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Monsanto-Berrio v. Secretary, Department of Corrections

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

June 12, 2019




         On 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.


         Following trial, on November 2, 2007 a jury found Petitioner guilty of robbery and first-degree murder. Dkt. 20 Ex. 2-3.[1] 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. 7-8.

         As 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. Id.

         Following 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 shoot Burks.

         Petitioner 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.

         Petitioner 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.

         While 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.

         Respondent 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.


         This 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)).

         “Clearly 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).

         A state 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).


         Turning 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 unreasonable.

         Ground I. Failure to Call Irizarry to Testify at Trial

         According 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.” Id.

         Petitioner 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.

         In his 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 7.[2]

         The 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.

         The 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 testify.

         Though 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).

         The 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.

         In 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 testimony.

         Lastly, 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.

         Ground II. Failure to Elicit Evidence about the Confession

         Petitioner 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.

         At the 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.

         In 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.

         But, as 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 were unreasonable.

         Ground III. Failure to Move to Suppress Fabricated Alibi

         Trial 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. ...

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