JAMES D. WHITTEMORE, District Judge.
Petitioner Edgar Zuniga-Mejia, an inmate in the Florida Department of Corrections proceeding pro se, initiated this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1). He challenges his convictions entered by the Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida, in 2005. Respondent filed a response (Dkt. 10) and Petitioner filed a reply (Dkt. 16). Upon review, the petition must be denied.
A jury convicted Petitioner of trafficking in illegal drugs (28 grams to 30 kilograms) and conspiracy to traffic heroin. (Dkt. 13, Ex. 28, Vol. 1, Verdict Form.) He was sentenced to concurrent terms of forty years in prison. (Dkt. 13, Ex. 28, Vol. 1, Sentence in Case No. 03-CF-012992.) The state appellate court per curiam affirmed his convictions and sentences. (Dkt. 13, Ex. 4.) Petitioner's motion for rehearing was denied. (Dkt. 13, Exs. 5, 6.) Petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, followed by amendments to the motion. (Dkt. 13, Exs. 8, 9, 11.) The state court denied several of his claims, and conducted an evidentiary hearing on the remaining claims. (Dkt. 13, Exs. 10, 16.) Following the hearing, the court entered a final order denying Petitioner's postconviction motion. (Dkt. 13, Ex. 17.) The state appellate court per curiam affirmed the order of denial. (Dkt. 13, Ex. 22.) Petitioner's motion for rehearing and/or clarification was denied. (Dkt. 13, Exs. 23, 24.) While his postconviction motion was pending, Petitioner also filed a state habeas petition alleging ineffective assistance of appellate counsel, which was denied without comment. (Dkt. 13, Exs. 26, 27.)
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). 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), which sets forth a highly deferential standard for federal court review of a state court adjudication, states in pertinent part:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, 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, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.
The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. In other words, "AEDPA prevents defendants — and federal courts — from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . . .") (citations omitted).
The denial of Petitioner's motion for postconviction relief was per curiam affirmed by the state appellate court. This decision warrants deference under Section 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.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). Review of the state court decision is limited to the record that was before the state court. Pinholster, 131 S. Ct. at 1398.
Before a district court can grant habeas relief to a state prisoner under § 2254, the petitioner must exhaust all state court remedies that are available for challenging his conviction, either on direct appeal or in a state postconviction motion. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition."). See also Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003) ("A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.") (citations omitted). A state prisoner "`must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process,' including review by the state's court of last resort, even if review in that court is discretionary." Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O'Sullivan, 526 U.S. at 845).
To exhaust a claim, a petitioner must make the state court aware of both the legal and factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998) ("Exhaustion of state remedies requires that the state prisoner `fairly presen[t] federal claims to the state courts in order to give the State the opportunity to pass on and correct alleged violations of its prisoners' federal rights.'") (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal habeas petitioner "shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted claim in federal court extends to both the broad legal theory of relief and the specific factual contention that supports relief. Kelley v. Sec'y, Dep't of Corr., 377 F.3d 1317, 1344 (11th Cir. 2004). 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. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971).
The doctrine of procedural default provides that "[i]f 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).
To establish cause for a procedural default, a petitioner "must demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). The petitioner must show at least a reasonable probability of a different outcome. Henderson, 353 F.3d at 892; Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain 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); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995).
Petitioner alleges ineffective assistance of counsel. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994)). Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984):
Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998). In order to show deficient performance, a petitioner must demonstrate that "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." 466 U.S. at 690. Additionally, "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." 466 U.S. at 690.
Petitioner must demonstrate that counsel's alleged error prejudiced the defense because "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." 466 U.S. at 691-92. To show prejudice, a petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694.
Counsel's strategic choices "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91. A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. . . . [T]he issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
Sustaining a claim of ineffective assistance of counsel on federal habeas review is very difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (citations omitted). See also Pinholster, 131 S. Ct. at 1410 (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.").
If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims, 155 F.3d at 1305 ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.").
In Ground One, Petitioner claims that the state trial court violated his Sixth and Fourteenth Amendment rights by failing to conduct a Faretta
(Dkt. 13, Ex. 10, pp. 95-96) (emphasis in original).
In Ground Eight, Petitioner argues that the prosecutor committed misconduct by charging him based on insufficient evidence. The state court rejected this claim as procedurally barred when Petitioner brought it in his postconviction motion:
(Id., p. 108) (court's record citation omitted) (emphasis in original).
A petitioner's failure to comply with state procedural rules governing the proper presentation of a claim typically bars federal review of that claim in a subsequent federal habeas proceeding. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Sims, 155 F.3d at 1311. "However, a state court's rejection of a federal constitutional claim on procedural grounds will only preclude federal review if the state procedural ruling rests upon [an] `independent and adequate' state ground." Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying on a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion" or in a "manifestly unfair manner." Id. (citing Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)).
The state court's rejection of each of Petitioner's claims rested upon an independent and adequate state procedural bar. Petitioner did not appeal the application of the state rule to the claim now raised in Ground Eight. Furthermore, the state appellate court affirmed the application of the state rule to the claim now raised in Ground One when it rejected Petitioner's collateral appeal. Petitioner's failure to properly present the claims to the state court results in a procedural default of Grounds One and Eight. See Harris v. Reed, 489 U.S. 255, 262 (1989). Petitioner does not establish that either the cause and prejudice or the fundamental miscarriage of justice exception applies to overcome the default. Accordingly, Grounds One and Eight are procedurally barred from federal habeas review.
Evidence introduced by the State at trial reflects that Petitioner functioned as an intermediary in a sale of heroin. A confidential informant learned that Nelson Castillo, a co-defendant of Petitioner, was set to receive a shipment of heroin on July 30, 2003. Officers subsequently began surveillance of Castillo and Petitioner. Their surveillance, as well as other evidence introduced at trial through State witnesses, established the following. Castillo drove to Petitioner's trailer late on the night of July 30, 2003. Another individual, Alvaro Ayala, arrived a short time later. Inside the trailer, while Petitioner was present, Castillo was shown the drugs. Castillo left briefly to obtain payment, and returned to the trailer. This time Segundino DeLeon
DeLeon remained in the car while Castillo went inside the trailer. There, he paid approximately $20,000 in cash for the drugs, which Ayala provided to him. Castillo gave the money to Petitioner, and Petitioner and Ayala counted it. The heroin that Castillo bought was placed in what was described as a thermos or water bottle. Ayala also gave Petitioner several fingers of heroin.
Officers returned to Petitioner's trailer, where they located heroin behind the toilet. After being advised of his Miranda
Petitioner testified at trial, denying any involvement in or knowledge of the transaction between Ayala and Castillo. He testified that while these two individuals were in his trailer on the night in question, he went outside. Petitioner also denied making statements about the events to law enforcement.
In Ground Two of his federal habeas petition, Petitioner argues that counsel was ineffective for failing to file a motion to suppress the heroin in the water bottle because it was not in his possession. Petitioner claims that the evidence was not "seized from or near where [he] was arrested, and there was nothing to link him to the 272 grams of heroin," nor was he "arrested for this quantity of heroin." (Dkt. 1, p. 11.) Petitioner raised this argument in ground 1b of his postconviction motion. After conducting an evidentiary hearing on this claim, the state court denied it:
(Dkt. 13, Ex. 17, pp. 681-82) (court's record citations omitted) (emphasis in original).
To obtain relief on a claim that counsel was ineffective for failing to file a motion to suppress, Petitioner must prove (1) that counsel's representation fell below an objective standard of reasonableness, (2) that he has a meritorious Fourth Amendment claim, and (3) that a reasonable probability of a different verdict exists absent the excludable evidence. Zakrzewski v. McDonough, 455 F.3d 1254, 1260 (11th Cir. 2006) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
Petitioner does not present grounds upon which counsel could have moved to suppress the heroin found in the water bottle. Counsel testified at the evidentiary hearing that he did not believe he had a legal basis to move to suppress this substance because it was not recovered from Petitioner's property and Petitioner refused to concede any connection to it. (Dkt. 13, Ex. 16, pp. 652-53.)
Petitioner does not establish a meritorious Fourth Amendment claim and cannot show that counsel was ineffective for not filing a motion to suppress this evidence. Petitioner does not establish that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim. He is not entitled to relief on Ground Two.
Petitioner was convicted of conspiracy to traffic in heroin. Based on his assertions that he knew nothing about the drug transaction in his home, Petitioner argues counsel was ineffective for failing to object that "there was no intent, or agreement between Petitioner and co-defendant to commit conspiracy as required by Florida Statute 893.135(5)." (Dkt. 1, p. 13.)
Respondent contends that Petitioner's claim is unexhausted because he did not raise it in his postconviction motion. In ground six of that motion, Petitioner raised a variation of the claim presented in his habeas petition, asserting that counsel was ineffective for not objecting regarding the conspiracy count on the basis that Petitioner could not be convicted of conspiracy because he was tried separately from his co-defendants. (Dkt. 13, Ex. 8, pp. 39-41.) Petitioner clarifies in his reply that he intends to raise the claim brought in ground six of his postconviction motion. (Dkt. 16, p. 11.)
Even liberally construing Ground Three of Petitioner's federal habeas petition as raising the same argument presented in ground six of Petitioner's postconviction motion, and assuming that claim is properly exhausted, Petitioner is not entitled to relief. The state court rejected Petitioner's claim that counsel should have objected to the conspiracy count on the basis that Petitioner was not tried with any of his co-defendants:
(Dkt. 13, Ex. 10, pp. 98-99) (court's record citations omitted) (emphasis in original).
Deference must be afforded to the state court's determination that, under Florida law, an objection to the conspiracy charge on the basis alleged by Petitioner would have failed. "[A] state court's interpretation of state law . . . binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005). See also Will v. Sec'y, Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008) ("Although an ineffective assistance of counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law.'") (citing Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)).
Moreover, the state court has resolved the question of what would have happened had counsel objected for the reasons stated by Petitioner. The objection would have been overruled. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done. . . . It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)).
Accordingly, Petitioner does not demonstrate that counsel was ineffective for the reasons presented in Ground Three. Petitioner fails to show that the state court unreasonably applied Strickland or unreasonably determined the facts in rejecting this claim. Ground Three warrants no relief.
Petitioner argues that counsel was ineffective for failing to object to the jury instruction on criminal conspiracy. He asserts this instruction improperly included the names of his co-defendants, who entered guilty pleas.
(Dkt. 13, Ex. 10, pp. 99-100) (court's record citation omitted) (emphasis in original).
The criminal conspiracy jury instruction provided in Petitioner's case states:
To prove the crime of Criminal Conspiracy, the State must prove the following two elements beyond a reasonable doubt:
(Dkt. 13, Ex. 28, Vol. 1, Jury Instruction on Criminal Conspiracy.)
Federal habeas relief is available on claims of jury instruction error if the instruction "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991). If a jury instruction correctly states the law, the instruction does not deprive a petitioner of due process. See id. at 71-72. Moreover, a federal habeas court must defer to the state court's interpretation of state law. See Richey, 546 U.S. at 76; Will, 278 Fed. App'x at 908. The state court found that the instruction was not improper, and Petitioner establishes no error in the instruction. The state court further concluded that an objection to the instruction made by counsel would have been overruled. See Herring, 397 F.3d at1354-55.
Petitioner does not demonstrate that counsel was ineffective for not objecting to the jury instruction on the basis alleged, or that he was prejudiced as a result of counsel's performance. Accordingly, Petitioner does not establish that the state court's decision was an unreasonable application of Strickland or was based on an unreasonable determination of the facts. Ground Four warrants no relief.
Petitioner argues that counsel was ineffective for failing to move for the "dismissal" of 11 grams of heroin
(Dkt. 13, Ex. 17, pp. 683-84) (court's record citations omitted) (emphasis in original).
The record supports the state court's finding. The heroin recovered from Petitioner's home was relevant to the charges against him.
Petitioner argues that, at trial, the prosecutor knowingly presented false testimony of Castillo and DeLeon in violation of Giglio v. United States, 405 U.S. 150 (1972). He claims that these witnesses testified falsely that the State had not made them any offers in exchange for their testimony against Petitioner. DeLeon testified as follows on direct examination:
(Dkt. 13, Ex. 28, Vol. 4, p. 176.)
In support of his claim that this testimony was false, Petitioner cites DeLeon's testimony on cross-examination:
(Id., pp. 178-79.)
Petitioner also asserts that Castillo testified falsely that the State had not offered him anything. Castillo testified on direct examination:
(Dkt. 13, Ex. 28, Vol. 5, pp. 321-22.)
Prior to Castillo's testimony, the trial court conducted a hearing on his competency to testify in Petitioner's case. In support of his contention that Castillo's trial testimony was untrue, Petitioner relies on statements of two doctors who examined Castillo for competency. Dr. Richard Carpenter testified that Dr. Carpenter understood "there was some deal that was afloat as it relates to his testimony" after examining Castillo. (Dkt. 13, Ex. 28, Vol. 4, pp. 248-49.) Dr. Vincent Skotko testified regarding his examination of Castillo:
(Id., pp. 262-63.)
After an evidentiary hearing, the state court denied Petitioner's claim that the State violated Giglio:
(Dkt. 13, Ex. 17, pp. 685-86) (court's record citations omitted) (emphasis in original).
Giglio provides that the prosecution violates due process by presenting false testimony or failing to correct testimony it learns to be false. 405 U.S. at 153-55. To establish a Giglio violation, a petitioner must show "(1) the prosecutor knowingly used perjured testimony or failed to correct what he subsequently learned was false testimony; and (2) such use was material-i.e., that there is `any reasonable likelihood' that the false testimony `could . . . have affected the judgment.'" Davis v. Terry, 465 F.3d 1249, 1253 (11th Cir. 2006) (quoting Giglio, 405 U.S. at 154)). "Perjury is defined as testimony `given with the willful intent to provide false testimony and not as a result of a mistake, confusion, or faulty memory.'" United States v. McNair, 605 F.3d 1152, 1208 (11th Cir. 2010) (quoting United States v. Ellisor, 522 F.3d 1255, 1277 n. 34 (11th Cir. 2008)). A petitioner raising a Gilgio claim on federal habeas review must also establish that any Giglio violation had substantial and injurious effect or influence in determining the jury's verdict. Guzman v. Sec'y, Dep't of Corr., 663 F.3d 1336, 1355-56 (11th Cir. 2011) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)).
The prosecution must "disclose evidence of promises made to a witness in exchange for testimony" so that the jury is aware of a witness's possible motivation in giving testimony. Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir. 2008). See also Tarver v. Hopper, 169 F.3d 710, 716 (11th Cir. 1999) ("Giglio requires the government to disclose an agreement between a witness and the government that might motivate the witness to testify."); Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir. 1983) ("The thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony, and that the prosecutor not fraudulently conceal such facts from the jury.").
The record supports the state court's decision. Petitioner has not offered evidence of an undisclosed agreement between the State and Castillo or DeLeon. He has only offered evidence of what Castillo and DeLeon might have hoped for or expected upon testifying at Petitioner's trial.
Furthermore, as the state court noted, a prosecutor involved in Petitioner's trial testified at the postconviction evidentiary hearing that at the time Castillo and DeLeon testified, they had both "plead open" and the State had not offered them anything for the testimony. (Dkt. 13, Ex. 16, pp. 669-71, 675-76.) She also testified that the State had not told them what they would receive for testifying, and she did not believe their testimony to be false. (Id., p. 676.) Moreover, the state court's finding that Castillo and DeLeon did not provide false testimony is entitled to deference. Petitioner does not overcome by clear and convincing evidence the presumption of correctness afforded to this factual determination. 28 U.S.C. § 2254(e)(1). Because Petitioner fails to establish a Giglio violation, he does not show that the state court's determination was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Ground Six warrants no relief.
Petitioner argues that the State violated Giglio by offering false testimony of Sergeant Kenneth Morman during the pre-trial hearing on Petitioner's motion to suppress the heroin found in his home. In that proceeding, Morman testified that Ayala was the supplier of the drugs. (Dkt. 13, Ex. 28, Vol. 2, p. 227.) Petitioner contends that this testimony was false because the State's decision to drop charges against Ayala reveals that the State did not believe Ayala committed any crime. The state court found that Petitioner failed to establish a Giglio violation:
(Dkt. 13, Ex. 17, pp. 686-87) (court's record citations omitted) (emphasis in original).
Petitioner fails to show that the State presented any perjured testimony by Mormon. That the Office of the State Attorney did not ultimately pursue charges against Ayala does not mean that Mormon's testimony describing Ayala as the supplier of the heroin was untrue. Additionally, at the postconviction evidentiary hearing, the prosecutor explained that the State did not pursue charges against Ayala because the State believed he was facing federal prosecution in this matter. (Dkt. 13, Ex. 16, p. 674.) She did not say that the State believed Ayala was not in fact the supplier of the drugs. Petitioner's contention that Ayala was not prosecuted by the federal government in connection with this incident simply does not show that Mormon's testimony was false. As Petitioner does not establish a Giglio violation with regard to Mormon's testimony, he fails to show the state court's rejection of his claim involved an unreasonable application of clearly established federal law or an unreasonable determination of the facts. Accordingly, he is not entitled to relief on Ground Seven.
Petitioner asserts he was denied due process of law under the Fourteenth Amendment "when the law enforcement created their own case, against Petitioner." (Dkt. 1, p. 36.) He asserts that law enforcement improperly aggregated the two distinct amounts of heroin recovered "so Petitioner can be convicted of 28 grams or moire [sic] of heroin" despite the State's inability to prove he "was in actual, constructive possession or control of 28 grams or more of heroin." (Dkt. 1, p. 37-38.)
The state court denied this claim when Petitioner raised it in his postconviction motion:
(Dkt. 13, Ex. 10, pp. 105-06) (court's record citations omitted) (emphasis in original).
Petitioner is not entitled to federal habeas relief. Petitioner fails to cite any clearly established federal law holding that a defendant's due process rights are violated by the procedures used in testing the drugs recovered in his case. Furthermore, the record supports the state court's conclusion that the substances were not commingled prior to testing. Detective Steven Lee testified at trial that the substance in Exhibits 1A and 1B was recovered from Petitioner's home. (Dkt. 13, Ex. 28, Vol. 4, p. 227.) Anna Deakin, a former crime lab analyst for the Florida Department of Law Enforcement, testified that she tested the substance in Exhibits 1A and 1B, and that it was heroin weighing a total of 11.2 grams. (Dkt. 13, Ex. 28, Vol. 5, p. 353-55.)
Sergeant Elias Vasquez testified at trial that he recovered the water bottle from the roof of the building after seeing DeLeon throw it there. (Id., pp. 330-32.) He found fingers of what appeared to be heroin inside. (Id., p. 332.) Vasquez identified the fingers when he was shown what was marked as Exhibit 6 and later entered into evidence as Exhibit 5. (Id., pp. 333-34.) Deakin further testified that she randomly tested four out of fifteen "pellets" from this exhibit weighing a total of 31.6 grams and found the substance to be heroin. (Id., pp. 355-59.) There is no indication that Deakin combined the heroin recovered from Petitioner's residence and the water bottle prior to testing.
Therefore, contrary to Petitioner's assertions, he fails to show that the substances recovered from his home and from inside the water bottle were commingled prior to testing. Moreover, Petitioner does not establish that the testing procedure involved any impropriety so as to violate his federal due process rights. Consequently, he does not show that the state court's rejection of his claim was contrary to or an unreasonable application of clearly established federal law, or was based on an unreasonable determination of the facts. Petitioner is not entitled to relief on Ground Nine.
It is therefore
It is further
(Dkt. 13, Ex. 16, p. 653.)
