Rosa v. Jones

• Decision Date: 12 September 2018
• Docket Number: CASE NO. 16-cv-62332-BLOOM/White
• Parties: CHARLENE TERRY-ANN WALKER ROSA, Petitioner, v. JULIE L. JONES, SEC'Y, FLA. DEP'T OF CORR'S, Respondent.
• Court: U.S. District Court — Southern District of Florida

CHARLENE TERRY-ANN WALKER ROSA, Petitioner, v. JULIE L. JONES, SEC'Y, FLA. DEP'T OF CORR'S, Respondent.

CASE NO. 16-cv-62332-BLOOM/White

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

September 12, 2018

ORDER DENYING MOTION FOR RECONSIDERATION

THIS CAUSE is before the Court upon pro se Petitioner's Motion for Reconsideration, ECF Nos. [67, 75]. The Court has reviewed the Motion and the record in this case, and is otherwise fully advised as to the premises. For the reasons set forth below, the Court denies the Motion for Reconsideration.

I. BACKGROUND

Petitioner was charged with first-degree murder of Lola Salzman by bludgeoning and/or stabbing with a knife in violation of Florida Statute § 782.04(1). See ECF No. [30-1] at 13-14. On July 5, 2007, the jury found Petitioner guilty of first-degree murder and she was sentenced to a term of life in prison without the possibility of parole. Id. at 16-22. After a lengthy history of proceedings in state court, Petitioner timely filed her Petition for habeas corpus relief in this Court. See ECF No. [1]. Judge White summarized Petitioner's four claims in his Report and Recommendation (the "Report"), including the claim at issue here: that Petitioner's defense attorney was ineffective for conceding to the authenticity of recorded telephone conversations at trial. ECF No. [53] at 2.

On May 31, 2018, this Court adopted the Report and Judge White's well-reasoned analysis denying Petitioner's claim that her defense attorney was ineffective for not objecting to the authenticity of telephone recording tapes. ECF No. [61], at 16-17. A summary of Judge White's analysis follows. In Petitioner's criminal trial, the State presented taped conversations between Petitioner and two individuals, Maxine Hylton and Omar Nunez. ECF No. [53] at 27-28. On direct examination, both Ms. Hylton and Mr. Nunez testified that they agreed to cooperate with law enforcement and participate in taped conversations with Petitioner, and provided testimony about those recorded conversations. Id. Petitioner's defense attorney did not object to the authenticity of the taped conversations when presented at trial, but conducted a thorough cross-examination of both witnesses. Id. at 26-28. Judge White concluded that the "state post-conviction court's conclusion that counsel was not deficient for failing to make a meritless objection was consistent with Strickland and not objectively unreasonable. Moreover, Petitioner's claim fails because she cannot demonstrate a reasonable probability that the jury would have found her not guilty had the trial court excluded the testimony identifying her voice." Id. at 28.

Petitioner filed a Motion for Certificate of Appealability, ECF No. [62], which the Clerk's office construed as a notice of appeal from the final order denying the § 2254 petition, and therefore transmitted a notice of appeal to the Eleventh Circuit Court of Appeal on June 1, 2018. Thereafter, Petitioner filed a Motion for Leave to Proceed in forma pauperis for Costs of Transcripts on Appeal. ECF No. [70]. The Eleventh Circuit held that the motion for a certificate of appealability designated an appeal from the magistrate judge's report recommending thedenial of the § 2254 petition, which report was not appealable. However, it construed ECF No. [70] as a timely notice of appeal from the final order denying the § 2254 petition. See ECF No. [75] at 2-3. Petitioner filed a Notice of Newly Discovered Evidence, ECF No. [67], and Supplemental Post Judgment Motion, ECF No. [75], which the Eleventh Circuit construed as moving to reconsider the Court's denial of the § 2254 petition. See ECF No. [75] at 3. On August 23, 2018, the Eleventh Circuit remanded the case to this Court for the limited purpose of addressing Petitioner's motion to reconsider the denial of the § 2254 petition. Id.

The purported newly discovered evidence Petitioner filed includes two memoranda to file by Petitioner's defense counsel in the underlying criminal case, H. Dohn Williams Jr., and six letters from counsel to Petitioner. ECF No. [67], at 23-48. Petitioner has identified as relevant to her Motion for Reconsideration a portion of a memorandum to file dated February 19, 2007, consisting of defense counsel's notes of a meeting with Petitioner discussing the State's evidence in her criminal proceeding. The relevant portion of said memorandum provides:

I told the client about the portions of the calls that concerned me. She said she did not want to hear the tape-recordings because it was not her voice on the tape recordings or if it was her voice the police manipulated the recording to make her look bad.

I explained to the client that I had heard her voice enough to recognize it and that it was her voice.

Id. at 30. Petitioner alleges that defense counsel provided her with this memorandum after she contacted him following the issuance of Judge White's Report and Recommendation. Id. at 21-22. Petitioner further alleges that the language in the memorandum is new evidence that demonstrates defense counsel had a conflict of interest. See, e.g., ECF No. [75] at 5.

II. STANDARD

Petitioner seeks reconsideration of the Court's denial of the § 2254 petition. "While Rule 59(e) does not set forth any specific criteria, the courts have delineated three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice." Williams v. Cruise Ships Catering & Serv. Int'l, N.V., 320 F. Supp. 2d 1347, 1357-58 (S.D. Fla. 2004) (citing Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994)); see also Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1369 (S.D. Fla. 2002) ("[T]here are three major grounds which justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice"). "[R]econsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Wendy's Int'l, Inc. v. Nu-Cape Const., Inc., 169 F.R.D. 680, 685 (M.D. Fla. 1996); see also Campero USA Corp. v. ADS Foodservice, LLC, 916 F. Supp. 2d 1284, 1290 (S.D. Fla. 2012) ("A motion for reconsideration is an extraordinary remedy to be employed sparingly.") (citation omitted).

"Motions for reconsideration are appropriate where, for example, the Court has patently misunderstood a party." Compania de Elaborados de Cafe v. Cardinal Capital Mgmt., Inc., 401 F. Supp. 2d 1270, 1283 (S.D. Fla. 2003). But "[a] motion for reconsideration should not be used as a vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made." Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992). "[T]he movant must do more than simply restate his or her previous arguments, and any arguments the movant failed to raise in the earlier motion will be deemed waived."Compania, 401 F. Supp. 2d at 1283. Simply put, a party "cannot use a Rule 59(e) motion to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).

III. DISCUSSION

The new evidence Petitioner submitted does not change the Court's conclusion. This Court determined that Petitioner's claim that defense counsel was ineffective for failing to object to the authenticity of the recordings did not satisfy the Strickland standard. Alternatively, to the extent that Petitioner intends to raise a new argument that her criminal defense counsel had an "actual conflict," or in other words, "inconsistent interests," see Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999), Petitioner's claim is procedurally time-barred, and in any event, fails on the merits.

A. Ineffective Assistance of Counsel

Although Petitioner's Motion for Reconsideration seeks to advance a claim characterized as a "conflict of interest," based on newly discovered evidence, Petitioner has merely recycled and repackaged the previously asserted ineffective assistance of counsel claim. In prior briefing Petitioner contended that her attorney agreed with her that it was not Petitioner's voice on the recordings but he chose not to object for strategic reasons. Now Petitioner claims that her attorney recognized her voice on the recordings despite Petitioner's insistence that it was not her voice. Whether defense counsel recognized her voice or not, at bottom, Petitioner's claim is that counsel was ineffective for not objecting to the authenticity of the phone recordings.

This Court's conclusion that counsel satisfied Strickland's deferential standard is unchanged by the newly submitted internal memorandum. Counsel will not be deemedunconstitutionally deficient because of tactical decisions. Adams v. Wainwright, 709 F.2d 1443, 1445 (11th Cir. 1983); Ford v. Strickland, 696 F.2d 804, 820 (11th Cir. 1983) (en banc); see United States v. Costa, 691 F.2d 1358, 1364 (11th Cir. 1982). Even if in retrospect the strategy appears to have been wrong, the decision will be held ineffective only if it was so patently unreasonable that no competent attorney would have chosen it. Adams v. Balkcom, 688 F.2d 734, 738 (11th Cir. 1982) (citing Washington v. Strickland, 693 F.2d 1243, 1254 (5th Cir. 1982) also citing Ford v. Strickland, 696 F.2d 804, 820 (11 Cir. 1983) (en banc)); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir. 1981), cert. den'd, 456 U.S. 950 (1982); Beckham v. Wainwright, 639 F.2d 262, 265 (5th Cir. 1981). The burden of proof to establish ineffectiveness and prejudice is on the petitioner. Washington, 693 F. 2d at 1262.

The new evidence -- that defense counsel recognized Petitioner's voice in the phone call recordings -- does...