United States District Court, M.D. Florida, Ocala Division
DAVID J. TATARA, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS AND ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE
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.
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.
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 15th 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;
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 15th 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.
to trial, counts I and II, the child abuse counts, were
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.
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.
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.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).
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.
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).
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
(Doc. 11-9 at 82).
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).
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).
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).
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).
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).
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).
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).
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).
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).
Standard of Review Under the Antiterrorism Effective Death
Penalty Act (“AEDPA”)
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;
(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).
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.
the federal court finds 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 ...