Tatara v. Secretary, Department of Corrections

          ORDER

          WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE

         Petitioner, a Florida prisoner, instituted this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Docs. 1, 2). At the Court's direction, Respondents responded to Petitioner's petition and filed relevant portions of the state court record. (Doc. 11). Petitioner filed a reply in support of his petition. (Doc. 12). Thus, this matter is ripe for review.

         The Court has reviewed the entire record. Because the Court may resolve the petition on the basis of the record, an evidentiary hearing is not warranted. See Rules Governing Section 2254 Case in the United States District Courts, Rule 8(a). Upon consideration, the Court concludes that the petition is due to be denied.

         I. BACKGROUND

         On December 17, 2008, Blake Rupe, a 15-month old child, died. The Medical Examiner ruled the cause of death to be blunt force trauma and the manner of death to be homicide. Law enforcement arrested Petitioner on March 4, 2009 and the State of Florida charged him by Indictment with two counts of child abuse (counts I and II); one count of aggravated child abuse (count III); and one count of murder in the first degree - felony murder (count IV). Count IV of the Indictment (first-degree felony murder) read:

the Grand Jurors, under oath, further present that the said DAVID J. TATARA, in the County of Lake and the State of Florida, on or about the 15^th day of December in the year of Our Lord two thousand-eight, did unlawfully, while engaged in the perpetration of a certain felony, to-wit: Aggravated Child Abuse, kill BLAKE RUPE, a human being who at the time was under the age of 18, by inflicting blunt trauma to his head, thereby causing death, in violation of Section 782.04(1)(a)2, Florida Statutes;

         Count III of the Indictment (aggravated child abuse) read:

the Grand Jurors aforesaid, under oath, further present that the said DAVID J. TATARA, in the County of Lake and the State of Florida, on or about the 15^th day of December 2008, did maliciously punish a child named BLAKE RUPE, during which DAVID J. TATARA willfully committed child abuse upon him by inflicting severe trauma to his head, thereby causing BLAKE RUPE to suffer great bodily harm, in violation of Sections 827.03(2)(b) and (c), Florida Statutes.

         Prior to trial, counts I and II, the child abuse counts, were severed.

         Petitioner proceeded to trial on counts III and IV. At trial, Brian Lockwood, a paramedic, testified he arrived at the home and found Blake Rupe unconscious. In examining the victim, he looked for outward signs of trauma but did not find anything.

         Dr. Edgardo Rodriguez, a physician at Florida Waterman Hospital, testified he treated Blake in the emergency room. A CT exam showed severe swelling of the brain and evidence of a possible fracture or broken skull. Blake was in very critical condition and in full cardiac arrest. Blake was moved to Arnold Palmer Hospital due to the level of care he required. He later died.

         Dr. Barbara Wolf, Chief Medical Examiner for the Fifth Judicial Circuit, performed an autopsy on Blake Rupe. She testified that Blake had an external injury on the back of his head which was an abrasion or scrape, a small laceration on the tip of his tongue and one of his front teeth was missing. Dr. Wolf testified the autopsy revealed Blake had a skull fracture in the bottom area of his skull, in part of the occipital bone. Dr. Wolf noted this area was not prone to fracture. She also found some bruising underneath the scalp on top of the skull, i.e., a subgaleal hemorrhage.^[1]The autopsy revealed Blake's brain was very swollen and appeared to be bulging. She determined the child's skull sutures were widened and concluded this was the “first finding, or the big finding.” (Doc. 11-4 at 32-33). Dr. Wolf also found Blake had a small subdural hematoma and bleeding on the surface of the brain, i.e., a subarachnoid hemorrhage. Dr. Wolf also found bleeding on both sides of the optic nerve as well as retinal hemorrhages. Based on her findings, Dr. Wolf concluded Blake Rupe died of blunt head trauma and determined the manner of death was homicide. (Doc. 11-4 at 48). On cross-examination, Dr. Wolf admitted she could not determine whether there was more than one blow to the child and stated “when injuries are localized in one area, there's no way I can tell if someone, for example, was hit in the same area once or multiple times.” (Doc. 11-4 at 68).

         Towards the end of the State's case in chief, defense counsel moved for a judgment of acquittal and to dismiss. Citing Brooks v. State, 918 So.2d 181 (Fla. 2005) and Sturdivant v. State, 94 So.3d 434 (Fla. 2012), counsel argued the “merger doctrine” did not allow the Defendant to be found guilty of first-degree murder because you must have two or more blows or multiple acts of child abuse. Counsel argued the evidence in this case did not establish there was more than one blow to the child. The court took the motions under advisement and reserved ruling.

         During the trial, the State and Defense discussed jury instructions. The trial court stated: “[H]ere's my thoughts. I read them [Brooks and Sturdivant] pretty carefully, and, in my opinion, if the Supreme Court doesn't reverse themselves, I think we can't go with the felony murder.” (Doc. 11-8 at 52). After further discussion, the trial court stated: “Unless there's a change in the law, you know, before we give it to the jury, you know, I'm inclined to grant the JOA on that.” (Doc. 11-8 at 54).

         After the close of evidence, defense counsel renewed his motion for judgment of acquittal. Citing Brooks, defense counsel argued the evidence did not support a finding that there was more than one blow and, therefore, the charge of felony murder could not stand. The trial court ruled: “At this time I'm going to grant the Motion for Judgment of Acquittal on the first degree murder. The jury will be able to consider second degree murder and child abuse.” After further discussion, the court determined that second degree murder and the aggravated child abuse charges merged. The court stated:

Here are my plans. I am going to instruct the jury, that I have ruled that as a matter of law that they will not be considering first degree felony murder or aggravated child abuse, and that they should disregard any instructions or the reading of the indictment as to first degree felony murder and aggravated child abuse, and that they will only be able to consider second degree murder and the lessers of second degree murder.

(Doc. 11-9 at 82).

         Before the case was submitted to the jury, the State filed a "dummy" information charging the Petitioner with one count of second-degree murder. Defense counsel objected and argued it was inappropriate and a sham. The trial court decided to send the "dummy" information back with the jury. (Doc. 11-10 at 60-62).

         The jury found the Petitioner guilty of murder in the second degree. (Doc. 11-1 at 50). The court entered a judgment of not guilty as to count III - aggravated child abuse. The State entered an announcement of nolle prosequi as to counts I and II. The Court sentenced Petitioner to a term of natural life. (Doc. 11-1 at 56-59).

         Petitioner appealed his judgment and sentence. Petitioner raised six grounds: (1) the trial court violated Petitioner's due process rights and procedural rules by allowing the State to file an Information and attempt to amend the indictment after the close of evidence; (2) the trial court reversibly erred in permitting Linda Pedicone to testify as an expert in child abuse; (3) the trial court improperly admitted evidence of victim's previous injuries; (4) the trial court reversibly erred in admitting evidence of prior bad acts; (5) the trial court reversibly erred in admitting Kathryn Tillman's testimony regarding a statement allegedly made by Petitioner; and (6) the trial court reversibly erred in denying Petitioner review of Department of Children and Families records. (Doc. 11-10 at 96-152). The State filed an Answer Brief. (Docs. 11-10 at 154-72, 11-11 at 1-19). Petitioner filed a Reply Brief. (Doc. 11-1 at 21-36).

         On February 15, 2013, Petitioner filed an unopposed motion to file supplemental brief, to exceed 50-page limit and to continue oral argument (Doc. 11-11 at 38-41) and a Supplemental Brief (Doc. 11-11 at 42-48). The Supplemental Brief contained one new ground: the trial court committed fundamental error by instructing the jury on the uncharged offense of second degree murder. The State filed a Supplemental Answer Brief. (Doc. 11-11 at 50-62). Petitioner filed a Supplemental Reply Brief. (Doc. 11-11 at 64-70).

         On April 19, 2013, Petitioner's Joint Motion for Substitution of Counsel was granted. (Doc. 11-11 at 72-74). Petitioner's new counsel then filed a Motion for Leave to file Amended Initial Brief (Doc. 11-11 at 123-33) and an Amended Initial Brief (Doc. 11-11 at 76-121). The Amended Brief raised two grounds: (1) because the court granted Petitioner's motion for judgment of acquittal, any further proceedings on this indictment violated double jeopardy; and (2) the conviction violated Petitioner's due process rights because he was never charged with second degree murder. The Fifth District Court of Appeal (“Fifth DCA”) denied the motion and struck the Amended Initial Brief. (Doc. 11-11 at 135).

         Oral argument was held, see Doc. 11-11 at 157-82, and the Fifth DCA per curiam affirmed. (Doc. 11-11 at 137); Tatara v. State, 119 So.3d 1265 (Fla. 5th DCA 2013) (Table). Petitioner, through counsel, filed a motion for rehearing and motion for written opinion (Doc. 11-11 at 139-82). The motion was denied on September 4, 2013, (Doc. 11-11 at 184) and Mandate issued on September 19, 2013 (Doc. 11-11 at 186).

         On March 10, 2014, Petitioner, through counsel, filed a verified motion for postconviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. (Docs. 11-11 at 207-22; 11-12 at 1-58; 11-13 at 1-72). Petitioner raised four grounds: (1) counsel was ineffective for failing to object to the charge of second degree murder being submitted to the jury; (2) the conviction for second degree murder is void because it violates double jeopardy; (3) the conviction for second degree murder is void because it was entered in violation of the due process clause; and (4) he was entitled to discharge due to those errors. Id. The State responded in opposition. (Docs. 11-13 at 74-82; 11-14 at 1-76; 11-15 at 1-76; 11-16 at 1-68; 11-17 at 1-43; 11-18 at 1-37). Petitioner, through counsel, filed a reply in support of postconviction relief (Doc. 11-18 at 39-46). The court held an evidentiary hearing. (Doc. 11-20 at 68-101; 11-21 at 1-51). Following the hearing, Petitioner, through counsel, filed his argument after evidentiary hearing, (Docs. 11-19 at 21-79; Doc. 11-20 at 1-66), and the State filed a memorandum of law regarding Defendant's motion for postconviction relief (Docs. 11-18 at 48-54; 11-19 at 1-19). The state court denied the motion. (Doc. 11-21 at 53-69). Petitioner, through counsel, filed a motion for rehearing. (Doc. 11-21 at 71-79). The state court denied the motion. (Doc. 11-22 at 1-2). Petitioner appealed, (Doc. 11-22 at 4-52), the State filed an answer brief, (Doc. 11-22 at 54-78), and Petitioner filed a reply brief (Doc. 11-22 at 80-89). The Fifth DCA per curiam affirmed. (Doc. 11-22 at 91); Tatara v. State, 200 So.3d 74 (Fla. 5th DCA 2016) (Table). Mandate issued on October 10, 2016. (Doc. 11-22 at 93).

         While the Rule 3.850 motion was pending, Petitioner, through counsel, filed in the Fifth DCA a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel and/or petition for writ of habeas corpus to correct manifest injustice on July 31, 2014. (Doc. 11-22 at 95-229). The petition was denied. (Doc. 11-22 at 231). Petitioner filed a pro se motion for rehearing and in the alternative a request for written opinion. (Doc. 11-22 at 233-42). The motion was denied. (Doc. 11-22 at 244).

         Also, while the Rule 3.850 motion was pending, Petitioner filed a pro se petition to invoke all writs jurisdiction on January 30, 2015. (Doc. 11-22 at 246-328). The Fifth DCA ordered the State to respond. (Doc. 11-22 at 330). The state moved to dismiss the petition. (Doc. 11-22 at 332-34). Petitioner replied. (Doc. 11-22 at 336-42). The petition was denied, and the motion to dismiss was denied as moot. (Doc. 11-22 at 344, 346).

         II. LEGAL STANDARDS

         A. Standard of Review Under the Antiterrorism Effective Death Penalty Act (“AEDPA”)

         Under the AEDPA, federal habeas relief may not be granted on 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. Sec'y for Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit 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.

         Even if the federal court finds that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was “objectively unreasonable.”^[2]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 ...