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

• Decision Date: 24 February 2020
• Docket Number: CASE NO. 8:17-cv-1444-T-02JSS
• Parties: JUAN CARLOS MACEDO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

JUAN CARLOS MACEDO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

CASE NO. 8:17-cv-1444-T-02JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

February 24, 2020

ORDER

Petitioner is serving a 15-year Florida prison sentence as a prison release reoffender for felony battery (great bodily harm) and discharge of firearm. Petitioner's first count was aggravated battery through great bodily harm, permanent disability or permanent disfigurement (Dkt. 14 at Ex. 1), but the jury returned a verdict of the lesser-included offense of felony battery (Dkt. 14, Ex. 2, Vol. IV, Tr. 426; Dkt. 14, Ex. 3).¹ The convictions under review were imposed July 22, 2011. Petitioner brings this petition under 28 U.S.C. § 2254. The Respondent concedes the petition is timely. Dkt. 12 at 6.

The Amended Petition brings seven grounds for habeas relief. Dkt. 5. The Court discusses each of these in turn and denies relief.

1. GROUND ONE

Petitioner asserts he is entitled to federal habeas relief because he believes the trial court abused its discretion when it denied his request for a special jury instruction on the definition of "great bodily harm."² Yet this claim was not "fairly presented" as a federal claim to the state court. A claim is not fairly presented if the state court "must read beyond a petition or brief . . . that does not alert it to the presence of a federal claim." Baldwin v. Reese, 541 U.S. 27, 32 (2004). Requiring courts to follow a "daisy chain" to divine the federal constitutional claim is an insufficient presentation of the federal claim. See Howell v. Mississippi, 543 U.S. 440, 443-44 (2005) (holding federal claim was not properly presented where case relied on by petitioner cited a case, which cited another case, which cited the relevant case).

Here, Petitioner raised this issue on direct appeal in state court but did not present the issue to the state court as a federal claim. In his initial brief (Dkt. 14, Ex. 3 at 6) Petitioner did not cite "in conjunction with the claim the federal source of law on which he relies" or cite to a federal case which decided this issue, oreven label his claim as a federal issue. See Baldwin, 541 U.S. at 32. Therefore, this claim is not "exhausted."

Furthermore, Petitioner has no available avenue through which he may properly exhaust his federal claim in the state courts. Therefore, this claim should be considered procedurally defaulted. Moreover, Petitioner has failed to show cause for his failure to properly exhaust this claim; and he has not shown he is entitled to review under any recognized exception to the procedural bar. Therefore, he is not entitled to federal review of Ground One.

Concerning this exhaustion requirement it is a long-standing prerequisite to the filing of a federal habeas corpus petition that the petitioner has exhausted available state court remedies, 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) (citation omitted)). To satisfy the exhaustion requirement, the petitioner must "fairly present" his claim in each appropriate state court, alerting that court to the federal nature of the claim. Id. at 365-66; O'Sullivan v. Boerckel, 526 U.S. 838, 845; Picard, 404 U.S. at 277-78.

The Supreme Court has provided the lower courts with guidance for determining whether a habeas petitioner has met the "fair presentation" requirement. In Picard v. Connor, the Court held that, for purposes of exhaustingstate remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief. 404 U.S. at 277. In announcing that "the substance of a federal habeas corpus claim must first be presented to the state courts," the Court rejected the contention that the petitioner satisfied the exhaustion requirement by presenting the state courts only with the facts necessary to state a claim for relief. Id. at 278.

An issue that was not properly presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, that is, procedurally barred from federal review. See O'Sullivan, 526 U.S. at 839-40, 848; Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). This Court will also consider a claim procedurally defaulted if it was presented in state court and rejected on the independent and adequate state ground of procedural bar or default. See Coleman v. Thompson, 501 U.S. 722, 734-35 & n.1 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) ("[C]laims that have been held to be procedurally defaulted under state law cannot be addressed by federal courts."); Chambers v. Thompson, 150 F.3d 1324, 1326-27 (11th Cir. 1998) (applicable state procedural bar should be enforced by federal court even as to a claim which has never been presented to a state court); accord Tower v. Phillips, 7 F.3d 206, 210 (11th Cir. 1993); Parker v. Dugger,876 F.2d 1470 (11th Cir. 1990), rev'd on other grounds,498 U.S. 308 (1991).

In the first instance, the federal court must determine whether any future attempt to exhaust state remedies would be futile under the state's procedural default doctrine. Bailey, 172 F.3d at 1303. In the second instance, a federal court must determine whether the state's procedural default ruling rested on adequate state grounds independent of the federal question. See Harris v. Reed, 489 U.S. 255, 261-62 (1989).

When presented with a "mixed" petition—one containing both unexhausted and exhausted claims—a district court is ordinarily required to either dismiss the petition, Pliler v. Ford, 542 U.S. 225, 227 (2004); Rose v. Lundy, 455 U.S. 509 (1982), or, in limited circumstances and under the district court's discretion, "grant a stay and abeyance to allow the Petitioner to exhaust the unexhausted claim." Espada v. Sec'y, DOC, No. 2:08-cv-504-FtM-36, 2011 WL 4459169, at *2 (M.D. Fla. Sept. 26, 2011) (citing Rhines v. Weber, 544 U.S. 269, 274 (2005)).

However, when it is obvious that the unexhausted claims would be procedurally barred in state court due to a state-law procedural rule, the Eleventh Circuit has held that a district court can consider the petition but treat those unexhausted claims as procedurally defaulted. Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007). Additionally, while under the AEDPA a federal court maynot grant a habeas petition that contains unexhausted claims, it may deny such a petition on the merits. LeCroy v. Sec'y, Fla. Dep't of Corr., 421 F.3d 1237, 1261 n. 26 (11th Cir.2005).

To overcome a procedural default such that the federal habeas court may consider the merits of a claim, the petitioner must show cause and prejudice or a fundamental miscarriage of justice. Tower, 7 F.3d at 210; Parker, 876 F.2d 1470. "For cause to exist, an external impediment, whether it be governmental interference or the reasonable unavailability of the factual basis for the claim, must have prevented petitioner from raising the claim." McCleskey v. Zant, 499 U.S. 467, 497 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, (1986)). Lack of counsel or ignorance of available procedures is not enough to establish cause. Tower, 7 F.3d at 210.

Ground One is not exhausted. It is barred. The Respondent concedes the remaining grounds (except for Ground Seven discussed below) are exhausted.

2. INEFFECTIVE ASSISTANCE CLAIMS

The remainder of the petition (Grounds 2 through 7) asserts claims of ineffective assistance of counsel. The standard of review on these claims is well traveled. Counsel is ineffective under the Sixth Amendment if "(1) counsel's performance was deficient; and (2) the deficient performance prejudiced the defense such that petitioner was deprived of a fair trial." Dill v. Allen, 488 F.3d1344, 1354 (11th Cir. 2007) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In the habeas context, "[t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable—a substantially higher threshold." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation and internal quotation marks omitted). "If there is 'any reasonable argument that counsel satisfied Strickland's deferential standard,' then a federal court may not disturb a state-court decision denying the claim." Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014) (citation omitted).

The standard of proof and review are the same in the context of ineffective assistance of appellate counsel as in the context of ineffective assistance of trial counsel. Duest v. Singletary, 967 F.2d 472, 477 n.4 (11th Cir. 1992). Petitioner must first show that his appellate counsel was objectively unreasonable in not raising the omitted issue. Smith v. Robbins, 528 U.S. 259, 285 (2000). Appellate counsel who files a merits brief need not and should not raise every non-frivolous claim. Jones v. Barnes, 463 U.S. 745, 754 (1983) (effective appellate counsel "winnows out" weaker arguments even though weaker arguments may be meritorious). The exercise of judgment involved in framing an appeal makes it "difficult to demonstrate that [appellate] counsel was incompetent" under Strickland for omitting an argument. Smith v. Robbins, 528 U.S. at 288 (citingGray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) ("Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome")); see also Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990).

To demonstrate prejudice, Petitioner must establish it was reasonably probable that, but for counsel's error, he would have prevailed on appeal. Smith v. Robbins, 528 U.S. at 286. To determine...