STRIANESE v. Sec'y, Case No. 2:08-cv-159-FtM-36DNF

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtCharlene Edwards Honeywell
PartiesLOUIS JAMES STRIANESE, Petitioner, v. SECRETARY, DOC, Respondent.
Docket NumberCase No. 2:08-cv-159-FtM-36DNF
Decision Date28 March 2011

SECRETARY, DOC, Respondent.

Case No. 2:08-cv-159-FtM-36DNF


Dated: March 28, 2011


Petitioner Louis James Strianese (hereinafter "Petitioner" or "Strianese") initiated this action by filing a pro se Petition for Writ of Habeas Corpus ("Petition," Doc. #1) pursuant to 28 U.S.C. § 2254 on February 20, 2008.1 The Petition challenges Petitioner's March 6, 2000 conviction for lewd fondling entered in the Twentieth Judicial Circuit Court, Lee County, Florida (case number 99-CF-2055). Petition at 1.2 The Petition raises the following ten grounds for relief:

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Ground 1: Ineffective assistance of counsel because counsel did not utilize appropriate means to submit motion for jury to view alleged crime scene;

Ground 2: Ineffective assistance of counsel because counsel did not utilize recognized predicate to impeach State's key witness' testimony with conflicting statements sworn under oath;

Ground 3: Ineffective assistance of counsel because counsel would not allow Defendant to testify on his own behalf;

Ground 4: The trial court erred in granting the State's motion in limine depriving Defendant of constitutionally guaranteed safeguards of due process to present facts to the jury concerning alleged victim;

Ground 5: Ineffective assistance of counsel because counsel did not move to have experts evaluate Defendant's mental health pursuant to Fla. Stat. §§ 3.210 and 3.216;

Ground 6: Ineffective assistance of counsel because counsel did not interview defense witness who came forth and had information to aid defense;

Ground 7: Ineffective assistance of counsel because counsel upon discovery of juror's misconduct did not move for mistrial;

Ground 8: Ineffective assistance of counsel because counsel did not inform the State and trial court that Defendant disputed the accuracy of his P.S.I. and score sheet;

Ground 9: Florida Sexual Predator Act, Fla. Stat. § 775.21(5), (6) and (7), is unconstitutional because it denies Defendant due process;

Ground 10: Ineffective assistance of counsel because counsel interviewed Defendant and appeared in court under the influence of alcohol.

Petition at 4-12.

After filing a Limited Response (Doc. #13) detailing Petitioner's post-conviction filings and explaining why the

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Petition was timely filed, Respondent filed a Supplemental Response to the Petition to address the grounds raised for relief (Doc. #34, Response). Respondent contends that Grounds 1, 3, 4, 6, 8, and 10 of the Petition are due to be dismissed as procedurally barred. Further, Respondent submits that Petitioner has failed to meet his burden under 28 U.S.C. § 2254(d) with respect to Grounds 2, 5, 7 and 9 of the Petition. Respondent filed exhibits (Exhs. 1-93) in support of its Response, including the record on direct appeal (Exh. 1). Petitioner filed a Reply to Respondent's Response (Doc. #35, Reply). This matter is ripe for review.

I. Procedural History

On August 19, 1999, Strianese was charged by an Information with lewd fondling of "C.A., a child under the age of 16 years, in a lewd, lascivious, or an indecent manner, by fondling said child's genitals with his hands or fingers, contrary to Florida Statute § 800.04(1)." Exh. 1, Vol. I at 4-5. Strianese, represented by private counsel, Richard M. Fuller, Esquire, entered a written plea of Not Guilty. Id. at 2. Prior to trial, defense counsel filed a Motion for Crime Site View by Jury. Id. at 8. The State also filed a pretrial "Motion In Limine" to prevent any mention of whether or not the victim, who at the time of trial was 16 years of age, had ever been "adjudicated delinquent of any offense," and, whether or not the victim "is currently or was at the time of the offense . . . serving any community sanctions ordered in the

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juvenile justice system." Id. at 10-11. Prior to the start of the trial on February 2, 2000, the court denied Defendant's Motion for Crime Site View by Jury, and granted the State's Motion In Limine. Id. at 18; Supp. I at 5-14 (transcript of hearing).

On February 3, 2000, the jury returned a verdict of guilty as charged. Id. at 21. On February 4, 2000, the State filed a "Motion to Declare Defendant a Sexual Predator." Id. at 12-13. To support its Motion, the State additionally offered evidence that Strianese had previously been sentenced to seven years of State probation for a lewd assault. Id. at 14-17. On March 6, 2000, the court determined that Strianese met the criteria of a sexual predator under Florida law, adjudicated Strianese guilty of lewd fondling consistent with the jury verdict, and sentenced Strianese to 15 years imprisonment. Id. at 22-23; 24-30 (transcript of March 6, 2000 hearing); Exh. 1, Vol. II at 31. Strianese perfected the following filings challenging his conviction and sentence.3

1. Direct Appeal

On March 17, 2000, defense counsel, Mr. Fuller, filed a Motion to Withdraw and sought appointment of the Public Defender for Petitioner on direct appeal. Id. at 37. That same day, Mr. Fuller filed a Notice of Appeal. Id. at 39-40. On March 20, 2000, the

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Public Defender was appointed to represent Strianese on direct appeal. Id. at 52. Strianese filed a direct appeal brief raising five grounds for relief. Exh. 2. The State filed a brief in response. Exh. 3. Strianese filed a reply brief. Exh. 4. On March 30, 2001, the appellate court per curiam affirmed Strianese's conviction and sentence in case number 2D00-967. Exh. 5; Strianese v. State, 785 So. 2d 460 (Fla. 2d DCA 2001).

2. Rule 3.850 Motion

Strianese filed a pro se motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, dated September 18, 2001, raising the following grounds for relief:

(1) trial counsel was ineffective for giving defendant erroneous advice concerning his constitutional right to testify on his own behalf to tell the jury his version of events;

(2) trial counsel was ineffective for failing to make the trial court aware that defendant was under a doctor's case and taking psychotropic medication at the time of his trial which hindered his decision making process to waive his constitutional right to testify on his own behalf;

(3) trial counsel was ineffective for failing to file a motion for a new trial pursuant to Florida Rules of Criminal Procedure alleging (a) that the jury's verdict was contrary to the weight of the evidence; (b) that there was juror misconduct; and (c) that the trial court erred in not permitting the jury to view the crime scene;

(4) trial counsel was ineffective for failing to impeach the victim when the victim's trial

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testimony was inconsistent with testimony given in pretrial deposition and police statements.

Exh. 7, Vol. I. The State filed a response, attaching portions of the trial record. Id. at 63-124. On December 19, 2001, the Court entered an Order summarily denying as conclusory ground 3(b) - -that counsel was ineffective for failing to move for a new trial based on insufficiency of the evidence. Id. at 125. The court also summarily denied ground 3(c) - - that the jury was not allowed to view the crime scene - - as being improperly raised in the Rule 3.850 Motion because the claim was raised on direct appeal. Id. at 126. The court then granted Strianese an evidentiary hearing on the remaining issues, and appointed the Public Defender to represent him in connection with the same. Id. At the conclusion of the April 1, 2003 evidentiary hearing, the post-conviction court issued an order denying the remaining claims raised in Strianese's Rule 3.850 Motion. Exh. 7, Vol. II at 204 (a complete copy of the transcript from the April 1, 2003 Evidentiary Hearing is contained within Exh. 7, Vol. II). The post-conviction court issued a written order, dated May 20, 2003, denying the Rule 3.850 Motion, which cited only to Strickland v. Washington, 466 U.S. 668 (1984). Exh. 7, Vol. IV at 216.

Appointed counsel, on behalf of Strianese, filed a Notice of Appeal. Exh. 7, Vol. III at 207-208. On June 4, 2004, the appellate court affirmed in part, reversed in part, and remanded

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the post-conviction court's May 20, 2003 order. Exh. 10; Strianese v. State, 880 So.2d 759 (Fla. 2d DCA 2004). In particular, the appellate court found:

Louis Strianese challenges an order entered after an evidentiary hearing that denied his motion for post-conviction relief, which alleged multiple claims of ineffective assistance of counsel. The trial court summarily denied one of Strianese's claims but held an evidentiary hearing on the remaining claims. Because the trial court failed to make findings of fact and conclusions of law as to the claims heard at the evidentiary hearing before it denied Strianese's motion, we reverse the order. See Fla. R. Crim. P. 3.850(d)(providing that following an evidentiary hearing on a post-conviction claim, the trial court shall make findings of fact and conclusions of law as to the issues presented by the defendant); see also Bunger v. State, 779 So. 2d 542 (Fla. 2d DCA 2000); Kornegay v. State, 826 So. 2d 1081 (Fla. 1st DCA 2002).

We have considered the other arguments raised by Strianese and find them to be without merit. We affirm without discussion the trial court's summary denial of Strianese's claim that trial counsel was ineffective for failing to file a motion for new trial on the basis that the verdict was contrary to the weight of the evidence. On remand, the trial court shall enter an order making findings of fact and conclusions of law to support its determination that Strianese was not entitled to relief on his remaining claims.

Id. Following a denial of rehearing, mandate issued August 10, 2004. Exhs. 11, 12.

On remand, the post-conviction court, again denied Strianese's Rule 3.850 Motion in a written order entered November 10, 2004, Exh. 13, Vol. III at 241-315. Strianese again appealed. Id. at 318. Represented by appointed counsel, Strianese identified...

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