel confirmed
that he would not have “allowed” Irizarry to
Irizarry could have testified over the advice of counsel, it
was still not unreasonable for the state court to find
Petitioner's counsel's performance not deficient for
not calling Irizarry. See Dumas v. Long, EDCV 14-328
MMM(JC), 2015 WL 4720583, at *6 (C.D. Cal. June 5, 2015),
report and recommendation adopted, 2015 WL 4722216
(C.D. Cal. Aug. 6, 2015) (“It is within the ambit of
reasonable professional judgment for trial counsel to refrain
from calling a witness whom counsel reasonably assumes will
invoke his or her Fifth Amendment privilege.”);
Steinbruegge v. Dormire, 4:09CV1210MLM, 2010 WL
2560079, at *17 (E.D. Mo. June 23, 2010) (finding ground
without merit where state appellate court observed “it
would be unreasonable to assume that [other individuals
involved in the offense] would be willing to waive their
Fifth Amendment rights”); United States v.
Harden, 846 F.2d 1229, 1231-32 (9th Cir. 1988) (trial
counsel not ineffective for failing to call witness who had
pleaded guilty and was awaiting sentencing).
postconviction court was not unreasonable in also finding no
prejudice because of Irizarry's lack of credibility as a
witness. Apart from issues with his demeanor that are best
left to the postconviction court's judgment, the
prosecution could have impeached Irizarry through his many
inconsistent statements made to law enforcement, including
one in which he implied that Petitioner was the shooter and
that he was afraid of Petitioner. Also damaging to
Irizarry's credibility and Petitioner's case would
have been Irizarry's reluctance to identify the third
individual in the backseat of the Impala. Indeed, the
affidavit before the postconviction court and this Court
merely stated that the three individuals in the backseat of
the Impala were Irizarry, Bataineh, and “a third person
whom I'm not at liberty to implicate at the present time
- seated behind the victim.” Dkt. 20 Ex. 19 at 507.
evaluating prejudice, the evidence against Petitioner is also
relevant. That evidence included: Johnson's eyewitness
identification of Petitioner; testimony from Jennifer Locke
placing him at the scene; additional evidence of a third
individual in the backseat of the Impala; connections between
Petitioner and Moreno and Irizarry; cell site location
information placing him near the shooting; a series of calls
made from his phone around the time of the shooting; two
firearms suspected in the shooting and clothes with blood
found in Petitioner's residence; Petitioner's
fabricated alibi; and Petitioner's admission of his
involvement in the robbery and shooting to David Reyna, a
fellow inmate in jail. The jury, of course, was free to
reject Petitioner's alibi defense and Moreno's
it is worth noting the arguments presented to the
postconviction court concerned more than just counsel's
failure to call Irizarry to testify; they also addressed
failure to investigate. See also Wiggins v. Smith,
539 U.S. 510, 521-22 (2003) (“[C]ounsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In
any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in
all the circumstances, applying a heavy measure of deference
to counsel's judgments.”). Habeas relief is
unavailable on Petitioner's first ground.
II. Failure to Elicit Evidence about the Confession
next claims that, in addition to calling Irizarry to testify,
counsel should have elicited evidence about Irizarry's
confession during the cross-examination of Detective Charles
Massucci. Dkt. 1 at 7. Petitioner argues that the content of
the confession would have been admissible hearsay as
statements against penal interest. Id. at 7-8. In
his reply, Petitioner reiterates that the determination
Irizarry was unavailable was unreasonable and that
Irizarry's testimony would have affected the outcome of
the trial. Dkt. 18 at 4-5.
evidentiary hearing, trial counsel testified he could not
have elicited Irizarry's statements as they would have
been inadmissible hearsay. Dkt. 20 Ex. 18 at 252. He further
testified that the statements were damaging to Petitioner,
which, the court found, was supported by Detective
Massucci's testimony at the hearing. Indeed, Massucci
testified at the hearing that Irizarry ultimately implicated
Petitioner and did not do so earlier out of fear.
Id. The postconviction court credited this testimony
in finding no deficient performance or reasonable probability
of a different outcome.
Florida, “[a] statement tending to expose the declarant
to criminal liability and offered to exculpate the accused is
inadmissible, unless corroborating circumstances show the
trustworthiness of the statement.” Fla. Stat. §
90.804(2)(c); see also Chambers v. Mississippi, 410
U.S. 284, 300-01 (1973). A confession to a shooting certainly
would expose the declarant to criminal liability, and
Petitioner does list circumstances that could corroborate
Irizarry's involvement in the shooting. Dkt. 1 at 7.
Respondent points out, if trial counsel had elicited
Irizarry's confession, the prosecution would have sought
to introduce later statements that were incriminating to
Petitioner. Dkt. 11 at 16. In those statements, Irizarry
claims that he was not the shooter and that Petitioner was
involved in the robbery and shooting; Irizarry also expresses
his own fears about Petitioner. E.g., Dkt. 18-7 at
8-12, 16, 18; see also Dkt. 20 Ex. 19 at 501. The
Court cannot ultimately determine that the postconviction
court's findings on deficient performance or prejudice
III. Failure to Move to Suppress Fabricated Alibi
counsel did not move to suppress pre-Miranda
statements Petitioner made in a holding cell concerning a
possible alibi. Dkt. 1 at 9. Because Petitioner later
contradicted the alibi, the statements were incriminating and
were presented at trial. Id. at 9-10. The
postconviction court credited the testimony of trial counsel
that there was no basis for suppression of the statements,
and they were nonetheless not incriminating. Dkt. ...