Reyes v. Fla. Dep't of Corr.
| Docket Number | 22-CV-60567-RUIZ/STRAUSS |
| Decision Date | 11 April 2023 |
| Parties | FRANK REYES, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
REPORT AND RECOMMENDATION
THIS CAUSE is before me on Frank Reyes' (“Petitioner's”) Petition Under 28 U.S.C § 2254 for Writ of Habeas Corpus by a Person in State Custody (“the Petition”). [DE 1]. Specifically Petitioner challenges his conviction and sentence for second-degree murder on grounds of constitutional error and ineffective assistance of trial counsel. [DE 1; DE 9]. This matter has been referred to me to take all action as required by law pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate Rules of the Local Rules of the United States District Court for the Southern District of Florida. [DE 11]. I have carefully reviewed the Petition [DE 1], the Response [DE 5], the Reply [DE 9], and the record. Being otherwise duly informed, for the reasons further described below, I respectfully RECOMMEND that the Petition be DENIED.
On June 20, 2008, Petitioner and Alfredo Cruz were involved in a drug transaction; Cruz, a recent high school graduate, was to purchase marijuana from Petitioner, who was sixteen years old at the time. [DE 7-1 at 235-37, 401, 408-09]. Cruz's friend, Kevin Caban, drove him to Petitioner's apartment complex. Id. at 401, 407-08. Petitioner came up to the passenger side of Caban's car, shook hands with Cruz, and gave Cruz a dime bag (or $10.00 worth) of marijuana. Id. at 408. Cruz looked at the marijuana and said that he only wanted a nick bag (or $5.00 worth). Id. at 408-10. An argument ensued between Petitioner and Cruz. Id. at 411-13. Petitioner pulled out a gun from his backpack and pointed it in the car directly at Cruz, sticking the tip of the barrel through the window. Id. at 411-14. Petitioner held the gun in the window for about thirty seconds, pulled the trigger, and ran. Id. at 415-17. Cruz suffered a gunshot wound to the face and later died. Id. at 193, 303, 415-16.
Detective Jason Wilkey of the Sunrise Police Department came in contact with Petitioner on June 21, 2008, when he was walking through Petitioner's apartment complex. Id. at 306-07. Det. Wilkey took Petitioner into custody. Id. at 307. Petitioner initially denied that he was involved with the shooting. Id. at 319. However, Petitioner eventually admitted that he shot Cruz during a marijuana deal and gave a statement to police, which was audiotaped. Id. at 234-45, 321. According to Petitioner, there was something “fishy” about the deal because Caban and Cruz parked in the back of his apartment complex and called him over. Id. at 244. After Petitioner gave Cruz the dime bag, Cruz did not give Petitioner any money for the marijuana. Id. at 237. Instead, Petitioner stated that Cruz started talking about someone Petitioner fought in high school and then tried to grab him. Id. Petitioner stated that Cruz was acting aggressively towards him and “rushed at” him so he had to shoot to defend himself. Id. at 238.
On June 20, 2008, Petitioner was charged by information with the second-degree murder of Cruz. [DE 6-1 at 4-5]. The case proceeded to a jury trial, at which Petitioner claimed selfdefense. [DE 7-1 at 1, 289-90]. Petitioner did not testify at trial. Id. at 450. On May 12, 2009, a jury found Petitioner guilty as charged, and the trial court sentenced him to forty years in prison, with a mandatory minimum sentence of twenty-five years. [DE 6-1 at 7-8, 13, 192].
After his conviction and sentence, Petitioner filed a direct appeal. Id. at 20. Petitioner's counsel subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), arguing that he could not in good faith argue reversible error. Id. at 22-49. New counsel appeared for Petitioner and filed an initial brief asserting two contentions of error: (1) that cumulative errors during closing argument vitiated the fairness of the trial and (2) that the State failed to present sufficient evidence to prove second-degree murder. Id. at 53-96. The Fourth District Court of Appeal per curiam affirmed Petitioner's conviction and sentence on February 22, 2012. Id. at 143. The mandate issued on March 23, 2012. Id. at 145.
On October 24, 2012, Petitioner filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking to correct the amount of jail credit to which he was entitled. Id. at 147-48. Specifically, Petitioner argued that he was entitled to twenty-nine days of credit for the time he was detained with the Department of Juvenile Justice. Id. In response, the State agreed that Petitioner was entitled to additional days of credit, but only nineteen days and not twenty-nine as Petitioner claimed. Id. at 153-54. On November 30, 2012, the trial court entered an order granting-in-part and denying-in-part Petitioner's motion and directing the clerk of court to correct Petitioner's sentence to reflect an additional nineteen days of credit for a total of 384 days of credit time served. Id. at 159. Petitioner appealed the trial court's ruling on December 12, 2012. Id. at 163-64. The Fourth District Court of Appeal per curiam affirmed the trial court's order on July 11, 2013. Id. at 167. The mandate issued on August 9, 2013. Id. at 169.
On February 1, 2013, while Petitioner's Rule 3.800(a) Motion was pending, Petitioner filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and asserted two grounds for relief. Id. at 171-86. First, Petitioner argued that his trial counsel provided ineffective assistance because he failed to object to a legally incorrect jury instruction on self-defense. Id. at 179-84. Petitioner argued that the self-defense instruction was incorrect because it (1) stated that petitioner could only resort to deadly force if the victim was attempting to murder him and did not include the aggravated assault or battery that Petitioner allegedly perceived and (2) contained stand your ground language that did not apply because Petitioner was engaged in unlawful activity. Id. Second, Petitioner argued that juror Jerome McDougle (“Juror McDougle”) did not disclose that he was a victim of a violent crime during voir dire and that evidence regarding Juror McDougle's victimization should be considered newly discovered evidence warranting a new trial. Id. at 184-86. Alternatively, Petitioner argued that his trial counsel again provided ineffective assistance for failing to further question Juror McDougle regarding his victimization. Id. at 186.
In response, the State contended that Petitioner's first argument failed to meet the deficient performance prong of Strickland v. Washington, 466 U.S. 668 (1984). Id. at 206-09. According to the State, the evidence did not support the inclusion of aggravated assault or battery in the jury instructions. Id. at 206. Regarding Petitioner's second argument, the State contended that the information regarding Juror McDougle was not newly discovered because it was not previously unknown (Juror McDougle previously stated during voir dire that he was a victim of a crime), could have been obtained through due diligence (the information regarding Juror McDougle's victimization was available on the internet), and would not have produced an acquittal on retrial (there was no evidence to support that Juror McDougle was actually biased). Id. at 210-15. The State also contended that Petitioner's ineffective assistance arguments failed because he expressed on record that he was satisfied with how his trial counsel handled jury selection. Id. at 213-15. On January 15, 2015, the trial court entered an order summarily denying Petitioner's Rule 3.850 Motion “for the reasons contained in the State's Response.” Id. at 814. Petitioner filed a motion for rehearing, which the trial court also denied. Id. at 1004-13, 1018.
On February 10, 2015, Petitioner appealed the trial court's order denying his Rule 3.850 Motion. Id. at 816. He raised the same issues he raised in the motion and argued that the trial court erred in denying the motion without an evidentiary hearing. Id. at 818-44. The Fourth District Court of Appeal ordered the State to respond. Id. at 846. In response, the State argued that the trial court correctly summarily denied Petitioner's motion. Id. at 848-52. On September 8, 2016, the Fourth District Court of Appeal per curiam affirmed the trial court's order denying Petitioner's Rule 3.850 Motion. Id. at 854. The mandate issued on December 30, 2016. Id. at 856.
On November 15, 2015, while his Rule 3.850 Motion was pending Petitioner filed a second motion to correct illegal sentence pursuant to Rule 3.800(a). Id. at 858-64. Petitioner sought to correct his sentence to reflect that he was entitled to resentencing and mandatory judicial review of his sentence in accordance with sections 921.1401 and 921.1402, Florida Statutes. Id. at 858-60. These statutes, enacted in 2014, provide that juveniles sentenced to more than twenty-five years in prison (including those convicted of first-degree murder) receive a mandatory review of their sentence after twenty-five years of incarceration. Id. at 860-62. The Florida Legislature enacted these statutes because of the constitutional mandates of Graham v. Florida, 540 U.S. 48 (2010) and Miller v. Alabama, 567 U.S. 460 (2012). Id. at 860. While Petitioner acknowledged that he is not eligible for re-sentencing under Miller or Graham, he argued that his forty-year sentence (without the prospect of a mandatory review) for the lesser offense of second-degree murder, when compared to those convicted of first-degree...
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