Parilla v. Crews
| Decision Date | 16 December 2014 |
| Docket Number | CASE NO. 14-20679-Civ-MARTINEZ |
| Parties | GEORGE PARILLA Petitioner, v. MICHAEL D. CREWS, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
GEORGE PARILLA Petitioner,
v.
MICHAEL D. CREWS, Respondent.
CASE NO. 14-20679-Civ-MARTINEZ
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
December 16, 2014
MAGISTRATE JUDGE P.A. WHITE
REPORT OF MAGISTRATE JUDGE
George L. Parilla, a state prisoner confined at Mayo Correctional Institution Annex in Mayo, Florida, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. §2254, attacking the constitutionality of his convictions and sentences entered in Case F10-3450 in the Circuit Court of the Eleventh Judicial Circuit of Florida at Miami-Dade County.
The case 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.
For its consideration of the petition (DE# 1), the Court has the respondent's response to an order to show cause with supporting exhibits contained in an Appendix (DE# 8).
Petitioner raises the following grounds for relief:
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Claim 1: Ineffective assistance of counsel for failing to challenge validity of injunction thus permitting the defendant to qualify for a harsher sentence to be imposed.Claim 2: Petitioner's plea was involuntary based upon newly discovered evidence, namely, testimony of an eye witness.
(DE# 1).
On January 18, 2011, Petitioner was charged by amended information in lower case number F10-3450, with aggravated stalking after entry of injunction for protection against domestic violence (count one), burglary with an assault or battery (count two), two counts of violation of an injunction against domestic violence (counts three and four), child abuse with no great bodily harm (count five), and misdemeanor criminal mischief (count six). (DE# 8, App. G). Petitioner proceeded to trial on January 18, 2011. On the second day of trial, January 19, 2011, after the State had presented testimony from two witnesses, Petitioner entered into a negotiated plea, pleading guilty to aggravated stalking (count one). (DE# 8, App H, I, M). In exchange, he was sentenced to five years in prison as a habitual felony offender followed by five years probation as an HFO and the State nolle prossed the remaining charges as well as a grand theft charge in F10-3448. (DE# 8, App. H, 4-5, 17; I). The written judgment and sentence were filed on February 9, 2011. (DE# 8, App. I).
On April 5, 2011, Petitioner filed a pro se motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which was amended on April 19, 2011. (DE# 8, App. J, K). The amended motion asserted counsel was ineffective for
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failing to challenge the validity of the injunction, thereby permitting defendant to qualify for a harsher sentence. (DE# 8, App. K). Specifically, Petitioner alleged that trial counsel was ineffective because he failed to challenge and investigate the permanent injunction issued against Petitioner on March 25, 2009 where the injunction was not supported by competent substantial evidence:
Victim stated to the Court that she received phone calls from Defendant demanding to see his daughter. No competent substantial evidence was presented by the victim, via phone records, records of the billing for calls from a correctional facility also a recording provided by the institution should have been presented. Defendant next contact with the victim was May 2009, when he was informed by victim whether he wanted to see his daughter. Victim again filed charges on January 8, 2010 that the Defendant called her threatening her, again nothing was presented as competent substantial evidence to prove that this occurred.
(DE# 8, App. K).
The State filed its response on June 1, 2011, arguing that Petitioner was foreclosed from raising this claim by virtue of his voluntary plea wherein he stated that he was satisfied with the services of his attorney at the time of the plea and did not raise the claim at the time he entered into the plea, and attaching a copy of the transcript of the plea colloquy. (DE# 8, App. L).
On June 8, 2011, the trial court denied Petitioner's motion, largely adopting the State's response. (DE# 8, App. M).
On June 8, 2011, Petitioner filed a reply claiming that even if he knew that the domestic injunction was invalid, as a lay person, he did not know what was required in order to obtain an
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injunction. (DE# 8, App. N).
On July 6, 2011, Petitioner filed a pro se notice of appeal in the Third District Court of Appeal, case number 3D11-1828, challenging the trial court's order denying his motion for post-conviction relief. (DE# 8, App. O). Petitioner filed his initial brief on August 17, 2011 arguing, "The lower court erred in denying Ground One of the Petitioner's 3.850: Defense counsel was ineffective for failing to challenge the validity of the Injunction Against Domestic Violence used as a basis for criminal charges." (DE# 8, App. P). Petitioner argued as follows that the injunction was entered against him based on the perjury of the victim:
In the injunction, [the victim] claims that on February 14, 2007 the Appellant "punched her in the nose." However, an investigation by counsel would have revealed that [the victim] had dropped all charges regarding that incident, swearing that the Appellant did not strike her. Yet, approximately 18 months later, [the victim] swears, in her request for injunction, that the Appellant did "punch her in the nose." [The victim] also claims in her Petition for Injunction that during on February 1, 2009, the Appellant contacted her on her cellular phone. [The victim] states that at the time, the Appellant "was in jail." In truth, the Appellant was in the custody of the Florida Department of Corrections during February of 2009.
(DE# 8, App. P, 7-8).
The Third District per curiam affirmed on August 31, 2011 and the mandate issued on September 26, 2011. (DE# 8, App. Q, R).
On October 24, 2011, Petitioner filed a pro se motion for post-conviction relief. (DE# 8, App. S). In his motion, Petitioner argued that his plea was involuntary because the trial court failed to correctly inform him regarding the nature of the charges and
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that his sentence as a habitual felony offender was improperly entered because the trial court accepted non-official records of prior convictions and did not obtain and consider a pre-sentence investigation report. (DE# 8, App. S).
The trial court denied the motion on November 4, 2011. (DE# 8, App. T). As to the first claim, the trial court provided:
The Defendant knew very well what he was charged with: Aggravated Stalking after the entry of an injunction for protection against domestic violence, in violation of § 784.048(4), Fla. Stats. Prior to trial, the court reviewed the charges and penalties with the Defendant (p. 4, plea colloquy). After hearing the opening statements of the State and his attorney, the testimony of the victim and arresting officer, he then chose to end the trial and plead guilty to the offense. Although the transcript of the plea colloquy does show that the court initially described count one as aggravated stalking "with a firearm restrained," the court properly advised the Defendant that he offense for which he was charged was a third degree felony (p. 4, 5 plea colloquy). Throughout the rest of the plea colloquy, there was no mention of a firearm and the Defendant was correctly advised that the charge was Aggravated Stalking (p. 6), he agreed to plead guilty to the charge of Aggravated Stalking (p. 7), and the court accepted his plea to the charge of Aggravated Stalking (p. 11). The judgment and sentence were for the charge of Aggravated Stalking (see Judgment and Sentence). The Defendant is not entitled to relief on this claim.
(DE# 8, App. T). The trial court denied the second claim since Petitioner waived his right to a PSI during the plea colloquy and stipulated to his prior record without the need to introduce certified copies or other evidence. (DE# 8, App. T). Petitioner filed a motion for rehearing on December 9, 2011, which was denied without a hearing on February 1, 2012. (DE# 8, App. U, V).
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On February 27, 2012, Petitioner filed a pro se notice of appeal, in case number 3D12-522, appealing the trial court's denial of his motions for rehearing and post-conviction relief. (DE# 8, App. W). Petitioner filed an initial brief on or about March 7, 2012, in which he claimed, "Trial Court abused its discretion when it failed to allow Defendant one opportunity to amend a facially insufficient post-conviction motion." (DE# 8, App. X). The Third District per curiam affirmed on April 4, 2012. (DE# 8, App. Y). The mandate issued on April 30, 2012. (DE# 8, App. Z).
On May 2, 2012, Petitioner filed a pro se motion for post-conviction relief pursuant to Rule 3.850(b)(1), alleging newly discovered evidence based on the affidavit of eye witness Luis Lamadrid. (DE# 8, App. AA). Petitioner subsequently filed a notice of voluntary dismissal of this motion on May 24, 2012. (DE# 8, App. A, 14, 15; AA; AB). On October 12, 2012, the Rule 3.850 motion was denied and the notice of voluntary dismissal was stricken. (DE# 8, App. A, 9). Petitioner filed a motion for rehearing on October 25, 2012, asking the court to reconsider its denial of his motion in favor of a dismissal so that the court would not consider his future motions raising the same claims as successive, which was denied without a hearing on February 6. 2013. (DE# 8, App. AB, AC).
On July 12, 2012, Petitioner filed a pro se motion for post-conviction relief. (DE# 8, App. AD). In his motion, Petitioner claimed that his plea was involuntary based on newly discovered evidence and attached the affidavit of Luis Lamadrid. (DE# 8, App. AD). In particular, Petitioner asserted that, while serving his sentence on the instant offense at Dade County Correctional, he met Lamadrid who told him that he was present at the time of the...
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