Rosa v. Sec'y, Dep't of Corr.
| Decision Date | 08 February 2021 |
| Docket Number | Case No. 8:17-cv-2474-T-35TGW |
| Parties | JOSHUA ROSA, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Before the Court is Rosa's petition for the writ of habeas corpus under 28 U.S.C. § 2254 challenging his state court conviction for first-degree murder. After reviewing the petition and supporting memorandum (Docs. 1 and 2), the amended response and appendix (Docs. 13 and 15), and the reply (Doc. 16), it is ORDERED that the petition is DENIED.
A jury found Rosa guilty of first-degree felony murder and the state court sentenced Rosa to life in prison. (Doc. 15, Ex. 1 at 121, 159) The state appellate court affirmed in a written opinion and the state supreme court denied discretionary review. Rosa v. State, 97 So. 3d 824 (Fla. 2012); Rosa v. State, 58 So. 3d 900 (Fla. 2d DCA 2011). The post-conviction court denied relief after an evidentiary hearing (Doc. 15, Ex. 10 at 112-25 and Ex. 13 at 307-13) and the state appellate court affirmed. (Doc. 15, Ex. 17) Rosa's timely federal petition followed.
Rosa, a 19 year-old, lived across the street from Stephen Tomlinson, a 13 year-old. On December 8, 2005 in the afternoon, Rosa's mother saw Rosa and Tomlinson outside together. Another witness saw Tomlinson ride his bicycle in the direction of a nearby park and Rosa follow about five minutes later with a big flashlight.
Shortly after, Kevin Whitely and Fabian Flis saw Rosa walk out of a wooded area at the park shining the flashlight. Rosa told Whitely that "a kid back there is possibly dead, possibly hurt," and asked Whitely if he had a mobile telephone. Rosa ran across the street to ask a neighbor for help. Rosa returned to the woods with Whitely. Whitely saw Tomlinson's body lying several feet away from his bicycle.
Blood ran from Tomlinson's nose and mouth and his jeans were pulled down around his ankles. Whitely tried to pick Tomlinson up but was unable to do so and instead checked his vital signs. Rosa held the back of Tomlinson's head while Whitely checked to see if Tomlinson's pupils were dilated. When police arrived, Rosa pulled out a pair of white gloves from his pocket and showed them to Whitely. Rosa had a pair of fingernail clippers in the same pocket.
Rosa had fresh scratches on his armpit, forearm, and bicep and blood on his hands, pants, shoes, and white gloves. DNA from these bloodstains matched Tomlinson's DNA. DNA from the fingernail clippers matched Rosa's DNA and Tomlinson's DNA. DNA from fingernail clippings from Tomlinson's left hand also matched Tomlinson's DNA and a foreign profile. Police further examined the fingernail clippings with YSTR DNA testing — a type of testing that relies on male DNA. An analyst could not exclude Rosa or any of hismale relatives as a contributor to the DNA from the fingernail clippings. A medical examiner observed injuries to Tomlinson's neck and opined that the cause of his death was asphyxia due to strangulation. The injuries were consistent with strangulation by hands. The examiner identified injuries to other parts of Tomlinson's body inflicted before death.
For the defense, Rosa's mother and another witness testified that Rosa regularly used the white gloves at church services. A forensic pathologist testified that Tomlinson's injuries were consistent with strangulation by a forearm and indicated that two or more assailants were involved.
Based on this evidence, the jury found Rosa guilty of felony murder and concluded that he killed Tomlinson while committing or attempting to commit aggravated child abuse. (Doc. 15, Ex. 1 at 121)
Because Rosa filed his federal petition after the enactment of the Antiterrorism and Effective Death Penalty Act, AEDPA governs his claims. Lindh v. Murphy, 521 U.S. 320, 327 (1997). AEDPA amended 28 U.S.C. § 2254(d) to require:
A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law or if the state court decides a case differently than [the U.S. Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision involves an unreasonable application of clearly established federal law "if the state court identifies the correct governing legal principle from [the U.S. Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Clearly established federal law refers to the holding of an opinion by the U.S. Supreme Court at the time of the relevant state court decision. Williams, 529 U.S. at 412.
"[AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 694 (2002). An unreasonable application is "different from an incorrect one." Id. Even clear error is not enough. Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017). A federal petitioner must show that the state court's ruling was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).
Rosa asserts ineffective assistance of counsel — a difficult claim to sustain. Strickland v. Washington, 466 U.S. 668, 687 (1984) explains:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel"guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
"There is no reason for a court . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690.
"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691. To demonstrate prejudice, the defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 691. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Strickland cautions that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690-91. A defendant cannot meet his burden by showing that the avenue chosen by counsel was unsuccessful. White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Because the standards under Strickland and AEDPA are both highly deferential, "when the two apply in tandem, review is 'doubly' so." Richter, 562 U.S. at 105. "Given the double deference due,it is a 'rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding.'" Nance v. Warden, Ga. Diag. Prison, 922 F.3d 1298, 1303 (11th Cir. 2019) (citation omitted).
The state appellate court affirmed in an unexplained decision the post-conviction court's order denying Rosa's ineffective assistance of counsel claims. (Doc. 15, Ex. 17) A federal court "'look[s] through' the unexplained decision to the last related state-court decision that does provide a relevant rationale [and] presume[s] that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Because the post-conviction court recognized that Strickland governed the claims (Doc. 15, Ex. 10 at 114-15), Rosa cannot meet the "contrary to" test in Section 2254(d). Rosa instead must show that the state court either unreasonably applied Strickland or unreasonably determined a fact.
A petitioner must exhaust the remedies available in state court before a federal court can grant relief on habeas. 28 U.S.C. § 2254(b)(1)(A). The petitioner must (1) alert the state court to the federal nature of his claim and (2) give the state court one full opportunity to resolve the federal claim by invoking one complete round of the state's established appellate review process. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Picard v. Connor, 404 U.S. 270, 278 (1971). The state court must have the first opportunity to review and correct any alleged violation of a federal right. Baldwin v. Reese, 541 U.S. 27, 29 (2004).
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