Aguilera v. Jones

• Decision Date: 10 March 2016
• Docket Number: Case No. 15-20406-CIV-GAYLES/WHITE
• Parties: REYNYER AGUILERA, Petitioner, v. JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Southern District of Florida

REYNYER AGUILERA, Petitioner, v. JULIE L. JONES, Secretary, Florida Department of Corrections, Respondent.

Case No. 15-20406-CIV-GAYLES/WHITE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

March 10, 2016

ORDER

THIS CAUSE comes before the Court on Magistrate Judge Patrick A. White's Supplemental Report of Magistrate Judge ("Report") [ECF No. 25] entered on January 13, 2016, as well as pro se Petitioner Reynyer Aguilera's Motion for Leave to Amend Objection to Magistrate's Recommendation [ECF No. 32]. The Petitioner filed a Petition for Writ of Habeas Corpus with the Court on February 3, 2015 [ECF No. 1] ("Petition"). The matter was referred to Judge White, pursuant to 28 U.S.C. § 636(b)(1)(B) and Administrative Order 2003-19 of this Court, for a ruling on all pretrial, nondispositive matters, and for a Report and Recommendation on any dispositive matters. [ECF No. 3]. For the reasons that follow, the Petitioner's Motion shall be granted, the Court's prior Order of February 29, 2016 [ECF No. 30] shall be vacated, the Report shall be adopted in full, and the Petition shall be denied.

I. BACKGROUND

A. State Trial and Post-Conviction Proceedings

The Court recites only the facts pertinent to ruling on the instant Petition. The underlying charges arose when the Petitioner confronted his girlfriend when she returned from Miami Beach with a group of friends. The facts of the incident, as recited by Florida's Third District Court of Appeal and consistent with the record before this Court, are as follows:

Aguilera, age twenty-two, lived with his girlfriend Kristin, age twenty, and their 22-month-old daughter. Aguilera and Kristin had lived together about three years, and Aguilera considered her to be his wife.

On a Friday night that was to prove tragic, Kristin called Aguilera to tell him that she and her step-sister were going to go out with other young women. Aguilera was upset that she was going out without him. Kristin did not tell Aguilera that two young men, Danny and Ignacio, would be accompanying the group to a Miami Beach night club. Aguilera was suspicious, and he and a friend followed the group in the friend's car until that car had a flat tire.

After repairing the tire, Aguilera called another friend, [] Abdel Berdecia, to meet him at Aguilera's father's house so that they could try to find Kristin and her group. Ultimately, Aguilera, Berdecia, and two other men drove to the home of one of the young women with Kristin, Melissa, to wait for them. They arrived at the house at about 2:00 a.m. and waited in a car.

Berdecia had a concealed weapons permit, and that night he had his loaded, hol-stered handgun with him. Aguilera knew that Berdecia usually carried a handgun and that he had a permit to do so. When Berdecia got in the car that night, Aguilera saw that he had the gun with him. Aguilera asked Berdecia to let him hold the gun, but Berdecia refused to let him take it. Aguilera wanted to hold the gun "for protection from the guys" accompanying Kristin and the other women, "in case of anything."

Kristin, the two other women, the victim (Ignacio), and the other young man (Danny) in the group arrived at Melissa's home some time after 4:00 a.m. Danny gave Kristin a kiss on the cheek as the group got out of the car. Aguilera saw this, grabbed the gun from Berdecia, and rushed with Berdecia and their two other friends toward Kristin and her group. Aguilera first tried to hit Danny with the gun, but that strike did not draw blood. Danny and Ignacio then ran to the front foyer of Melissa's house and banged on the locked door.

Berdecia had with him an asp—an extendable baton—and began to use it to strike Danny, while Aguilera hit Ignacio with the gun. The gun discharged, firing a single round into the side of Ignacio's head, and he later died from that wound.

After the gunshot, Aguilera and his group initially left the scene in their car. Aguilera returned to the scene almost immediately, however, without the gun, and told the police that he had been the shooter. He told the police that he had tried to hit Ignacio with the gun, and that the gun had gone off accidentally.

Aguilera v. State, 970 So. 2d 1270, 1271-72 (Fla. 3d DCA 2008) (footnotes omitted).¹ The Petitioner was charged in Florida case number 02-24536 with second-degree murder with a firearm, aggravated battery with a deadly weapon (asp or baton), aggravated battery with a deadly weapon (firearm), and display or use of a firearm while committing a felony. Report at 3.

At trial, the Petitioner's court-appointed counsel conceded during his opening statement that the Petitioner had used a gun to strike the victim and that the gun accidentally discharged, and therefore had committed manslaughter. Id. at 4. The trial judge placed the Petitioner under oath and underwent a colloquy in which he asked the Petitioner whether he agreed with his counsel's strategy of conceding guilt to manslaughter. Id. The Petitioner stated that he agreed with counsel's strategy, understood that manslaughter was punishable by up to thirty years' imprisonment, and that he faced a twenty-five-year minimum mandatory sentence up to life under Florida's "10-20-life" statute, Fla. Stat. § 775.087.² See Report at 5-6 (citing Trial Tr. at 27-30).

During the course of trial, the State called as a witness the police officer who first responded to the underlying incident, who testified that when he arrived at the scene, the Petitioner, without prompting, stated, "I am the shooter. I am the one who shot the guy . . . ," and then, as the same officer patted him down, stated, "[N]o, no, I don't have the gun. I threw it away. I put it—I threw it into a drain." Trial Tr. 521-23; 543-44. The officer further testified that the Petitioner later made several other unprompted statements while he was handcuffed in the back of the police vehicle, and the officer testified that he did not engage in conversation with or otherwise promptthe Petitioner into making those statements. Id. at 527-30. The Petitioner's counsel did not object to this testimony.

During closing argument, counsel for the State made the following three statements: first, that a State witness who made an excited utterance in a 911 call after the underlying shooting was telling the truth; second, that the Petitioner lied to the responding officer about where the gun was; and third, that the Petitioner lied about his concern regarding what transpired and for the victim. Trial Tr. at 1087-88, 1095-96. The Petitioner's counsel did not object to these statements.

The jury found the Petitioner guilty of second-degree murder, aggravated battery with a firearm, and using or displaying a firearm while committing a felony, with special findings that he discharged a firearm during the offense, killing the victim. Report at 6-7. The jury found the Petitioner not guilty of aggravated battery with a baton/asp. Id. The court adjudicated him guilty of the relevant charges and imposed a split sentence of forty years' imprisonment with a twenty-five year minimum mandatory for discharging a firearm, followed by ten years of supervised release for the second-degree murder. Id. at 7. The court also imposed a concurrent split sentence on the remaining counts of fifteen years' imprisonment—with a ten-year minimum mandatory for possession of a firearm—followed by ten years' probation. Id. The Petitioner's conviction and sentence were affirmed on direct appeal, see Aguilera, 795 So. 2d 1270, and the Florida Supreme Court denied a petition for discretionary review on September 19, 2008, see Aguilera v. State, 993 So. 2d 510 (Fla. 2008).

Judge White's Report accurately summarizes the Petitioner's post-conviction procedural history as follows:

On November 12, 2009, the Petitioner filed a Rule 3.850 motion for post-conviction relief arguing: (1) counsel was ineffective for failing to file a motion in limine and/or object to the Petitioner's pre-Miranda statements; (2) counsel was ineffective for failing to object to the prosecutor's improper bolstering arguments during closing; (3) counsel was ineffective for failing to object when the trial courtgave the erroneous standard jury instruction for manslaughter by act; (4) counsel was ineffective for failing to file a motion for new trial; (5) counsel was ineffective for misadvising the Petitioner to reject the State's twenty-year plea offer on the crimes charged on the morning of trial, and assuring him he would be found guilty of the lesser offense of manslaughter which carried a maximum sentence of fifteen years; (6) counsel was ineffective for misadvising him that the maximum sentence he would face if he was found guilty of the lesser offense of manslaughter was fifteen years' imprisonment, and he would have accepted the plea if he had known he faced thirty years for that offense; (7) convictions for both second-degree murder while using a firearm, and use of a firearm during the commission of a felony, violated double jeopardy; and (8) counsel's errors cumulatively deprived him of a fair trial. The court granted ground (7), vacated the conviction for [display or use of a firearm during the commission of a felony] in an order rendered on July 8, 2011, and summarily denied the remaining claims.

The Petitioner filed a notice of inquiry in the trial court on November 10, 2011, requesting an update on the status of his Rule 3.850 motion. The court forwarded him a copy of the order vacating Count (4) on December 6, 2011.

The Petitioner filed a State habeas petition on December 29, 2011, seeking a belated appeal of the denial of his Rule 3.850 claims. The Third District [Court of Appeal] granted the petition for belated 3.850 appeal on January 20, 2012. In his initial brief, which was filed through counsel, he presented argument with regards to post-conviction claims (3), (4), (5) and (6), arguing: (1) the trial court erred in summarily denying the Petitioner's claim of ineffective assistance of counsel where counsel

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