Obando v. Jones

• Decision Date: 16 June 2015
• Docket Number: CASE NO. 14-CIV-21606-MORENO
• Parties: MAURICIO OBANDO, Petitioner, v. JULIE JONES, Respondent.
• Court: U.S. District Court — Southern District of Florida

MAURICIO OBANDO, Petitioner,
v.
JULIE JONES, Respondent.

CASE NO. 14-CIV-21606-MORENO

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

June 16, 2015

MAGISTRATE JUDGE P.A. WHITE

REPORT OF MAGISTRATE JUDGE

Introduction

Mauricio Obando, who is presently confined at Santa Rosa Correctional Institution in Milton, Florida, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, attacking his convictions and sentences in case numbers F05-4402C, F05-6478, F05-6482, F05-8370, F05-7562 and F05-103462, entered in the Eleventh Judicial Circuit Court of Miami-Dade County.

This cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2254 Cases in the United States District Courts.

The court has before it the petition for writ of habeas corpus (DE#1), Respondent's response to an order to show cause and appendix of exhibits (DE##13, 18), Petitioner's reply (DE#15), and Respondent's supplemental response to the order to show cause (DE#24).

Claims

Ground One: Ineffective assistance of counsel, failing to investigate petitioner mental health history. In violation of the Fifth, Sixth, and Fourteenth Amendment United States Constitution and the Florida Constitutions.

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Ground Two: Trial court error at sentencing hearing for allowing petitioner to enter state negotiate plea as Habitual Violent Felony Offender this is a violation to petitioner "due process"; Sixth and Fourteenth Amendments of the United States Constitution, and the Florida Constitution.

Ground Three: Ineffective assistance of counsel, "denial of due process', for allowing petitioner to receive legally insufficient / unlawful sentence enhancement of section (775.084(3)(a) Habitual Violent Felony Offender). In violation of petitioner Sixth and Fourteenth Amendment of the United States Constitution and Florida Constitutions.

Ground Four: Denial of due process were petitioner received legally insufficient/unlawful sentence, were state never provided written notice of its actual intention to seek an Habitual Violent Felony Offender sentence. State is in violation of petitioner "due process", Sixth and Fourteenth Amendment of The United States Constitution and the Florida Constitutions.

Ground Five: Involuntary Plea due to counsel misadvising petitioner to plea "guilty on all counts" petitioner "due process", Sixth and Fourteenth Amendment of the United States Constitution and the Florida Constitutions.

Ground Six: Lack of jurisdiction of the trial court to enter judgement without considering whether petitioner should have been classified as a "youthful offender" under (§958 .04

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(2) Florida Statues (1981). In violation of petitioner "due process"; Sixth and Fourteenth Amendment of The United States Constitution and Florida Constitutions.

Ground Seven: Lack of jurisdiction on the trial court to enter the judgement and sentence without first conducting a "D.N.A." Evidence inquiry before accepting petitioner plea as guilty (Under Fla. R. Crim. P. Rule 3.172). In violation of petitioner "due process"; Sixth and Fourteenth Amendment of the United States Constitution and Florida Constitutions.

Ground Eight: Petitioner sentence is illegal "denial of due process"; Illegal enhancement of section (§ 775.087(1)) and under (17112 West's F.S.A. STD. CRIM. JURY. INSTR. 15.1) and section (§ 813.13 FLA. STAT.) State is in violation of petitioner "due process", his Sixth and Fourteenth Amendment of the United States Constitution and Florida Constitutions.

Ground Nine: Petitioner was denied the right to appellate counsel. Sixth and Fourteenth Amendment of the United States Constitution and the parallel authority of Article I § 9 and article II § 16 of the Florida Constitution, guarantee indigent petitioner's in a criminal prosecution the right to appointed counsel on his criminal trial and first appeal as of right.

Ground Ten: The denial of effect assistance counsel, counsel was ineffective for failing to protect the petitioner's right to "due process" of law under Sixth and; Fifth and Fourteenth

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Amendment of the United States Constitution and Florida Constitutions.

Ground Eleven: Counsel was ineffective for failing/abandoning the petitioner previously filed motions to suppress statements illegally obtained, and motion to suppress identification testimony. In violation of the Fifth, Sixth and Fourteenth Amendment of the United States Constitution and Florida Constitutions.

Ground Twelve: Counsel was ineffective for failing to subject the state's case to meaningful adversarial testing process, which rendered petitioner plea involuntary, in violation of Fifth, Sixth and Fourteenth Amendment of the United States Constitution and Florida Constitutions.

Ground Thirteen: Counsel was ineffective for failing to file a motion to withdraw the petitioner plea, in violation of the Fifth, Sixth and Fourteenth Amendment of the United States Constitution and Florida Constitutions.

Ground Fourteen: Counsel was ineffective for advising the petitioner to accept the state's negotiated plea offer on case number F05-6482, in violation of the Fifth, Sixth and Fourteenth Amendment of the United States Constitution and Florida Constitutions.

Ground Fifteen: Trial court was without jurisdiction for entering judgment and sentence without at first ordering a Nelson hearing, in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and the Florida Constitution.

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Ground Sixteen: Ineffective assistance of counsel, due to counsel's failure to provide the petitioner with Discovery and depositions, in violation of petitioner's due process, his Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and the Florida Constitution.

Ground Seventeen: The cumulative effect of counsel's numerous errors has deprived the petitioner of his due process rights to effective assistance of counsel. In violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and the Florida Constitution.

It is well settled that pro se pleadings seeking habeas relief are to be liberally construed, and are held to less stringent pleading requirements than those drafted by attorneys. See Williams v. Griswald, 743 F.2d 1533, 1542 (11^th Cir. 1984); Gunn v. Newsome, 881 F.2d 949, 961 (11^th Cir. 1989). "Precedent also teaches, however, that a court, of course, should not abandon its neutral role and begin creating arguments for a party, even an unrepresented one." Sims v. Hastings, 375 F.Supp.2d 715, 718 (N.D.Ill.2005)(citing Anderson v. Hardman, 241 F.3d 544, 545 (7^th Cir. 2001)). A district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10^th Cir. 1999), construct Petitioner's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7^th Cir.1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4^th Cir. 1985); see also Neuendorf v. Graves, 110 F.Supp.2d 1144, 1151 (N.D.Iowa 2000)(although district court must liberally construe a pro se petition for federal habeas relief, it is not required to recognize an unarticulated arguments)(citing Miller v. Kemna, 207 F.3d 1096, 1097 (8^th Cir. 2000)); Burkey v. Deeds, 825 F.Supp. 190,

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193 (D.Nev.1993)(the leniency granted to the interpretation of pro se pleadings "should not place on the reviewing court the entire onus of creating a federal claim for the petitioner"). When read liberally, rather, a pro se habeas petition "should be interpreted 'to raise the strongest arguments that [it] suggest[s].'" Graham v. Henderson, 89 F.3d 75, 79 (2^nd Cir. 1996)(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2^nd Cir. 1994). A habeas petitioner must still present claims in clear and simple language, such that the district court may not misunderstand it. Dupree v. Warden, 715 F.3d 1295, 1299 (11^th Cir. 2013)(quoting Smith v. Sec'y, Dep't of Corr., 572 F.3d 1327, 1352 (11^th Cir. 2009).

In keeping with these principles, the leniency afforded to pro se litigants does not excuse them from complying with the court's basic pleading requirements, even on federal habeas review. See Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11^th Cir. 2011). As the Eleventh Circuit has explicitly stated, the district courts cannot be expected to do a habeas petitioner's work for him. Id. Federal district courts are not obligated to cull the evidentiary records themselves, nor to ferret out delectable facts for a habeas petitioner. Id. (internal quotations and citations omitted). Even when a party is proceeding pro se, a court is not required to "accept factual claims that are internally inconsistent, facts which run counter to facts of which the court can take judicial notice, conclusory allegations, unwarranted deductions, or mere legal conclusions asserted by a party." Campos v. Immigration & Naturalization Serv., 32 F.Supp.2d 1337, 1343 (S.D.Fla.1998)(citations omitted). Moreover, a pro se litigant's statement of the grounds for relief "requires more than labels and conclusions." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Federal courts are thus not bound by the label that a pro se petitioner attaches to his claim, and should liberally construe and address claims according to the substantive nature of what is

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