Rios v. Sec'y, Dep't of Corr.
| Decision Date | 09 June 2020 |
| Docket Number | Case No. 8:17-cv-1161-T-02TGW |
| Parties | NESTOR RIOS, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | United States District Courts. 11th Circuit. United States District Court of Middle District of Florida |
On May 17, 2017, Petitioner Nestor Rios filed his Petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. Dkt. 1. He seeks relief from an August 3, 2006, state court conviction. Id. at 1. Respondent filed a response. Dkt. 7. Petitioner filed a reply. Dkt. 18. The Court finds that a hearing is unnecessary and denies the Petition.
The criminal activity underlying Petitioner's conviction was an extensive heroin distribution network bringing heroin from New York to Tampa and Orlando. The investigation involved "flipping" several conspiracy members to be informants and tapping several individuals' phones, including Petitioner's. A detailed description of the underlying events can be found in the state court record.
For purposes of this opinion the relevant conspiracy participants are Oscar Gonzalez, John Maglione, and Miguel Cabrera. Oscar Gonzalez was a dealer who was arrested by police in December 1999 and agreed to record conversations with his supplier, which at the time was Petitioner. John Maglione was named by Oscar Gonzalez as being part of the enterprise and his phone was tapped. Maglione flew to New York City on February 7, 2000, where he met with Petitioner and Miguel Cabrera and was later arrested at LaGuardia Airport with 400 grams of heroin. In addition to being part of the February 7 transaction, Cabrera was named by Gonzales as being his former supplier's supplier.
On August 3, 2006, Petitioner was convicted by a jury of racketeering, conspiracy to commit racketeering, conspiracy to traffic in heroin, and two counts of trafficking in illegal drugs and he was sentenced to thirty years in prison with a twenty-five-year mandatory term.1 Dkt. 7 at 1. The Second District Court of Appeal affirmed the convictions without an opinion on June 18, 2008. Dkt. 9-11; see Rios v. State, 4 So. 3d 1234 (Fla. 2d DCA 2008).
On October 2, 2008, Petitioner filed a petition for writ of habeas corpus in state court alleging ineffective assistance of appellate counsel. Dkt. 9-12. The state court granted the petition in part, finding that convictions on both counts three andfour violated double jeopardy principles and remanded with directions to strike either count three or count four. Dkt. 9-15; see Rios v. State, 19 So. 3d 1004 (Fla. 2d DCA 2009). The mandate issued November 23, 2009. Dkt. 9-16. On December 9, 2009, the state circuit court entered an amended judgment and sentence setting aside the judgment and sentence as to count three. Dkt. 9-17. On January 11, 2010, the Florida Supreme Court denied review. Dkt. 9-18.
On June 4, 2010, Petitioner filed a Rule 3.850 motion for postconviction relief. Dkt. 9-19. The motion was denied. Dkts. 9-24 & 9-29. Petitioner appealed and the state appellate court affirmed without opinion. Dkt. 9-33; see Rios v. State, No. 2D15-674, 2017 WL 465309, at 1 (Fla. 2d DCA Feb. 3, 2017). The mandated was issued March 2, 2017. Dkt. 9-34. On May 17, 2017, Petitioner filed the instant federal Petition for writ of habeas corpus. Dkt. 1.
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998). AEDPA "establishes a highly deferential standard for reviewing state court judgments." Parker v. Sec'y for Dep't of Corr., 331 F.3d 764, 768 (11th Cir. 2003). This type of review does not allow relief of a state court conviction on a claim:
that was adjudicated on the merits in the State court proceedings' unless the state court's decision was '(1) . . . contrary to, or involved anunreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States; or (2) . . . based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'
Nejad v. Attorney Gen., State of Ga., 830 F.3d 1280, 1288 (11th Cir. 2016) (quoting 28 U.S.C. § 2254(d)).
"Clearly established Federal law" means holdings of the U.S. Supreme Court "as of the time of the relevant state-court decision." Id. at 1288-89. "Contrary to" requires a state court conclusion "opposite to that reached by Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 1289 (citations omitted) (alterations in original). The "unreasonable application" clause applies only "if the state court identifies the correct governing legal principle from Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. (citation omitted) (alterations in original).
However, a state court's factual determination "is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Id. (citation omitted). AEDPA "requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with 'clear and convincing evidence.'" Id. (citation omitted). This is a "demanding but not insatiable standard, requiring proof that a claim is highlyprobable." Id. (citation and internal quotation marks omitted). Further, this standard applies even if the state court does not provide the reasoning behind its decision because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Sec'y for Dep't of Corr., 278 F.3d 1245, 1254 (11th Cir. 2002).
Federal habeas petitions are subject to a one-year statute of limitation. 28 U.S.C. § 2244(d)(1) (2018). It begins running on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). The clock stops running for the "time during which a properly filed application for State post-conviction . . . judgment or claim is pending[.]" Id. § 2244(d)(2). The record shows the petition is timely.
In Grounds One, Two, and Three Petitioner argues that he was denied due process and equal protection because of various alleged errors regarding audio tape recordings of Petitioner's conversations. In Grounds Four through Twelve Petitioner alleges various ineffective assistance of counsel claims. In Ground Thirteen, Petitioner alleges the cumulative effect of these errors requires granting him relief from the judgment. Each of these Grounds will be discussed in turn.
In Ground One, Petitioner alleges that he was denied due process and equal protection of the law when the trial court allowed recordings to be played in Spanish and permitting the jury to use translations in English prepared by an involved law enforcement officer. In Ground Two, Petitioner alleges that he was denied due process and equal protection of the law when the trial court permitted the State to use an inaudible tape recording. In Ground Three, Petitioner alleges that he was denied due process and equal protection of the law when the trial court erred by permitting the lead detective to give his opinions as to the content of the recorded conversations. Respondent argues that Grounds One through Three are unexhausted and procedurally barred. Dkt. 7 at 4.
First, Petitioner concedes that he did not make an equal protection argument in state court. Thus those claims cannot be brought on federal habeas review. Dkt. 18 at 2. However, Petitioner argues that, although not explicitly alleged, his due process argument was implied in his state court briefs. Dkt. 18 at 2.
In order for a federal court to review a habeas claim it must be "fairly presented" to the state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim is not fairly presented if the state court "must read beyond a petition . . . that does not alert it to the presence of a federal claim." Id. at 32. Requiring courts to follow a "daisy chain" to divine the federal constitutional claim is an insufficientpresentation of the federal claim. See Howell v. Mississippi, 543 U.S. 440, 443-44 (2005) ().
The Supreme Court has provided the lower courts with guidance for determining whether a habeas petitioner has met the "fair presentation" requirement. In Picard v. Connor, the Court held that, for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts which entitle the petitioner to relief. Picard v. Connor, 404 U.S. 270, 277 (1971). In announcing that "the substance of a federal habeas corpus claim must first be presented to the state courts," the Court rejected the contention that the petitioner satisfied the exhaustion requirement by presenting the state courts only with the facts necessary to state a claim for relief. Id. at 278.
An issue that was not properly presented to the state court and which can no longer be litigated under state procedural rules is considered procedurally defaulted, that is, procedurally barred from federal review. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-40, 848 (1999); Bailey v. Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999). This Court will also consider a claim procedurally defaulted if it was presented in state court and rejected on the independent and adequate state ground of procedural bar or default. See Coleman v. Thompson,501 U.S. 722, 734-35 & n.1 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir. 2001) (...
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