Hernandez v. Sec'y, Dep't of Corr.
| Decision Date | 29 March 2023 |
| Docket Number | 8:20-cv-293-KKM-MRM |
| Parties | ROBERTO HERNANDEZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Roberto Hernandez, a Florida prisoner, timely[1] filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 based on alleged insufficient evidence of guilt and alleged failures of his trial counsel. (Doc. 1.) Having considered the petition, (id.), the response in opposition, (Doc 13), and the reply, (Doc. 19), the petition is denied. Because reasonable jurists would not disagree, Hernandez is also not entitled to a certificate of appealability.
Hernandez was tried jointly in state court with his co-defendant, Alberto Gonzalez. The jury convicted Hernandez of two counts of robbery with a firearm, two counts of kidnapping with a firearm, one count of extortion, and one count of theft. (Doc. 14-2, Ex. 1, pp. 95-99.) The state trial court sentenced him to an overall term of 40 years in prison. (Id., pp. 115-29.) The state appellate court per curiam affirmed the convictions and sentences. (Doc. 14-3, Ex. 4.)
Hernandez moved for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Id., Ex. 6, pp. 56-97.) The state court denied the motion. (Id., pp. 200209, 335-41.) The state court partially granted Hernandez's motion for rehearing. (Id., pp. 352-54.) After reconsidering several of his claims, the state court again denied relief. (Doc. 14-4, Ex. 6, pp. 682-722.) The state appellate court per curiam affirmed. (Doc. 14-5, Ex. 11.)
Kirenia Roque[3] and Pedro Cabo, a married couple, owned and worked at a medical clinic. (Doc. 14-2, Ex. 1b, pp. 207-08.) On September 4, 2007, Cabo stayed home sick but Roque went to work. (Id., p. 208.) As she was driving home around 8:30 p.m., a car pulled out of a driveway and hit her car. (Id., pp. 208-09.) Hernandez exited the other car and pointed a gun at her. (Id., pp. 210-12.) Several other men appeared; all but one were masked, and they all had guns. (Id., pp. 210-11, 213.) Hernandez told Roque that this was an assault, that she should do what they said, and that they would kill her if she did not comply. (Id., pp. 210-11.) Hernandez was not wearing a mask and Roque got a good look at him. (Id., pp. 211-12.)
Roque was forced to sit in the center backseat of her car. (Id., p. 214.) Alberto Gonzalez, who was not wearing a mask, was sitting to her right. (Id., pp. 215-16.) Gonzalez said they were going to Roque's home and that she had to give them money or they would kill her, her husband, and their family. (Id., p. 215.) Gonzalez appeared to Roque to be in charge of the group. (Id.) Roque heard the others call Gonzalez “Flaco,” which meant “skinny person” in Spanish. (Id., pp. 218-19.)
One man drove Roque's car to her house while the other vehicle followed. (Id., pp. 217-18.) At some point, Gonzalez put a mask on. (Id., p. 222.) When they got to her house, two men went inside first and held Cabo at gunpoint. (Id., pp. 221, 224-25.) Gonzalez and two of the other men brought Roque into the house. (Id., p. 224.) The men all wore masks inside the home. (Doc. 14-2, Ex. 1c, p. 333.)
The men demanded $50,000.00 and said that they knew where Roque and Cabo's family members lived. (Id., p. 225.) Roque and Cabo did not have that much cash and told them to take their belongings instead. (Id., p. 226.) The men ransacked the house, taking items such as computers, jewelry, cameras, watches, credit cards, a briefcase, a purse, and some cash. (Id., pp. 227-30.) Roque estimated the total value of the stolen items at $40,000.00. (Id., pp. 229-30.)
The perpetrators tied Cabo up with a rope. (Id., p. 231.) Gonzalez threatened to use a taser on Cabo and Roque and to cut off their fingers with a knife. (Id., pp. 233-36, 264; Doc. 14-2, Ex. 1c, pp. 338-39.) They forced Cabo to make a recorded statement in which he admitted to engaging in fraudulent medical practices. (Doc. 14-2, Ex. 1b, pp. 232-33; Doc. 14-2, Ex. 1c, pp. 341-42.) They threatened that if he did not pay them, they would give the recording to authorities. (Id.) The men were all masked while inside the home and Roque did not remember seeing Hernandez in the house. (Doc. 14-2, Ex. 1b, p. 238; Doc. 14-2, Ex. 1c, p. 332-33.) Although Cabo did not see their faces because of the masks, he observed that the tallest, thinnest member of the group was talking more than the others. (Doc. 14-2, Ex. 1c, pp. 332-33, 337.)
After several hours, the men left but told Roque and Cabo that they would call the clinic the next day with directions for paying the money. (Doc. 14-2, Ex. 1b, pp. 238-39; Doc. 14-2, Ex. 1c, pp. 343-44.) They threatened to kill Roque and Cabo if they did not pay and told them not to call the police. (Doc. 14-2, Ex. 1b, p. 239; Doc. 14-2, Ex. 1c, pp. 344.) After the men left and Roque untied Cabo, they contacted police. (Doc. 14-2, Ex. 1b, pp. 243-44.) Police responded to their home that night. (Id., pp. 244-45.)
The next day, police met with Roque and Cabo at the medical clinic. (Id., p. 253.) Cabo received a call, and the caller said he would call back again with directions for dropping off the money. (Doc. 14-2, Ex. 1b, p. 254; Doc. 14-2, Ex. 1c, p. 348.) Cabo recognized the caller's voice as that of the tall, thin man who had been in the house the night before. (Doc. 14-2, Ex. 1c, p. 348.) The man called back and said to go to a shopping center, where a cell phone would be inside a cup near an air conditioning unit. (Doc. 142, Ex. 1b, p. 255; Doc. 14-2, Ex. 1c, p. 349.) He told Cabo that they would be watching, and that they would call him on the cell phone with instructions. (Id.)
Police surveilled the shopping center and observed Hernandez walking back and forth on a sidewalk. (Doc. 14-2, Ex. 1c, pp. 420-22.) Before any arrests were made, Detective Thomas St. John drove Roque to the shopping center to see if she could identify anyone. (Doc. 14-2, Ex. 1b, p. 256.) Roque saw Hernandez and identified him as the person who had crashed into her car. (Doc. 14-2, Ex. 1b, pp. 256; Doc. 14-2, Ex. 1c, p. 432.) Roque left the shopping center with police. (Doc. 14-2, Ex. 1b, p. 257.)
Deputy Jose Morales drove Cabo to the shopping center at around 5:40 p.m. (Doc. 14-2, Ex. 1d, pp. 479-80.) Cabo went to the air conditioning unit, picked up the cell phone he saw there, and left a bag filled with paper. (Doc. 14-2, Ex. 1c, pp. 355-36.) The phone rang and Cabo answered; when the caller demanded he take the money to another location, Cabo refused. (Doc. 14-2, Ex. 1c, pp. 359-60; Doc. 14-2, Ex. 1d, pp. 485-86.)
Police observed Hernandez pick up the bag. (Id., p. 433.) After Gonzalez pulled up next to Hernandez in a white vehicle, they began talking. (Doc. 14-2, Ex. 1d, pp. 504-06.) They were both arrested. (Id., pp. 506-07.) Hernandez had in his possession two cell phones and the bag that Cabo left by the air conditioning unit. (Doc. 14-2, Ex. 1c, p. 424; Doc. 14-2, Ex. 1d, pp. 507-08.) Police brought both Roque and Cabo back to the scene. Roque identified Gonzalez as the person who sat next to her in the car and noticed that he was wearing the same pants and shoes as he had the previous night. (Doc. 14-2, Ex. 1b, pp. 257-58.) Cabo recognized Hernandez as someone who had been in the clinic the week before the crimes. (Doc. 14-2, Ex. 1c, pp. 360-61.) Cabo also recognized that Gonzalez was wearing some of the same clothing he had seen the tall, thin perpetrator wear. (Id., pp. 363, 366-67.)
Later, Roque and Cabo received an anonymous letter identifying other people who might have been involved in the crimes. (Doc. 14-2, Ex. 1b, p. 262.) Police investigated the people named in the letter and had the letter processed for fingerprints, but they obtained no information of value. (Doc. 14-2, Ex. 1c, pp. 442-43.)
On the night of the crimes, Roque gave descriptions to the first officer who arrived, Officer Belinda Quinones. (Doc. 14-2, Ex. 1b, p. 245.) Although Roque did not believe herself to be good at estimating height and weight, she tried to do so. (Id., p. 248, 289, 294.) She recalled describing Hernandez as hefty, and stating that she could identify the two men who she saw without masks. (Id., pp. 249-50.) Hernandez called Officer Quinones as a witness at trial. She confirmed that Roque had described the driver who hit her as about 30 to 35 years of age, about 5 feet, 9 inches tall, and about 150 pounds. (Doc. 14-2, Ex. 1d, pp. 554.) According to Officer Herbert Saumell, Hernandez was about 40 years old at the time, was approximately 5 feet, 4 inches tall, and weighed approximately 200 pounds. (Doc. 14-2, Ex. 1c, pp. 400-01.) When Roque talked to Officer Saumell the night of the crimes, she described Hernandez as shorter and heavyset. (Id., p. 392.)
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). “The power of the federal courts to grant a writ of habeas corpus setting aside a state prisoner's conviction on a claim that his conviction was obtained in violation of the United States Constitution is strictly circumscribed.” Green v. Sec'y, Dep't of Corr., 28 F.4th 1089, 1093 (11th Cir. 2022).
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:
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