Hernandez v. Sec'y, Dep't of Corr.
| Decision Date | 06 February 2023 |
| Docket Number | 8:19-cv-2919-TPB-TGW |
| Parties | NICOLAS HERNANDEZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Nicolas Hernandez petitions for a writ of habeas corpus under 28 U.S.C. § 2254 and challenges his state court conviction for second-degree murder. (Doc. 1) The Respondent concedes that the petition is timely, asserts that some claims in the petition are unexhausted, and asserts that all claims are meritless. (Doc. 10) After reviewing the petition, the response, and the reply (Doc. 14), the Court DENIES the petition.
Evidence at trial proved that Hernandez murdered Jose Martin Hernandez-Escudero. On the morning of January 30, 2010, two migrant workers discovered the body of the victim on the farm where they worked. (Doc. 11-3 at 21) The victim was lying face down with duct tape wrapped around his hands and his head. (Doc. 11-3 at 21, 90, 173) Markings on the ground were consistent with someone having dragged the victim's body from a house nearby to an oak tree in the center of the crime scene. (Doc. 11-3 at 100-03, 175-76)
Another migrant worker, who lived in the same house as Hernandez testified that Hernandez and other men were drinking alcohol the evening of January 29, 2010. (Doc. 11-2 at 590, 593) Two men and the victim arrived in a Ford Explorer drunk (Doc 11-2 at 592), and one of the men began to fight with Simon Rodriguez, another migrant worker. (Doc. 11-2 at 590, 593-94) Hernandez called the police, the police told the men to leave, the two men walked away, and the victim went inside to use the bathroom. (Doc. 11-2 at 595-97) When the victim exited the bathroom, Rodriguez hit the victim in the back of the head and caused the victim to fall to the floor. (Doc 11-2 at 600) Hernandez and Rodriguez removed the victim from the house and hit and kicked the victim outside for about five hours. (Doc. 11-2 at 601, 604-10, 631) The migrant worker went outside, told Hernandez and Rodriguez to stop beating the victim, and told the victim to leave, but the victim, who appeared very intoxicated, could only crawl. (Doc. 11-2 at 617-19) That evening, Hernandez told the migrant worker that the victim lived with Hernandez's wife in Mexico. (Doc. 11-2 at 675-77) The migrant worker heard Hernandez and Rodriguez tell each other that they needed to kill the victim. (Doc. 11-2 at 618-19, 624)
Hernandez retrieved a knife and duct tape from inside the house. (Doc 11-2 at 625-26) Rodriguez held the victim by the neck, while Hernandez wrapped the duct tape around the victim's head and feet. (Doc. 11-2 at 634-36) The victim stopped screaming after five or ten minutes. (Doc. 11-2 at 636-38) DNA from blood on a shirt that Hernandez wore and on a shoe that Rodriguez wore matched the victim's DNA. (Docs. 11-3 at 62-73, 271-77, 323-24 and 11-9 at 18-19) A medical examiner identified injuries on the victim's body consistent with blunt force trauma and strangulation and opined that asphyxia from “the combined effects of the occlusion of [the] nose and mouth and strangulation” caused the victim's death. (Doc. 11-3 at 183-222)
After waiving his constitutional rights, Hernandez spoke with a detective. Hernandez admitted that he hit the victim when the victim exited the bathroom, that Rodriguez continued to hit the victim, that he retrieved the duct tape from the house, that he and Rodriguez both wrapped the duct tape around the victim's head, that Rodriguez held the victim while he continued to wrap the tape around the victim's head, and that he bound the victim's hands with the tape. (Doc. 11-2 at 134-37, 144-49, 154-55, 158-59) Hernandez taped the victim's mouth shut to punish the victim. (Doc. 11-2 at 147-49, 156) Hernandez said that, when Rodriguez told Hernandez that he was going to kill the victim, Hernandez asked Rodriguez to leave the victim alone, but Rodriguez proceeded to strangle the victim. (Doc. 11-2 at 149-51, 161-62) The victim stopped moving after about half an hour. (Doc. 11-2 at 137-38) Hernandez claimed that the victim could breathe when he wrapped the tape around the victim's head, but Rodriguez covered the victim's entire head with the tape. (Doc. 11-2 at 156) Hernandez told Rodriguez, “we won't be saved now,” lamented to the detective, “we messed up,” and claimed that the murder was a “mistake.” (Doc. 11-2 at 137-38)
A jury found Hernandez guilty of second-degree murder (Doc. 11-2 at 196), the trial court sentenced Hernandez to life in prison (Doc. 11-2 at 219-24), and the state appellate court affirmed. (Doc. 11-4 at 43) The state appellate court denied Hernandez's petition alleging ineffective assistance of appellate counsel. (Doc. 11-4 at 101) The post-conviction court denied Hernandez relief after an evidentiary hearing (Docs. 11-5 at 70-100 and 11-10 at 187-94), and the state appellate court affirmed. (Doc. 11-11 at 104) Hernandez's federal petition follows.
Because Hernandez filed his federal petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, AEDPA governs the review of his claims. Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). Under AEDPA, a federal court cannot grant relief unless Hernandez demonstrates that the state court's adjudication of the claim (1) was contrary to or an unreasonable application of clearly established federal law or (2) was based on an unreasonable determination of a fact. 28 U.S.C. § 2254(d).
Hernandez must exhaust the remedies available in state court before a federal court can grant relief. 28 U.S.C. § 2254(b)(1)(A). Hernandez must (1) alert the state court to the federal nature of his claim and (2) give the state court one full opportunity to resolve the federal claim by invoking one complete round of the state's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
In his federal petition (Doc. 1), Hernandez raises a Fifth Amendment claim based on Miranda v. Arizona, 384 U.S. 436 (1966), seven ineffective assistance of counsel claims, and an ineffective assistance of appellate counsel claim. Because the state appellate court rejected all claims in decisions without a written opinion, this Court “look[s] through” the unexplained decisions to written orders by the trial court and the post-conviction court, which do provide reasons. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). For the ineffective assistance of appellate counsel claim which the state appellate court rejected in the first instance, Hernandez must demonstrate no reasonable basis for the denial of relief. Harrington v. Richter, 562 U.S. 86, 98 (2011).
Hernandez asserts that the trial court violated his federal rights by denying his motion to suppress his incriminating statements to police. (Doc. 1 at 3-4) Hernandez contends that he was unable to afford an attorney, and the detective who interrogated him failed to explain that, if he could not afford an attorney, police would appoint him an attorney before any questioning. (Doc. 1 at 3-4) He contends that he was an immigrant with a third-grade education, had never been arrested, and did not know his rights. (Doc. 1 at 4)
The Respondent asserts that the claim is unexhausted and procedurally barred because Hernandez failed to raise the specific claim concerning the appointment of an attorney in his written motion. (Doc. 10 at 9-13) The Respondent concedes that Hernandez raised the claim in his brief on appeal but contends that the claim was not preserved for review on appeal. (Doc. 10 at 12-13)
In his brief on direct appeal, Hernandez asserted that the police officer failed to explain that he could consult with an attorney even if he could not afford to hire an attorney. (Doc. 11-4 at 11-19) Because the State of Florida failed to assert that the claim was not preserved for review on appeal in the answer brief (Doc. 11-4 at 28-31), the claim is not procedurally barred. Bennett v. Fortner, 863 F.2d 804, 807 (11th Cir. 1989) ( ) (citations omitted).
Hernandez fails to demonstrate that no reasonable basis supports the state appellate court's summary rejection of the claim. Richter, 562 U.S. at 98. In Miranda, the U.S. Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” 384 U.S. at 444. Before any questioning, the defendant must be informed that he has the right to remain silent, any statement can be used as evidence against him, and he has the right to have a retained or appointed attorney present. Id. at 444-45.
“If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney.” Id. at 472. “In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney,...
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