Fernandez v. Sec'y, Dep't of Corr.

• Decision Date: 22 August 2019
• Docket Number: Case No. 8:16-cv-2565-T-36SPF
• Parties: RON ALLEN FERNANDEZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

RON ALLEN FERNANDEZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:16-cv-2565-T-36SPF

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

August 22, 2019

ORDER

Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 (Doc. 1). He subsequently filed an amended petition (Doc. 2). The Court ordered Respondent to show cause why the relief sought in the amended petition should not be granted (Doc. 7). Respondent filed a limited response in opposition, incorporating therein a motion to dismiss the petition as untimely (Doc. 9), to which Petitioner replied (Doc. 13). The motion to dismiss was denied (see Doc. 16), and Respondent filed a supplemental response (Doc. 21). Upon consideration, the amended petition will be denied.

PROCEDURAL BACKGROUND

Petitioner was found guilty of theft and aggravated battery (Doc. 9-1, p. 3).¹ He was sentenced to 15 years in prison on the aggravated battery conviction, and 5 years on the theft conviction, consecutive to the aggravated battery (Id., pp. 4-12). His convictions and sentences were affirmed on appeal (Id., pp. 15-16).

Petitioner's motion for post-conviction relief was denied (Doc. 22-4, docket pp. 231-350), and the denial of the motion was affirmed on appeal (Doc. 9-1, p. 68, 70). He thereafter initiated this action by filing a petition for a writ of habeas corpus (Doc. 1). His amended petition (Doc. 2) is now before the Court.

DISCUSSION

The amended petition raises five grounds for relief:

Ground One: MS. AMBER TUCKER RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PROTECT MR. FERNANDEZ'S RIGHT TO A SPEEDY TRIAL BY WAIVING THE RIGHT AGAINST MR. FERNANDEZ'S ORAL MOTION FOR SPEEDY TRIAL

Ground Two: MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE WITHDREW HER REQUEST FOR MISTRIAL DURING THE TESTIMONY OF STATE WITNESS JACQUELINE BEILER

Ground Three: MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE FAILED TO OBJECT TO THE SURPRISE TESTIMONY OF STATE WITNESS BILLY HAMM AS A DISCOVERY BRADY V. MARYLAND VIOLATION

Ground Four: MS. JENNIFER STROUF RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN SHE FAILED TO PREPARE AND ADVISE MR. FERNANDEZ ON THE CORRECT NUMBER OF PRIOR CONVICTIONS THAT COULD BE USED TO IMPEACH HIS TESTIMONY

Ground Five: MS. JENNIFER STROUF AND MS. MELISSA WILSON RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO MOVE FOR JUDGMENT OF ACQUITTAL RELATIVE TO THE LESSER INCLUDED OFFENSE OF GRAND THEFT

I. GOVERNING LEGAL PRINCIPLES

This case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferentialstandard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), 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); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA

Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(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.

28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the UnitedStates Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.² Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel'sconduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

C. Exhaustion of State Remedies and Procedural Default

Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state post-conviction motion. See § 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 federal court in a habeas petition."). A state prisoner "'must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845.)

To exhaust a claim, a petitioner must make the state court aware of both the legal and factualbases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner 'fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its' prisoners federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State. . .if he has the right under the law of the State to raise, by any available procedure, the question presented." Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004).

The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. 28 U.S.C. § 2254(b)(1); Picard v. Connor, ...