Romero v. Buss
| Decision Date | 24 August 2011 |
| Docket Number | Case No. 3:10cv531/MCR/MD |
| Parties | THOMAS A. ROMERO, Petitioner, v. EDWIN G. BUSS, Respondent. |
| Court | U.S. District Court — Northern District of Florida |
Before the court is a petition for writ of habeas corpus filed pursuant to Title 28 U.S.C. § 2254 (doc. 1). Respondent filed an appropriate motion to dismiss asserting the petition is untimely (doc. 11). Petitioner filed a reply (doc. 15) and a motion for summary judgment (doc. 16). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After careful consideration, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts. It is further the opinion of the undersigned that the pleadings and attachments before the court show that Mr. Romero is not entitled to relief, and the petition is untimely and should be dismissed with prejudice.
On August 16, 1996, following a jury trial, Thomas Anthony Romero was convicted in the Circuit Court of Santa Rosa County, Florida, of first degree murder, robbery with a deadly weapon, and conspiracy to commit robbery with a deadlyweapon .1 Mr. Romero was sentenced to two concurrent terms of life imprisonment on counts one and two, and one term of fifteen years imprisonment on count three to be served concurrent with count one (ex. B-1, pp. 48-57).
Mr. Romero appealed his conviction and sentence to the Florida First District of Appeals ("First DCA") ). On March 4, 1998, the First DCA per curium affirmed the sentence without written opinion. Romero v. State of Florida, 709 So.2d 541 (Fla. 1st DCA 1998) (Table) .
Mr. Romero did not seek further relief from his sentence until May 1, 2007, when he filed a state petition for writ of habeas corpus asserting entitlement to file a belated motion for post-conviction relief (ex. C). The petition states Mr. Romero wrote to his trial counsel in 1996 requesting copies of his "case file". His counsel responded that he would furnish copies when he completed his representation for Mr. Romero's direct appeal. While Mr. Romero acknowledges his counsel wrote him a letter in early 1998, informing him of the result of his direct appeal, Mr. Romero claims he did not receive the letter because he had been temporarily transferred to another correctional institution. Upon return, Mr. Romero states he wrote his counsel on April 17, 1998, requesting copies of "court materials". (Ex. C, pp. 2-3). His counsel did not respond. Mr. Romero filed a complaint with the Florida Bar Association, to which his counsel responded on February 4, 2007 (ex. D, p. 44). Mr. Romero claims he did not learn of the outcome of his appeal until he received the 2007 letter (ex. C., p. 3). His petition for state habeas corpus states his failure to file post-conviction proceedings from 1998 to 2007 was a direct result of his counsel's failure to "furnish Petitioner with requested trial transcripts and documents concerning Petitioner's case" or advise him of his right to state post-conviction remedies (ex. C, p. 5). He concludes these actions show good cause and excusable neglect for failing to file a timely Rule 3.850 motion (ex. C, p. 5).
The same day, Mr. Romero filed a separate belated motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure (ex. D, p 1). Mr. Romero raised four grounds for relief based on fundamental error and ineffective assistance of counsel (ex. D, pp. 1-18).
On October 8, 2007, the circuit court issued an order denying Mr. Romero's state petition for habeas corpus relief (ex. D, p. 42). It found that Mr. Romero failed to file a Rule 3.850 motion for post-conviction relief within two years after his judgment and sentence became final (ex. D, p. 43). It further determined Mr. Romero failed to show good cause and excusable neglect for untimely filing. The court found that Mr. Romero's counsel's June 24, 1997, letter put him on notice that his appeal would probably take a year.2 Moreover, Mr. Romero's counsel did not have an obligation to advise him of his post-conviction rights following appeal. (Ex. D, p. 44). The court emphasized Mr. Romero's lack of excusable neglect:
It is particularly significant that Defendant fails to allege he made any effort to file for collateral relief or make any independent inquiry into his case between the time he sent a letter to counsel in 1998 and 2007, a period of nearly 10 years.
(Ex. D, p. 44) (citing State of Florida v. Boyd, 846 So.2d 458, 460 (Fla. 2003) ()).
Despite the circuit court's clear rejection of Mr. Romero's arguments, it issued a separate order denying Mr. Romero's belated motion for post-conviction relief (ex. D, p. 63). It denied Mr. Romero's claims of fundamental error on the merits because such claims may be raised at any time under Florida law (ex. D, pp. 63-66). Itsummarily denied the claims of ineffective assistance of counsel as untimely (id.). The record does not reflect that Mr. Romero appealed the denial.3
On May 15, 2008, Mr. Romero filed a motion for arrest of judgment in the circuit court pursuant to Rule 3.610(d), Florida Rules of Criminal Procedure (ex. G, p. 1). He sought a writ of habeas corpus authorizing him to file a belated 3.850 motion for post-conviction relief based on a fundamental miscarriage of justice and a claim of "procedural actual innocence" (ex. G, p. 2). He alleged the indictment under which he was convicted was so defective that it did not support a conviction (ex. G, p. 1). On July 18, 2008, the court dismissed the motion without prejudice as untimely under Rule 3.610(d), Florida Rules of Criminal Procedure, which requires a motion be made within ten days of the verdict (ex. H, p. 1). The court also dismissed the motion as untimely under Rule 3.850 for failing to meet the content requirements of subsection (c) (ex. H, p. 1).4 Mr. Romero filed an untimely appeal (ex. I), and the First DCA per curiam dismissed the appeal on December 3, 2008.5 Romero v. State of Florida, 996 So.2d 240 (Fla. 1st DCA 2008) (Table) .
On March 26, 2009, Mr. Romero filed another motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure (ex. J, p.1). He requested relief based on newly discovered evidence; specifically, he attached anaffidavit of his co-defendant and brother, Raymond Romero, confessing to the crimes for which Mr. Romero was convicted (ex. J, pp. 3-4, 32). The Rule 3.850 court denied Mr. Romero's motion on February 26, 2010 (ex. J, p. 40). It summarized the contents of the allegation and compared them with the record evidence and trial testimony (ex. J, pp. 41-43). The court stated that newly discovered evidence must "probably produce an acquittal on retrial" to warrant post-conviction relief. (Ex. J, p. 43) (citing Hunter v. State of Florida, 29 So.3d 256 (Fla. 2008)). The court determined it could deny relief without an evidentiary hearing because the record showed strong evidence of Mr. Romero's guilt (ex. J, p. 43). It found that assuming the motion was facially sufficient and the confession was admissible, Mr. Romero's brother's statements directly contradicted the testimony of several witnesses, including the other co-defendants (ex. J, pp. 43-44). The court concluded: ". . .the affidavit is so inherently incredible that there is no reasonable probability it would result in an acquittal." (Ex. J, p. 44). Mr. Romero appealed, and the First DCA affirmed the Rule 3.850 court's decision on June 30, 2010 (ex. M). On August 13, 2010, the First DCA also denied Mr. Romero's July 8, 2010, motion for rehearing (exs. N and O).
Mr. Romero filed the instant petition for federal habeas corpus on December 15, 2010 (doc. 1). He raises four grounds for relief that allege the Rule 3.850 court erred in denying his post-conviction motion based on newly discovered evidence (doc. 1, pp. 4-5). Ground One claims the court erred in denying him an opportunity to amend his motion before issuing its decision that the motion was facially insufficient (id. at 4). Ground Two alleges the court applied "an incorrect standard that's non-published and non-binding for persuasional [sic] purpose." (Id. at 4). Ground Three claims the court abused its discretion by failing to hold an evidentiary hearing before denying Mr. Romero's motion (id. at 5). Ground Four alleges the court erred in denying his motion because he is actually innocent of the crimes for which he was convicted (id. at 5). Mr. Romero's actual innocence claim is based onhis brother's (and co-defendant's) 2008 affidavit confessing to the crime for which Mr. Romero was convicted (ex. J, p. 33). Respondent contends the petition should be dismissed as untimely.
Analysis of Respondent's argument that Mr. Romero's petition is untimely.
Mr. Romero's pleadings here are not entirely clear. He seems to be challenging the Rule 3.850 court's factual findings concerning the credibility of his "new evidence." If that is his intent he must fail, because the Rule 3.850 court made factual findings to which this court owes deference. Callahan v. Campbell, 427 F.3d 897, 926 (11th Cir. 2005). This court has reviewed the record, and finds that the Rule 3.850 court's findings are well supported by the evidence. Consequently, Mr. Romero is not entitled to relief.
In the other hand, Mr. Romero's pleadings here can be read differently. Construed liberally, the four claims in the petition essentially allege fundamental...
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