Ortiz v. Sec'y, Dep't of Corr.
| Decision Date | 04 March 2013 |
| Docket Number | Case No. 8:11-cv-2410-T-33MAP |
| Parties | EDWIN ORTIZ, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
THIS CAUSE is before the Court on Petition Edwin Ortiz's timely-filed 28 U.S.C. § 2254 petition for writ of habeas corpus. Ortiz challenges his conviction and sentence entered by the Circuit Court for the Tenth Judicial Circuit, Hardee County, Florida. A review of the record demonstrates that, for the following reasons, the petition must be denied.
Ortiz was charged by amended information with robbery with a weapon, (count one); felony fleeing or attempting to elude (count two); resisting an officer without violence (count three); and aggravated battery (count four). (Resp. Ex. 1, V 1 R 14-15). He proceeded to jury trial on February 11, 2003, and was found guilty as charged. Adjudicated in accordance with the verdicts, Ortiz was sentenced to 30 years incarceration as a prison releasee reoffender (PRR) on count one; to five years incarceration on count two; and to mandatory 15 years incarceration as a PRR on count four.1 The sentences run concurrently.
Ortiz appealed. On March 4, 2004, the state district court of appeal per curiam affirmed the conviction and sentence in case no. 2D03-1939. Ortiz v. State, 871 So. 2d 229 (Fla. 2d DCA 2004)[table]. He did not seek rehearing nor petition for certiorari review.
On August 23, 2004, Ortiz filed a rule 3.850 motion for postconviction relief. . On September 16, 2005, the state trial court dismissed ground one of Ortiz's rule 3.850 motion without prejudice to refiling. The state trial court summarily denied the remaining grounds. (Resp. Ex. 10; Resp. Ex. 15, Supp 5 R 1-40).
Ortiz filed a pro se motion for leave to amend the rule 3.850 motion, which was treated as a refiling of ground one. (Resp. Ex. 15, V 1 R 171-72). After conducting an evidentiary hearing on September 19, 2006, and October 18, 2008, the state trial court denied relief on December 15, 2008. In addition, the state trial court denied as untimely a claim raised by Ortiz in an amended rule 3.850 motion.2 (Resp. Exs. 12, 14; 15, V 1 R 165-81).
Ortiz appealed. On September 1, 2010, the state district court of appeal per curiam affirmed the denial of rule 3.850 relief. Ortiz v. State, case no. 2D08-5380 (Fla. 2d DCA 2011). Ortiz filed a pro se motion for rehearing, which was stricken because he was represented by counsel.
Ortiz timely filed the present federal habeas corpus petition October 20, 2011.
Title 28 U.S.C. § 2254 explicitly requires a federal court to entertain an application for writ of habeas corpus only on the ground that the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." § 2254(a). Federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension. Wainwright v. Goode, 464 U.S. 78 (1983) (citing Engle v. Isaac, 457 U.S. 1141(1982)); Smith v. Phillips, 455 U.S. 209 (1982). The writ of habeas corpus, 28 U.S.C. § 2254, was not enacted to enforce state-created rights. Cabberiza v. Moore, 217 F.3d 1329, 1333 (11th Cir. 2000). Even when a petition which actually involves 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).
Ordinarily, a state prisoner seeking federal habeas relief must first "exhaus[t] the remedies available in the courts of the State," 28 U.S.C. § 2254(b)(1)(A), thereby affording those courts "the first opportunity to address and correct alleged violations of "[the] prisoner's federal rights," Walker v. Martin, 131 S. Ct. 1120, 1127 (2011)(quoting Coleman v. Thompson, 501 U.S. 722, 731 (1991)). A habeas petitioner who has failed to meet the state's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance. Coleman, 501 U.S. at 732 (internal quotation marks omitted). A state law claim that "is merely similar to the federal habeas claim is insufficient to satisfy the fairly presented requirement." Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam).
"A federal habeas court will not review a claim rejected by a state court 'if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Walker, 131 S. Ct. at 1127(quoting Beard v. Kindler, 130 S.Ct. 612, 615 (2009)). To be adequate, the rule must be well established and consistently applied. Walker, 131 S.Ct. at 1128.
A prisoner may obtain federal review of a defaulted claim by showing cause for the default and actual prejudice, or that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50. Cause must be "something external to the petitioner, something that cannot fairly be attributed to him." 501 U.S. at 753; Maples v. Thomas, 132 S.Ct. 912, 927 (2012)(counsel's abandonment of petitioner in the postconviction proceedings of a capital case constituted "ample cause" to excuse default).3 "Cause" requires a showing of "some objective factor" which impeded compliance with a procedural rule, such as "a showing that the factual or legal basis for a claim was not reasonably available to counsel." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice requires "showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982).
The fundamental miscarriage of justice exception arises only in an "extraordinary case" in which "a constitutional violation has probably resulted in the conviction of one whois actually innocent." Murray, 477 U.S. at 492. The petitioner must present "reliable evidence ... not presented at trial" such 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, 324, 327 (1995). The actual innocence exception is "exceedingly narrow in scope," and the petitioner must demonstrate that he is factually innocent rather than legally innocent. Bousley v. United States, 523 U.S. 614, 623 (1998).
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 must be highly deferential. The AEDPA precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the state court's adjudication of his claim "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." 28 U.S.C. § 2254(d)(1). "Under § 2254(d), a habeas court must determine what arguments or theories supported ... the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Wetzel v. Lambert, 132 S.Ct. 1195, 1198 (2012)(citing Harrington v. Richter, 131 S.Ct. 770, 786 (2011)).
Review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. See Cullen v. Pinholster, 131 S.Ct. 1388, 1400, (2011)( new evidence introduced in federal habeas court has no bearing on Section 2254(d)(1) review). Additionally, the federal court will presume the correctness of state court findings of fact unless the petitioner is able to rebut that presumption by clear andconvincing evidence. See 28 U.S.C. § 2254(e)(1). Because of the presumption under § 2254(e)(1) that state court findings of fact are correct, "where factual findings underlie the state court's legal ruling, the Court's already deferential review [under § 2254(d)] becomes doubly so." Childers v. Floyd, 642 F.3d 953, 972 (11th Cir. 2011) (en banc).
Additionally, 28 U.S.C. § 2254(e)(2) "restricts the discretion of federal habeas courts to consider new evidence when deciding claims that were not adjudicated on the merits in state court." Pinholster, 131 S.Ct. at 1401; see also, LeCroy v. Sec'y Fla. Dep't. of Corr., 421 F.3d 1237, 1259 (11th Cir. 2005) (). Pursuant to 28 U.S.C. § 2254(e)(2) (1996), a hearing is permitted only if a habeas applicant has failed to develop the factual basis for a claim in state court, and the applicant shows that: (A) the claim relies on (1) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable, or if there is (2) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2) (1996).
None of Ortiz's grounds rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." § 2254(e)(2)(A)(I). Ortiz does he rely on "a factual predicate that could not have been previously discovered through the exercise of due diligence." § 2254(e)(2)(A)(ii). Even ifOrtiz could establish diligence, Ortiz does not proffer evidence that, if...
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