Velazquez v. Sec'y

• Decision Date: 18 March 2016
• Docket Number: Case No: 3:12-cv-1340-J-34PDB
• Parties: RICARDO VELAZQUEZ, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.
• Court: U.S. District Court — Middle District of Florida

RICARDO VELAZQUEZ, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSand FLORIDA ATTORNEY GENERAL, Respondents.

Case No: 3:12-cv-1340-J-34PDB

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA JACKSONVILLE DIVISION

March 18, 2016

ORDER

I. Status

Petitioner Ricardo Velazquez ("Velazquez" or "Petitioner"), an inmate of the Florida penal system, initiated this action by filing a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. 1, filed December 10, 2012). His amended Petition is presently before the Court (Doc. 6, filed January 24, 2013; Petition). Velazquez challenges convictions from the Fourth Judicial Circuit, in and for Clay County Florida, for attempted first degree murder with a firearm and kidnaping. Id. at 2. Respondents submitted a memorandum in opposition to the petition (Doc. 16), and Velazquez relies on his assertions in the Petition in lieu of filing a reply (Doc. 18).

II. Procedural History

On November 5, 2008, the state charged Velazquez by amended information with attempted first-degree murder (count one) and kidnaping with a firearm (count two) (Ex. H).¹ At the conclusion of the trial, the jury found Velazquez guilty as charged on both counts (Ex. K). The court sentenced Velazquez to life in prison on each count with twenty-five years as the minimum mandatory sentence (Ex. N; Ex. O). Florida's First District Court of Appeal affirmed the convictions and sentences per curiam (Ex. R); Velazquez v. State, 31 So. 3d 786 (Fla. 1st DCA 2010).

On September 1, 2010, Velazquez filed a state petition for writ of habeas corpus alleging that appellate counsel was ineffective for failing to argue on appeal that a fundamental error occurred when the trial court read an erroneous jury instruction (Ex. T). Florida's First District Court of Appeal denied the petition on the merits (Ex. U).

On December 30, 2010, Velazquez filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 Motion") (Ex. X). In the Rule 3.850 Motion, Velazquez raised six claims of ineffective assistance of counsel and one claim of newly discovered evidence. Id. The post-conviction court denied the motion without an evidentiary hearing (Ex. Y). Florida's First District Court ofAppeal per curiam affirmed (Ex. BB); Velazquez v. State, 93 So. 3d 1020 (Fla. 1st DCA 2012).

Velazquez filed his original federal petition for writ of habeas corpus on December 10, 2012, and the instant Petition on January 24, 2013 (Doc. 6).

III. One-Year Limitations Period

The Petition appears to be timely filed within the one-year limitations period. See 28 U.S.C. § 2244(d); (Doc. 12 at 6-7).

IV. Evidentiary Hearing

"In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (citation omitted). "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id.

The pertinent facts of this case are fully developed in the record before the Court. Upon due consideration of the pleadings and the state court record, each claim is denied. Because this Court can "adequately assess [Valezquez'] claim[s] without further factual development," Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003), an evidentiary hearing will not be conducted.

V. Standard of Review

The Court will analyze Velazquez's claims under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that 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) resulted in a decision that 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). Thus, 28 U.S.C. § 2254(d) "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). As the United States Supreme Court stated, "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S. Ct. 10, 16 (2013). This standard of review is described as follows:

Under AEDPA, when the state court has adjudicated the petitioner's claim on the merits, a federal court may not grant habeas relief unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of theUnited States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). "Under § 2254(d)(1)'s 'contrary to' clause, we grant relief only 'if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.'" Jones v. GDCP Warden, 753 F.3d 1171, 1182(11th Cir. 2014) (quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000)). "Under § 2254(d)(1)'s 'unreasonable application' clause, we grant relief only 'if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. (quoting Williams, 529 U.S. at 413, 120 S. Ct. 1495).

For § 2254(d), clearly established federal law includes only the holdings of the Supreme Court - not Supreme Court dicta, nor the opinions of [a circuit court]. White v. Woodall,- U.S. -, 134 S. Ct. 1697, 1702, 188 L.Ed.2d 698 (2014). To clear the § 2254(d) hurdle, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 131 S. Ct.770, 786-87, 178 L.Ed.2d 624 (2011). "[A]n 'unreasonable application of' [Supreme Court] holdings must be 'objectively unreasonable,' not merely wrong; even 'clear error' will not suffice." Woodall, 134 S. Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 155 L.Ed.2d 144 (2003)). A state court need not cite or even be aware of Supreme Court cases "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154L. Ed. 2d 263 (2002); accord Richter, 131 S. Ct. at 784.

"AEDPA thus imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855, 176 L.Ed.2d 678 (2010) (citations and internal quotation marks omitted). And when a claim implicates both AEDPA and Strickland, our review is doubly deferential. Richter, 131 S. Ct. at 788 ("The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so." (citations and internal quotation marks omitted)). [A petitioner] must establish that no fairminded jurist would have reached the Florida court's conclusion. SeeRichter, 131 S. Ct. at 786-87; Holsey v. Warden, Ga. Diagnostic Prison, 694 F.3d 1230, 1257-58 (11th Cir. 2012). "If this standard is difficult to meet, that is because it was meant to be." Richter, 131 S. Ct. at 786....

Taylor v. Sec'y, Fla. Dep't of Corr., 760 F.3d 1284, 1293-94 (11th Cir. 2014); see also Hittson v. GDCP Warden, 759 F.3d 1210, 1230 (11th Cir. 2014).

Finally, for a state court's resolution of a claim to be an adjudication on the merits, so that the state court's determination will be entitled to deference for purposes of federal habeas corpus review under AEDPA, all that is required is a rejection of the claim on the merits, not an opinion that explains the state court's rationale for such a ruling. Hittson, 759 F.3d at 1232 ("[T]here is no AEDPA requirement that a state court explain its reasons for rejecting a claim[.]"); Richter, 131 S. Ct. at 785 (holding that § 2254(d) does not require a state court to give reasons beforeits decision can be deemed to have been adjudicated on the merits); Wright v. Sec'y for the Dep't of Corr., 278 F.3d 1245, 1255 (11th Cir. 2002). Thus, to the extent Velazquez's claims were adjudicated on the merits in the state courts, they must be evaluated under § 2254(d).

VI. Ineffective Assistance of Counsel

"The Sixth Amendment guarantees criminal defendants effective assistance of counsel. That right is denied when a defense counsel's performance falls below an objective standard of reasonableness and thereby prejudices the defense." Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003) and Strickland v. Washington, 466 U.S. 668, 687 (1984)).

To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." [Strickland,] 466 U.S. at 688, 104 S. Ct. 2052. A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide

...