Cruz v. Fla. Attorney Gen. & Sec'y

• Decision Date: 07 March 2019
• Docket Number: Case No: 2:16-cv-49-FtM-38CM
• Parties: JOSE A. CRUZ, Petitioner, v. FLORIDA ATTORNEY GENERAL and SECRETARY, DOC, Respondents.
• Court: U.S. District Court — Middle District of Florida

JOSE A. CRUZ, Petitioner, v. FLORIDA ATTORNEY GENERALand SECRETARY, DOC, Respondents.

Case No: 2:16-cv-49-FtM-38CM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

March 7, 2019

OPINION AND ORDER¹

Before the Court is Petitioner Jose Cruz's Petition for Writ of Habeas Corpus (Doc. 1) Respondent, Julie Jones, Secretary of the Department of Corrections Response in Opposition, (Doc. 16) and Petitioner's Reply Brief (Doc. 21). The Petition is briefed and ripe for the Court's review.

BACKGROUND

On April 23, 2005, an argument occurred between Cruz and Rita Nunez over the ownership of her Chevrolet Astro Van. Nunez held the title to the van, but Cruz had been using the van for work. In the end, Nunez took possession of the van and drove it back to Clewiston from Miami.

On April 24, 2005, at around 1:00am. Jose Cruz and Yanetsy Cardenas forcibly entered the residence of Rita Nunez in Clewiston, Florida. Cruz forced Nunez up against the wall and put a gun to her head and yelled "give me the papers, give me the papers" (Vol. I at 117). Nunez's twelve-year-old son, Edward Monteagudo, woke up when he heard the commotion and entered the front room where Nunez and Cruz were located. (Vol. I at 117). When Monteagudo entered the room, Nunez pulled the gun from Nunez and pointed it at him. (Vol. I at 118). Cruz forced Monteagudo to walk toward Nunez's bedroom while Cardenas grabbed Nunez and forced her into the bedroom. Cruz pointed the gun at Nunez and Monteagudo and threatened both. (Vol. I at 118).

On February 28, 2006, Cruz was charged with two counts of aggravated assault with a firearm Counts 1 and 2, battery Count 3, and burglary of a dwelling while armed Count 4. (Vol. I at 8-11). A jury trial was held in the Circuit Court for the Twentieth Judicial Circuit before the Honorable Bruce E. Kyle on October 16-18, 2007. Cruz was represented by Assistant Public Defender, Shirley Whitsitt. Cruz was found guilty of the lesser included offense of aggravated assault with a deadly weapon on Count 1; the lesser include offense of assault on Count 2; battery as charged on Count 3; and burglary while armed, but without possession of a firearm, on Count 4. (Vol. I at 40-41, 60-69).

The Public Defender's Office represented Cruz on appeal. The Second District Court of Appeal affirmed his conviction per curiam on May 15, 2019. Cruz v. State, 11 So. 3d 946 (Fla. 2d DCA 2009) (Table). (Ex. 5). Cruz filed for a rehearing, which was denied, and mandate was issued on July 13, 2009. (Ex. 8). On June 23, 2010, Cruz filed an untimely pro se Notice to Invoke Discretionary Jurisdiction with the Florida SupremeCourt. The Florida Supreme Court dismissed the petition finding it lacked jurisdiction. Cruz v. State, 41 So. 3d 217 (Fla. 2010) (Table).

On April 1, 2010, Cruz filed a pro se "Motion to Correct Illegal Sentence as to Amount of Jail Credit, Nunc Pro Tunc". (Ex. 11). On August 30, 2010, the Post-Conviction Court granted Cruz Rule 3.800(a) motion and issued an amended judgment and sentence reflecting six more days of jail time credit. (Ex. 12). The order was not appealed.

Cruz filed his first Rule 3.850 motion for postconviction relief on July 6, 2010, which he amended September 16, 2010. (Ex. 13). The motion was summarily denied by the Post-Conviction Court. (Ex. 13). Cruz filed a notice of appeal on October 24, 2011. The Second District Court of Appeal affirmed per curiam and mandate issued in September 11, 2012. (Ex. 16).

On April 16, 2012, Cruz filed his second 3.800 motion while his 3.850 motion was pending. In his second 3.800 motion, Cruz again moved the Court to correct what he claimed was an illegal sentence. The Post-Conviction Court found that Cruz's claims were not cognizable under a Rule 3.800 motion. The Second District Court of Appeal affirmed per curiam and the mandate issued on September 10, 2015. (Ex. 20).

Cruz filed a petition for writ of habeas corpus to correct manifest in justice with the Second District Court of Appeal on September 13, 2013. (Ex. 28). The petition was denied in October 1, 2013. (Ex. 29). On November 13, 2014, the Florida Supreme Court denied review holding it did not have jurisdiction to review the case. (Ex. 30).

Cruz filed his second 3.850 motion for postconviction relief on September 12, 2014. The Post-Conviction Court denied the motion as successive and untimely. (Ex.22). The Second District Court of Appeal affirmed per curiam. (Ex. 25). Cruz v. State, 177 So. 3d 614 (Fla. 2d DCA 2015) (Table). Cruz moved for a rehearing which was denied on October 6, 2015, and mandate issued on October 30, 2015. Cruz now files this Petition for Writ of Habeas Corpus. Respondent concedes that the Petition is timely filed.

STANDARDS OF REVIEW

Antiterrorism Effective Death Penalty Act ("AEDPA")

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), governs this action. Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007). Under AEDPA, the standard of review is greatly circumscribed and highly deferential to the state courts. Alston v. Fla. Dep't of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010) (citations omitted). AEDPA altered the federal 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 v. Cone, 535 U.S. 685, 693 (2002).

Under the AEDPA, federal habeas relief may not be granted regarding a claim adjudicated on the merits in state court unless the adjudication of the claim:

(a) 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; or

(b) 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). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court's summary rejection of a claim,even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). Notably, a state court's violation of state law is not sufficient to show that a petitioner is in custody in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 16 (2010).

"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issued its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). The Supreme Court has also explained that "the lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since 'a general standard' from [the Supreme Court's] cases can supply such law." Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough v. Alvarado, 541_U.S. 652, 664 (2004)). State courts "must reasonably apply the rules 'squarely established' by [the Supreme] Court's holdings to the facts of each case. White, 134 S. Ct. at 1706 (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)).

Even if there is clearly established federal law on point, habeas relief is only appropriate if the state court decision was "contrary to, or an unreasonable application of," that federal law. 29 U.S.C. § 2254(d)(1). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identifies the governing legal principle, but applies it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000), or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The 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 for fairminded disagreement." White, 134 S. Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. 86 (2011)). Moreover, "it is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Knowles, 556 U.S. at 122.

Finally, when reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) ("[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.") (quoting Wood v. Allen, 558 U.S. 290, 293 (2010)).

The Supreme Court has held that review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S. Ct. at 1398. TheCourt is limited to reviewing only...