Bravo v. Sec'y, Dep't of Corr., CASE NO: 8:10-CV-2082-T-30AEP

• Decision Date: 29 July 2011
• Docket Number: CASE NO: 8:10-CV-2082-T-30AEP
• Parties: VINCENTE CARBAJAL BRAVO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondent(s).
• Court: U.S. District Court — Middle District of Florida

VINCENTE CARBAJAL BRAVO, Petitioner,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondent(s).

CASE NO: 8:10-CV-2082-T-30AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: July 29, 2011

ORDER

Petitioner, an inmate in the Florida penal system proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The Court has considered the petition and memorandum of law filed on October 4, 2010 (Dkt. #4), Respondents' response filed on January 19, 2011 (Dkt. #16) and Petitioner's reply filed on February 2, 2011 (Dkt. #19). Upon review, the Court determines that the petition must be denied because Petitioner has failed to show that the state court decision resulted in an unreasonable application of clearly established federal law or an unreasonable determination of the facts.

BACKGROUND

On July 18, 2001, Vincente Carbajal Bravo ("Petitioner") was charged with second degree murder for the shooting of Martha Gomez ("victim") and shooting within a dwelling. Petitioner pled not guilty, and on July 24, 2001, a jury trial proceeded. The State called seventeen witnesses. Defense called no witnesses and Petitioner did not testify.

Officer Henry Smith observed that when he arrived on the scene, Petitioner was covered in blood and slurring his words because blood was running from his mouth. Officer Smith further testified that Petitioner stated six times that the victim shot him in the cheek behind his ear and then shot herself.

The state called several doctors and medical examiners who collectively testified that Petitioner's injuries were consistent with a gun being placed inside his mouth prior to firing. Through expert testimony, the State showed the victim died from a gunshot wound to the back of her head. The position of the wound which killed the victim was difficult to reach by someone committing suicide.

The victim's sister, Oralia Ibrarra, testified that prior to the night of the shooting, the Petitioner took out a rifle during an argument and left the house claiming: "If she leaves the room I will kill her." (Dkt. #18 Ex. 1 at 590:20).

Petitioner was convicted as charged on both counts on May 16, 2003. (Dkt. #18 Ex. 1 at 81). On June 12, 2003, Petitioner gave notice of direct appeal, raising three issues. The Second District Court of Appeals per curium affirmed Petitioner's convictions and sentence on November 27, 2004.

Petitioner then filed a 3.850 motion for Post-Conviction Relief on March 21, 2005, raising nine grounds of ineffective assistance of counsel. (Dkt. #18 Ex. 7 at 76-219). The trial court held an evidentiary hearing on five grounds on December 15, 2008, at which Petitioner's trial counsel testified. (Dkt. #18 Ex. 7 at 266). The court denied the motion on January 20, 2009. (Dkt. #18 Ex. 7 at 420). On July 6, 2009, Petitioner filed a direct appealof the court's denial of his motion for Post-Conviction Relief raising the issue that counsel was ineffective for advising Petitioner not to testify at trial. (Dkt. #18 Ex. 08). The Second District Court of Appeal per curium affirmed the trial court's ruling on June 18, 2010. (Dkt. #18 Ex. 11).

Petitioner timely filed the instant federal petition on September 30, 2009, claiming trial counsel was ineffective for:

Ground 1: misadvising Petitioner about his right to testify in violation of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights;

Ground 2: stripping Petitioner of his right to be present at any side bar conferences in violation of Petitioner's Fourth, Fifth, Sixth, and Fourteenth Amendment rights;

Ground 3: conceding Petitioner's guilt in violation of Petitioner's Fourth, Fifth, Sixth, and Fourteenth Amendment rights;

Ground 4: failing to depose critical defense witnesses in violation of Petitioner's Fourth, Fifth, Sixth and Fourteenth Amendment rights;

Ground 5: failing to investigate and interview available defense witnesses in violation of Petitioner's Fourth, Fifth, Sixth and Fourteenth Amendment rights;

Ground 6: committing fraudulent practice in violation of Petitioner's Fourth, Fifth, Sixth, and Fourteenth Amendment rights;Ground 7: failing to investigate evidence helpful to the defense in violation of Petitioner's Fourth, Fifth, Sixth, and Fourteenth Amendment rights;

Ground 8: committing misconduct which violated Petitioner's Fourth, Fifth, Sixth, Fourteenth Amendment rights; and

Ground 9: failing to investigate the emergency room physician and cross examine Dr. Castor in violation of Petitioner's Fourth, Fifth, Sixth, and Fourteenth Amendment rights.

STANDARD OF REVIEW

In 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") amended 28 U.S.C. § 2254. "Section 2254, as amended by the AEDPA, establishes a highly deferential standard for reviewing state court judgments." Parker v. Sec., Dept. Corr., 331 F. 3d 764, 768 (11th Cir. 2003) (citing Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir. 2002)).

Under 28 U.S.C. § 2254, a person in custody pursuant to a state court judgment may challenge their conviction and sentence in federal court by applying for a writ of habeas corpus. See 28 U.S.C. § 2254(a). Federal courts "may entertain an application for a writ of habeas corpus only on the ground that the prisoner's confinement violates the Constitution, laws, or treaties of the United States." 28 U.S.C. § 2254(a). To obtain relief, the applicant must show that the violation rises to the level of a "fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Farley, 512 U.S. 339, 348 (1994) (quoting Hill v. U.S., 368 U.S. 424, 428 (1962)).

Furthermore, under 28 U.S.C. § 2254(d), habeas relief is not available for any claim adjudicated on the merits in state courts unless the state decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or (2) "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(1) & (2). A state court's decision is "contrary to" the Supreme Court's clearly established law if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (citing Williams v. Taylor, 529 U.S. 362, 40506 (2000)); see also Price v. Vincent, 538 U.S. 634, 640 (2003); Early v. Packer, 537 U.S. 3, 7-8 (2002) (per curiam).

Under § 2254(d)'s "unreasonable application" clause, a federal court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied a Supreme Court Case incorrectly. Woodford v. Visciotti, 537 U.S. 19, 25 (2003) (citing Bell v. Cone, 535 U.S. 685, 698-99, (2002). Rather, "it is the habeas applicant's burden" to show that the state court applied that case to the facts "in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2003).

An accused is entitled to reasonably effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 (1970). To establish that Petitioner has not had effective assistance of counsel, he must show that counsel's performance fell below an objectively reasonable standard and resulted in prejudice. Strickland v. Washington, 466 U.S. 668(1984). There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Waters v. Thomas, 46 F.3d 1506, 1511-12 (11th Cir. 1995).

DISCUSSION

Grounds two through nine of Petitioner's instant motion are near replicas of the claims in his motion for Post-Conviction Relief that were held to be procedurally barred. Federal courts must dismiss claims that have been explicitly ruled procedurally barred by the highest state court considering the claims. Harris v. Reed, 489 U.S. 255 (1989). See also Rodwell v. Singletary, 113 F.Supp.2d 1308 (M.D. Fla. 2000) (finding that federal habeas courts cannot reach the merits of procedurally defaulted claims). The procedural bar can only be avoided upon showing either cause or prejudice, or by establishing that a fundamental miscarriage of justice resulted in conviction of an innocent defendant. See Wainwright v. Sykes, 433 U.S. 72, 97 (1977); Murray v. Carrier, 477 U.S. 478, 496 (1986). To show prejudice, he must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Hollis v. Davis, 941 F.2d 1471, 1480 (11thCir. 1991). Petitioner must also show that he exhausted what he claims excuses his procedural default in state court, to the extent it constitutes an independent constitutional claim. See Murray v. Carrier, 477 U.S. 478, 488-89 (where ineffective assistance of counsel is alleged as cause to excuse a procedural default, the claim of ineffectiveness must be presented to the state courts as an independent claim). Without proffering specific facts which support a finding that one ofthese exceptions to the procedural default rule exists, a federal court should not even discuss the merits of a claim that has been procedurally defaulted in state court. Knight v. Dugger, 50 F.3d 1539, 1543 (11th Cir. 1995).

Petitioner's direct appeal of his motion for Post-Conviction Relief included only one ground, that of whether counsel was ineffective for advising appellant not to testify at trial. Thus, only the one ground can be entertained by this Court. Petitioner's grounds two through nine are procedurally barred and will be dismissed.

Despite the fact that grounds two through nine will be dismissed, this court will discuss their merits to explain to Petitioner why they would have failed even had they not been procedurally barred.

Ground 2: Petitioner asserts that his trial counsel failed to inform...