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Arocho v. Secretary, Doc and Florida Attorney General

United States District Court, M.D. Florida, Fort Myers Division

June 17, 2019

JULIAN AROCHO, Petitioner,

          OPINION AND ORDER [1]


         Before the Court is Petitioner Julian Arocho's Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) filed on December 27, 2016. The Secretary of the Department of Corrections filed her Response in Opposition (Doc. 7) on June 6, 2017. The Petition is fully briefed and ripe for the Court's review.


         On April 30, 2010, Petitioner was charged with a four-count felony indictment for aggravated assault with a firearm, first degree burglary while armed, grand theft of a motor vehicle, and possession of a firearm by a minor. (Ex. 1, at 3-4). Petitioner, who was represented by Attorney Robert Harris, pled guilty to the charges in open court. (Ex. 1 at 89-101). On July 25, 2011, the Honorable Edward Volz, Circuit Judge for the Twentieth Judicial Circuit Court in and for Lee County, Florida, sentenced Petitioner to ten years in prison with ten years of probation upon release. (Ex. 1 at 215-245; Ex. 2 at 75-78).

         Petitioner moved to withdraw his plea on August 22, 2011, alleging that he did not fully understand the circumstances surrounding his plea. Petitioner argued that trial counsel advised him he would receive the Youthful Offender designation if he would plea in open court, which did not happen. As a result of Petitioner's motion, a hearing was held on February 14, 2012. After listening to testimony from Petitioner, trial counsel, and members of Petitioner's family, the court denied the request to withdraw the plea. (Ex. 1 at 300-306). Petitioner appealed the denial to the Second District Court of Appeal which denied his appeal per curiam. (Ex. 5); Arocho v State, 105 So.3d 529 (Fla. 2d DCA 2013).

         On March 17, 2014, Petitioner moved for post-conviction relief under Fla. R. Crim P. 3.850. Petitioner's only ground claimed that he was denied effective assistance of counsel because trial counsel told him not to accept the State's offer of seven-years imprisonment and to instead plead in open to the court. The Post-Conviction Court summarily denied the motion on February 1, 2016. Petitioner appealed the Rule 3.850 Post-Conviction Court's denial. The Second District Court of Appeal affirmed the denial per curiam. (Ex. 12 at 1). Mandate issued on December 15, 2016. (Ex. 13). Petitioner now files the Petition in this Court claiming one ground for relief. Respondent concedes the Petition is timely filed and Petitioner's claim has been exhausted.


         Antiterrorism Effective Death Penalty Act (“AEDPA”)

         Under AEDPA, the standard of review is greatly circumscribed and highly deferential to the state courts. Alston v. Fla. Dep't of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010) (citations omitted). AEDPA altered the federal court's role in reviewing state prisoner applications in order 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). The following legal principles apply to this case.

         A federal court must afford a high level of deference to the state court's decision. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Habeas relief may not be granted with respect to a claim adjudicated on the merits in state court 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); Cullen v. Pinholster, 563 U.S. 170, 181(2011). “This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt.” Id. (internal quotations and citations omitted). See also Harrington v. Richter, 562 U.S. 86, 102 (2011) (pointing out that “if [§ 2254(d)'s] standard is difficult to meet, that is because it was meant to be.”).

         Both the Eleventh Circuit and the Supreme Court broadly interpret what is meant by an “adjudication on the merits.” Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir. 2011). Thus, a state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits that warrants deference by a federal court. Id.; see also Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Indeed, “unless the state court clearly states that its decision was based solely on a state procedural rule [the Court] will presume that the state court has rendered an adjudication on the merits when the petitioner's claim ‘is the same claim rejected' by the court.” Childers v. Floyd, 642 F.3d at 969 (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).

         “A legal principle is ‘clearly established' within the meaning of this provision only when it is embodied in a holding of [the United States Supreme] Court.” Thaler v. Haynes, 559 U.S. 43, 47 (2010); see also Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)) (recognizing “[c]learly established federal law” consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision). “A state court decision involves an unreasonable application of federal law when it identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case, or when it unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context.” Ponticelli v. Sec'y, Fla. Dep't of Corr., 690 F.3d 1271, 1291 (11th Cir. 2012) (internal quotations and citations omitted). The “unreasonable application” inquiry requires the Court to conduct the two-step analysis set forth in Harrington v. Richter, 562 U.S. at 86. First, the Court determines what arguments or theories support the state court decision; and second, the Court must determine whether “fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior” Supreme Court decision. Id. (citations omitted). Whether a court errs in determining facts “is even more deferential than under a clearly erroneous standard of review.” Stephens v. Hall, 407 F.3d 1195, 1201 (11th Cir. 2005). The Court presumes the findings of fact to be correct, and petitioner bears the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         The Supreme Court has held that review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen, 131 S.Ct. at 1398. Thus, the Court is limited to reviewing only the record that was before the state court at the time it rendered its order. Id.

         Ineffective Assistance of Counsel

         Ineffective assistance of counsel claims are reviewed under the standards established by 28 U.S.C. § 2254(d). Newland v. Hall, 527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA, the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), remains applicable to the claims of ineffective assistance of counsel raised in this case. Newland, 527 F.3d at 1184. In Strickland, the Supreme Court established a two-part test to determine whether a convicted person is entitled to habeas relief on the grounds that his or her counsel rendered ineffective assistance: (1) whether counsel's representation was deficient, i.e., “fell below an objective standard of reasonableness” “under prevailing professional norms, ” which requires a showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment”; and (2) whether the deficient performance prejudiced the defendant, i.e., there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, which “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, 466 U.S. at 688; see also Bobby Van Hook, 558 U.S. 4, 8 (2009); Cullen v. Pinholster, 131 S.Ct. at 1403 (2011).

         States may “impose whatever specific rules . . . to ensure that criminal defendants are well represented, ” but “the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.” Bobby Van Hook, 130 S.Ct. at 17 (internal quotations and citations omitted). It is petitioner who bears the heavy burden to “prove, by a preponderance of the evidence, that counsel's performance was unreasonable.” Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must “judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct, ” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690), applying a “highly deferential” level of judicial scrutiny. Id. A court must adhere to a strong presumption that “counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. An attorney is not ineffective for failing to raise or preserve a meritless issue. Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir. 1989); United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“a lawyer's failure to preserve a meritless issue plainly cannot prejudice a client”). “To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But the issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.'” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).


         Petitioner's sole ground ...

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