JAMES D. WHITTEMORE, District Judge.
Angel R. Gonzalez, a Florida inmate, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. He challenges his Hernando County convictions for first degree murder and robbery with a firearm. (Dkt. 1). He filed a notice adding a claim for relief. (Dkt. 7). Respondent opposes the requested relief. (Dkt. 11). Gonzalez filed a reply. (Dkt. 12). The petition and supplemental ground are DENIED.
Gonzalez was convicted after a jury trial of first degree murder and robbery with a firearm. (Dkt. 11, Ex. A). He was sentenced to life in prison for first degree murder and to a concurrent prison term of 40 years for robbery with a firearm. (Dkt. 11, Ex. C). The state appellate court affirmed, per curiam. (Dkt. 11, Ex. K). The state postconviction court denied his motions for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. (Dkt. 11, Exs. N-S, DD, EE). The state appellate court affirmed, per curiam. (Dkt. 11, Exs. W, II). The state appellate court denied his petition alleging ineffective assistance of appellate counsel filed under Florida Rule of Appellate Procedure 9.141(d). (Dkt. 11, Exs. Y, CC).
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 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).
Gonzalez alleges "ineffective assistance of counsel." (Dkt. 1 at 8). He contends:
(Dkt. 1 at 8).
Gonzalez exhausted two of the claims alleged in this ground by raising them in his first postconviction motion and on appeal.
Ineffective assistance claims are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is "doubly" so. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations and internal quotation marks omitted).
Ivan Horne was fatally shot in the yard of a house in a remote area. Gonzalez made statements prior to the murder implicating himself and Stephen Horne in a plan to rob Horne's father to obtain prescription pills. He bought shotgun shells for Stephen Horne the same day the victim obtained prescribed oxycodone pills. After the murder and robbery, he made incriminating statements, including that he received oxycodone pills and money.
Gonzalez alleged in his first postconviction motion that Stephen Horne initially told police that Gonzalez and Horne intended to rob and kill the victim. He asserted that Horne changed his story several times, and Horne's "final version" of the events exculpated him. (Dkt. 1 at 21-22). Specifically, he alleged: "Horne stated that the Defendant did not know that he intended to kill his father. Horne said that the Defendant only intended to buy some pills from Ivan Horne and that robbery and murder were not a part of any plan as far as he knew." (Dkt. 1 at 22). Gonzalez alleged that his trial counsel should have requested admission of Horne's confession to the murder. (Id.).
The state postconviction court, in summarily denying his claim, held that while he identified an omission of counsel, he had not adequately shown prejudice. (Dkt. 11, Ex. P, R 148). The state court noted that he specifically stated Horne gave a statement that Gonzalez and Horne intended to rob and murder the victim, and only in Horne's final version did Horne state that Gonzalez was unaware of the intent to rob and murder the victim. (Id.). The state court found that had the final statement been admitted, the initial statement would have also been admitted. (Id.). Deference is given to this state law determination.
Gonzalez contends in his Reply that "the evidence presented at trial in conjunction with the exculpatory statement made, viewed in it[]s proper perspective[,] would have lead to an exoneration of the charges." (Dkt. 12 at 6). To the extent he alleges the jury would have credited the final version given by Horne had counsel presented it, his speculation is insufficient to establish Strickland prejudice. He must "affirmatively prove prejudice." Id. at 668. In denying relief on the prejudice prong, the state postconviction court found that the evidence of his involvement was overwhelming. (Dkt. 11, Ex. P, R 149). This determination is reasonable in light of the strong evidence that Gonzalez intended to, and did, participate in the plan to commit robbery.
The victim's body was found in a yard of a house in a sparsely populated area of Ridge Manor, with no paved roads or street lights. (Dkt. 11, Ex. B, T 24, 38-39). His body had multiple shotgun-type wounds. (Dkt. 11, Ex. B, T 260). He had no pants or shoes. A receipt for oxycodone pills he obtained on May 3, 2010, was found between his legs. (Dkt. 11, Ex. B, T 80-81, 108-09, 217). Prior to May 3, 2010, Gonzalez told his girlfriend, Jessica Conant, that Stephen Horne said he wanted to rob the victim. (Dkt. 11, Ex. B, T 216). Also prior to May 3, 2010, Cassandra Parish saw Stephen Horne with his shotgun at Gonzalez' house. (Dkt. 11, Ex. B, T 151). On May 3, 2010, she accompanied Gonzalez to purchase shotgun shells at a Walmart. He told her that he and Horne were going to "hit a lick" for pills ("Roxies"). (Dkt. 11, Ex. B, T 153-54). Later that day, Gonzalez and Horne went to Tampa to get Conant after work, and they returned to the house Conant shared with Gonzalez. Before she went to bed, he told her he was going to take Horne home. (Dkt. 11, Resp. Ex. B, T 218-20). He later admitted in the police interview that he took Horne in Conant's car to Tampa to get the victim and then took Horne and the victim to Hernando County. (Dkt. 11, Ex. B, T 319, 322). He said that he gave Horne money to buy "Roxies." He also said he knew Horne had a shotgun. Horne fired the shotgun, discharging a shell in the rear seat. (Dkt. 11, Ex. B, T323-26). He said that Horne directed him where to drive, and he drove to a house where the victim and Horne got out. (Dkt. 11, Ex. B, T 327). Horne told him to drive around the block, and after he pulled out, he heard noises and saw flashes. (Dkt. 11, Ex. B, T 328-29). He stated that when he turned around, Horne was trying to "shake off" the victim's pants. He said that he helped Horne remove the pants and put them in the car. (Dkt. 11, Ex. B, T 343-44). He said he took Horne home,
When he returned home, he told Conant that he was fine. He also said that the money came through and Horne had to stay low for a while. (Dkt. 11, Ex. B, T 221-23). He spoke with Parish and told her that everything was fine and he was laying low. (Dkt. 11, Ex. B, T 164-65). When he went to her house, she asked about the robbery. Gonzalez told her that they were supposed to get all of the victim's pills, but the victim sold most of the pills, so they got the pills he had and his money. (Dkt. 11, Ex. B, T 168-70). He gave her money and 13 pills. He told her if she sold ten, she could keep three. She said she sold ten and gave him money. (Dkt. 11, Ex. B, T 156, 166, 170).
Before she left for Ohio, Conant told police that Gonzalez said he got the pills and money he needed. (Dkt. 11, Ex. B, T 225-26). She also said that "they were supposed to rob somebody and not f____g shoot somebody." (Dkt. 11, Ex. B, T 228). After Conant was served paperwork in Ohio to compel her appearance for trial, Gonzalez told her in a phone call that she was sticking a knife in his back. She testified that he "may have" told her there was a way out, and she could go to a friend and stay low. (Dkt. 11, Ex. B, T 234).
While he states that he did not murder the victim and that Horne gave him property of the victim after the victim's death (Dkt. 1 at 8), the State presented substantial evidence establishing Gonzalez' guilt of robbery and felony murder. In addition to this evidence, the jury would have learned that Horne said Gonzalez and Horne intended to rob and kill the victim, had trial counsel presented a later statement by Horne that Horne alone intended robbery and murder. Accordingly, there was no reasonable probability of a different outcome. The state decision is not contrary to or an unreasonable application of Strickland and does not involve an unreasonable determination of the facts in light of the evidence. Claim (2) of this ground does not warrant relief.
Gonzalez alleged in ground six of his postconviction motion that his trial counsel was ineffective in failing to call Raymond Lewis to testify to the source of approximately $700 found at his home. He alleged that $600 of that sum belonged to him and was obtained by use of Lewis' bank card, which provided access to a approximately $1600. (Dkt. 1 at 34). He alleged that a notarized letter of Lewis, and a bank statement showing withdrawals from Lewis's account, were brought to trial counsel's attention. (Dkt. 1 at 35). Asserting that Lewis was in the Sumter County jail and available to testify, he contended that had counsel deposed and called Lewis to testify that he had given Gonzalez his bank card, "it would have raised a reasonable doubt regarding any motive" he may have had to commit robbery and murder. (Id.).
The postconviction court summarily denied relief on Strickland's prejudice prong. The state court found that the issue of the recovery of money from Gonzalez' home was minor and was briefly mentioned at trial.
Lewis' letter states he learned his money was confiscated, but he does not assert he could testify, based on personal knowledge, that no portion of the seized money derived from the robbery. (Dkt. 1-1 at 1). Given the wealth of evidence establishing Gonzalez' guilt of robbery, there was no reasonable probability of a different outcome had counsel called Lewis at trial. The state decision is not contrary to, or an unreasonable application of, Strickland and is not based on an unreasonable determination of the facts in light of the evidence. Claim (2) of this ground does not warrant relief.
The remaining claims in this ground are procedurally defaulted because Gonzalez did not raise them in his first postconviction motion, or if he did, he did not raise them on appeal.
A state prisoner may overcome the prohibition on reviewing procedurally defaulted claims if he can show cause to excuse his failure to comply with the state procedural rule and actual prejudice resulting from the alleged constitutional violation. Davila v. Davis, 137 S.Ct. 2058, 2064-65 (2017) (citing Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). Gonzalez, in his Reply (Dkt. 12 at 2) cites Martinez v. Ryan, 566 U.S. 1 (2012), which holds:
Id. at 17. He fails to show that his procedural defaults are excused under Martinez.
Gonzalez defaulted the claim of ineffective assistance of counsel presented in claim (1) of this ground because he did not raise this claim as a ground for relief in his first postconviction motion.
With the exception of the claim that trial counsel failed to call Lewis to verify the origin of seized money, the allegations in claim (3) of this ground are procedurally defaulted. The claims that trial counsel failed to present "witnesses" at trial or introduce an "affidavit provided to counsel" are defaulted because he did not raise these claims in his first postconviction motion. (Dkt. 1 at 8) These claims are not substantial under Martinez.
The allegation that counsel "never introduced witnesses" is conclusory. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim). As to the allegation that counsel did not introduce an "affidavit provided to counsel," he provides Lewis's notarized letter but does not show that the letter was admissible under Florida law. Even if it had been introduced, he does not show there was any reasonable probability of a different outcome.
Gonzalez defaulted claim (4) of this ground because he did not allege in his first postconviction motion that trial counsel failed to conduct depositions of "any witness" prior to trial, "leaving counsel unprepared to effectively cross-examine." (Dkt. 1 at 8). He faulted trial counsel for not deposing Lewis, Conant, and Parish, but he did not assert that counsel failed to depose "any witness."
Gonzalez alleged in his first postconviction motion that trial counsel was ineffective for not objecting to the introduction of the store video of the ammunition on grounds of lack of authentication. (Dkt. 1 at 44-45). Claim (5) of this ground is liberally construed to raise the same claim. He defaulted this claim by not raising it on appeal of the denial of this claim.
Gonzalez has not shown cause for, and resulting prejudice from, his procedural defaults. Nor has he shown that federal habeas review of a procedurally defaulted claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Gonzalez alleges:
(Dkt. 1 at 10).
Gonzalez presented this ground in his state petition alleging ineffective assistance of appellate counsel, in which he alleged that his appellate counsel failed to argue: (1) the trial court erred by denying his trial counsel's motion for judgment of acquittal, and (2) the trial court erred by instructing the jury on "the dual theory of first degree murder based on the principal theory." (Dkt. 11, Ex. Y). The state appellate court denied relief in a decision without written opinion. (Dkt. 11, Ex. CC). This decision warrants deference under § 2254(d)(1). See Gill v. Mecusker, 633 F.3d 1272, 1288 (11th Cir. 2011) ("[T]he summary nature of a state court's decision does not lessen the deference that it is due.") (citations omitted).
Claims of ineffective assistance of appellate counsel are analyzed under the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000). A petitioner must show that appellate counsel's performance was deficient, and there is a reasonable probability that, but for counsel's deficient performance, he would have prevailed on appeal. Shere v. Sec'y, Fla. Dep't of Corr., 537 F.3d 1304, 1310 (11th Cir. 2008) (citing Smith, 528 U.S. at 285-86).
At trial, Gonzalez' trial counsel conceded the evidence presented a jury question on the robbery charge and sought a judgment of acquittal on the first degree murder charge. Counsel argued that Horne's act of killing the victim was independent of an original plan. In support, he argued that there were no plans to shoot the victim, Gonzalez was in the car when Horne shot the victim and Gonzalez saw a flash and heard the sound, and that when he came back, Horne was removing the victim's clothes. On this basis, his trial counsel argued the State failed to make a prima facie showing of first degree murder under the principal theory. (Dkt. 11, Ex. B, T 375-76).
On appeal, his appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), identifying the potential issue of whether the trial court erred in denying the motion for judgment of acquittal. (Dkt. 11, Ex. E at 8-9). Appellate counsel specifically noted the sole argument raised in support of an acquittal. (Dkt. 11, Resp. Ex. E at 9). In his petition alleging ineffective assistance of appellate counsel, Gonzalez argued that there was no evidence to support the theory of premeditated murder, "even in light of the principal instruction." He also argued that there was no evidence that he acted with the intent necessary to be liable as a principal. (Dkt. 11, Ex. Y at 5-6). He did not preserve these arguments for review, however, as they were not raised in support of his motion for judgment of acquittal. See Smith v. State, 139 So.3d 839, 844 (Fla. 2014) ("[W]hen a defendant does not raise in the trial court the same grounds for granting the motion argued on appeal, the claim is not preserved for appeal.") (citations omitted).
Gonzalez also did not preserve a challenge to the instructions on premeditation, felony murder, and the principal theory. These instructions were given without objection. (Dkt. 11, Ex. B, T453). Where an issue is not preserved for review, "appellate counsel's failure to raise the issue is not constitutionally deficient as it is based on the reasonable conclusion that the appellate court will not hear the issue on its merits." See Sairras v. Fla. Dep't of Corr., 496 Fed. App'x. 28, 34 (11th Cir. 2012) (citations omitted).
Even if available for review, the issues Gonzalez contends his appellate counsel should have raised would have been meritless. In Florida, the State may proceed on a theory of felony murder when the indictment charges the defendant with first-degree premeditated murder. Hannon v. State, 941 So.2d 1109, 1148 (Fla. 2006). Florida's felony murder law provides that murder in the first degree includes "[t]he unlawful killing of a human being . . . [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any . . . [r]obbery." See § 782.04(1)(a)2.d., Florida Statutes. The law regarding principals provides:
§ 777.011, Florida Statutes. This statute "eliminates the distinction between those who are actually or constructively present at the commission of the offense. . . . No distinction is made between those who are the brains of the crime and those who are the arms of the crime." State v. Reid, 886 So.2d 265, 266 (Fla. 5th DCA 2004). "In Florida, the felony murder rule and the law of principals `combine to make a felon liable for the acts of his co-felons.'" Brison v. State, 18 So.3d 1075, 1077 (Fla. 2d DCA 2009) (quoting Bryant v. State, 412 So.2d 347, 350 (Fla. 1982)).
When the record includes facts supporting conflicting inferences, the jury is presumed to have resolved those conflicts in favor of the State. Johnson v. Alabama, 256 F.3d 1156, 1172 (11th Cir. 2001). Here, the State presented evidence that Gonzalez intended that the robbery occur. Even if he did not participate in the actual killing, the jury could have found from the evidence that he was guilty of felony murder. Accordingly, he fails to show that appellate counsel performed deficiently in not arguing that a judgment of acquittal should have been granted on the first degree murder charge. And it is not reasonably probable that he would have prevailed on appeal if the issue had been argued.
Gonzalez also fails to show that appellate counsel performed deficiently in not arguing that the trial court erred in instructing on first degree murder and the principal theory. He contends that the trial court erred in instructing on premeditated murder, in conjunction with the principal theory, and that the alleged error was "exacerbated" by the detective's statements in the taped interview, in which, he asserts, the detective gave an opinion of what constitutes guilt as a principal. (Dkt. 11, Ex. Y at 8). He also argues the robbery occurred after the victim's death and not during the course of the robbery, which he asserts was required to support a charge of felony murder. (Id.).
By its decision, the state appellate court has answered the question of what would have happened under Florida law had appellate counsel argued that the trial court erred in instructing on the alternative theories of first degree murder and the principal theory. Gonzalez fails to establish the arguments he contends should have been made were meritorious. In Florida, "[a] general guilty verdict rendered by a jury instructed on both first-degree murder alternatives may be upheld on appeal where the evidence is sufficient to establish either felony murder or premeditation." Crain v. State, 894 So.2d 59, 73 (Fla. 2004). In view of the evidence establishing his guilt of felony murder, he fails to show appellate counsel's performance in not raising trial error in the instructions on first degree murder and the principal theory was deficient, or that he was prejudiced.
The state appellate court's decision was neither contrary to, nor an unreasonable application of, Strickland, and was not based on an unreasonable determination of the facts in light of the evidence. Ground Two is denied.
Gonzalez alleges:
(Dkt. 1 at 11). When Gonzalez presented these claims in one of two grounds in his second postconviction motion, the state postconviction court rejected the motion as successive. (Dkt. 11, Exs. DD, EE). The court found that he did not sufficiently justify his failure to raise the claims in his first postconviction motion, and there was no reason apparent on the face of the record for his failure to do so. (Dkt. 11, Ex. EE at 3). The per curiam affirmance (Dkt. 11, Ex. II) is presumed to rest on the same grounds. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
"Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state procedural ground." Davila v. Davis, 137 S.Ct. 2062 (2017). State rules count as "adequate" if they are "firmly established and regularly followed." Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016) (internal citation omitted). The state court's decision on this ground rests on independent and adequate state grounds barring federal habeas review. The limitations on successive motions are firmly established and regularly followed. See Baker v. State, 878 So.2d 1236, 1243-44 (Fla. 2004); Fla. R. Crim. P. 3.850(h).
Gonzalez makes none of the required showings to excuse his procedural default. He alleged in his second postconviction motion that he requested his appointed counsel to amend his first motion, and counsel "negligently failed to amend the original motion before the evidentiary hearing" with the claim. (Dkt. 11, Ex. DD at 8). The state postconviction court found that he was not entitled to have postconviction counsel amend the motion, as counsel was appointed for the limited purpose of an evidentiary hearing. (Dkt. 11, Ex. EE at 3). To the extent Martinez applies because Gonzalez had no counsel when he filed his first postconviction motion, he does not show the defaulted claim of ineffective assistance of trial counsel raised in this ground is substantial.
Specifically, he fails to show the defaulted claim of ineffective assistance of trial counsel raised in this ground "has some merit." Martinez, 566 U.S. at 14. In Davis v. State, 922 So.2d 438, 443 (Fla. 5th DCA 2006), the state appellate court found the trial court abused its discretion in denying his requested instruction that read: "[i]f the evidence shows that the taking of property occurred as an afterthought to the use of force or violence which resulted in the death of the victim, the taking does not constitute robbery, but may still constitute theft." Id. at 443. Gonzalez does not demonstrate the state trial court would have granted a request for an "afterthought" instruction. He therefore fails to show his counsel performed deficiently to his prejudice by not requesting the instruction. And he fails to show cause and prejudice to excuse his default, and does not meet the fundamental miscarriage of justice exception. Ground Three is denied.
Gonzalez filed a "notice of supplemental ground XI . . ." (Dkt. 7) raising this claim:
(Dkt. 7 at 4).
He contends that during his video interrogation, the detective "gave countless inaccurate facts and statements on what he feels constitu[t]es[] principal theory, principal [sic] murder, and felony murder." (Dkt. 7 at 4). He alleges that the detective's opinion was that Conant was a principal because she said she loaned her car to him. He asserts that his trial counsel rendered ineffective assistance by not objecting to the detective's "inaccurate" application of the law and moving for a mistrial when the detective "continued to give his highly prejudic[i]al" opinion on what the jury must reach to find him guilty as a principal. (Dkt. 7 at 5). Notwithstanding, he does not show that the state trial court would have excluded any of the detective's statements or granted a mistrial when the video interview was presented to the jury. Accordingly, he fails to show there was any reasonable probability of a different outcome had counsel objected to any of the detective's statements and moved for a mistrial.
Gonzalez also challenges the reasoning of the state postconviction court in denying his claim that trial counsel was ineffective for not deposing and calling Raymond Lewis to testify at trial. He argues that had the state postconviction court reviewed the police interrogation "as a whole," the court would have seen that he was in a state of duress when he made incriminating statements. (Dkt. 7 at 9). He maintains this was caused by the detective's "constant threats" of incarcerating Conant if he did not confess. (Id.). However, he procedurally defaulted these claims by not raising them on appeal of the denial of his first postconviction motion. Although he asserts the state courts "failed in not granting an evidentiary hearing" on his claim that trial counsel failed to depose and call Lewis, (Dkt. 7 at 7), this contention does not state a basis for habeas relief because it goes to issues "unrelated to the cause of [his] detention." Quince v. Crosby, 360 F.3d 1259, 1261 (11th Cir. 2004) (citation omitted). It follows that the supplemental ground and argument in the notice of supplemental ground warrant no relief.
Accordingly,
1. Petitioner's Petition for Writ of Habeas Corpus (Dkt. 1) is
2. Petitioner is not entitled to a certificate of appealability (COA). He does not have the absolute right to appeal. 28 U.S.C. § 2253(c)(1). A COA must first issue. Id. To merit a COA, he must show that reasonable jurists would find debatable both (1) the merits of an underlying claim, and (2) the procedural issues that he seeks to raise. See 28 U.S.C. § 2254(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000). Petitioner has not made the requisite showing. Finally, because he is not entitled to a COA, he is not entitled to appeal in forma pauperis.
