Montanez v. Sec'y, Fla. Dep't of Corr., Case No: 5:11-cv-527-Oc-27PRL

• Decision Date: 24 January 2014
• Docket Number: Case No: 5:11-cv-527-Oc-27PRL
• Court: U.S. District Court — Middle District of Florida
• Parties: CARLOS ANTONIO MONTANEZ, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.

CARLOS ANTONIO MONTANEZ, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSand FLORIDA ATTORNEY GENERAL, Respondents.

Case No: 5:11-cv-527-Oc-27PRL

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA OCALA DIVISION

DONE and ORDERED: January 24, 2014

OPINION AND ORDER

Carlos Antonio Montanez ("Petitioner") initiated this action pursuant to 28 U.S.C. § 2254 by filing a petition for habeas corpus relief (Doc. 1). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought by Petitioner should not be granted (Doc. 5). Thereafter, Respondents filed a response in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. 10). Petitioner filed a reply and a supplemental reply to the response (Doc. 12; Doc. 14).

Petitioner raises a total of nine claims in his petition.¹ He alleges that: (1) the state committed a discovery violation by withholding material evidence (Doc. 1 at 9); (2) the charging information was defective as to count two of the second amended information (Doc. 1 at 20); (3) counsel was ineffective for failing to preserve for appellate review the state's unconstitutional use of a peremptory strike (Doc. 1 at 31); (4) counsel was ineffective for failing to object to an erroneous jury instruction (Doc. 1 at 43); (5) counsel was ineffective for failing to make an adequate argument in support of hismotion for judgment of acquittal (Doc. 1 at 55); (6) counsel was ineffective for failing to fully investigate the medical evidence (Doc. 1 at 68); (7) counsel was ineffective for failing to call the victim's stepfather and her treating physician to testify at trial (Doc. 1 at 80); (8) appellate counsel was ineffective for failing to argue that the jury instructions given by the trial judge were fundamentally flawed (Doc. 1-1 at 14); and (9) appellate counsel was ineffective for failing to argue on direct appeal that the state's evidence was insufficient to support his convictions (Doc. 1-1 at 20).

Because this Court can "adequately assess [Petitioner's] claim[s] without further factual development[,]" an evidentiary hearing will not be conducted. Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003). Upon due consideration of the petition, the response, the replies, and the state court record, this Court denies each of Petitioner's claims.

1. Background and Procedural History

On February 8, 2007, Petitioner was charged by second amended information with lewd and lascivious battery of a child over twelve, but less than sixteen years of age (count one) and with promoting a sexual performance by a child (count two) (App. A at 1-2).² The case went to trial on February 21, 2007 (App. B; App. C). After trial, Petitioner was found guilty as charged on both counts (App. A at 63). Petitioner was sentenced to consecutive terms of fifteen years in prison on each count (App. A at 118, 123; App. D). The convictions and sentences were per curiam affirmed on appeal (App. H); Montanez v. State, 982 So. 2d 702 (Fla. 5th DCA 2008). Petitioner's motion for rehearing was denied (App. J).

On October 10, 2008, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion") (App. K). In the motion,Petitioner raised ten claims of ineffective assistance of counsel (App. K at 1-55). After holding an evidentiary hearing (App. KK), the post-conviction denied Petitioner's Rule 3.850 motion, and the Fifth District Court of Appeal per curiam affirmed (App. GG; App. O); Montanez v. State, 39 So.3d 334 (Fla. 5th DCA 2010). Petitioner's motion for rehearing was denied (App. Q).

On March 18, 2010, Petitioner filed a state motion for habeas corpus relief in which he raised three claims of ineffective assistance of appellate counsel (App. R). The Fifth District Court of Appeal denied relief (App. U). Petitioner's motions for rehearing and reconsideration were also denied (App. V; App. W).

On February 9, 2011, Petitioner filed a second Rule 3.850 motion in which he alleged that his court-appointed post-conviction attorney was ineffective (App. FF). The post-conviction denied the motion on the ground that there was no legal merit to the claim (App. GG). The Fifth District Court of Appeal per curiam affirmed (App. KK); Montanez v. State, 66 So.3d 948 (Fla. 5th DCA 2011).

Petitioner filed the instant petition in this Court on September 2, 2011 (Doc. 1).

II. Governing Legal Principles

a. The Antiterrorism Effective Death Penalty Act ("AEDPA")

Pursuant to the AEDPA, federal 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). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).

"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. Carey v. Musladin, 549 U.S. 70, 74 (2006) (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is "contrary to" clearly established federal law if the state court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case law; or (2) reached a different result from the Supreme Court when faced with materially indistinguishable facts. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

A state court decision involves an "unreasonable application" of the Supreme Court's precedents if the state court correctly identified the governing legal principle, but applied it to the facts of the petitioner's case in an objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v. Moore, 234 F.3d 526, 531 (11th Cir. 2000) or, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Bottoson, 234 F.3d at 531 (quoting Williams, 529 U.S. at 406). The unreasonable application inquiry requires the state court decision to be more than incorrect or erroneous, rather, it must be "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-77 (2003) (citation omitted); Mitchell, 540 U.S. at 17-18; Ward, 592 F.3d at 1155.

Finally, the Supreme Court has clarified that: "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (dictum). When reviewing a claim under § 2254(d), a federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct[,]" and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Miller-El, 537 U.S. at 340(explaining that a federal court can disagree with a state court's factual finding and, when guided by AEDPA, "conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence").

b. Ineffective Assistance of Counsel

In Strickland v. Washington, the Supreme Court established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance. 466 U.S. 668, 687-88 (1984). A petitioner must establish that counsel's performance was deficient and fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense. Id. Because both parts of the Strickland test must be satisfied in order to demonstrate a violation of the Sixth Amendment, a district court need not address the performance prong if the petitioner cannot meet the prejudice prong, or vice versa. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

The focus of inquiry under Strickland's performance prong is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-89. In reviewing counsel's performance, a court must adhere to a strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Indeed, the petitioner bears the burden to "prove, by a preponderance of the evidence, that counsel's performance was unreasonable[.]" Jones v. Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006). A court must "judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct," applying a "highly deferential" level of judicial scrutiny. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at 690). "To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'"Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).

As to the prejudice prong of the Strickland standard, Petitioner's burden to demonstrate prejudice is high. Wellington v. Moore, 314 F.3d 1256, 1260 (11th Cir. 2002). Prejudice "requires showing that counsel's...