Cano v. Sec'y, Dep't of Corr.
| Decision Date | 19 October 2020 |
| Docket Number | CASE NO. 8:17-cv-2436-T-60JSS |
| Court | U.S. District Court — Middle District of Florida |
| Parties | ARTURO CANO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
Arturo Cano petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his ten convictions for sexual offenses including sexual battery on a minor and lewd and lascivious molestation of a minor. The respondent argues that some grounds are procedurally barred (Doc. 13 at 9, 24, 30, 36) and all remaining grounds are without merit. Upon review of the petition, the response and exhibits in support of the response (Doc. 13, 13-1), and the reply (Doc. 21), the Court finds as follows:
Factual and Procedural Background1
Cano lived next door to the four-year-old female victim and fondled her when she visited his home. Three years later Cano moved in with the victim's family and began to perpetrate more serious forms of sexual abuse. For eight years Cano repeatedly sexually abused the victim. Cano arranged for the victim to behomeschooled in eighth grade to reduce the likelihood that his crimes would be discovered.
Cano eventually moved out of the victim's home, and the victim told her mother about the sexual abuse. When the victim's mother confronted Cano, Cano did not deny the abuse and instead responded violently. The victim's mother did not speak English and delayed in reporting the sexual abuse to police. Several months later police started an investigation.
The victim, who was sixteen years old, called Cano on the telephone while police monitored the call. During the call the victim falsely accused Cano of giving her herpes. Cano denied it but only because he claimed that he saw a doctor frequently and did not have the disease. When the victim told Cano that her mother was going to have Cano charged with sexually molesting the victim, Cano did not deny the molestation.
The victim told police that she saw child pornography on Cano's computer including nude photographs of herself. After getting a search warrant for Cano's home, police seized computer equipment, videotapes, and other property. A videotape depicted Cano placing his hand in the victim's pants while he gave her a manicure. The victim testified that Cano put his finger in her vagina.
A jury found Cano guilty of the ten counts and not guilty of one count, and the trial court sentenced Cano to life on two counts and 37.3 years on the remaining counts. The state appellate court affirmed the convictions. After the state court denied Cano post-conviction relief, Cano filed the federal petition in this case.
Because Cano filed his federal petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, AEDPA governs the review of his claims. Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). AEDPA modified 28 U.S.C. § 2254(d) and created a highly deferential standard for federal court review of a state court adjudication by requiring:
Williams v. Taylor, 529 U.S. 362, 412-13 (2000) interprets this constraint on the power of the federal habeas court to grant a state prisoner's petition:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this 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 this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Clearly established federal law refers to the holdings of the U.S. Supreme Court's opinions at the time of the relevant state court decision. Williams, 529 U.S. at 412.
"The focus . . . is on whether the state court's application of clearly established law is objectively unreasonable . . . ." Bell v. Cone, 535 U.S. 685, 694 (2002). An unreasonable application is "different from an incorrect one." Id. Even clear error is not enough. Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017). A federal petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). "This is 'meant to be' a difficult standard to meet." LeBlanc, 137 S. Ct. at 1728 (quoting Richter, 562 U.S. at 102).
A factual determination by the state court is not unreasonable "merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). If "'[r]easonable minds reviewing the record might disagree'" about the state court's finding, the federal habeas court cannot supplant the determination. Id. (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006)). A federal habeas court may grant relief if "in light of the evidence presented in the state court proceedings, no reasonable jurist would agree with the factual determinations upon which the state court decision is based." Raleigh v. Sec'y, Fla. Dep't Corrs., 827 F.3d 938, 948-49 (11th Cir. 2016).
Also, a state court's factual determinations are presumed correct, and a petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
The purpose of federal review is not to re-try the state case. "[AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell, 535 U.S. at 694. "AEDPA prevents defendants — and federal courts — from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). Consequently, "review under [Section] 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). Accord Landers v. Warden, Att'y Gen. of Ala., 776 F.3d 1288, 1294-95 (11th Cir. 2015) (applying Pinholster to Section 2254(d)(2)).
If the last state court to decide a federal claim explains its decision in a reasoned opinion, a federal habeas court reviews the specific reasons in the opinion and defers to those reasons if reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). If the last state court decision is without reasons, the federal court "should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume that the unexplained decision adopted the same reasoning." Id. at 1192. The unexplained decision by the laststate court is the decision that is owed deference under AEDPA. Marshall v. Sec'y, Fla. Dep't Corrs., 828 F.3d 1277, 1285 (11th Cir. 2016).
Cano asserts ineffective assistance of counsel — a difficult claim to sustain. "'[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.'" Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)) explains:
The post-conviction court is "free to dispose of ineffective assistance claims on either of its two grounds." Sims, 155 F.3d at 1305. "There is no reason for a court deciding an ineffective assistance of counsel claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
"[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. Strickland requires that "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690.
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if...
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