Devers-Division v. Sec'y, Dep't of Corr.

• Decision Date: 23 June 2021
• Docket Number: Case No. 8:14-cv-388-KKM-JSS
• Parties: CARLOS DEVERS-DIVISION, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

CARLOS DEVERS-DIVISION, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:14-cv-388-KKM-JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

June 23, 2021

ORDER

Carlos Devers-Division, a Florida prisoner, filed a timely¹ pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his state conviction for attempted first degree murder based on alleged failures of his trial counsel. (Doc. 1). Having considered the petition (id.), the response in opposition (Doc. 11), and Devers-Division's amended reply (Doc. 25), the Court orders that the petition is denied. Furthermore, a certificate of appealability is not warranted.

I. BACKGROUND

A. Procedural History

A jury convicted Devers-Division of one count of attempted first-degree murder with a firearm causing great bodily harm. (Doc. 12, Ex. A2). He was sentenced to 40 years in prison. (Doc. 12, Ex. A3). The state appellate court per curiam affirmed the conviction and sentence. (Doc. 12, Ex. B4). Devers-Division unsuccessfully moved for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 12, Exs. C1, C3). The state appellate court per curiam affirmed the postconviction court's denial of relief. (Doc. 12, Ex. C8).²

B. Factual Background³

On February 17, 2008, a group of acquaintances gathered at an apartment complex. Devers-Division became involved in an argument. (Doc. 12, Ex. B1, p. 7). Accounts of the argument varied. (Doc. 12, Ex. B1, pp. 7-10). By the end of the incident, Holden Vega suffered multiple gunshot wounds. (Doc. 12, Ex. A4, pp. 254-55; Ex. B1, p. 9).

Vega testified that Devers-Division was arguing and physically fighting with Rachel Kopp. (Doc. 12, Ex. A4, p. 245-46). Vega intervened and threw Devers-Division on the ground. (Id., pp. 246-50). Vega turned around to walk away when he "blanked out." (Id., pp. 250-51).

Yonathan Pichardo, a friend of Devers-Division, was at the apartment complex getting ready to leave in his car when he heard a bang. (Id., p. 336). Devers-Division knocked on his car window, got in the car, and told Pichardo to go. (Id., p. 341). Devers-Division also told Pichardo "le tire, le tire." (Id.).⁴

Kopp told a responding officer, Deputy Christopher Dina, that Devers-Division shot the victim. (Id., p. 296). Kopp also told two other responding officers, Detective Gary Harris and Deputy Jarryd Latona, that she saw Devers-Division take a firearm out of Pichardo's vehicle and point it at Jayleen "Reyna" Torres. (Id., pp. 467-68, 507, 509). However, police did not develop any witnesses who testified to seeing the shooting. (Id., pp. 488, 510).

When police interviewed Devers-Division, he initially denied shooting Vega. (Doc. 12, Ex. B1, p. 11; Ex. B2, p. 9). Subsequently, he stated that the shooting was an accident and that he did not intend to hit Vega. (Doc. 12, Ex. B1, pp. 11-12; Ex. B2,pp. 9-10). Doctors recovered a bullet fragment while treating Vega at the hospital. (Doc. 12, Ex. A4, pp. 280, 284). Police recovered a spent 9 mm bullet casing and a 9 mm bullet from the scene. (Doc. 12, Ex. A4, pp. 276, 278, 295, 429; Ex. B1, p. 10). Upon examination, the government proved that the kind of bullet recovered from the scene matched the same kind of ammunition that would have been fired from a 9 mm pistol which an undercover officer bought in March 2008 from Jonathan Illarazza, who was friends with Devers-Division. (Doc. 12, Ex. A4, pp. 414-19; 427-29; Ex. B1, p. 10). Vega testified that the day before the shooting, Devers-Division showed him the 9 mm pistol later obtained from Illarazza. (Doc. 12, Ex. A4, pp. 256-57, 259).

II. STANDARDS OF REVIEW OF AN APPLICATION UNDER SECTION 2254

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief under the AEDPA can be granted only if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(1) 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

(2) 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.

For purposes of § 2254(d)(1), a decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase "clearly established Federal law" encompasses the holdings only of the United States Supreme Court "as of the time of the relevant state-court decision." Id. at 412. A decision involves an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

For purposes of § 2254(d)(2), a state court's findings of fact are presumed correct. See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) ("The factual findings of the state court, including the credibility findings, are presumed to be correct . . . ."). A petitioner can rebut the presumption of correctness afforded to a state court's factual findings only by clear and convincing evidence. § 2254(e)(1).

The AEDPA was meant "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). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. As a result, to obtain relief under the AEDPA, "a state prisoner must show that the state court's rulingon the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that "[t]he state court's application of clearly established federal law must be objectively unreasonable" for a federal habeas petitioner to prevail and that the state court's "clear error" is insufficient).

When the last state court to decide a federal claim explains its decision in a reasoned opinion, a federal habeas court reviews the specific reasons as stated in the opinion and defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). When the relevant state-court decision is not accompanied with reasons for the decision—such as a summary affirmance without discussion—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. The state may contest "the presumption by showing that the unexplained affirmance relied or most likely did rely on different grounds than the lower state court's decision . . . ." Id.

In addition to satisfying the deferential standard of federal court review of a state court adjudication, a federal habeas petitioner must exhaust his claims by raising them in state court before presenting them in a federal petition. See 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federalcourt in a habeas petition."). A petitioner satisfies this exhaustion requirement if he fairly presents the claim in each appropriate state court and alerts that court to the federal nature of the claim. Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010).

The doctrine of procedural default provides that "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). A petitioner shows cause for a procedural default when he demonstrates "that some objective factor external to the defense impeded the effort to raise the claim properly in the state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). A petitioner demonstrates prejudice by showing that "there is at least a reasonable probability that the result of the proceeding would have been different" absent the constitutional violation. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). "A 'fundamental miscarriage of justice' occurs in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent." Id.

III. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD

Devers-Division brings several claims for ineffective assistance of counsel under the Sixth Amendment. Under the well-known, two-part standard articulated in Strickland v. Washington, 466 U.S. 668 (1984), to succeed, he must show both deficient performance by his counsel and prejudice resulting from those errors. Id. at 687.

The first part "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. The lynchpin of this analysis is whether counsel's...