Sanchez-Toribio v. Secretary, Dept. of Corrections
| Decision Date | 31 March 2008 |
| Docket Number | No. 2:05-cv-76-FtM-29SPC.,2:05-cv-76-FtM-29SPC. |
| Citation | 557 F.Supp.2d 1322 |
| Parties | Pedro SANCHEZ-TORIBIO, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and Florida Attorney General,<SMALL><SUP>1</SUP></SMALL> Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Pedro Sanchez-Toribio, Bonifay, FL, pro se.
C. Suzanne Bechard, Michele Jana Taylor, Office of the Attorney General, Tampa, FL, for Respondents.
Petitioner Pedro Sanchez-Toribio (hereinafter "Petitioner" or "Sanchez-Toribio"), who is proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (Doc. # 1, Petition) pursuant to 28 U.S.C. § 2254 on February 17, 2005. Petitioner challenges his state court judgment of conviction of second degree murder entered in the Twelfth Judicial Circuit Court, DeSoto County, Florida. Petition at 1. In compliance with, this Court's Order, Respondent filed a Response (Doc. # 9, Response). Respondent submitted numerous exhibits in support of the Response, including the post-conviction motions filed by Petitioner and the record from Petitioner's state court proceedings. See Docs. # 10-11; Exhs. 1-8. After the Court granted Petitioner's motion for extension of time, Petitioner filed a Reply to the Response (Doc. # 14, Reply). This matter is ripe for review.
Petitioner was charged in an Amended Information with second-degree murder, in circuit case number 00-0387-CF. Response at 2; Amended Information, Exh. 1 at 24. In summary, the Amended Information alleged that Petitioner "unlawfully, by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual," killed the victim "by shooting the victim with a handgun." Exh. 1 at 24.
The arresting report form stated that on August 26, 2000, the DeSoto County Sheriffs Office received a phone call that someone had been shot. See Arresting Report, Doc. #11 at 2. Deputy Burke responded to the call and arrived at the scene where two individuals, Catherine Moya and Gustavo Aguilar, indicated that the person who shot the victim, Sanchez-Toribio, was standing in the yard, adjacent to their trailer. Id. Deputy Burke approached Sanchez-Toribio, who was holding a six shot revolver in his right hand, partially concealed behind his back. Id. When asked to drop the weapon, Sanchez-Toribio complied. Id. Deputy Burke then entered the trailer and found the victim on the couch with a puncture wound, appearing to be a gunshot wound, below his nose. Id. The officers at the scene took statements from various witnesses, including one individual who stated he saw Sanchez-Toribio shoot the victim while the victim was sitting on the couch. Id. at 2-3. Deputy Vitali, who was also a responding officer, interviewed witnesses. Id. at 3. According to the arresting report, Sanchez-Toribio was taken into custody and advised of his Miranda rights, thereby signing a waiver of his rights form, which was in Spanish. Id. During the interview, Sanchez-Toribio confessed to shooting the victim, stating that he arrived home and found the victim present. Id. Sanchez-Toribio explained that the victim had called him a "homosexual," which angered him; so, he shot the victim. Id. The arresting report states that the victim died from a single gun shot wound to the face. Id.
Prior to trial, defense counsel filed a motion to suppress Petitioner's "statements, admissions, or confessions," arguing that Petitioner was "illegally interrogated" as he did not "knowingly, voluntarily and intelligently" waive his rights pursuant to the Miranda warning. Motion to Suppress, Exh. 1 at 20-21. Also, Petitioner argued in the motion to suppress that he was never informed of his rights pursuant to Article 36 of the Vienna Convention prior to questioning. Id. at 20. After conducting a hearing, the trial court entered a written Order denying the motion to suppress, finding that Article 36 of the Vienna Convention did not allow for exclusion of evidence. See trial court order dated April 2, 2002, Exh. 1 at 107. The trial court accepted the testimony of Deputy Vitali as clear and convincing evidence and rejected the defense witness' testimony, and found that the State met its burden in establishing that Petitioner understood and waived his Miranda rights. Id. After a jury trial, Petitioner was found guilty of murder in the second degree. Jury Verdict Form dated April 11, 2002, Exh. 1 at 150. Petitioner was sentenced to life in prison with a minimum mandatory sentence of twenty-five years. Response at 2, Exh. 1 at 154.
Petitioner, represented by a special assistant public defender, filed a direct appeal raising four claims of trial court error. Exh. 2 at 8; Response at 3. On direct appeal, Petitioner argued that the trial court erred by: (1) failing to instruct the jury on manslaughter pursuant to § 782.11, Florida Statutes (2000); (2) denying Petitioner's motion to suppress when Petitioner did not speak English, could not read the Miranda warning, and did not knowingly, freely, and voluntarily waive his Miranda rights prior to interrogation; (3) denying the motion to suppress when Petitioner was not advised of his rights under the Vienna Convention prior to interrogation; and (4) overruling Petitioner's objection to a minimum mandatory sentence for second degree murder with a firearm. Id. The State filed an Answer Brief. Response at 3; Exh. 3. The appellate court per curiam affirmed the trial court's decision and mandate issued on July 23, 2003. Response at 3; Exh. 4-5.
On March 24, 2004, Petitioner filed a pro se 3.850 motion for post-conviction relief pursuant to the Florida Rules of Criminal Procedure. Response at 3-4; Exh. 6. Petitioner raised eight grounds,2 including:
(1) "Court error" in that the trial court gave the jury instructions on justifiable and excusable homicide but neglected to include justifiable and excusable homicide on the verdict form;
(2) "Court error" in that the trial court proceeded to trial without first having read the formal charging document to the jury;
(3) "Court error" in that the trial judge made an improper comment in response to the jury's question without input from either counsel:
(4) "State error" in that the information alleged "evincing [sic] a depraved mind" but the state did not prove at trial that Petitioner acted with a "depraved mind" or "malice";
(5) "Court error" in that the trial court did not instruct the jury on Petitioner's theory of defense that the victim was trespassing;
(6) [Ground Eight] "Jury verdict" error in that the jury's question indicated that a minority of the jurors persuaded the majority to vote in favor of second-degree murder;
(7) [Ground Nine] "Sentencing error" in that Petitioner was sentenced to a twenty-five year minimum mandatory sentence without the jury having found that he discharged a firearm;
(8) [Ground Ten] The jury should have mitigated Petitioner's conviction down to manslaughter because Petitioner had been drinking at the time of the offense, was provoked by the victim, thought he only wounded the victim, and was unfamiliar with the "American way of life."
See id. The trial court denied Petitioner's 3.850 motion on April 20, 2002. Exh. 7. The trial court found that grounds one, two, three, four, five, and eight were procedurally barred because Petitioner should have raised those issues on direct appeal, which he did not, and these issues were not properly raised in a 3.850 motion. Id. at 2. With regard to Ground Nine, the trial court found the jury verdict form "conclusively refuted" Petitioner's allegations as the verdict form contained a check mark before the following statement: Id. at 3. Petitioner appealed the trial court's decision to the appellate court. Exh. 8. The appellate court per curiam affirmed the trial court's decision on December 29, 2004, and mandate issued on January 24, 2005. Exh. 9
Petitioner then filed his federal Petition for Writ of Habeas Corpus, requesting that the Court grant him habeas relief and a new trial. Petition at 24. The Petition raises the following four grounds:
(1) the trial court's failure to give the requested jury instruction on manslaughter resulted in a due process violation;
(2) the admission of Petitioner's confession at trial violated the Fifth and Fourteenth Amendments of the United States Constitution as Petitioner did not understand the constitutional rights he was waiving;
(3) the admission of Petitioner's confession violated the Vienna Convention;
(4) Petitioner's minimum mandatory sentence was imposed contrary to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) because the jury did not determine that Petitioner used firearm.
Because Petitioner filed his Petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir.2003), cert. denied, 543 U.S. 811, 125 S.Ct. 44, 160 L.Ed.2d 14 (2004). The AEDPA establishes a highly deferential standard of review for state court judgments. Parker v. Sec'y for Dep't of Corr., 331 F.3d 764 (11th Cir.2003). The AEDPA altered the federal 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, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Several aspects of § 2254, as amended by the AEDPA, are relevant to reviewing this Petition.
A federal court may entertain an application for a writ of habeas...
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