Santiago v. Sec'y, Department Of Corr.

• Decision Date: 05 April 2012
• Docket Number: CASE NO: 8:11-CV-1077-T-30AEP
• Parties: MARIANO A. SANTIAGO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.
• Court: U.S. District Court — Middle District of Florida

MARIANO A. SANTIAGO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.

CASE NO: 8:11-CV-1077-T-30AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Date: April 5, 2012

ORDER

Petitioner, an inmate in the Florida penal system proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. #1). The Court has considered the petition, Respondent's response (Dkt. #22) and Santiago's reply (Dkt. #31). Upon consideration of the pleadings, record, and case law, the Court concludes that the petition should be denied.

BACKGROUND

The factual background is taken mainly from Santiago's brief on direct appeal. The procedural background is taken from the response filed in this case.

A. Factual Background

On November 17, 2004, at about 5:30 p.m., Randall McDermott was standing at the bar at the Surf and Sand Bar located in Madiera Beach, Florida, drinking a beer. Santiago,who knew McDermott, approached. McDermott told Santiago that he did not want to talk to him or be his friend.

Bar employees asked Santiago to leave the premises. Santiago left, but returned about five or ten minutes later. Santiago picked up a draft beer glass, walked up behind McDermott and hit him in the back of the head with the glass. The glass shattered. McDermott suffered a cut on the back of his head. The two men began fighting and fell to the floor until others in the bar pulled Santiago away.

At trial, Katie Grynewicz testified that she was sitting behind McDermott when the incident occurred. She observed McDermott and Santiago talking and then saw Santiago leave. She saw Santiago return about five minutes later through a side door, pick up a beer glass and hit McDermott in the head. She identified a standard draft beer glass from the Surf and Sand Bar as being like the one she saw Santiago use to hit McDermott. The state placed the beer mug into evidence.

Amy Bird, a bartender at the Surf and Sand Bar, also observed the incident. She knew both Santiago and McDermott. McDermott was standing in front of her while she was making a drink when Santiago walked up behind him and hit him in the back of the head with the glass. She also identified the standard beer mug as being the same type that was used to hit McDermott.

The police arrived about ten minutes after the incident. Officer Deanna Kist made contact with Santiago and read him his Miranda rights. She testified that Santiago appeared to understand the warnings and agreed to speak with her. He told her that he hit McDermottin the head when McDermott was walking away from him. On the way to jail, Santiago told Kist that he would slit Mr. McDermott's throat the next time he saw him.

At the close of the state's case, the defense moved for a judgment of acquittal arguing that the state had failed to present sufficient evidence to establish that the glass was a deadly weapon or had been used in a manner likely to cause great bodily harm. The court denied the motion on the grounds that it was a jury question - - the jury could see the beer glass, hear the testimony about how it was used, and decide if it was likely to cause death or great bodily harm.

The jury returned a verdict of guilty as charged. On March 15, 2007, the court held a sentencing hearing. The state requested the court to impose the statutory maximum of fifteen years in prison. McDermott testified at the hearing that he was afraid of Santiago and would like to see him incarcerated for as long as possible. The prosecutor reminded the court of Santiago's threat to cut McDermott's throat. The defense put on the testimony of a psychologist, Dr. Boone, who reported that Santiago had a history of mental illness and that, during his examination, Santiago appeared erratic and bipolar. The defense requested that the court place Santiago in a program that would address his mental illness. After hearing the arguments, the court sentenced Santiago to fifteen years incarceration.

B. Procedural Background

Santiago appealed his sentence and the state appellate court affirmed without written opinion. Santiago v. State, 969 So. 2d 381 (Fla. 2d DCA 2007) [table]. Santiago did not seek rehearing or pursue certiorari review in the United States Supreme Court. He filed a prose motion for post-conviction relief under Fla. R. Crim. P. 3.850 on June 1, 2008. The post-conviction court denied relief. Santiago appealed and the post-conviction court's ruling was affirmed on December 8, 2010. Santiago v. State, 52 So. 3d 669 (Fla. 2d DCA 2010) [table].

Santiago timely filed his habeas petition with this Court on May 16, 2011, raising the following grounds:

Ground One: Fundamental violation of due process when the court considered the state's misrepresentation of Defendant's past violent criminal history and using prior arrests on assaults as convictions in order to seek the statutory maximum of this case for the recidivism of convictions of assaults for which Defendant has not been convicted.

Ground Two: Violation of right to effective assistance of counsel when counsel failed to investigate prior arrests that was (sic) being used by the state at first through a scoresheet with an incorrect plea, then using these prior arrests as convictions in sentencing phase and counsel did not object to the state's errors.

Ground Three: Violation of due process where the Defendant was prohibited from accepting any other plea agreement deal due to defense counsel's neglegence (sic) in investigating Defendant's priors in order to correct a scoresheet that prejudiced Defendant as a career offender; but for the court having to take Defendant to trial without any further pleas.

Ground Four: Violation of right to effective assistance of counsel when counsel failed to depose and call identified, and available defense witnesses for trial, and a Miranda hearing.

Ground Five: Violation of right to effective assistance of counsel and due process when counsel misinformed the Defendant regarding use of prior convictions that caused the waiver to testify to be involuntary.

Ground Six: Violation of right to effective assistance of counsel and due process where counsel waived the Defendant's presence at pre-trial proceedings without Defendant's consent and after the Defendant informed counsel he wanted to be present at all proceedings.

Ground Seven: Violation of right to effective assistance of counsel and due process when counsel failed to file a pretrial motion to suppress Defendant's statements on a Miranda violation and leading Defendant to the officers' own speculations while Defendant was intoxicated.

Ground Eight: Violation of right to effective assistance of counsel when counsel failed to file a motion in limine to exclude from evidence: an illegal glass admitted into trial, called exhibit one.

Ground Nine: Violation of right to effective assistance of counsel when counsel failed to raise an affirmative defense.

Ground Ten: Violation of right to effective assistance of counsel when counsel failed to object to state's improper comments at trial.

Ground Eleven: Violation of due process when the court failed to conduct a Nelson hearing upon notice of Defendant's complaint of ineffective assistance of counsel.

Ground Twelve: The phrase "dangerous weapon" as it appears in section 784.045(1)(a)2, Florida Statute, is unconstitutionally vague as applied. U. S. Const. Amend.'s V, XIV - with sub-claim of ineffective assistance of counsel.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), effective as of April 24, 1996, "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of the United States." 28 U.S.C. § 2254(a). The Supreme Court has cautioned that § 2254 does not make federal courts "forums in which to relitigate state trials." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 77 L.Ed.2d 1090 (1983).

Where a state court initially considers the issues raised in the petition and enters a decision on the merits, Section 2254(d) governs the review of those claims. See Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 150 L.Ed.2d 9 (2001). A federal court may grant a § 2254 petition only if (1) the state decision 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) the state decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). See Price v. Vincent, 538 U.S. 634, 638, 123 S. Ct. 1848, 155 L.Ed.2d 877 (2003); Maharaj v. Sec'y for the Dep't of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005).

The Eleventh Circuit Court of Appeals discussed the meaning of the "contrary to" and "unreasonable application" clauses in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal 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. Id.

Section 2254 establishes a highly deferential standard for reviewing state court judgments. Parker v. Sec'y for the Dep't of Corr., 331 F.3d 764, 768 (11th Cir. 2003). If a federal court concludes that a state court applied federal law incorrectly, it may grant habeas relief only if that application was "objectively unreasonable." Id. ...