Perez v. Dept. of Corrections

Decision Date30 September 2002
Docket NumberNo. 98-2708-CIV.,98-2708-CIV.
Citation227 F.Supp.2d 1298
PartiesHenry PEREZ, Petitioner, v. DEPT. OF CORRECTIONS, Respondent.
CourtU.S. District Court — Southern District of Florida

Timothy Cone, Federal Public Defender's Office, Fort Lauderdale, FL, for plaintiff.

Henry Perez, Jefferson Correctional Institution, Monticello, FL, pro se.

Linda S. Katz, Attorney General Office, Dept. of Legal Affairs, Miami, FL, for defendant.


GRAHAM, District Judge.

THIS CAUSE comes before the Court upon the Petition for Writ of Habeas Corpus (D.E.1).

THE COURT has considered the Petition, the pertinent portions of the record, and is otherwise duly advised in the premises.

THIS MATTER was referred to United States Magistrate Judge Charlene H. Sorrentino for a Report and Recommendation. On December 19, 2001, following an evidentiary hearing, Magistrate Judge Sorrentino entered a Report, recommending that the Petition be denied.

Petitioner, Henry Perez, objects to the portions of the December 19, 2001 Report and Recommendation of Magistrate Judge Sorrentino which reject Claims Four and Five of his federal habeas petition. In his objections, Petitioner abandoned his other habeas claims. Accordingly, the Court herein will address Claim Four, relating to Petitioner's claim of ineffective assistance of appellate counsel, and Claim Five, Petitioner's claim that his conviction for attempted felony murder is unconstitutional.


In 1993, Perez was tried and convicted in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, of a number of charges, the most serious of which was attempted felony murder, which carried a 25-year sentence. See D.E. 12, Appendix C & D. The charges arose out of an incident in which Perez was spotted by police smoking crack cocaine in a car with a companion. When a police officer attempted to arrest him, a few seconds' scuffle occurred, Perez put his car in reverse, and the car injured the police officer's leg. After a chase by other officers, Perez was apprehended. D.E. 12, App. E, 8-12.

On September 30, 1993, Perez was sentenced to twenty-five (25) years imprisonment as to Count One (attempted felony murder); five years imprisonment as to Count Two (possession of cocaine); and time served as to Counts Three and Four (possession of drug paraphernalia and possession of cannabis, respectively).

Perez prosecuted a timely appeal. As more fully discussed below, on November 16, 1994, the Third District Court of Appeal affirmed the judgment of conviction and sentence per curiam without written opinion, a so-called "PCA" decision. Perez v. State of Florida, 645 So.2d 476 (Fla. 3d DCA 1994). The district court's mandate issued on December 2, 1994.

On May 4, 1995, in State v. Gray, 654 So.2d 552, 554 (Fla.1995), aff'g Gray v. State, 654 So.2d 934 (Fla. 3rd DCA 1994), the Florida Supreme Court abolished the doctrine of attempted felony murder, the crime for which Perez was convicted. The change in the law applied to all cases pending on direct review and not yet final.

Petitioner argues that had he received effective assistance of appellate counsel, his appeal would have been kept "alive," and he would have benefited from the Florida Supreme Court's decision in Gray.

A. Background Concerning Petitioner's Direct Appeal

The Dade County Public Defender's Office represented Perez at trial. After his conviction and sentence, J. Rafael Rodriguez, a private attorney, contracted with the Public Defender's Office to handle Perez's appeal of his conviction as a "specially appointed public defender." Ex. 4, p. 3; Ex. 7, cover.1 Dade County paid Rodriguez for this work. T. 57.2 The contract reminded Rodriguez of the short deadline for decisions about further proceedings after a ruling by a district court of appeals, and made Rodriguez responsible for deciding what to do should the appellate court affirm the conviction. Specifically, the contract provided:

If the decision affirms a conviction and sentence, it will be the private attorney's responsibility to file a motion for rehearing if such motion is necessary.... If rehearing is granted, the private attorney will be responsible for any additional work required on the case....

If no motion for rehearing is filed, the private attorney is to immediately return the case file to the Office of the Public Defender. . . . Regardless of the nature of the decision of the District Court of Appeal, it is absolutely imperative that the case file be returned at the designated point in the proceedings, as the time periods for seeking discretionary review or mitigation will be running.

See Ex. 4, p. 6. Howard Blumberg, the attorney at the Public Defender's Office who supervised cases contracted out to private attorneys, testified that it was part of Rodriguez' responsibility to inform a client of his "options" in the event of affirmance by the Third District Court of Appeals. T. 26.

At the time Rodriguez represented Petitioner Perez, Rodriguez also happened to be the appellate lawyer in Gray, the case in which the Florida Supreme Court abolished the doctrine of attempted felony murder, thereby overruling the precedent which had judicially created the offense of attempted felony murder. See State v. Gray, 654 So.2d 552, 554 (Fla.1995), aff'g Gray v. State, 654 So.2d 934 (Fla. 3rd DCA 1994).

When Rodriguez began working on Perez's appeal, Gray was pending in the Florida Supreme Court, on the State's appeal of the district court's May 10, 1994 reversal of the attempted felony murder conviction. Ex. 4. The district court's decision in Gray recognized that, under Amlotte v. State, 456 So.2d 448, 449 (Fla.1984), the essential elements of attempted felony murder were the attempt to perpetrate an enumerated felony, together with an overt act "which could, but does not cause the death of another." 654 So.2d at 935. The decision further recognized that, when a person is accused of attempted felony murder, "the law presumes the existence of the specific intent required to prove attempt." 654 So.2d at 935.

Ultimately, the district court in Gray held that running a red light and colliding with a vehicle "do not constitute overt acts reasonably understood to result in a person's death," and certified an issue of "great public importance": "[w]hether the `overt act' referred to in Amlotte v. State, 456 So.2d 448, 449 (Fla.1984), includes one, such as fleeing, which is intentionally committed but is not intended to kill or injure another?" 654 So.2d at 936.3

On July 29, 1994, just two weeks after Rodriguez filed a responsive brief in the Supreme Court in Gray, (T. 42-43, 56), Rodriguez filed his initial brief in Perez in the Third District Court of Appeal. Rodriguez argued that the evidence was insufficient to support a conviction for attempted felony murder because Perez did not intend to kill or injure anyone. Ex. 7, pp. 18-23. In support of this argument, Rodriguez, in "good faith", cited Gray in his initial and reply briefs. T. 59-60. Significantly, neither brief mentioned that Gray was pending in the Florida Supreme Court to resolve an issue of great public importance. Ex. 7, p. 22; Ex. 8, p. 7.

Rodriguez also argued that proof of the element of a "separate overt act" was missing, because the backing out of Perez's vehicle was said to constitute both an underlying felony (escape) and attempted murder. In his reply brief, Rodriguez cited Grinage v. State, 641 So.2d 1362 (Fla. 5th DCA 1994) in support of this argument. Grinage had been decided on August 19, 1994 — just a few weeks before Perez's reply brief was filed on September 12, 1994. Ex. 8, p. 15.

In Grinage, as in Gray, the district court overturned an attempted felony murder conviction, and held that use of force, the "overt act" of the underlying felony of robbery, could not "also serve as the overt act necessary to prove attempted murder." 641 So.2d at 1365-66. Grinage further questioned why the law should "presume an intent to murder when there is no death merely because the assault occurs during the commission or attempted commission of a felony," and noted that the Supreme Court Jury Instruction Committee shared its views. 641 So.2d at 1366-67 (citing Standard Jury Instructions in Criminal Cases 93-1, 636 So.2d 502, 502 n. 1 (Fla. 1994)).

The Grinage court added that "it is our responsibility (while not reversing the supreme court) to point out to [this] court new or additional arguments that should be considered by it in determining whether questioned law should remain in effect." Id. at 1366-67. It acknowledged that "parts of [its] analysis may be contrary to the majority opinion in Amlotte," and certified several questions concerning the scope of the attempted felony murder doctrine as being of "great public importance." Id.

In his Perez reply brief, Rodriguez did not mention Grinage's criticism of Amlotte and of the attempted felony murder doctrine, nor its certification to the Florida Supreme Court of several issues of "great public importance" — including the "separate" act issue on which Perez's appeal specifically relied. See Ex. 8, pp. 8-9.

On November 16, 1994, the Third District Court of Appeal affirmed Perez's convictions, without opinion or citation to case law, a so-called "PCA" decision. Ex. 9. The court's mandate was due to issue, and did in fact issue, 15 days later, on December 2, 1994. Ex. 13.

Rodriguez' only communication with his client regarding the PCA decision was a November 17, 1994 letter (Ex. 12):

Enclosed please find the opinion of the Third District Court of Appeal in your case. Unfortunately, your conviction and sentence were affirmed.

Your file has been returned to the Office of the Public Defender. Please do not hesitate to contact their office at 1320 N.W. 14th Street, Miami, Fl 33125 if you have any questions. Thank you for your attention to this matter.

Perez testified that, upon receiving this letter he "was left blind sided [as] to what [he] could do," because...

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