Romanes v. Secretary, Dept. of Corrections

• Decision Date: 14 November 2008
• Docket Number: Case No. 8:05-cv-7-T-23MAP.
• Citation: 621 F.Supp.2d 1249
• Parties: Delio ROMANES, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

621 F.Supp.2d 1249

Delio ROMANES, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:05-cv-7-T-23MAP.

United States District Court, M.D. Florida, Tampa Division.

November 14, 2008.

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Delio Romanes, Miami, FL, pro se.

Patricia Ann McCarthy, Office of the Attorney General, Tampa, FL, for Respondent.

ORDER

STEVEN D. MERRYDAY, District Judge.

Delio Romanes petitions for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 6) and challenges the validity of his state convictions for first-degree murder, kidnapping with a firearm, and robbery with a firearm.¹ Romanes alleges multiple claims of trial court error and denial of effective assistance of trial counsel. Numerous exhibits ("Respondent's Exhibit __") support the response.

A jury convicted Romanes of all charges. The state appellate court affirmed Romanes's convictions and sentences in a per curiam decision without a written opinion. Romanes's subsequent challenges to his convictions — a state Rule 3.850 motion and supplement and a state petition for the writ of habeas corpus — were denied. Romanes's Section 2254 petition followed.

STANDARD OF REVIEW

Because this action commenced after April 24, 1996, Section 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs this proceeding. Wilcox v. Florida Dep't of Corrections, 158 F.3d 1209, 1210 (11th Cir.1998), cert. denied, 531 U.S. 840, 121 S.Ct. 103, 148 L.Ed.2d 62 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of state court adjudications, states in pertinent part:

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.

In Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied—the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." 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.

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide.").

Romanes's convictions and sentences were affirmed on direct appeal in a per curiam decision without a written opinion (Respondent's Exhibit 7), and the denial of his subsequent Rule 3.850 motion for post-conviction relief was likewise affirmed on appeal in another per curiam decision without a written opinion (Respondent's Exhibit 13). The state appellate court's per curiam affirmances warrant deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906, 123 S.Ct. 1511, 155 L.Ed.2d 225 (2003).

Romanes has the burden of overcoming a state court factual determination by clear and convincing evidence. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies only to a finding of fact, not a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046, 122 S.Ct. 627, 151 L.Ed.2d 548 (2001). Consequently, a presumption of correctness attaches to the finding of facts in the trial court's rejection of Romanes's post-conviction claims of ineffective assistance of counsel (Respondent's Exhibit 17).

Ground Two

Romanes alleges that the State knowingly used perjured testimony "coupled with prosecutorial misconduct" to deny him a fair trial. The state court rejected this claim in Romanes's Rule 3.850 motion:

In ground 10, Defendant alleges that the prosecution knowingly used perjured testimony or failed to correct same when it was given. In Kelley v. State, 569 So.2d 754 [(Fla.1990)], the Florida Supreme Court held that claims of prosecutorial misconduct should be brought on direct appeal because the evidence is in the trial record. No relief is warranted on ground 10.

(Respondent's Exhibit 17, Vol. III, p. 289).

A state court's rejection of a petitioner's constitutional claim on a state procedural ground generally precludes federal habeas review of the claim. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir.2001) ("[C]laims that have been held to be procedurally defaulted under state law cannot be addressed by federal courts."). "However, a state court's rejection of a federal constitutional claim on procedural grounds will only preclude federal review if the state procedural ruling rests upon [an] `independent and adequate' state ground." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying upon a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion," or in a "manifestly unfair manner." Judd v. Haley, 250 F.3d at 1313 (citing Card v. Dugger, 911 F.2d 1494 (11th Cir.1990)). See also Ford v. Georgia, 498 U.S. 411, 424-25, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991).

The state court expressly applied a state procedural rule and concluded that Romanes should have raised this claim on direct appeal. Consequently, the claim was procedurally barred and not cognizable on collateral attack. Torres-Arboleda v. Dugger, 636 So.2d 1321, 1323 (Fla.1994). The state appellate court affirmed the application of the procedural bar (Respondent's Exhibit 13). See Harmon v. Barton, 894 F.2d 1268, 1274 (11th Cir.1990) (state appellate court's per curiam affirmance of the lower court's ruling explicitly based on procedural default is a clear and express statement of its reliance on an independent and adequate state law ground barring federal review). Florida courts consistently apply the procedural rule barring the collateral review of claims that a petitioner could and should have raised on direct appeal. See e.g., Bruno v. State, 807 So.2d 55, 63 (Fla.2001) (holding that claims of trial court error generally can be raised on direct appeal but not in a Rule 3.850 motion). Accordingly, Romanes's ground two is procedurally defaulted.

This default forecloses federal habeas review absent a showing of either cause and prejudice or a fundamental miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989); Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.2001). Romanes fails to demonstrate cause and prejudice excusing his default. Romanes neither alleges nor shows that the fundamental miscarriage of justice exception applies. Because Romanes fails to proffer specific facts showing an exception to the procedural default rule, Hill v. Jones, 81 F.3d 1015 (11th Cir.1996), ground two is procedurally barred from federal review.

Ground Three

Romanes alleges that the trial court erred by failing to suppress the out-of-court identification² of Romanes by witness Abraham Machado.³ The state appellate court rejected this claim on direct appeal (Respondent's Exhibit 7).

A defendant possesses a due process right to exclude identification testimony resulting from an unnecessarily suggestive identification procedure conducive to irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). "[A] pretrial identification by photograph will be set aside . . . only if the photographic identification procedure was so impermissibly suggestive as to give...