Cirota v. Jones, Case No. 3:17cv253-LC/CAS

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtCHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
PartiesJOHN H. CIROTA, Petitioner, v. JULIE L. JONES, Respondent.
Docket NumberCase No. 3:17cv253-LC/CAS
Decision Date20 September 2018

JOHN H. CIROTA, Petitioner,
v.
JULIE L. JONES, Respondent.

Case No. 3:17cv253-LC/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

September 20, 2018


REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

On April 14, 2017, Petitioner, John H. Cirota, a prisoner in the custody of the Florida Department of Corrections, proceeding pro se under the mailbox rule, filed a petition for writ of habeas corpus with exhibits pursuant to 28 U.S.C. § 2254. ECF No. 1. On February 9, 2018, Respondent filed an answer with index to record. ECF No. 16. On August 13, 2018, Petitioner filed a reply consisting of five parts. ECF Nos. 23-27.

The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov.

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§ 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this § 2254 petition should be denied.

Background and Procedural History

On April 15, 2011, Petitioner was charged by Information filed in Escambia County, Florida, with Count One, lewd or lascivious molestation of C.P., a child age six, by Defendant age 18 years or older, on March 22, 2011, in violation of section 800.04(5), Florida Statutes; and Count Two, unlawfully soliciting C.P., age six years, to commit a lewd or lascivious act, on March 22, 2011, by Defendant age eighteen years or older, in violation of section 800.04(6), Florida Statutes. Ex. A at 1.1

The State filed a notice of intent to offer hearsay under section 90.803(23), Florida Statutes, and notice of intent to submit Williams Rule evidence of other crimes, wrongs, or acts, pursuant to section 90.404(2)(b), Florida Statutes. Ex. A at 15-17. Hearing was held September 30, 2011, on the Williams Rule evidence. Ex. A at 19-146. A second Williams Rule hearing was reconvened on October 6, 2011, after discovery of some 1998 transcripts pertaining to the Williams Rule witnesses. Ex. B at 184-204.

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The trial court allowed two Williams Rule witnesses to testify to Petitioner's prior acts. Ex. B at 197-98.

Jury trial was held on October 3 and 7, 2011, and Petitioner was found guilty as charged on both counts. Ex. B at 215. Petitioner was sentenced to life in prison on Count One and a concurrent term of fifteen years on Count Two, with credit for 195 days served. Ex. B at 220-27. Petitioner appealed to the State First District Court of Appeal, which affirmed per curiam without a written opinion on February 4, 2013.2 Ex. K. The mandate was issued on February 20, 2013. Ex. M. See Cirota v. State, 106 So. 3d 931 (Fla. 1st DCA 2013) (table).

Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on July 9, 2013, a first amended motion on October 3, 2013, and a second amended motion on December 30, 2013.3 Ex. N at 1-44, 50-95, and 98-144. The post-conviction court denied

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the second amended motion on March 4, 2014. Ex. N at 145-219. Petitioner appealed, and the district court of appeal affirmed per curiam without discussion on August 6, 2014. Ex. Q. The mandate was issued on October 3, 2014. Ex. S. See Cirota v. State, 146 So. 3d 1174 (Fla. 1st DCA 2014) (table).

Petitioner filed a "Petition For Writ of Habeas Corpus Alleging Ineffective Assistance of Appellate Counsel" in the State First District Court of Appeal on June 9, 2014, arguing that counsel should have raised a fundamental error claim for violation of the speedy trial provisions of Florida Rule of Criminal Procedure 3.191(a). Ex. T. The petition was denied "on the merits" on July 3, 2014. Ex. U. See Cirota v. State, 146 So. 3d 1174 (Fla. 1st DCA 2014) (table).

On August 27, 2014, Petitioner filed a "Notice of Void Judgment and Demand for Discharge" in the trial court based on the speedy trial issue. Ex. W at 1-4. On December 1, 2014, Petitioner filed a "Supplemental

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Postconviction Claim," raising the additional claim that he should be discharged from his conviction because, when he was first taken into custody, he was not apprised of his Miranda rights. Ex. W at 8-14. On January 21, 2015, the circuit court denied his notice of void judgment and supplemental claim by "Order Denying Postconviction Relief." Ex. W at 16-17. The court found that the claims were successive post-conviction claims that were procedurally barred. Id. at 16. Petitioner appealed to the First District Court of Appeal, which affirmed per curiam without discussion on April 23, 2015. Ex. Z. The mandate was issued on June 24, 2015. See Cirota v. State, 166 So. 3d 768 (Fla. 1st DCA 2015) (table).

On April 28, 2015, Petitioner filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Ex. CC at 1-10. Petitioner claimed that he received life in prison even though the scoresheet only called for 61.5 months in prison, and the longer sentence could not be imposed without additional factfinding by the jury. The State court denied the motion on July 20, 2015, concluding that the court could impose a sentence up to the statutory maximum without any additional factfinding or written findings. Ex. CC at 11-16. Petitioner appealed to the district court of appeal, which affirmed per curiam without opinion on March

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24, 2016. Ex. FF. The mandate was issued on June 6, 2016. Ex. HH. See Cirota v. State, 190 So. 3d 636 (Fla. 1st DCA 2016) (table).

On August 12, 2015, Petitioner filed a petition for writ of habeas corpus in the circuit court. Ex. II at 1-14. He claimed a violation of due process and equal protection based on his allegation that he was not given his Miranda rights when he was first taken into custody, where he made an "inconsistent" statement during an interrogation. He also claimed that he was denied due process because he was tried outside the speedy trial time requirements of Florida Rule of Criminal Procedure. 3.191. The circuit court denied the petition on December 21, 2015. Ex. II at 15-16. Petitioner appealed, and the district court of appeal affirmed per curiam on July 13, 2016. Ex. LL. The mandate was issued on September 7, 2016. See Cirota v. State, 197 So. 3d 92 (Fla. 1st DCA 2016) (mem.) Petitioner's Notice to Invoke Discretionary Jurisdiction seeking review in the Florida Supreme Court was denied on November 8, 2016. Ex. TT.

On April 14, 2017, Petitioner filed his petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254 raising the following grounds for relief:

(1) Trial court improperly allowed Williams Rule evidence not sufficiently similar to be relevant and counsel failed to investigate a witness's prior inconsistent statements, in violation

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of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution. ECF No. 1 at 4.
(2) Trial counsel rendered ineffective assistance prior to trial by failing to ask for a continuance to have a rehearing on the Williams Rule evidence, in violation of the Federal Constitution. ECF No. 1 at 5.
(3) Trial counsel rendered ineffective assistance for allowing the victim's father's statement that he beat up Petitioner that night because he touched his daughter, in violation of the Federal Constitution. ECF No. 1 at 6.
(4) Trial counsel rendered ineffective assistance for allowing the State to not prove that the child committed a lewd and lascivious act, in violation of the Federal Constitution. ECF No. 1 at 6.
(5) Trial counsel rendered ineffective assistance by allowing the trial court to convict and sentence Petitioner without jurisdiction due to expiration of Petitioner's speedy trial rights, in violation of his Constitutional rights. ECF No. 1 at 7.
(6) Trial counsel rendered ineffective assistance for failing to strike three jurors for cause, in violation of Petitioner's Federal Constitutional right to a fair and impartial jury. ECF No. 1 at 8.
(7) Trial counsel rendered ineffective assistance for failing to adequately argue the evidence was not sufficient on a motion for judgment of acquittal, in violation of his Federal Constitutional rights. ECF No. 1 at 9.
(8) The evidence was insufficient to prove Petitioner's age, which was an element of the offenses charged, in violation of his Federal Constitutional right to a fair trial. ECF No. 1 at 10.
(9) Trial counsel rendered ineffective assistance for failing to obtain a medical report from Sacred Heart Hospital, in violation of Petitioner's Federal Constitutional rights. ECF No. 1 at 11.
(10) Trial counsel rendered ineffective assistance for failing to present the testimony of the doctor who examined the child at Sacred Heart Hospital, in violation of Petitioner's Federal Constitutional rights. ECF No. 1 at 12.

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(11) The trial court committed error in sentencing, by adding victim injury points without jury findings of fact, in violation of Petitioner's Federal Constitutional rights. ECF No. 1 at 13.
(12) The trial court imposed a vindictive sentence based on ten-year-old convictions, in violation of his Federal Constitutional rights. ECF No. 1 at 14.
(13) The trial court committed constitutional error by imposing a sentence that was not proportional to the crime, which involved no physical injury or skin to skin contact, in violation of the Eighth Amendment to the United States Constitution. ECF No. 1 at 15.
(14) Trial counsel rendered ineffective assistance by failing to investigate Williams Rule witnesses prior to trial and failing to impeach their testimony, thus failing to show Petitioner's actual innocence, in violation of his Federal Constitutional rights. ECF No. 1 at 16.
(15) The trial court erred in denying Petitioner's petition for writ of habeas corpus. ECF No. 1 at 17.
(16) The trial
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