Marquardt v. Inch
Decision Date | 27 July 2021 |
Docket Number | 18-CV-81039-ROSENBERG |
Parties | MICHAEL MARQUARDT, Petitioner, v. MARK S. INCH, [1] Respondent. |
Court | U.S. District Court — Southern District of Florida |
REPORT OF MAGISTRATE JUDGE
Petitioner Michael Marquardt, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions for first degree murder and robbery with a firearm, entered following a jury verdict in Palm Beach County Circuit Court, No. 2009-CF-005155-AMB. [ECF No. 1]. This cause has been referred to the Undersigned for consideration and report, pursuant to 28 U.S.C. § 636(b)(1)(B)-(C) and S.D. Fla. Admin. Order 2019-02. [ECF No. 39].
For its consideration of the Petition [ECF No. 1], the Court has reviewed Respondent's Response to this Court's Order to Show Cause [ECF No. 16], copies of relevant state court pleadings, including hearing and trial transcripts, Petitioner's Reply [ECF No. 28], Respondent's Response to this Court's Supplemental Order to Show Cause [ECF No. 60], and Petitioner's Reply to that Response [ECF No. 73]. Upon such review, the Petition should be DENIED, as further discussed below.
Construing the arguments liberally pursuant to Haines v. Kerner, 404 U.S. 519, 520 (1972), Petitioner raises the following grounds for relief:
1. He received ineffective assistance of counsel when his lawyer failed to request a jury instruction for manslaughter-a lesser included offense. [ECF No. 1 at 5].
2. He received ineffective assistance of counsel where his lawyer failed to impeach Antonio Bussey at trial with Louis Baccari's phone records. [ECF No. 1 at 7].
3. He received ineffective assistance of counsel when his lawyer failed to properly examine the “Gas One” video which proved Petitioner's innocence. [ECF No. 1 at 9].
4. His constitutional rights were violated when the prosecutor knowingly presented false testimony. [ECF No. 1 at 11].
5. He received ineffective assistance of counsel when his lawyer misadvised him to reject a favorable plea agreement. [ECF No. 1 at 13].
6. He received ineffective assistance of counsel when his lawyer failed to file a motion for judgment of acquittal or arrest of judgment. [ECF No. 1 at 15].
7. He received ineffective assistance of counsel when his lawyer failed to have DNA swabs tested from the crime scene. [ECF No. 1 at 16].
8. His constitutional rights were violated when the trial court allowed the jury to hear Petitioner's co-defendant using racial slurs. [ECF No. 1 at 18].
9. His constitutional rights were violated when the trial court refused to read back all of Bussey's testimony, and unfairly emphasized the state's case. [ECF No. 1 at 20].
10. His constitutional rights were violated where his conviction was based on a crime that was not charged in the Indictment. [ECF No. 1 at 21].
11. His constitutional rights were violated when the state court refused to test DNA swabs and/or reveal fingerprint test results. [ECF No. 1 at 23].
12. He received ineffective assistance of appellate counsel when his lawyer failed to certify a conflict under Florida law regarding newly discovered evidence. [ECF No. 1 at 25].
13. He received ineffective assistance of appellate counsel when his lawyer failed to argue on appeal that the failure to give a manslaughter instruction to the jury was fundamental error. [ECF No. 1 at 26].
In 2009, Petitioner, along with co-defendant Louis Salvatore Baccari (“Baccari”), was charged by indictment with first degree murder with a firearm (Count 1), robbery with a firearm (Count 2), and accessory after the fact (Count 3). [ECF No. 17-1, Ex. 1]. A jury found Petitioner and Baccari guilty of Counts 1 and 2, and he was sentenced to life imprisonment without the possibility of parole. [Id., Exs. 2-3].
Petitioner appealed raising the following claims: (I) the trial court erred by denying his motion for judgment of acquittal because the state could not rule out his reasonable hypothesis of innocence; (II) the trial court erred by allowing the jury to hear his co-defendant's use of a racial slur; (III) the trial court abused its discretion when it refused to read back testimony and unfairly emphasized the state's case; (IV) the trial court abused its discretion when it refused to read the principal instruction to the jury and refused to give a “mere presence” instruction; (V) the trial court's failure to make a genuineness inquiry under Florida law requires a new trial; and (VI) Petitioner's conviction was based on a crime that was not charged in the Indictment. [Id., Ex. 4]. On March 19, 2015, the Fourth District Court of Appeal (“Fourth DCA”) per curiam affirmed Petitioner's judgment of conviction without written opinion. [Id., Ex. 7]; see also Marquardt v. State, 163 So.3d 1217 (Fla. 4th DCA 2015).
Petitioner then filed a petition for writ of habeas corpus in the Fourth DCA, where he alleged that appellate counsel was ineffective for failing to argue that the trial court committed reversible error by failing to give a requested instruction on a lesser included offense. [ECF No. 17-1, Ex. 10]. The Fourth DCA summarily denied the petition. [Id., Ex. 13].
Petitioner next filed a motion for postconviction relief pursuant to Fla. R. Crim. P. 3.850 in the trial court. [Id., Ex. 15]. In his motion, Petitioner raised the following claims relevant to the instant petition: (I) his lawyer was ineffective for failing to impeach Antonio Bussey with Baccari's phone records; (II) his lawyer was ineffective for misadvising him to reject the plea agreement; (III) his lawyer was ineffective where he failed to present a theory of defense; (IV) his constitutional rights were violated when the prosecution knowingly presented false testimony; (V) his constitutional rights were violated when he was convicted based on a charge not contained in the Indictment; (VI) his lawyer was ineffective for failing to file a post-trial motion for an arrest of judgment and/or judgment of acquittal; and, (VII) his lawyer was ineffective for failing to obtain DNA evidence. [Id.]. While his initial Rule 3.850 motion was pending, Petitioner filed a supplemental motion for postconviction relief. [Id., Exs. 16, 16a]. After a response from the state, the trial court denied the Rule 3.850 motion in its entirety for the reasons set forth in the state's response. [Id., Exs. 17; 18]. Petitioner appealed, and the Fourth DCA affirmed without a written opinion. [Id., Exs. 19, 20]; see also Marquardt v. State, 239 So.3d 1251 (Fla. 4th DCA 2018). Mandate issued on April 20, 2018. [ECF No. 17-1, Ex. 21].
Shortly thereafter, Petitioner filed a motion for postconviction DNA testing pursuant to Fla. R. Crim. P. 3.853 in the trial court. [Id., Ex. 23]. In the motion, he alleged that DNA testing would have exonerated him at trial. [Id.]. The trial court denied the motion for the reasons set forth in the state's response. [Id., Exs. 24, 25]. Petitioner appealed; and the Fourth DCA per curiam affirmed the trial court's ruling without written opinion on January 11, 2018. [Id., Ex. 27].
Petitioner then came to this Court, filing his Petition pursuant to 28 U.S.C. § 2254 on August 1, 2018. [ECF No. 1].
Careful review of the procedural history of this case confirms that less than one year of un-tolled time expired after the Petitioner's judgment became final and the filing of this federal habeas Petition. Therefore, as the Respondent correctly concedes [ECF No. 16 at 4-5], the Petition is timely filed under 28 U.S.C. § 2244(d).
Next, the Respondent argues that several of Petitioner's claims are unexhausted and procedurally defaulted from federal habeas review. See generally [ECF No. 16]. In addressing the issue of exhaustion and procedural default, the Court must determine whether the claims raised here were raised in the state court proceedings, and whether the state courts were alerted to the federal nature of the claims.
Before bringing a § 2254 habeas action in federal court, a petitioner must exhaust all available state court remedies. See 28 U.S.C. §§ 2254(b), (c). To properly exhaust state remedies, the petitioner must fairly present every issue raised in his federal petition to the state's highest court, either on direct appeal or on collateral review. See Castille v. Peoples, 489 U.S. 346, 351 (1989); see also Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 456-59 (11th Cir. 2015).
Exhaustion is not satisfied “merely” if a petitioner presents the state court with “all the facts necessary to support the claim” or even if a “somewhat similar state-law claim was made.” Kelley v. Sec'y for Dept. of Corr., 377 F.3d 1317, 1344-45 (11th Cir. 2004) (citation omitted). A petitioner must instead “present his claims to the state courts such that they are permitted the ‘opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim.'” Id. For example, “a litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim ‘federal.'” Baldwin v. Reese, 541 U.S. 27, 32 (2004); see also McNair v. Campbell, 416 F.3d 1291, 1302-1303 (11th Cir. 2005).
To circumvent the exhaustion requirement, Petitioner must establish that there is an “absence of available state corrective process” or that “circumstances exist that render such process ineffective to protect [his] rights.” 28 U.S.C. § 2254(b)(1)(B); see Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The...
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