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 |
ORDER AND REPORT AND RECOMMENDATION
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:
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
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...
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