Demontalvo v. Dixon

• Decision Date: 13 May 2022
• Docket Number: 3:20-cv-5948-MCR/MJF
• Parties: HECTOR A. DEMONTALVO, Petitioner, v. RICKY D. DIXON,[1] Respondent.
• Court: U.S. District Court — Northern District of Florida

HECTOR A. DEMONTALVO, Petitioner, v. RICKY D. DIXON,^[1] Respondent.

No. 3:20-cv-5948-MCR/MJF

United States District Court, N.D. Florida, Pensacola Division

May 13, 2022

ORDER AND REPORT AND RECOMMENDATION

Michael J. Frank United States Magistrate Judge.

Petitioner Hector A. DeMontalvo has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Respondent (“the State”) answered, providing relevant portions of the state court record. Doc. 6. DeMontalvo replied. Docs. 10, 11. The undersigned concludes that no evidentiary hearing is required for the disposition of this matter, and that DeMontalvo is not entitled to habeas relief.^[2] I Background Facts and Procedural History^[3]

On September 4, 2014, DeMontalvo, then 20 years old, went to a friend's house and consumed cocaine and other controlled substances. Another friend, Zachary Brown, also was at the home. Without warning, DeMontalvo pulled out a knife and stabbed Brown repeatedly. DeMontalvo then attempted to shoot Brown with a handgun. As Brown lay on the floor in a pool of blood, DeMontalvo repeatedly kicked Brown's head and struck it with a skateboard. When DeMontalvo had enough, he fled out the back door of the residence and broke into a neighboring home.

Anthony Baggett resided in the neighboring home. Baggett was asleep in a bedroom with his girlfriend, Kayla Young. DeMontalvo broke the bedroom window, climbed into the room, pointed a handgun to Baggett's head and pulled the trigger. The gun did not discharge. DeMontalvo then attempted to flee the scene by breaking into a car parked outside. DeMontalvo was still sitting in the car trying to start it when the police arrived. Doc. 6-1, Ex. A at 6-15 (Arrest Report).^[4]

On September 23, 2014, DeMontalvo was charged in Escambia County Circuit Court Case No. 2014-CF-3813, with six crimes: (1) Attempted First-Degree Premeditated Murder of Zachary Brown With a Firearm (Count 1); (2) Attempted First-Degree Premeditated Murder of Anthony Baggett With a Firearm (Count 2); (3) Attempted First-Degree Premeditated Murder of Kayla Young With a Weapon (Count 3); (4) Burglary of a Dwelling While Armed With a Firearm (Anthony Baggett's dwelling) (Count 4); (5) Burglary of an Unoccupied Conveyance (Eugene Geri's vehicle) (Count 5); and (6) Burglary of an Unoccupied Conveyance (Anthony Baggett's vehicle (Count 6). Doc. 6-1, Ex. A at 4-5. Counts 1, 2 and 3 carried a maximum possible penalty of imprisonment for life. Id.; see also Doc. 6-1 at 60. The charges, together, carried mandatory minimum sentences that, if imposed consecutively, totaled 70 years in prison. Id.; see also Doc. 6-1, Ex. A at 60.

DeMontalvo was appointed counsel and negotiated a plea agreement. Doc. 61, Ex. A at 66-69 (Plea Agreement); Ex. A at 57-65 (Plea Hr'g Tr.). Pursuant to the agreement, DeMontalvo pleaded nolo contendere to the following three crimes: (1) Attempted First-Degree Premeditated Murder With a Firearm (as charged in Count 1); (2) Aggravated Assault With a Firearm (a lesser-included offense of the attempted murder charged in Count 2); and (3) Burglary of a Dwelling While Armed With a Firearm (as charged in Count 4). In exchange for DeMontalvo's plea, the State agreed to nolle prosse Counts 3, 5 and 6.

The plea agreement did not include a sentence recommendation. DeMontalvo's sentence was left to the court's discretion. The parties agreed that DeMontalvo could seek any appropriate sentence, including non-state prison sanctions as a Youthful Offender, but that if prison sanctions were imposed, DeMontalvo was subject to mandatory minimum sentences totaling 33 years of imprisonment.^[5] Doc. 6-1, Ex. A at 57-65, 66-69. The parties further agreed that the State could seek the maximum possible sentence for each crime to be served consecutively. Doc. 6-1, Ex. A at 57-65. The plea agreement was memorialized in a document titled “Sentence Recommendation,” which was executed by DeMontalvo, defense counsel, and the prosecutor. Doc. 6-1, Ex. A at 66-69.

The trial court conducted a plea hearing on March 30, 2015, which was the day DeMontalvo executed his plea agreement. Doc. 6-1, Ex. A at 57-65. The trial court conducted a plea colloquy, observed that DeMontalvo appeared to be competent, determined that there was a factual basis for the plea, accepted DeMontalvo's plea, and set the matter for sentencing.

The court conducted sentencing hearing 86 days later, on June 24, 2015. Doc. 6-1, Ex. A at 70-173. During the hearing, the State played excerpts of DeMontalvo's video jail visitation with his sister, which occurred shortly after DeMontalvo committed the charged offenses. Id. at 81-92. In the video, DeMontalvo discussed his hatred for Mr. Brown and how he wanted him dead. Id. at 81-85, 89. DeMontalvo also bragged that he had a “photographic memory” and remembered everything he had done, but that he would “win” by “plead[ing] insanity,” even if that meant “do[ing] something drastic to prove I'm insane.” Id. at 86-88. When DeMontalvo's sister insisted, “I know you're sane,” DeMontalvo responded:

THE DEFENDANT: (inaudible). All right, I'm going to tell you, then, I - I brutally stabbed him through his throat, shot him in the head and stomped his head and, like, smashed his head with my skateboard. I jumped the back fence and, honestly, the first thing I think about is, (unintelligible), my big brother and I'm like, I'm going to rob this person for a car.

I don't need anything. I had $1,175 cash in my pocket when I robbed them for their car. I just wanted a car. Becca wouldn't let me use her [sic] and Ben has a GPS in his, so, I'm, like, I'm going to get a fucking car. Fuck it. I did some (inaudible) shit. I punched out a window and, like, people screamed and they came outside looking for me and I hid in the bushes and they went back inside. I went to the front door and I was, like, no, they're going to expect that. I went to the back, I was, like, they're going to expect that. So I went back to the window. I broke - originally, I'm not going to lie, I cocked my gun at them, I went, (sound indicated), and he screamed and he ran and I jumped through the window.

....

[DEMONTALVO'S SISTER]: -- did you shoot them, though, or not?

THE DEFENDANT: I - yeah, I'm pretty sure I shot him.

So the first time I - I jumped through the window, I slashed my nose, right, and then the second time, I actually jumped through the window and I broke a huge piece of glass off in me -

....

Yeah. So I - I, um - then I - I got the car keys, went out, I tried to kidnap that lady, it didn't work. If she was petite, I would have got her, but she was a fat lady. Anyway, um, I went to the first car, it was a Trailblazer, it wouldn't start and then it had no fucking door handles, so I found another window and jumped out that window. And then I went to a Volkswagen Bug. Got in the Bug and I was trying to turn the car and the police came.

Id. at 89-91.

Following witness testimony at the sentencing hearing (including DeMontalvo's testimony), and after considering counsel's arguments, the trial court adjudicated DeMontalvo guilty of the three crimes consistent with the plea agreement. The trial court sentenced DeMontalvo to a total term of life imprisonment and ordered that the three mandatory minimum terms be served consecutively (totaling 33 years). Id. at 170-71; see also Doc. 6-2, Ex. B at 317-26 (J. & Sentence). The remaining three charges (Counts 3, 5 and 6) were nolle prossed. Id. The Florida First District Court of Appeal (“First DCA”) affirmed the judgment and sentence per curiam and without written opinion. Demontalvo v. State, 194 So.3d 1022 (Fla. 1st DCA 2016) (Table) (copy at Doc. 6-2, Ex. G).

After two unsuccessful motions that challenged his sentence, DeMontalvo filed a pro se motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which he later amended. Doc. 6-4, Ex. M at 8-18 (Initial Mot.); Id. at 19-48 (Am. Mot.). The state circuit court summarily denied relief. Doc. 6-4, Ex. M at 85-103 - Doc. 6-5, Ex. M at 104-77 (Order & Attach.). The First DCA affirmed per curiam and without written opinion. Demontalvo v. State, 281 So.3d 461 (Fla. 1st DCA 2019) (Table) (copy at Doc. 6-5, Ex. N).

After another unsuccessful motion to modify his sentence, Doc. 6-5, Exs. OP, DeMontalvo filed his pro se federal habeas petition on November 17, 2020. Doc. 1.

DeMontalvo's petition raises four claims of ineffective assistance of trial counsel. DeMontalvo admits that he did not raise any of his claims in the state courts, and that they are procedurally defaulted. Doc. 1. DeMontalvo argues that the lack of counsel in his Rule 3.850 proceeding serves as cause to excuse his procedural default. Doc. 1 at 17a-17b (citing Martinez v. Ryan, 566 U.S. 1 (2012)).^[6]

The State asserts that all of DeMontalvo's claims are unexhausted and procedurally defaulted, and that the defaulted claims fail to meet Martinez's “substantial claim” requirement. Doc. 6.

In his reply, DeMontalvo abandons Ground 1, but claims that he is entitled to habeas relief on the remaining claims. Docs. 10, 11.

II. Relevant Legal Principles

A. Federal Habeas Exhaustion Requirement

Before seeking federal habeas relief under § 2254, the petitioner must exhaust all available state court remedies for challenging his conviction, 28 U.S.C. § 2254(b)(1) thereby giving the State the “‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). “To satisfy the exhaustion requirement, the petitioner must have fairly presented the substance of his federal claim” to the state's highest court, either on direct appeal or on collateral review. Picard, 404...