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Cruz v. Secretary, Department of Corrections

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

September 23, 2019




         I. Introduction

         Petitioner, Efrain Camarill Cruz, a former detainee of the Citrus County Jail, proceeds on a petition for writ of habeas corpus under 28 U.S.C. § 2254, filed by counsel (Doc. 1; Petition). Petitioner challenges a 2013 Citrus County judgment of conviction. Respondents filed a response (Doc. 12; Response), and Petitioner’s counsel replied (Doc. 22; Reply).[1]

         Petitioner raises three grounds for habeas relief: (1) his guilty plea was not voluntary because of his mental illness, or alternatively, the ineffective assistance of counsel for failure to argue Petitioner was incompetent to enter a guilty plea and for failure to request a competency hearing under the Florida Rules of Criminal Procedure; (2) the ineffective assistance of counsel for failure to move to dismiss count four of the indictment; and (3) his convictions and sentence under Florida Statutes sections 847.0135(3)(a) and (4)(a) violate double jeopardy principles. Petition at 10, 17, 18.

         II. Procedural History

         Petitioner, a Mexican citizen, was convicted on August 19, 2013, and sentenced to serve 90 days in the county jail followed by three years of probation with possible deportation. Petition at 1. As of the date of this Order, Petitioner completed his sentence. However, when Petitioner filed his Petition, on August 19, 2016, he met the “custody” requirement under § 2254 because his probationary term had not expired. Id. It appears Petitioner faces a possible collateral consequence related to his conviction because he alleges he was subject to deportation as a result. Id.

         Petitioner was arrested on June 22, 2012, following an undercover operation. Ex. A at 27. According to the probable cause affidavit, Petitioner used his “email account to seduce, solicit, lure or entice or attempt to seduce, solicit, lure or entice a parent of a child to commit any illegal sex act.” Id. at 28. An undercover agent, Deputy Phil Graves, posing as an adult single mother, posted an advertisement online, titled “ready for training–W4M.” Id. That same day, Petitioner responded to the advertisement using an online email service. Id. Deputy Graves responded immediately and identified the child as a 13-year-old girl. Id. Petitioner exchanged numerous text messages with whom he thought was the parent of the child. Id. The two also exchanged pictures through email. Id. Petitioner spoke by phone with the supposed parent and the supposed daughter, talking to the daughter about engaging in sex acts with her. Id. at 28-29. Deputy Graves provided Petitioner an address and the two arranged to meet. Id. at 29. When Petitioner arrived, officers arrested him, confiscating two cell phones and a thumb drive device, each of which was believed to contain pertinent information. Id. at 59, 66.[2] After being read his rights, Petitioner stated he made a mistake. Id.

         On July 16, 2012, Petitioner was charged by Information with four counts: (1) use of the internet or device to lure a child identified as Tiffany Wright; (2) use of the internet or device to lure the parent of a child; (3) traveling to meet a minor, identified as Jenny, [3] for illegal sexual conduct; and (4) attempted lewd/lascivious battery on a child identified as Jenny. Id. at 38.

         On August 19, 2013, Petitioner entered a guilty plea as “an open plea to the Court, ” not as a result of a plea negotiation with the prosecutor. Id. at 3, 4. After Petitioner was sworn in, Petitioner’s attorney, Mr. Grant, informed the trial judge he spoke with Petitioner prior to the proceedings to explain the terms of the plea, including the sentence:

MR. GRANT: Mr. Cruz, Judge, for the record, reads and writes English, is extremely articulate. He, in addition to that, Your Honor, did acquire his GED and one year of college. He’s been in the United States for 16 years. I have, Judge, in this case, we have not taken any depositions . . . because Mr. Cruz, through the decision-making process, has agreed to take the deal that the State of Florida – well, that the court is going to offer.[4]
Specifically, Your Honor, we discussed it, I gave him my professional opinion, the likelihood of success at trial which was limited in this case. There are post-Miranda admissions written and oral. There were text messages, there were – the government had a very strong case
I want to make sure that I have advised Mr. Cruz that as a foreign national, it is my opinion that he will be deported from the United States upon . . . entering of the plea of guilty.
I want to make it abundantly clear that my client understands that, is prepared to go to Mexico if the United States government does, in fact, deport him.

Id. at 5-6.

Mr. Grant also informed the judge the following:
Your Honor, we have discussed that [my client is] waiving his right to a jury trial, waiving the right to confront witnesses, waiving his right to an appeal other than for any legal [sic] sentence, that he has waived – that he’s going to be getting DNA from the Court, and that he’s waiving all his other constitutional rights that relate to a jury trial and the right to confront witnesses and challenge the witnesses and the evidence that the government may present against him. In light of that, we’re here to change our plea today, enter a plea of guilty, receive 90 days in the Citrus County Jailhouse and three years standard probation.

Id. at 9.

         Upon receiving Mr. Grant’s assurances that Petitioner wished to enter a guilty plea understanding the implications and potential consequences, the judge engaged Petitioner in the following exchange:

THE COURT: Mr. Cruz, you heard your attorney’s representations. Is that how you want to handle this matter?
THE COURT: Are you presently under the influence of any alcohol or intoxicant that would negatively affect your good judgment here today?
THE COURT: Have you ever been found to be insane, incompetent, or mentally challenged?
THE COURT: Okay. Are you comfortable in the English language?
THE COURT: Have you been able to understand everything I’ve said in English as well as what [your attorney] has said in English?
THE DEFENDANT: Yes, I did, sir.
THE COURT: Very good. Now, then, Mr. Cruz, you heard about your situation regarding your immigration status, residency status, and/or likely deportation status. Do you understand that this plea could and likely would subject you to deportation by the federal authorities, you understand that?
THE COURT: [A] guilty plea is one saying that I am guilty of this offense, that you heard your attorney indicate the rights you’re giving up. Do you need me to go over each one of those rights individually like he’s already done in your presence?

Id. at 10-11.

         The trial judge then stated the factual predicate for the plea, as follows:

Mr. Cruz, the facts of the case would tell me that on or about June the 22nd, of 2012 . . . you did knowingly utilize a computer online service, Internet service, local bulletin board, or other electronic status storage device to seduce, solicit, lure, entice a Tiffany Wright believed by you, Mr. Cruz, to be a child to commit an illegal act as defined by Florida [laws], this by conversing or chatting or sending emails or messages to this person.

Id. at 11-12.

         The judge further explained Petitioner communicated with someone Petitioner believed to be the parent of the child to solicit the parent’s consent for the child to participate in an illegal act. Id. at 12. The judge explained Petitioner traveled some distance “to conduct sexual contact with Jenny or Tiffany or somebody else utilizing this electronic data storage matter, ” and explained:

In other words, you traveled for the purpose of having sex with Jenny and that further on or about this same date, that you did attempt to engage in sexual activity with Jenny who was believed by you to be a person over the age of 12 but less than 16, this [sic] by attempting to have sexual contact . . . .

Id. at 13.

         After setting forth the factual predicate, the judge explained to Petitioner that Mr. Grant was not appointed as Petitioner’s immigration attorney and reiterated Petitioner’s plea may result in his deportation. Id. at 14. The judge said:

If you are, in fact, deported, you can’t come back later on and say that Mr. Grant has done anything improper or has given you bad advice or anything. He’s given you the best that he has and you know your situation. Is that correct, Mr. Cruz?

Id. Petitioner responded, “Yes, sir.”[5] The judge explained to Petitioner his guilty plea would result in the waiver of certain rights:

So you’re forever waiving your rights to appeal or challenge any of the facts of this case as we’ve already discussed the facts of the case or any legalities of any decisions that have already been made by me and of course, you still have the right to, you know, have an immigration hearing . . . . You understand that?

Id. at 14-15. Petitioner responded, “Yes, sir.” Id. at 15. Petitioner agreed Mr. Grant “answered all of [his] questions to complete and utter satisfaction, ” and Mr. Grant confirmed Petitioner was “competent.” Id. The judge explained Petitioner would be designated a sexual offender and would be subject to the requirements of the Jimmy Ryce and Lunsford Acts. Id. at 19-20. The judge accepted Petitioner’s plea of guilty, finding it “freely and voluntarily entered into after knowing waiver of rights” and after the factual basis was established. Id. at 17.

         Petitioner, through counsel, filed a direct appeal, Id. at 82, which he voluntarily dismissed, Ex. B. Petitioner’s counsel then filed a motion under Florida Rule of Criminal Procedure 3.850 requesting the trial court vacate Petitioner’s judgment. Ex. D-5. The trial court denied the 3.850 motion. Ex. D-3; Ex. G.[6] Petitioner appealed the trial court’s ruling. Ex. H. On August 18, 2015, the appellate court affirmed without opinion. Ex. M. The appellate ...

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