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

• Decision Date: 19 February 2013
• Docket Number: Case No. 8:09-CV-2029-T-27TBM
• Parties: IXIO NUNEZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

IXIO NUNEZ, Petitioner,

v.SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:09-CV-2029-T-27TBM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: February 19, 2013

ORDER

Petitioner, an inmate in a Florida penal institution proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("petition") (Dkt. 1) with supporting exhibits (Dkts. 1-2 -1-8) challenging his 2005 revocation of probation entered in Hillsborough County, Florida, for which he was sentenced to 30 years imprisonment. Subsequently, Petitioner filed a "Supplemental Petition" in which he raised two additional claims for relief (Dkt. 9). Respondent filed a response to the petition and "Supplemental Petition" (Dkt. 10) with supporting exhibits (Dkt. 11). Petitioner filed a reply to the response (Dkt. 14) with supporting exhibits (Dkt. 15).

Respondent asserts no challenge to the petition's timeliness. The matter is now before the Court for consideration of Petitioner's claims. An evidentiary hearing is not required for the disposition of this matter. Rules Governing Section 2254 Cases, Rule 8(a) (2012).

PROCEDURAL HISTORY

On December 15, 1999, Petitioner pled guilty to one count of attempted robbery and two counts of robbery (Respondent's Ex. 2 at record p. 90). Petitioner was sentenced to 30 yearsimprisonment, suspended after 5 years, followed by 10 years probation (Id.).

On April 26, 2005, Petitioner admitted violating the conditions of his probation by testing positive for marijuana and cocaine (Respondent's Ex. 4 at record pp. 132-34). Petitioner's probation was revoked, and he was sentenced to 30 years imprisonment (Id. at 136). Petitioner did not file a direct appeal.

On May 14, 2006, Petitioner filed a pro se Motion for Postconviction Relief pursuant to Florida Rules of Criminal Procedure, Rule 3.850 ("Rule 3.850 motion") in which he raised four claims of ineffective assistance of counsel (Respondent's Ex. 1). On June 5, 2007, the state post conviction court denied ground three and a portion of ground four of the Rule 3.850 motion, and directed the State to respond to the remaining claims (Respondent's Ex. 2). After the State submitted its response (Respondent's Ex. 3), the post conviction court held an evidentiary hearing on the remaining claims on September 26, 2007 (Respondent's Ex. 5). Following the evidentiary hearing, the post conviction court denied the remaining claims on February 13, 2008 (Respondent's Ex. 6). On August 14, 2009, the appellate court affirmed the post conviction court's denial of Petitioner's Rule 3.850 motion (Respondent's Ex. 11); Nunez v. State, 17 So. 3d 1232 (Fla. 2d DCA 2009) [table]. The appellate court mandate issued on October 9, 2009 (Id.).

Petitioner filed his § 2254 petition in this Court on October 2,2009 (Dkt. I).¹ The petition raised the following four grounds for relief:

Ground One

Counsel was ineffective in failing to call a witness, Petitioner's probation officer, totestify at the violation of probation hearing that the drug testing method used to allege that Petitioner violated his probation was unreliable.

Ground Two

Counsel was ineffective in misadvising Petitioner that the trial court would impose a lenient sentence in exchange for Petitioner admitting that he violated his probation.

Ground Three

Counsel was ineffective in failing to move for a continuance of the violation of probation hearing on the ground that Petitioner "was sedated due to psychotropic medications."

Ground Four

Counsel was ineffective in failing to "suppress arresting charges which were dismissed and failure to suppress urinalysis results which were never submitted to lab for chemical testing."

The "Supplemental Petition" raised the following two grounds for relief: "Supplemental" Ground One

Counsel was ineffective in failing to "discuss with [Petitioner] 'advisability' of admitting versus challenging allegations of a presumed dirty urinalysis (drug test) outside of conclusive lab results, particularly when challenging allegations was in [Petitioner's] best interest."

"Supplemental" Ground Two

The prosecutor engaged in prosecutorial misconduct, violating Petitioner's due process rights, by obtaining a "wrongful and illegal conviction" for attempted robbery, which "is not [a] chargeable offense/crime" under Florida Statute, 813.12(1), (2)(a), thereby rendering Petitioner's entire guilty plea invalid.

STANDARDS OF REVIEW

Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of the state court's factual findings is highlydeferential. Those findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law-including constitutional issues-must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involved an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362 (2000). It is not enough that the federal courts believe that the state court was wrong; it must be demonstrated that the state court decision was "objectively unreasonable." Id. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).

Ineffective Assistance of Counsel

To have a facially valid claim alleging ineffective assistance of counsel, Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland^ two-part test requires Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. However, if a claim fails to satisfy the prejudice component, the court need not make a ruling on the performance component. Id. at 697.

Procedural Default

A § 2254 application cannot be granted unless a petitioner "has exhausted the remedies available in the courts of the State;..." 28 U.S.C. 2254(b)(1)(A); Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. O 'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also, Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.")(quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364 (1995) ("[E]xhaustion of state remedies requires that the state prisoner 'fairly present' federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]"') (citation omitted).

Under the procedural default doctrine, "if the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). "The doctrine of procedural default was developed as a means of ensuring that federal habeas petitioners first seek relief in accordance with established state procedures." Henderson, 353 F.3d at 891 (quoting Judd v. Haley, 250 F.3dat 1313).

Pre-AEDPA decisions from the Supreme Court establish the framework governing procedural default in federal habeas cases. A procedural default will only be excused in two narrow circumstances. First, Petitioner may obtain federal habeas review of a procedurally defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting from the default. "Cause" ordinarily requires Petitioner to demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court. Henderson, 353 F.3d at 892; Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).

To show "prejudice," Petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his factual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Petitioner must show thatthere is at least a reasonable probability that the result of the proceeding would have been different. Henderson, 353 F.3d at 892.

Second, Petitioner may obtain federal habeas review of a procedurally defaulted claim, without a showing of cause or prejudice, if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Henderson, 353 F.3d at 892. This exception is only available "in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent." Henderson, 353 F.3d at 892. The fundamental miscarriage of justice exception concerns a petitioner's "actual" innocence rather than his "legal" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)). To meet this standard, a petitioner must "show that it is more likely than not that no reasonable juror would have convicted him" of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, "'to be credible,' a claim of actual innocence must be based on [new] reliable evidence not presented at trial." Calderon, 523 U.S. at 559 (quoting Schlup, 513 U.S. at 324) (explaining "given the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected") (internal quotation marks omitted).

DISCUSSION

Ground Three²

Petitioner complains that coun...