Del Toro v. Sec'y
| Decision Date | 27 April 2018 |
| Docket Number | Case No. 8:15-cv-1642-T-36AEP |
| Parties | WILLIAM DEL TORO, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner William Del Toro, a Florida inmate, filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Hillsborough County convictions. Respondent agrees that the amended petition is timely. (Dkt 10). Del Toro did not file a reply. Upon consideration, the petition will be DENIED.
Del Toro was convicted after a jury trial of sexual battery on a person less than 12 years of age (count one) and lewd or lascivious molestation on a person less than 12 years of age (count two). (Dkt. 13, Ex. 2, pp. 146-47). He was sentenced to life imprisonment on count one and 30 years' imprisonment on count two. (Id., pp. 163-65). The state appellate court per curiam affirmed the judgment and sentences. (Dkt. 13, Ex. 9). The state appellate court also per curiam affirmed the denial of Del Toro's motion and amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 13, Exs. 12, 13, 15, 19, 21).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. See Penry v. Johnson, 532 U.S. 782, 792 (2001). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:
A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by Court on a question of law or if the state court decides a case differently than Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The AEDPA was meant "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 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ().
The state appellate court affirmed the denial of postconviction relief in a per curiam decision. This decision warrants deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ().
A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ().
The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). "If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
Claims of ineffective assistance of counsel are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Del Toro must demonstrate that his counsel performed deficiently in that "counsel'srepresentation fell below an objective standard of reasonableness." Id. at 687-88. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. 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." Id.
Del Toro must also show that he suffered prejudice by demonstrating Id. at 694. Obtaining relief on a claim of ineffective assistance of counsel is difficult because federal habeas review is "doubly" deferential to counsel's performance and the state court's decision. Richter, 562 U.S. at 105. Accordingly, Id.
Del Toro alleges that trial counsel was ineffective in failing to move to suppress his statements to police, which were introduced through Detective Jacqueline Potenziano's testimony. He claims that his statements should have been suppressed because the State offered no independent evidence to corroborate Detective Potenziano's testimony. He contends that counsel did not realize the State intended to introduce his statements because counsel failed to conduct sufficient discovery and research. This claim is unexhausted because Del Toro did not present it in his postconviction motions. (Dkt. 13, Ex. 12, pp. 42-44; Ex. 13, pp. 67-69). As Del Toro cannot return to state court to raise the claim in an untimely postconviction motion, see Fla. R. Crim. P. 3.850(b), the claim is procedurallydefaulted. See Smith, 256 F.3d at 1138. Del Toro does not demonstrate that an exception applies to overcome the default.
Notwithstanding the default, Del Toro fails to establish entitlement to relief. Florida law provides a hearsay exception for a party's admissions. § 90.803(18), Fla. Stat. But this law does not require the admissions to be corroborated by independent proof, see id., and Del Toro has not cited any authority to support his contention. Additionally, his claim that counsel was unaware that the prosecution would introduce the statements is entirely speculative. See, e.g.,Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) ; Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (). Further, the record indicates that co-counsel was prepared to cross-examine Detective Potenziano about Del Toro's statements. (Dkt. 23, pp. 304-13, 319-21). Del Toro has not shown that counsel was ineffective in failing to move to suppress his statements or that he was prejudiced by counsel's conduct.
Within Ground One, Del Toro addresses his Miranda warnings. Accordingly, his claim is liberally interpreted as raising the claim presented in ground one of his postconviction motion. There, Del Toro argued that counsel was ineffective in not seeking to suppress his statements to police because his Miranda warnings were insufficient. He alleged that he was provided the Tampa Police Department's standard warnings, which Florida courts later found inadequate to inform suspects of their right to counsel during questioning.1 The state court denied this claim:
After reviewing the allegations, the court file, and [sic] the Court finds Defendant'sallegations are facially insufficient, as he failed to allege prejudice. In Powell v. State, 969 So. 2d 1060, 1064-65 (Fla. 2d DCA 2007), the Second District Court of Appeal held that Miranda warnings given to defendant failed to adequately inform him of his constitutional right to have an attorney present throughout interrogation. This decision was affirmed by the Florida Supreme Court in State v. Powell, 998 So. 2d 531 (Fla. 2008). However, in Florida v. Powell, 130 S.Ct. 1195, 1204-05 (2010), the Supreme Court of the United States reversed the decision of the Florida Supreme Court, holding that the form of Miranda warnings given by city police officers to the suspect reasonably conveyed to the suspect that the right to counsel applied "during" interrogation. Because Defendant alleges he was given the same Miranda warnin...
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