Nava v. Sec'y, CASE NO. 6:10-cv-00100-22GJK

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
PartiesJOSE MARIO NAVA, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
Docket NumberCASE NO. 6:10-cv-00100-22GJK
Decision Date10 June 2011

JOSE MARIO NAVA, Petitioner,

CASE NO. 6:10-cv-00100-22GJK


Dated: June 10, 2011


This case is before the Court on a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254 by Jose Mario Nava ("Petitioner") alleging eight claims for relief (Doc. 1, filed January 19, 2010). Upon consideration of the petition, the Court ordered Respondents to show cause why the relief sought in the petition should not be granted (Doc. 6). Thereafter, Respondents filed a response to the petition in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. 11). Petitioner filed an amended reply to the response (Doc. 17).

Petitioner alleges that: 1) his trial counsel ("counsel") was ineffective for failing to strike a juror who had a memory problem; 2) counsel was ineffective for failing to move to suppress a statement taken in violation of Petitioner's Miranda rights; 3) counsel was ineffective for failing to subpoena the Florida Highway Patrol ("FHP") video log sheet; 4) counsel was ineffective for filing a boilerplate motion for a judgment of acquittal; 5) counsel was ineffective for not objecting to the prosecutor's comments on Petitioner's right to remain silent; 6) counsel was

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ineffective for failing to investigate the FHP policy manual; 7) the trial court erred in denying Petitioner's motion for judgment of acquittal; and 8) fundamental error occurred when Petitioner's defense theory was undermined by the standard jury instructions and misleading statements by the prosecutor.

Upon due consideration of the petition, the memorandum of law in support of the petition, the response, the state-court record contained in Respondents' appendix, and Petitioner's amended reply, the Court concludes that the petition is due to be denied.

I. Procedural History

On September 18, 2006, Petitioner and his co-defendant brother were charged by amended information with trafficking in more than 400 grams of cocaine (count one) and carrying a concealed weapon during the commission of a felony (count two). A jury trial was held on September 21-22, 2006 (App. O).1 Both defendants were found guilty as to count one and not guilty as to count two. Petitioner was sentenced to fifteen years in prison (App. B at 283, 295).

On direct appeal Petitioner argued that the trial court erred in denying his motion for judgment of acquittal and that fundamental error occurred when Petitioner's defense theory was undermined by misleading jury instructions and comments made by the prosecutor during closing arguments (App. C). The Fifth District Court of Appeal per curiam affirmed (App. C); Nava v. State, 972 So. 2d 200 (Fla. 5th DCA 2008).

Petitioner subsequently filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising eleven separate claims for relief (App. D). The trial court

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issued a written opinion denying each claim (App. F). On August 29, 2009, the Fifth District Court of Appeal per curiam affirmed the trial court's denial of post conviction relief (App. G); Nava v. State, 22 So. 3d 91 (Fla. 5th DCA 2009).

The instant petition was timely filed in this Court on January 19, 2010 (Doc. 1).

II. Governing Legal Principles

Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to "prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA

Pursuant to the AEDPA, 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.

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28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

The United States Supreme Court has clarified the meaning of "contrary to" and "unreasonable application" as used in 28 U.S.C. § 2254(d)(1):

[Section] 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meanings. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one.

Bell v. Cone, 535 U.S. 685, 694 (2002).

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

In Strickland v. Washinton, the United States 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: (1) whether counsel's performance was deficient and "fell below

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an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.2 466 U.S. 668, 687-88 (1984). A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 68990. Therefore, when deciding an actual ineffectiveness claim a court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals:

[The test for ineffective assistance of counsel] has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

Finally, because the "components of the ineffectiveness inquiry are mixed questions of law and fact, . . . a state court conclusion that counsel rendered effective assistance is not a finding of fact binding on the federal court to the extent stated by 28 U.S.C. § 2254(d)." Strickland, 466 U.S. at 698. Nonetheless, "state court findings of fact made in the course of

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deciding an ineffectiveness claim are subject to the deference requirement of § 2254(d)." Id.

III. Analysis

A. Claim One

Petitioner alleges that counsel was ineffective for failing to strike a venire member from the jury on the ground that she admitted during voir dire to having a "memory problem." (Doc. 1 at 5). Specifically, Petitioner refers to Juror Marjorie Lawson ("Lawson") who expressed concerns to the...

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