Solano v. Sec'y, Dep't of Corr.

• Docket Number: 3:20-cv-410-BJD-MCR
• Decision Date: 02 August 2023
• Parties: HERMAN PAUL SOLANO, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

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HERMAN PAUL SOLANO, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.

No. 3:20-cv-410-BJD-MCR

United States District Court, M.D. Florida, Jacksonville Division

August 2, 2023

ORDER

BRIAN J. DAVIS, United States District Judge

I. STATUS

Petitioner Herman Paul Solano is proceeding pro se on a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Petition) (Doc. 1) challenging his St Johns County conviction for violation of pretrial release aggravated battery, false imprisonment, shooting into a building, and burglary with an assault or battery.^[1] Respondents filed a Response to Order to Show Cause (Doc. 10) and an Appendix of Exhibits (Doc. 11). Petitioner filed an Amended Reply to Answer (Reply) (Doc. 20).^[2]

II. HABEAS REVIEW

The role of this Court is limited when reviewing a state prisoner's application pursuant to 28 U.S.C. § 2254; “[u]nder AEDPA, a court cannot grant relief unless the state court's decision on the merits was ‘contrary to, or involved an unreasonable application of,' Supreme Court precedent, or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” McKiver v. Sec'y, Fla. Dep't of Corr., 991 F.3d 1357, 1364 (11th Cir.) (citing 28 U.S.C. § 2254(d)(1)-(2)), cert. denied, 142 S.Ct. 441 (2021). Therefore, habeas relief is limited to those occasions where the state court's determinations are unreasonable, that is, if no fairminded jurist could agree with them. Id.

If there has been one reasoned state court judgment rejecting a federal claim followed by an unexplained order upholding that judgment, federal habeas courts employ a "look through" presumption: "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale. It should then presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (Wilson).

Also, a state court's finding of fact, whether a state trial court or appellate court, is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). “The state court's factual determinations are presumed correct, absent clear and convincing evidence to the contrary.” Sealey v. Warden, Ga. Diagnostic Prison, 954 F.3d 1338, 1354 (11th Cir. 2020) (quoting 28 U.S.C. § 2254(e)(1)), cert. denied, 141 S.Ct. 2469 (2021). This presumption of correctness, however, applies only to findings of fact, not mixed determinations of law and fact. Brannan v. GDCP Warden, 541 Fed.Appx. 901, 903-904 (11th Cir. 2013) (per curiam) (acknowledging the distinction between a pure question of fact from a mixed question of law and fact), cert. denied, 573 U.S. 906 (2014).^[3]Furthermore, the second prong of § 2254(d), requires this Court to “accord the state trial court [determination of the facts] substantial deference.” Dallas v. Warden, 964 F.3d 1285, 1302 (11th Cir. 2020) (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)), cert. denied, 142 S.Ct. 124 (2021). As such, a federal district court may not supersede a state court's determination simply because reasonable minds may disagree about the finding. Id. (quotation and citation omitted).

Of import, “[i]t is not the province of a federal habeas court to reexamine state-court determination on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Indeed, a habeas petition grounded on issues of state law provides no basis for federal habeas relief as a violation of state statute or rule of procedure does not constitute a violation of the federal constitution. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1989) (per curiam). As such, a federal writ is only available in cases amounting to federal constitutional error. Jones v. Goodwin, 982 F.2d 464, 471 (11th Cir. 1993). This is so even if the claim is “couched” in terms of alleged constitutional violations, like due process. Branan, 861 F.2d at 1508.

The two-part Strickland standard governs claims of ineffective assistance of counsel.^[4] Knight v. Fla. Dep't of Corr., 958 F.3d 1035, 1038 (11th Cir. 2020), cert. denied, 141 S.Ct. 2471 (2021). See Freeman v. Comm'r, Ala. Dep't of Corr., 46 F.4th 1193, 1220 (11th Cir. 2022) (“In an ineffective assistance of counsel claim, § 22543(d)'s terms are judged by the standard set forth in Strickland v. Washington.”), cert. denied, 143 S.Ct. 1785 (2023). Pursuant to this standard, a defendant must show: (1) his counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. A district court need not address both prongs if a petitioner makes an insufficient showing on one. Fifield v. Sec'y, Dep't of Corr., 849 Fed.Appx. 829, 833 (11th Cir. 2021) (per curiam) (relying on Strickland), cert. denied, 142 S.Ct. 788 (2022).

To prevail, a petitioner must successfully show his counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment” as well as show “the deficient performance prejudiced the defendant, depriving him of a ‘fair trial, a trial whose result is reliable.'” Raheem v. GDCP Warden, 995 F.3d 895, 908 (11th Cir. 2021) (quoting Strickland, 466 U.S. at 687), cert. denied, 142 S.Ct. 1234 (2022). Additionally, combining the deferential standard for judging the performance of counsel with the extra layer of deference that § 2254 provides, the resulting double deference “is doubly difficult for a petitioner to overcome[.]” Johnson v. Sec'y, DOC, 643 F.3d 907, 911 (2011).

To determine whether Petitioner is entitled to habeas relief, this Court must ask (1) whether the [state court] decisions were ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined' in Strickland, or (2) whether the . . . decisions were ‘based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'” Whatley v. Warden, Ga. Diagnostic & Classification Ctr., 927 F.3d 1150, 1175 (11th Cir. 2019) (citations omitted), cert. denied, 141 S.Ct. 1299 (2021). The AEDPA standard is quite difficult to meet as a state court's decision must be given deference and latitude.

A claim of ineffective assistance of appellate counsel is also governed by the Strickland standard. Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009) (per curiam), cert. denied, 559 U.S. 1010 (2010). As in a claim of ineffective assistance of trial counsel, failure to establish either prong of the Strickland standard is fatal to a claim of ineffective assistance of appellate counsel. Tuomi v. Sec'y, Fla. Dep't of Corr., 980 F.3d 787, 795 (11th Cir. 2020), cert. denied, 141 S.Ct. 1721 (2021).

In applying the two-pronged standard established in Strickland, the Court is mindful that appellate counsel may weed out weaker, although meritorious arguments, as there is no duty under the Sixth Amendment to raise every non-frivolous issue. Overstreet v. Warden, 811 F.3d 1283, 1287 (11th Cir. 2016). Regarding the prejudice prong, “[a]ppellate] [c]ounsel's performance will be deemed prejudicial if we find that the neglected claim would have a reasonable probability of success on appeal.” Tuomi, 980 F.3d at 795 (quoting Philmore, 575 F.3d at 1265) (internal quotation omitted). “Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” Overstreet, 811 F.3d at 1287 (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000) quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)).

III. GROUNDS

Petitioner raises eleven grounds in the Petition:

(1) the trial court erred in failing to appoint a second expert to determine Petitioner's competency in violation of Fla. Stat. § 916.12(2) and Florida Rule of Criminal Procedure 3.210;

(2) the trial court erred in failing to discharge counsel after a Nelson hearing showing irreconcilable differences;

(3) the trial court erred by summarily denying a motion to withdraw a plea to a charge of possession of a firearm by a convicted felon without opportunity to amend;

(4) ineffective assistance of appellate counsel for failure to argue that the trial court erred and deprived Petitioner of due process of law by using the standard jury instruction for shooting into a building which erroneously defined malice;

(5) prosecutorial misconduct resulting in Petitioner's conviction for burglary being obtained by the use of false or perjured testimony in violation of the Due Process Clause;

(6) ineffective assistance of counsel for failure to object to the prosecutor's use of text messages obtained from Petitioner's cell phone;

(7) ineffective assistance of counsel for failure to properly cross-examine and impeach Kelly Solano, the victim;

(8) ineffective assistance of counsel for failure to object to the Florida Department of Law Enforcement (FDLE) lab report being admitted into evidence and Deputy Keegan being allowed to testify regarding the contents of the report in violation of Petitioner's right to confrontation;

(9) ineffective assistance of counsel for failure to call Jimmy Blalock, Petitioner's half-brother, to testify;

(10) ineffective assistance of counsel for failure to object to improper and misleading remarks of the prosecutor during closing arguments; and

(11) ineffective assistance of counsel for misadvising Petitioner that he would receive a three-year prison sentence if he entered an open plea of nolo contendere to the offense of possession of a firearm by a convicted felon.

Although Petitioner seeks an evidentiary hearing, Petition at 36 Reply at 39-41, the Court concludes no evidentiary...