Ortiz v. Sec'y

• Decision Date: 26 February 2016
• Docket Number: Case No. 8:13-cv-1636-T-27AEP
• Parties: ROBERTO BARBOSA ORTIZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

ROBERTO BARBOSA ORTIZ, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:13-cv-1636-T-27AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

February 26, 2016

ORDER

Petitioner Roberto Barbosa Ortiz, a state of Florida inmate proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1). He challenges his convictions entered in 2002 by the Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. Respondent filed a response (Dkt. 9), which concedes the petition's timeliness. Petitioner filed a reply (Dkt. 22). Upon review, the petition must be denied.

PROCEDURAL HISTORY

Petitioner was convicted of armed trafficking in a controlled substance (14 to 28 grams), conspiracy to traffic in heroin, and trafficking in illegal drugs (28 grams to 30 kilograms). (Dkt. 11, Exhibit 1, Information; Dkt. 11, Ex. 4, Vol. II, p. 458.) He was sentenced to life imprisonment on the armed trafficking count and concurrent terms of thirty years in prison on the remaining counts. (Dkt. 11, Ex. 1, Judgment and Sentence.) The state appellate court per curiam affirmed the judgments and sentences. (Dkt. 11, Ex. 3.) Petitioner filed a motion and an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 11, Ex. 5.) The state court summarily denied some of Petitioner's claims, and held an evidentiary hearing on the remaining claims. (Dkt. 11, Exs. 6, 7.) Following the hearing, the state court entered a final order denying Petitioner's motions for postconviction relief. (Dkt. 11, Ex. 9.) The state appellate court per curiam affirmed the denial. (Dkt. 11, Ex. 10.) Petitioner also filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), which the state court denied. (Dkt. 1-3.) The state appellate court per curiam affirmed the order of denial. (Dkt. 1-4.)

FACTS¹

A confidential informant ("CI") arranged for a purchase of one ounce of heroin from Orlando Adams. The CI initially purchased a sample of the heroin from Adams near a convenience store in Tampa shortly after 9:00 p.m. on October 23, 2001. Adams arrived at this location as a passenger in a white Dodge Stratus. After police determined that substance to be heroin, the CI called Adams about purchasing the larger amount of heroin. In several phone calls between the CI and Adams, Adams discussed talking to "the guy."² During one call, Adams told the CI, "I called the guy. The guy isn't there. Give me one hour more," and, "He said he need a little bit more time. A little bit more time and he'll be done." The CI understood this delay to mean that Adams needed to obtain the heroin from his supplier.

After Adams sold the sample to the CI, the white Stratus was observed going to the Carlyle Apartments in Tampa. At approximately 10:00 p.m., the car was observed leaving the apartments. It traveled to an address on North Thatcher, where its occupants appeared to make contact with an individual. The car left North Thatcher after about three minutes. Around midnight, the white Stratus traveled to a residence on North 13th Street in Tampa, where Adams got out of the car and walked into the home. Approximately four or five minutes later, he and two other men exited the house and left in the car.

During one of the phone calls made that night, Adams told the CI to meet at Adams' former residence. The CI, monitored by police, called off the meeting because this location was considered unsafe. When the Stratus returned to the house on North 13th Street, police arrested the car's occupants. Adams was driving; Maria Morales was in the front passenger seat; Jorge Mictil was in the rear passenger side seat; and Petitioner was in the rear driver side seat.

Two bags of heroin were found on the rear driver side floorboard. A loaded gun was found on Petitioner's person. Petitioner also had a key to the North 13th Street house. Police obtained a search warrant and searched the house. Inside, they found items in the kitchen including cutting agents, plastic bags, a sifter, and a scale. They also located heroin inside an electric panel near the kitchen. In a bedroom determined to be occupied by Mictil, police found more heroin. Paperwork and documentation belonging to Petitioner was found in the other bedroom. Petitioner admitted to Detective Jose Feliciano that he lived in the house.

At trial, Petitioner called Mictil,³ who testified that something plastic was thrown from the front to the back of the car when the police arrested the car's occupants. Mictil testified that Petitioner did not bring drugs into the car and did not talk to Mictil about drugs.

STANDARD OF REVIEW

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d),which sets forth a highly deferential standard for federal court review of a state court adjudication, states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 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.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide." Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001). "AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010).

In per curiam decisions without written opinions, the state appellate court affirmed the judgments and sentences, and affirmed the rejection of Petitioner's motion for postconviction relief and motion to correct illegal sentence. These decisions warrant deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003).

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, 529 U.S. at 412. Petitioner bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

DISCUSSION

Grounds Two and Three: Trial Court Error

Ground Two: "TRIAL COURT VIOLATED PETITIONER'S RIGHT TO DUE PROCESS OF LAW UNDER THE U.S. CONSTITUTION'S 14TH AMENDMENT, BY DENYING A MOTION FOR JUDGMENT OF ACQUITTAL WHERE THE EVIDENCE WAS CIRCUMSTANTIAL AND NOT INCONSISTENT WITH AN [sic] HYPOTHESIS OF INNOCENCE."

Petitioner asserts that the trial court erred in denying his motion for judgment of acquittal on all counts, thereby violating his due process rights under the Fourteenth Amendment. However, Petitioner did not raise the federal nature of this claim on direct appeal. He presented this claim only in terms of Florida law. (Dkt. 11, Ex. 2, Initial Brief of Appellant, pp. 19-22.) Moreover, Petitioner brought this claim under Florida's standard for circumstantial evidence cases. (Id., pp. 21-22.) This is a higher standard of proof than the federal sufficiency of the evidence standard applied in Jacksonv. Virginia, 443 U.S. 307 (1979). See Preston v. Sec'y, Fla. Dep't of Corr., 785 F.3d 449, 451 (11th Cir. 2015) (Florida uses a "heightened burden of proof in cases involving circumstantial evidence.").

Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he 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."). 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...