Perez v. Sec'y, Dep't of Corr., Case No. 8:18-cv-520-T-36SPF

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtCharlene Edwards Honeywell United States District Judge
Decision Date31 December 2020
Docket NumberCase No. 8:18-cv-520-T-36SPF

JASON PEREZ, Petitioner,

Case No. 8:18-cv-520-T-36SPF


December 31, 2020


Jason Perez petitions under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his two state court convictions for attempted first degree murder. After reviewing the petition, the response and supporting appendix (Docs. 14 and 15), and the reply and supplemental reply (Docs. 20 and 21), the Court will deny the petition.


Michael Haynes, Titus Virts, and Kellie Shumaker were driving home from a bar and decided to get drugs from Jason Perez. No one in the group had money. Haynes knew Perez and walked up to his home to try to get the drugs with a promise to repay him. Virts and Shumaker stayed in the car. The lights were off at Perez's home, and Haynes walked across the street to use a neighbor's telephone.

After twenty minutes, Virts became impatient. Virts walked up to Perez's home believing that Haynes was still there. Virts saw Perez standing on his porch near his front door

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and greeted him. Perez responded by accusing Virts of working with the police. Virts and Perez exchanged threats and Perez went inside his home to get a gun.

Virts returned to the car to warn Shumaker. Perez followed Virts and pointed his gun at Virts's face. Perez demanded that Virts convince him that Virts was not working for the police. Shumaker intervened and told Perez that Virts was not. Shumaker and Perez exchanged words and Perez shot Shumaker in the face. Shumaker fell to the ground, and Perez shot her again in the back of the head. Virts pleaded for his life and then crawled on his hands and knees to run away. Perez fired his gun at Virts several times but missed. Shumaker survived, and both Shumaker and Haynes identified Perez as the shooter. A woman who lived with Perez testified that Perez was not at home just before the shootings. No physical evidence tied Perez to the crimes.

The jury found Perez guilty of two counts of attempted first degree murder (Doc. 15-2 at 120-21) and the trial court sentenced Perez to life in prison for the attempted murder of Shumaker and 20 years for the attempted murder of Virts. (Doc. 15-2 at 126-27) The state appellate court affirmed the convictions and sentences. (Doc. 15-2 at 220) Perez filed a motion for post-conviction relief. (Doc. 15-2 at 226-48) The post-conviction court denied the motion and the state appellate court affirmed in an unelaborated decision. (Doc. 15-2 at 249-624, 661) Also, Perez filed a petition alleging ineffective assistance of appellate counsel (Doc. 15-6 at 2-9) which the state appellate court denied. (Doc. 15-6 at 96) Perez's timely federal petition followed.


The respondent correctly argues that Ground One is unexhausted and procedurally barred. (Doc. 14 at 7-8) A petitioner must exhaust the remedies available in state court before

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a federal court can grant relief on federal habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must (1) alert the state court to the federal nature of his claim and (2) give the state court one full opportunity to resolve the federal claim by invoking one complete round of the state's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A federal court may stay — or dismiss without prejudice — a habeas case to allow a petitioner to return to state court to exhaust a claim. Rhines v. Weber, 544 U.S. 269 (2005); Rose v. Lundy, 455 U.S. 509 (1982). If the state court would deny the claim on state procedural grounds, the federal court instead denies the claim as procedurally barred. Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)). A petitioner may excuse a procedural default on federal habeas by (1) showing cause for the default and actual prejudice from the alleged violation of federal law or (2) demonstrating a miscarriage of justice. Maples v. Thomas, 565 U.S. 266, 280 (2012); House v. Bell, 547 U.S. 518, 536-37 (2006).

Ground One

Perez asserts that the trial court erred by denying his motion in limine to exclude all evidence that he sold drugs. (Doc. 1 at 5) Perez moved to exclude the evidence before trial (Docs. 15-2 at 95 and 15-4 at 132-51, 164) and raised the issue on appeal (Doc. 15-5 at 186-90) but neither labeled the issue "federal" nor cited the federal constitution or a case deciding a similar issue based on federal law. Reese, 541 U.S. at 32. Consequently, Perez failed to exhaust the claim. Duncan v. Henry, 513 U.S. 364, 366 (1995) ("If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law

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guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court."). If Perez returns to state court to exhaust the claim, the state court will deny the claim on state procedural grounds. Fla. R. Crim. P. 3.850(b), (c). Perez asserts neither cause and prejudice nor manifest injustice to excuse the procedural default, and Ground One is procedurally barred from federal review. Snowden, 135 F.3d at 736.

Also, the state court concluded that the collateral crimes evidence was relevant. (Doc. 15-4 at 149-50) Whether evidence is relevant is an issue of state evidentiary law, and a state court's determination of state law receives deference in federal court. Fla. Stat. § 90.402; Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985) ("The federal courts must defer to a state court's interpretation of its own rules of evidence and procedure."). Relief on federal habeas is granted "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner is not entitled to relief for a state court's violation of state law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts."). Consequently, the claim is not cognizable on federal habeas. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) ("This limitation on federal habeas review is of equal force when a petition, which actually involves state law issues, is 'couched in terms of equal protection and due process.'") (citation omitted).



Because Perez filed his federal petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, AEDPA governs the review of his claims. Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:

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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.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) interprets this constraint on the power of the federal court to grant a state prisoner's petition:

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.

"[C]learly established Federal law" encompasses only the holdings of the Supreme Court at the time of the relevant state court decision. Williams, 529 U.S. at 412.

"[A]n unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Williams, 529 U.S. at 412 (italics in original). Even clear error is not enough. Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017). A federal habeas petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011). "This is 'meant to be' a difficult standard to meet." LeBlanc, 137 S. Ct. at 1728 (quoting Richter, 562 U.S. at 102).

A factual determination by a state court is not unreasonable "merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen,

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558 U.S. 290, 301 (2010). A federal habeas court may grant relief only if "in light of the evidence presented in the state court proceedings, no reasonable jurist would agree with the factual determinations upon which the state court decision is based." Raleigh v. Sec'y, Fla. Dep't Corrs., 827 F.3d 938, 948-49 (11th Cir. 2016). Also, a state court's factual determinations are presumed correct, and a petitioner has the burden of rebutting that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

"[AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given...

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