Onstott v. Sec'y

• Decision Date: 12 March 2015
• Docket Number: Case No. 8:12-cv-2695-T-17EAJ
• Parties: DAVID LEE ONSTOTT, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

DAVID LEE ONSTOTT, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent.

Case No. 8:12-cv-2695-T-17EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

March 12, 2015

ORDER

This cause is before the Court on Petitioner David Onstott's 28 U.S.C. § 2254 petition. Onstott is proceeding on his amended petition (hereinafter "Petition or "petition") (Doc. 8). Onstott challenges his 2007 judgment of conviction for murder arising out of the Thirteenth Judicial Circuit, Hillsborough County, Florida in case no. 2D08-4268.

A review of the record demonstrates that, for the following reasons, the petition must be denied.

PROCEDURAL HISTORY

Petitioner was found guilty of Second Degree Murder and misdemeanor battery. (Exhs. 17, 18). A notice of appeal was filed on August 22, 2008; Case No. 2D08-4268. (Exh. 001). Defense counsel filed an initial brief with the Second District Court of Appeal on or about July 21, 2009 and raised six issues on appeal. (Exh. 002).

The State filed its answer brief on October 20, 2009. (Exh. 003). On November 30, 2009, Onstott filed his reply brief. (Exh. 004). On March 5, 2010, the Second District Court of Appeal affirmed per curiam. The opinion is cited at 29 So. 3d 1128 (Fla. 2d DCA2010)(table). (Exh. 005). The Mandate issued March 30, 2010. (Exh. 006).

On or about March 23, 2011, Petitioner filed a motion for postconviction relief, raising five grounds for relief. (Exh. 007). On May 6, 2011, Petitioner filed a motion to supplement motion for post conviction relief. (Exh. 008). On May 18, 2011, the trial court filed its order dismissing without prejudice, in part, and reserving ruling in part, to motion for post conviction relief and motion to supplement motion for post conviction relief. (Exh. 009). On June 13, 2011, Petitioner filed his motion to amend the motion for post conviction relief. (Exh. 010).

On June 22, 2011, the trial court filed its order to respond, in part, and denying with prejudice, in part, to motion for post conviction relief, motion to supplement motion for post conviction relief, motion to supplement motion for post conviction relief and motion to amend motion for post conviction relief. (Exh. 011). On August 19, 2011, the State filed its response to the Court's order to respond. (Exh. 012). On September 7, 2011, the trial court filed its Order denying Onstott's motion for post conviction relief, motion to supplement motion for post conviction relief and motion to amend motion for post conviction relief. (Exh. 013).

On September 21, 2011, Petitioner filed his notice of appeal, Case No. 2D11-6332. (Exh. 014). The State filed its summary letter on January 18, 2012. (Exh. 015). The Second District Court of Appeal affirmed per curiam on September 28, 2012. The opinion is cited at 99 So. 3d 955 (Fla. 2d DCA 2012)(table). (Exh. 016). The Mandate issued November 2, 2012. (Exh. 017)(case docket sheet).

Onstott delivered the present petition to officials at Suwannee Correctional Institution for mailing on November 26, 2012. The petition is timely.

STANDARDS OF REVIEW

Federal Question

Title 28 U.S.C. section 2254(a) explicitly requires a federal court to entertain an application for writ of habeas corpus only when the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." Federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension. Wainwright v. Goode, 464 U.S. 78, 83 (1983) (citing Engle v. Isaac, 457 U.S. 1141 (1982)). Even when a petition involving state law issues is "couched in terms of equal protection and due process," this limitation on federal habeas corpus review is of equal force. Willeford v. Estelle, 538 F.2d 1194, 1196-98 (5th Cir. 1976).

Exhaustion of State Court Remedies

Before bringing a habeas action in federal court, a petitioner must exhaust all state court remedies available for challenging his conviction. 28 U.S.C. § 2254(b),(c). The petitioner must "fairly present[]" every issue raised to the state's highest court, either on direct appeal or on collateral review. Picard v. Connor, 404 U.S. 270, 275 (1971). To properly exhaust a claim, "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838 (1999).

A petitioner may be procedurally defaulted from raising claims in a federal habeas petition if he was procedurally defaulted from raising them in state court. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Federal courts are barred from reaching the merits of a state prisoner's federal habeas claim where the petitioner has failed to comply with an independent and adequate state procedural rule. When a state court correctlyapplies a procedural default principle of state law, federal courts must abide by the state court decision but only if the state rule is regularly followed[.] Siebert v. Allen, 455 F.3d 1269, 1271 (11th Cir. 2006).

There are two limited exceptions to the procedural default doctrine. First, a petitioner must show both "cause" for the default and actual "prejudice" from the claimed error. House v. Bell, 547 U.S. 518, 536-37 (2006). The "cause" excusing the procedural default must result from some objective factor external to the petitioner that prevented him from raising the claim and which cannot be fairly attributable to his own conduct. Murray v. Carrier, 477 U.S. 478 (1986). To establish "prejudice," a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003) (citations omitted). The second exception is only utilized under extraordinary circumstances. A petitioner may assert a fundamental miscarriage of justice resulted in a constitutional violation because he is actually innocent. Carrier, 477 U.S. at 495-96. This concerns a petitioner's "actual" innocence rather than "legal" innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (2001). A petitioner must "show that it is more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition, "'[t]o be credible,' a claim of actual innocence must be based on [new] reliable evidence." Id. at 324.

Deferential Review

A federal court must afford a high level of deference to the state court's decision. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008). AEDPA modified federal the habeas court's role in reviewing state prisoner applications in order to prevent retrials and to ensure state-court convictions are properly enforced. Bell v. Cone, 535 U.S. 685, 693(2002). Section 2254(d) forbids federal courts from granting habeas relief for claims that previously were "adjudicated on the merits" in state court, unless the petition can establish the adjudication "resulted in a decision contrary to, or involved an unreasonable application of, clearly established" Supreme Court law, or "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)(1),(2). When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed the state court adjudicated the claim on the merits. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011). Where the state court does explain its reasoning, that decision receives AEDPA deference even if the state court fails to cite Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002).

Federal review is limited to the record that was before the state court that adjudicated the claim. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that resulted in a decision contrary to, or involved an unreasonable application of, established law. Thus, the record under review is limited to the record in existence at that time. Cullen v. Pinholster, 131 S.Ct. 1388, 1398-1401 (2011). The federal court will presume the correctness of state court findings of fact, unless the petitioner can rebut them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

DISCUSSION

Petitioner raises 6 grounds in his federal habeas petition:

1) MY CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ERRED IN FAILING TO SUPPRESSS THE STATEMENTS MR. ONSTOTT MADE TO NURSE ELIZABETH MARTINEZ, DETECTIVE LEWIS AND FORMER DEPUTY BRYAN HERNDON, AND FAILEDTO SUPPRESS ALL STATEMENTS HE MADE TO HIS MOTHER (CONTRARY TO HIS 4TH,

5TH, 6TH, AND 14TH AMENDMENT RIGHTS).

2) MY CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ERRED IN ALLOWING THE STATE TO USE A TRANSCRIPT AS AN AID[] TO UNDERSTAND THE CONVERSATION BETWEEN MR. ONSTOTT AND HIS MOTHER, AS IT WAS PREJUDICIAL AND DENIED MR. ONSTOTT DUE PROCESS (CONTARY TO HIS 4TH, 5TH, 6TH, AND 14TH AMENDMENT RIGHTS.

3) MY CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ERRED IN GRANTING THE STATE'S PRE-TRIAL MOTION IN LIMINE AND PROHIBITED THE TESTIMONY OF TONY PALINSKY AND RONNIE HERRERA TO TESTIFY BEFORE THE JURY (CONTRARY TO HIS 4TH, 5TH, 6TH, AND 14TH AMENDMENT RIGHTS).

4) MY CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT ERRED IN DENYING MY ATTORNEY'S MOTION FOR MISTRIAL WHEN THE STATE DURING CLOSING ARGUMENT ARGUED THAT MR. ONSTOTT "DOESN'T ACCOUNT" FOR CERTAIN MATTERS, WHICH A DIRECT REFERENCE TO MY FIFTH AMENDMENT RIGHT TO REMAIN SILENT, (CONTRARY TO HIS 4TH, 5TH, 6TH, AND 14TH AMENDMENT RIGHTS).

5) MY CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW WERE VIOLATED WHEN COUNSEL RPOVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AS DEFINED BY THE UNITED SUPREME COURT IN STRICKLAND V. WASHINGTON, 104 S.CT. 2052 (1984) (CONTRARY TO HIS 4TH, 5TH, 6TH, 8TH, AND 14TH AMENDMENT RIGHTS).

6) MY CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL AS DEFINED BY THE UNITED SUPREME COURT

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