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Fernandez v. Secretary, Department of Corrections

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

August 22, 2019

RON ALLEN FERNANDEZ, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

          ORDER

          CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE.

         Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 (Doc. 1). He subsequently filed an amended petition (Doc. 2). The Court ordered Respondent to show cause why the relief sought in the amended petition should not be granted (Doc. 7). Respondent filed a limited response in opposition, incorporating therein a motion to dismiss the petition as untimely (Doc. 9), to which Petitioner replied (Doc. 13). The motion to dismiss was denied (see Doc. 16), and Respondent filed a supplemental response (Doc. 21). Upon consideration, the amended petition will be denied.

         PROCEDURAL BACKGROUND

         Petitioner was found guilty of theft and aggravated battery (Doc. 9-1, p. 3).[1] He was sentenced to 15 years in prison on the aggravated battery conviction, and 5 years on the theft conviction, consecutive to the aggravated battery (Id., pp. 4-12). His convictions and sentences were affirmed on appeal (Id., pp. 15-16).

         Petitioner's motion for post-conviction relief was denied (Doc. 22-4, docket pp. 231-350), and the denial of the motion was affirmed on appeal (Doc. 9-1, p. 68, 70). He thereafter initiated this action by filing a petition for a writ of habeas corpus (Doc. 1). His amended petition (Doc. 2) is now before the Court.

         DISCUSSION

         The amended petition raises five grounds for relief:

Ground One: MS. AMBER TUCKER RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PROTECT MR. FERNANDEZ'S RIGHT TO A SPEEDY TRIAL BY WAIVING THE RIGHT AGAINST MR. FERNANDEZ'S ORAL MOTION FOR SPEEDY TRIAL
Ground Two: MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE WITHDREW HER REQUEST FOR MISTRIAL DURING THE TESTIMONY OF STATE WITNESS JACQUELINE BEILER
Ground Three: MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE FAILED TO OBJECT TO THE SURPRISE TESTIMONY OF STATE WITNESS BILLY HAMM AS A DISCOVERY BRADY V. MARYLAND VIOLATION
Ground Four: MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE FAILED TO PREPARE AND ADVISE MR. FERNANDEZ ON THE CORRECT NUMBER OF PRIOR CONVICTIONS THAT COULD BE USED TO IMPEACH HIS TESTIMONY
Ground Five: MS. JENNIFER STROUF AND MS. MELISSA WILSON RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO MOVE FOR JUDGMENT OF ACQUITTAL RELATIVE TO THE LESSER INCLUDED OFFENSE OF GRAND THEFT

         I. GOVERNING LEGAL PRINCIPLES

         This case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA “establishes a more deferential standard of review of state habeas judgments, ” Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), 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); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

         A. Standard of Review Under the AEDPA

         Pursuant to the AEDPA, 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). The phrase “clearly established Federal law, ” encompasses only the holdings of the United States Supreme Court “as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).

         “[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the ‘contrary to' and ‘unreasonable application' clauses articulate independent considerations a federal court must consider.” Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the “contrary to” clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

         If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was “objectively unreasonable.” Id.

         Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

         B. Standard for Ineffective Assistance of Counsel

         The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and “fell below an objective standard of reasonableness”; and (2) whether the deficient performance prejudiced the defense.[2] Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. “Thus, 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. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

         As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, “the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

         C. Exhaustion of State Remedies and Procedural Default

         Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. See § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”). A state prisoner “‘must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary.” Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845.)

         To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) (“Exhaustion of state remedies requires that the state prisoner ‘fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its' prisoners federal rights.'”) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of the State. . .if he has the right under the law of the State to raise, by any available procedure, the question presented.” Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

         The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents” his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). A petitioner may raise a federal claim in state court “by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such claim on federal grounds, or simply by labeling the claim ‘federal.'” Baldwin v. Reese, 541 U.S. 27, 32 (2004).

         The doctrine of procedural default provides that “[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner “must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). The petitioner must show at least a reasonable probability of a different outcome. Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

         Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). “‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.

         II. ANALYSIS

         A. Ground One

         Petitioner contends that Attorney Tucker was ineffective in waiving Petitioner's right to speedy trial against his expressed wishes.[3] He alleges that he did not agree with Attorney Tucker when on January 14, 2009, she moved for a continuance of his trial scheduled for January 20, 2009. He argues that he was prejudiced by the continuance because it allowed the State to collect DNA evidence from him, which was used against him at trial. He states that in light of the DNA evidence and “late witnesses, ” he was “forced” into pursing a “risky” theory of self-defense and testifying at trial. He contends that had Attorney Tucker not waived speedy trial, there is a reasonable probability that the outcome of his trial would have been different.

         This claim was raised in Ground One of Petitioner's Amended Second Motion for Postconviction Relief (Doc. 22-4, docket pp. 102-04). After an evidentiary hearing (see id., docket pp. 145-225), the state post-conviction court denied the claim as follows:

Defendant alleges ineffective assistance of counsel due to trial counsel's failure to protect Defendant's right to speedy trial. Defendant alleges he was arrested on July 26, 2008, and Fla. R. Crim. P. 3.191(a) provides every person charged with a felony shall be brought to trial within 175 days of arrest. Defendant explains his speedy trial period expired on January 17, 2009, and with the recapture period until February 1, 2009. Defendant alleges his trial was scheduled for January 20, 2009, but at a pretrial conference on January 14, 2009, his counsel moved for a continuance and in her motion stated she had consulted with Defendant who has no objection and understands speedy trial is waived on granting the motion. Defendant alleges he did not agree to waive speedy trial and orally moved for speedy trial which counsel did not adopt. Defendant alleges the continuance harmed his defense because it allowed the State more time to prepare and allowed the State time to move to compel blood and saliva samples from the Defendant for comparison to evidence from the crime scene. Defendant explains an analysis of the evidence from the crime scene resulted in a DNA match of the Defendant to a tank top found at the scene and to the victim's socks. Defendant alleges that needlessly continuing the trial bolstered the State's case through DNA evidence and forced Defendant into a risky self-defense argument, required Defendant to admit to the offense and testify at trial.
In his Amended Second Motion, Defendant alleges the waiver of speedy trial was not consensual and not a reasonable trial strategy. Defendant alleges absent counsel's performance there is a reasonable probability the outcome of the trial would have been different.
At the January 9, 2015 evidentiary hearing, Amber Tucker, Defendant's former counsel testified. Counsel testified she began her representation of Defendant in November of 2008. (Evid. Hrg. Transc. p. 13). Counsel testified she met with Defendant on January 12, 2009, and explained how speedy trial worked. (Evid. Hrg. Transc. p. 14). Counsel explained she requested a continuance because her level of preparation on January 14, 2009 was only in the beginning stages. (Evid. Hrg. Transc. p. 15). Counsel admitted ...

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