CHARLES A. STAMPELOS, Magistrate Judge.
On April 14, 2017, Petitioner, John H. Cirota, a prisoner in the custody of the Florida Department of Corrections, proceeding pro se under the mailbox rule, filed a petition for writ of habeas corpus with exhibits pursuant to 28 U.S.C. § 2254. ECF No. 1. On February 9, 2018, Respondent filed an answer with index to record. ECF No. 16. On August 13, 2018, Petitioner filed a reply consisting of five parts. ECF Nos. 23-27.
The matter was referred to the undersigned United States Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). After careful consideration of all the issues raised, the undersigned has determined that no evidentiary hearing is required for disposition of this case. See Rule 8(a), R. Gov. § 2254 Cases in U.S. Dist. Cts. For the reasons set forth herein, the pleadings and attachments before the Court show that Petitioner is not entitled to federal habeas relief and this § 2254 petition should be denied.
On April 15, 2011, Petitioner was charged by Information filed in Escambia County, Florida, with Count One, lewd or lascivious molestation of C.P., a child age six, by Defendant age 18 years or older, on March 22, 2011, in violation of section 800.04(5), Florida Statutes; and Count Two, unlawfully soliciting C.P., age six years, to commit a lewd or lascivious act, on March 22, 2011, by Defendant age eighteen years or older, in violation of section 800.04(6), Florida Statutes. Ex. A at 1.
The State filed a notice of intent to offer hearsay under section 90.803(23), Florida Statutes, and notice of intent to submit Williams Rule evidence of other crimes, wrongs, or acts, pursuant to section 90.404(2)(b), Florida Statutes. Ex. A at 15-17. Hearing was held September 30, 2011, on the Williams Rule evidence. Ex. A at 19-146. A second Williams Rule hearing was reconvened on October 6, 2011, after discovery of some 1998 transcripts pertaining to the Williams Rule witnesses. Ex. B at 184-204. The trial court allowed two Williams Rule witnesses to testify to Petitioner's prior acts. Ex. B at 197-98.
Jury trial was held on October 3 and 7, 2011, and Petitioner was found guilty as charged on both counts. Ex. B at 215. Petitioner was sentenced to life in prison on Count One and a concurrent term of fifteen years on Count Two, with credit for 195 days served. Ex. B at 220-27. Petitioner appealed to the State First District Court of Appeal, which affirmed per curiam without a written opinion on February 4, 2013.
Petitioner filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 on July 9, 2013, a first amended motion on October 3, 2013, and a second amended motion on December 30, 2013.
Petitioner filed a "Petition For Writ of Habeas Corpus Alleging Ineffective Assistance of Appellate Counsel" in the State First District Court of Appeal on June 9, 2014, arguing that counsel should have raised a fundamental error claim for violation of the speedy trial provisions of Florida Rule of Criminal Procedure 3.191(a). Ex. T. The petition was denied "on the merits" on July 3, 2014. Ex. U. See
On August 27, 2014, Petitioner filed a "Notice of Void Judgment and Demand for Discharge" in the trial court based on the speedy trial issue. Ex. W at 1-4. On December 1, 2014, Petitioner filed a "Supplemental Postconviction Claim," raising the additional claim that he should be discharged from his conviction because, when he was first taken into custody, he was not apprised of his
On April 28, 2015, Petitioner filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Ex. CC at 1-10. Petitioner claimed that he received life in prison even though the scoresheet only called for 61.5 months in prison, and the longer sentence could not be imposed without additional factfinding by the jury. The State court denied the motion on July 20, 2015, concluding that the court could impose a sentence up to the statutory maximum without any additional factfinding or written findings. Ex. CC at 11-16. Petitioner appealed to the district court of appeal, which affirmed per curiam without opinion on March 24, 2016. Ex. FF. The mandate was issued on June 6, 2016. Ex. HH. See
On August 12, 2015, Petitioner filed a petition for writ of habeas corpus in the circuit court. Ex. II at 1-14. He claimed a violation of due process and equal protection based on his allegation that he was not given his
On April 14, 2017, Petitioner filed his petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254 raising the following grounds for relief:
Pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may grant habeas corpus relief for persons in state custody only under certain specified circumstances. Section 2254(d) provides in pertinent part:
28 U.S.C. § 2254(d). See also
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts."
The Supreme Court has explained that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable."
Id. at 102-03 (citation omitted). The federal court employs a "`highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.'"
"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court."
In regard to claims of ineffectiveness of trial counsel, the Petitioner must have presented those claims in state court "`such that a reasonable reader would understand each claim's particular legal basis and factual foundation.'"
In order to obtain review where a claim is unexhausted and, thus, procedurally defaulted, the Petitioner must show cause for the default and prejudice resulting therefrom or a fundamental miscarriage of justice.
This Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits."
Further, under § 2254(d), federal courts have "no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."
For claims of ineffective assistance of counsel, the United States Supreme Court has adopted a two-part test:
To demonstrate prejudice under
Petitioner contends first that the trial court erred in allowing Williams Rule evidence that was not sufficiently similar to be relevant and admissible, violating his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.
At trial, the victim's mother testified that she lived with her husband, mother, son, and daughter, C.P. On the afternoon and night in question, Petitioner, a friend of her mother, was visiting the home. Ex. C at 166-68. Her daughter was put to bed around 8 p.m., and Petitioner was in the living room. Id. at 168. C.P.'s father testified that he had gotten a bowl of cereal and when he returned the bowl to the kitchen, he decided to check on C.P. Ex. C at 135. He walked back to her room and found Petitioner standing in C.P.'s doorway and C.P. was pulling up her pants very quickly. Id. She appeared frightened. Id. at 136. After Petitioner walked away, C.P. told him Petitioner had her pull down her pants. Id. at 137. Her father then grabbed a baseball bat and went after Petitioner. Id.
The victim, C.P., testified that Petitioner came to her room after she went to bed, but was not asleep. Ex. D at 201. He told her to get up, which she did, and he told her to pull down her pajama pants and panties, which she did. Id. at 202. He told her to walk over to him, which she did, and he bent down and touched her "tutu" with two fingers. Id. at 202-03. She described her "tutu" as her "private place" where she goes to the bathroom "number one." Id. at 204. After her father came in the room as she was pulling up her pants, he asked what happened, to which she responded that Petitioner told her to pull her pants down. Id. at 204-05.
Pursuant to two Williams Rule hearings held prior to trial, the court allowed T.B. and B.R. to testify over defense objection. T.B. was allowed to testify that nineteen years prior to the charged crime, when T.B. was age eight and Petitioner was a neighbor, he began touching her digitally in her vaginal area and continued to do so numerous times. Ex. D at 275-78. She said that during those incidents, he also exposed his genitals. Id. at 276-78. T.B. testified that just after a birthday party/sleepover at which Petitioner was present, she saw Petitioner under a blanket with her younger stepsister, who was crying. T.B. said she took her sister into the bedroom and got into bed, but Petitioner came in and put his foot up on the bed and played with his penis. Ex. D at 283-86. B.R., step-sister to T.B., testified at trial that when she was seven or eight years old, she was at the birthday party where Petitioner pulled up her nightgown, where her panties were exposed, and touched her on her upper thigh by her panty line. Ex. at 315.
Petitioner contended on appeal that the prior acts testified to by T. B. were too remote in time and not sufficiently similar to the single occurrence charged in the instant case to be of sufficient relevance to outweigh the unfair prejudice. Ex. I at 30. As for the testimony of B.R., Petitioner contended on appeal that the acts against B.R. were not sufficiently similar to the charged crime because it did not involve digital vaginal touching but involved only touching of the thigh or hip area. Id. at 32
Petitioner also argued on appeal that the acts were too remote in time and that the probative value was outweighed by unfair prejudice. Ex. I at 32-33. Petitioner cited Florida statutes and Florida case law to support these appellate claims.
Under Florida law, for the testimony of prior acts to be admissible, the trial court should consider the similarity of the prior acts to the charged acts, including age and gender of the victims, the location where the acts occurred, and the manner in which the acts were committed; the closeness in time to the charged acts; the frequency of the prior acts; and the presence or lack of intervening circumstances.
Regardless of any failure to exhaust this claim due to Petitioner's failure to raise any federal constitutional grounds in the state court, this aspect of Ground 1 lacks merit and should be denied. The prior collateral acts testified to by T.B. and B.R. were sufficiently similar in that each incident involved very young girls, as did the charged crimes; the victim in the instant case knew Petitioner as a neighbor, as did T.B. and B.R.; most of the incidents testified to took place in the girls' residences; and the acts involved touching or attempting to touch the girls' vaginal areas. These features of similarity meet the similarity requirements of
Ex. D at 270 (regarding witness T.B./T.S.); Ex. D at 309 (regarding witness B.R./B.M); Ex. D at 389 (jury instructions). Even if Petitioner's claim could be construed as one alleging a violation of due process, in light of this record, no violation of due process or fundamental unfairness has been demonstrated. See
Petitioner has not shown that the adjudication by the state court finding this claim lacked merit was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or 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). This aspect of Ground 1 should be denied.
In the second part of this ground, Petitioner appears to argue that trial counsel failed to adequately investigate the Williams Rule testimony and the inconsistent statements by B.R.
Trial counsel also attempted to impeach the testimony of B.R. with her 1998 deposition in which she testified at one point that Petitioner did not touch her at the birthday party. Ex. D at 317. B.R. testified she did not remember saying that, but she admitted it was in the transcript. It was brought out on redirect that, after she testified in 1998 that Petitioner did not touch her, she later testified he touched her upper leg. Id. at 323.
Thus, trial counsel did use prior 1998 testimony of the two Williams Rule witnesses to attempt to impeach them at trial.
Petitioner has failed to show that the adjudication of this claim, to the extent it was raised below and exhausted for federal habeas purposes, resulted in a decision that was contrary to or an unreasonable application of established federal law or an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Habeas relief should be denied.
Petitioner contends in Ground 2 that trial counsel rendered ineffective assistance by failing to ask for a continuance of the Williams Rule hearing prior to trial. ECF No. 1 at 5. He argues that if counsel had requested and been granted a continuance, he could have further investigated and more effectively impeached the Williams Rule witnesses' testimony of acts that occurred many years before trial. Id.
Petitioner alleges in his petition that he raised this ground in his post-conviction motion. ECF No. 1 at 5. In his reply, he suggests that he raised this claim in his direct appeal.
On appeal from denial of relief of Petitioner's post-conviction claim Twelve, Petitioner argued that the post-conviction court erred in denying his claim because the trial court allowed impeachable and false statements by the Williams Rule witnesses at trial where "evidence was brought up to show impeachable grounds and false statements." Ex. O at 7. Petitioner did not expressly argue that trial counsel was ineffective for failing to move for a continuance of the Williams Rule hearing. See Ex. O at 7-8. The state district court of appeal affirmed without discussion. Ex. Q
In order for remedies to be exhausted, "the petitioner must have given the state courts a `meaningful opportunity' to address his federal claim."
Although a federal court may grant a habeas petition on a procedurally defaulted claim without a showing of cause or prejudice if necessary to correct a fundamental miscarriage of justice,
Regardless of Petitioner's procedural default, the claim should be denied as meritless. The factual matters that he cites in his § 2254 petition and in the post-conviction court, which he contends would have completely impeached the Williams Rule witnesses' testimony, were brought before the judge in the second Williams Rule hearing before trial and during the witnesses' testimony at trial. The jury was the final arbiter of the credibility of those witnesses. Petitioner has not identified what further facts could have been discovered if counsel had obtained a continuance of the Williams Rule hearing to investigate further. Petitioner has not shown a reasonable probability that, but for the alleged error of counsel in failing to request a continuance of the Williams Rule hearing, the result of the trial would have been different—a reasonable probability being one sufficient to undermine confidence in the outcome.
Because prejudice has not been shown, the claim should be denied. See
Petitioner next contends that trial counsel rendered ineffective assistance for failing to object to testimony by the victim's father that he beat up Petitioner because Petitioner had touched his daughter. ECF No.
1 at 6. At trial, the victim's father testified that on March 22, 2011, Petitioner was a guest in his home. The father testified that after C.P. was given a bath and gotten ready for bed, the father went to check on her in her room and saw Petitioner standing in her doorway. His daughter, who was two to three feet away from Petitioner, was quickly pulling up her pants. Ex. C at 132-35. The father testified that his daughter appeared frightened and the child reported to him that Petitioner had told her to pull her pants down. The father then found a bat and hit Petitioner a number of times. Id. at 137-38. When asked why he beat up Petitioner, the father testified "[b]ecause he touched my daughter." Defense counsel did object that this testimony was speculative, but that objection was overruled. Id. at 141. Petitioner appealed to the state First District Court of Appeal citing error in the trial court's admission of this statement and the court affirmed without discussion. Ex. I at 37; Ex. K.
Petitioner alleges in his petition that he raised this ineffective assistance claim on direct appeal in state court. However, the issue raised on direct appeal was trial court error in allowing the testimony, not a claim of ineffective assistance of counsel. See Ex. I at 34. No ineffective assistance of counsel claim was raised in the State court concerning failure to object to the father's testimony, thus the claim is procedurally barred. Moreover, had such a claim been raised, it would have been found without merit because counsel did object to the testimony and his objection was overruled. See Ex. C at 140-141. Thus, regardless of the procedural default, Petitioner cannot demonstrate that counsel was ineffective regarding the testimony of the victim's father.
Moreover, trial courts have sound discretion on issues of admission of evidence. A court's ruling admission of evidence will not be reversed unless there has been a clear abuse of discretion.
Trial counsel did object to this testimony, thus was not deficient. The father's testimony that he beat Petitioner because he touched C.P. did not violate a specific constitutional right and was not of such magnitude that it constituted a denial of fundamental fairness. That information was before the jury in the testimony of C.P. that Petitioner touched her "tutu," which she described as her privates. Ground 3 should be denied.
Petitioner contends that defense counsel rendered ineffective assistance by not requiring the State to prove that the child victim committed a lewd or lascivious act when Petitioner told her to pull down her pants, as charged in Count 2. ECF No. 1 at 6-7. He alleged that he raised this claim in his direct appeal from conviction and sentence. Id. However, the claim raised on direct appeal was that the trial court committed fundamental error in entering judgment and sentence on Count Two, solicitation of the child to perform a lewd or lascivious act, because the evidence affirmatively proved that the child's action in pulling down her pants was not lewd or lascivious. Ex. I at 38. The claim of fundamental error was brought solely on state law grounds. The State appellate court found no reversible error and affirmed. No state adjudication was obtained on the question of whether trial counsel rendered ineffective assistance in regard to Count Two. Petitioner failed to bring any federal claim in the State courts pertaining to this issue and the claim is therefore procedurally defaulted. Petitioner has shown no basis on which to excuse the default.
Moreover, regardless of the default, the claim is without merit. Section 800.04(6), Florida Statutes, provides that it is an offense for a person to solicit a person under age 16 to commit a lewd or lascivious act. Petitioner argues that the act of the child pulling down her pants is not, as a matter of law, lewd or lascivious, so Petitioner's solicitation of C.P. to pull down her pants cannot be a crime. ECF No. 1 at 6-7; Ex. I at 39. Under Florida law, soliciting a minor to pull down her pants and expose her genitals can qualify as soliciting a lewd or lascivious act. See
The evidence in this case included testimony that after six-year-old C.P. was directed to and did pull down her pants, 51-year-old Petitioner touched her private area. In determining if a lewd or lascivious act was solicited, the jury was entitled to consider the totality of these circumstances. Both the jury and the State district court of appeal found that the statute was violated by Petitioner's solicitation of the six-year-old victim to pull down her pants. Because the evidence supported the offense alleged in Count Two, trial counsel was not deficient in failing to object to any lack of proof that a lewd or lascivious act was solicited. Ground 4 is without merit and should be denied.
Petitioner contends in this ground that trial counsel rendered ineffective assistance by failing to seek discharge based on expiration of the time for speedy trial, resulting in Defendant being convicted and sentenced without jurisdiction. ECF No. 1 at 7. He contends his trial was held twenty days after the expiration of the time for speedy trial as required by Florida Rule of Criminal Procedure 3.191. This claim was raised in Petitioner's Second Amended Motion for Postconviction Relief. Ex. N at 101. The post-conviction court denied the claim, finding that the claim was insufficiently pled because, although the time for speedy trial under the rule expired on September 11, 2011, and trial was held October 7, 2011, Defendant failed to allege facts showing that the State could not have brought him to trial during the ten-day recapture period under Rule 3.191(p). Ex. N at 146. Petitioner appealed, and the state district court of appeal affirmed without discussion. Ex. Q
Florida Rule of Criminal Procedure 3.191(p)(3) provides in pertinent part: "No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days." Under Florida law, in order to show prejudice from counsel's failure to give notice that speedy trial period has expired, a defendant must allege facts showing that the State could not have brought the defendant to trial within the recapture period. See, e.g.,
As the post-conviction court found, Petitioner has not demonstrated that the State could not have brought him to trial within the ten-day recapture period. In light of the foregoing, and the fact that Petitioner was brought to trial shortly after the date that the speedy trial period expired, Petitioner has not demonstrated prejudice. There is no reasonable probability in light of settled Florida law, that the trial court would have granted the demand for discharge based on failure to provide a trial within the time frame set by the state rule.
Nor has Petitioner demonstrated that defense counsel rendered ineffective assistance vis a vis Petitioner's constitutional right to speedy trial. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial." U.S. Const. Amend. VI. The constitutional right to speedy trial is not measured by a certain number of days but by tests of reasonableness and prejudice.
The trial court's adjudication denying the ineffective assistance of counsel claim is entitled to AEDPA deference. Further, "[t]he question `is not whether a federal court believes the state court's determination' under the Strickland standard `was incorrect but whether that determination was unreasonable—a substantially higher threshold.'"
Petitioner next contends that trial counsel rendered ineffective assistance by failing to move to strike several jurors for cause. ECF No. 1 at 8. He raised this claim in his Second Amended Motion for Postconviction Relief, citing Juror M, Juror O, Juror D.H., Juror C.H., and Juror B. Ex. N at 106-07. Petitioner contended in State court that Juror M commented that she had a cousin who was arrested for a sexual offense and she was upset with him. Id. at 107. He argued that the juror was biased and could not be rehabilitated. Petitioner also argued that counsel should have moved to strike Jurors O, D.H. and C.H. because each expressed the view that "kids that age do not have the knowledge to make stuff up." Id. He also contended that counsel should have moved to strike Juror B for cause because he could not hear well. Id.
The state post-conviction court denied the claim, noting first that Juror O was not selected as a juror. Ex. N at 147. The court found that Juror M indicated she could be fair and impartial in spite of the incident with the abuse by her male cousin (Ex. C at 85); that Juror B had hearing difficulties but indicated to the court that he could hear (Ex. C at 101, 105); and that the trial judge repeatedly asked the witnesses to speak up. Ex. N at 148. As for Jurors D.H. and C.H., the post-conviction court found that follow up questions to them elicited responses that there is not 100 percent reliability that a child is not telling a story. Id. (citing Ex. C at 60-64). The State court found that Petitioner failed to allege any facts showing the jurors were actually biased, and that additional questioning showed they could be fair and impartial. The State district court of appeal affirmed denial of this claim.
This claim lacks merit and should be denied. The State court adjudication of this claim has not been shown to be contrary to or an unreasonable application of any federal law or an unreasonable determination in light of the State court record. No reasonable probability has been demonstrated, measured in terms of sufficiency to undermine confidence in the result, that even if counsel had moved to strike these jurors for cause, that motion would have been granted. The Florida Supreme Court has held that "where a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased."
Petitioner has not shown entitlement to habeas relief pursuant to § 2254 and this claim should be denied.
In this claim, Petitioner contends that his trial counsel rendered ineffective assistance by failing to argue in a motion for judgment of acquittal that the evidence was insufficient to support a conviction. ECF No. 1 at 9. He argues in his reply filed in this Court that as to Count 1, for which the victim testified that Petitioner touched her "tutu," trial counsel should have argued that all DNA and biological testing were negative so there was no skin to skin contact, thus no touching as alleged. ECF No. 24-6 at 4.
At trial, C.P. testified that Petitioner came to her room after she went to bed but was not asleep. Ex. D at 201. He told her to get up, which she did, and he told her to pull down her pajama pants and panties, which she did. Id. at 202. He told her to walk over to him, which she did, and he bent down and touched her "tutu" with two fingers. Id. at 202-03. She described her "tutu" as her "private place" where she goes to the bathroom "number one." Id. at 204. At that time, her father came in the room as she was pulling up her pants and asked what happened, to which she responded that Petitioner told her to pull her pants down. Id. at 204-05.
The jury heard testimony of C.P.'s mother that on the night of the incident, C.P. was taken to the emergency room at Sacred Heart Hospital for an examination and no physical findings of abuse were identified. Ex. C at 181. She was directed by the hospital to go the Gulf Coast Kids House the next morning. Id.
Dr. Carol Sakhon, a pediatrician, testified at trial that she works with the Child Protection Team at the Gulf Coast Kids House to examine children who are alleged to have been abused. Ex. D at 256-57. She examined C.P. the day after the incident and learned that C.P. had urinated before the examination. Id. at 261. Dr. Sakhon did not expect to obtain any bodily fluids or DNA based on the information she was provided. Id. at 260, 262. Because the history given was of fondling, she did not expect to find indications of trauma. Id. at 263. She noted that the vaginal introitus (entry to the vaginal canal) was slightly red with a minimal amount of discharge. Id. When asked what that negative examination indicates, she testified it indicates no obvious trauma, but that does not negate the allegations, and 50% of cases of sexual battery have a normal exam. Id. at 263-64. On cross-examination, she agreed that there was no evidence found of DNA foreign to C.P. Id. at 267-68. At the conclusion of the State's case, defense counsel made a general motion for judgment of acquittal arguing that the State failed to present a prima facie showing of the alleged offenses. Ex. D at 325. The motion was denied. Id. at 326.
In his second amended motion for post-conviction relief, Petitioner contended that trial counsel should have argued on the motion for judgment of acquittal that all DNA and biological testing showed no skin to skin contact. Ex. N at 112. He argued that if Petitioner had touched C.P. there would have been DNA evidence. Id. The post-conviction court denied the claim, finding that under the evidence presented, absence of DNA or physical signs of abuse would not prove the offenses did not occur, and that non-physical evidence such as testimony of the victim is sufficient to prove the elements of lewd or luscious molestation. Ex. N a 149 (citing
Because Petitioner has failed to show the adjudication of the State court was contrary to or an unreasonable application of federal law as determined by the Supreme Court, or an unreasonable determination in light of the evidence, habeas relief on this claim should be denied.
Petitioner contends that he was deprived of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments because the State was not required to prove Petitioner's age, which was an element of the offenses charged. ECF No. 1 at 10. He raised this claim in the State court in his Rule 3.850 motion, and it was denied. Ex. N at 150. The post-conviction court correctly noted that the claim was barred, as it should have been raised at trial or on direct appeal;
Regardless of any state procedural bar, this claim lacks merit and should be denied. Petitioner has failed to show entitlement to federal habeas relief under § 2254.
Petitioner contends in Ground 9 that defense counsel rendered ineffective assistance by failing to obtain a medical report from Sacred Heart Hospital, and that if the jury had seen the report, the outcome of the trial would have been different. ECF No. 1 at 11. He argues in Ground 10 that trial counsel was ineffective for failing to call the physician from Sacred Heart Hospital to testify concerning the physical examination the victim received on the night of the incident. He argues that the medical report and physician's testimony would have shown the victim had no indication of physical abuse or vaginal discharge. These claims were raised in Petitioner's second amended motion for post-conviction relief in the state court. Ex. N at 120, 150. The post-conviction court denied both claims, finding that the claim concerning the medical report was conclusory and insufficiently pled because it failed to identify the evidence and because absence of findings of physical abuse would not have exonerated Petitioner at trial. Id. at 150-51. The court found that the claim concerning calling the physician to testify was insufficient because such testimony would have been cumulative and non-exculpatory. Id. at 151. The state appellate court affirmed. Ex. Q.
As noted earlier, the jury heard testimony that the examination performed at Sacred Heart Hospital disclosed no evidence of physical abuse and the DNA evidence was negative. In spite of that evidence of no physical trauma and no DNA foreign to the child, the jury convicted Petitioner as charged. Having the medical reports and physician testimony to establish facts that were already before the jury would have been cumulative and, as the postconviction court found, non-exculpatory. C.P. testified that Petitioner touched her vaginal area with his fingers. She testified it did not hurt. Ex. D at 204. The State did not attempt to prove that the lewd or lascivious molestation physically injured the victim. Dr. Sakhon testified that in her experience as a physician for the child protection team, a negative physical examination indicating no obvious trauma does not negate the allegations, and 50% of cases of sexual battery have a normal exam. Id. at 263-64. The victim's testimony of touching, alone, is direct evidence of Petitioner's actions.
Even assuming arguendo that trial counsel should have presented the medical report and physician's testimony relating to the examination at Sacred Heart Hospital, Petitioner has failed to demonstrate prejudice. He has not shown a reasonable probability that, but for counsel's alleged deficient performance, the result of the trial would have been different—a reasonable probability being one sufficient to undermine confidence in the outcome.
Petitioner argues that his sentence violated the Fifth and Fourteenth Amendments to the United States Constitution because the trial court added 40 victim injury points for sexual contact without a specific jury finding of fact. ECF No. 1 at 13. He did not raise this victim injury point issue in a motion to correct sentencing error in conjunction with his appeal from conviction and sentence and does not appear to have raised it in any other filing reflected in this record.
Petitioner was found guilty as charged of lewd or lascivious molestation by intentionally and unlawfully touching the victim's genitals, genital area, or clothing covering them in a lewd or lascivious manner. Ex. B at 215. The scoresheet includes 40 victim injury points for sexual contact. Ex. CC at 14. Based on all the scoresheet calculations, the lowest permissible sentence for the two crimes for which Petitioner was convicted was 91.5 months. Ex. CC at 16. The maximum sentence, as is stated on the scoresheet, is "up to the statutory maximum for the primary and additional offenses." Id. Because the offense of lewd or lascivious molestation was committed on a child under age 12 by a person over the age of 18, the statutory maximum sentence which could be imposed on Petitioner based solely on the jury verdict was life in prison. See § 800.04(5)(b), Fla. Stat. (2011) (designating this offense as a life felony punishable as provided in § 775.082(3)(a)4, Fla. Stat. (2011)). Section 775.092(3)(a)4 provides that the offender may receive a term of imprisonment for life. Thus, the scoring of 40 victim injury points for sexual contact did not affect the maximum sentence that could be imposed solely on the basis of the jury verdict.
Moreover, inclusion of victim injury points for sexual contact were proper under the charges and evidence because sexual contact adhered in the verdict for lewd or lascivious molestation based on touching. C.P. testified that Petitioner touched her vaginal area with his fingers. Sexual contact adheres in the verdict for lewd or lascivious molestation under section 800.04(5) regardless of whether the offender touches the genital area of the victim or the clothing over it. See
Where conviction is for an offense involving sexual contact that does not include sexual penetration, the sexual contact must be scored in accordance with the sentencing points provided under section 921.0024, for sexual contact regardless of physical injury. See § 921.0021(7)(b)2, Fla. Stat. Section 921.0024(1)(a), Florida Statutes (2011), provides for 40 victim injury points for sexual contact without penetration.
Petitioner has not shown that his constitutional rights were violated by inclusion of 40 victim injury points for sexual contact on his sentencing scoresheet without any separate jury finding as to sexual contact. He is not entitled to federal habeas relief and this ground should be denied.
In this ground, Petitioner contends that he received a vindictive sentence in violation of his Due Process and Equal Protection rights. ECF No. 1 at 14. He argues that the judge "used personal instead of factfinding by the jury when she imposed sentence upon Petitioner of life" for Count One and 15 years for Count Two. Id. He further explained in his reply filed in this Court that the sentences were vindictive because the trial court took into consideration past convictions to impose a sentence that was more severe than justified by the offense. ECF No. 23 at 33. He also argues in his reply that the judge's consideration of prior convictions in sentencing violated
He raised this claim in his second amended post-conviction motion, Ex. N at 126. The post-conviction court denied the claim, finding that Petitioner failed to allege facts showing vindictive sentencing and stating, "[t]o the extent he is claiming the Court relied on an impermissible sentencing factor, consideration of his prior convictions does not implicate due process concerns." Ex. N at 152 (citing
At sentencing, the trial court stated the following:
Ex. E at 415. Prior to imposing this sentence, the Court inquired about the prior convictions and was advised that Petitioner had previously been designated a sex offender and had several prior convictions that were over ten years old and, thus, could not be scored on the scoresheet. Id. at 409. Petitioner did not raise this issue in his direct appeal from conviction and sentencing.
Petitioner has provided no basis to show that he received a vindictive sentence because he had prior convictions. Moreover, a vindictive sentence is one that has been increased because the defendant exercised a constitutional right. See
Further, even if Petitioner's prior convictions were considered in reaching his sentence, it was not improper to do so even though the jury did not make any factual findings concerning prior convictions. The United States Supreme Court stated in
Even if the trial court's consideration of Petitioner's prior convictions had been improper, harmless error analysis is applicable to such a claim raised in a § 2254 petition. See
Defendant contends that his life sentence for lewd or lascivious molestation of a child under age 12 by a person over age 18 violated the Eighth Amendment proscription against cruel and unusual punishment as disproportionate in light of the manner in which he alleges the crime was committed. ECF No. 1 at 15. He alleges, albeit incorrectly, that DNA and biological testing proved there was no skin to skin contact and he was therefore convicted, and sentenced to life, for touching the victim's genital area over her clothing.
The Eighth Amendment prohibits punishments that are grossly disproportionate to the severity of the crime. See, e.g.,
In finding the life sentence was not grossly disproportionate to the crime in the instant case, the State court noted the testimony of the six-year-old victim that Petitioner, age 51, told her to pull down her pants and panties and that he touched her on her privates. Ex. N at 152. The court also noted that the statute which provides for the life sentence, section 800.04(5), does not distinguish between lewd or lascivious touching of genitals or the genital area either over or under clothing. Id. at 153. The post-conviction court stated, "either way, the offense is grave, especially being committed by an adult on a six-year-old child." Id. The court related that the Florida Legislature has found that "sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety." Ex. N at 153 (quoting § 775.21(3)(a), Fla. Stat.). The State court concluded, "Clearly, the legislature has decided that lewd and lascivious molestation by an adult of a child under 12 is a grave offense warranting a severe punishment." Ex. N at 154.
Petitioner has not shown that the state court's ruling was an unreasonable application of clearly established federal law as determined by the Supreme Court or an unreasonable determination in light of the evidence. Further, the ruling was in accord with Florida law, in that Florida courts have held that a life sentence for lewd or lascivious molestation of a child by an adult in violation of section 800.04(5) did not constitute a disproportionate sentence. See, e.g.,
902 So. 2d at 751 (internal quotation marks and citations omitted).
In the context of Eighth Amendment challenges, federal courts have shown a level of deference to legislative determinations as to sentencing. See
Petitioner argues in this ground that his trial counsel rendered ineffective assistance by failing to investigate the two Williams Rule witnesses prior to trial to determine the truth of their proposed testimony and by allowing B.R. (formerly B.M.) to testify to inconsistent statements. ECF No. 1 at 16; 24-9 at 3. He argues that counsel failed to review the witnesses' 1998 depositions prior to trial and that, had he done so, he could have impeached B.R. with statements that Petitioner never touched her and statements of T.B. (formerly T.S.) concerning the dates Petitioner moved into the trailer park. ECF No. 24-9 at 4. He argues that if these points of impeachment had been made prior to trial, the trial court would have disallowed their testimony and the outcome of the trial would have been different. ECF No. 25.
The claim was raised in State court in his second amended motion for post-conviction relief, although the claim related primarily to trial counsel's alleged failure to impeach the witnesses at trial, rather than prior to trial. Ex. N at 132. The post-conviction court denied the claim, concluding that Petitioner failed to allege how trial counsel failed to impeach T.B. with her 1998 testimony relating to the night of her fourteenth birthday party and failed to allege how a charging information would show Petitioner was never convicted of crimes against T.B., as Petitioner contended. Ex. N at 155. The court also concluded that even if Petitioner was never convicted of crimes against T.B., that would not have prevented her testifying to Petitioner's prior conduct against her under the Williams rule. Id. (citing
Prior to trial, the court held a hearing on September 30, 2011, to determine if the Williams Rule witnesses would be allowed to testify. At that hearing, T.B. testified that when she was age 8 or 9, Petitioner would touch her private area and expose his penis through the leg of his shorts. Ex. N at 90-96. She testified that at her fourteenth birthday party, Petitioner was under a blanket with her younger stepsister, who was crying. She said she took her sister into the bedroom and got into bed, but Petitioner came in and put his foot up on the bed and played with his penis. Id. at 102-04. A criminal case arose out of this incident and she was a witness in the case. Id. at 105. Trial counsel did not attempt to impeach her with her 1998 testimony, which he did not have at that hearing.
Witness B.R., stepsister to T.B., testified at that first Williams Rule hearing that she was 7 or 8 when she attended the birthday party at her father's house where Petitioner was present. Ex. A at 109. She testified she was playing a card game with Petitioner and he kept lifting up her nightgown and he touched her upper thigh. Id. at 111-12. She later went to court in a criminal case concerning that incident. Defense counsel asked B.R. if, when she went to court, she testified that Petitioner never touched her, to which she responded she could not remember, but only remembered crying while trying to testify. Id. at 114. The trial court ruled that both witnesses could testify to Petitioner's prior wrongful acts at his trial.
Shortly after the September 30, 2011, hearing defense counsel located deposition transcripts relating to the 1998 criminal proceedings and was provided a second hearing on the Williams Rule issue. On October 6, 2011, the witnesses were not in attendance, but defense counsel presented information to the judge from the transcripts in which B.R. testified in 1998 that Petitioner did not touch her. Ex. B at 192. It was argued that the transcript showed B.R. also said that Petitioner was pulling up her dress and that made her mad, so she went into another room. The judge then stated, "Well let's give the complete statement. I mean, I just read it. She said no, initially and then there was redirect by John Simon and a refreshing of recollection talking about a touch on the hip." Ex. B at 192. Defense counsel then went on to relate other testimony in the deposition, of which the trial court had a copy.
Defense counsel also argued that T.B.'s testimony at the Williams Rule hearing was different from her 1998 testimony. Ex. B at 196. The trial court ruled that he would still allow T.B. to testify because the differences in her testimony in 1998 and her testimony at the September 30, 2011, hearing went to weight and not admissibility. Id. at 198. The judge stated that "the substance of what she says is the same." Id. The judge advised defense counsel he could use his impeachment evidence at trial when the Williams Rule witnesses testified. Id. at 199.
The record reflects that trial counsel did bring the impeachment evidence to the trial court at the Williams Rule rehearing prior to trial, and the trial court was fully aware of the alleged inconsistencies in the testimony when he allowed the testimony. Moreover, Petitioner cannot demonstrate that even if trial counsel had impeached the witnesses directly with the 1998 transcripts, rather than bringing the transcripts and impeachment material to the attention of the judge prior to trial, the witnesses would have been excluded and the outcome of the trial would have been different. Even if the Williams Rule witnesses had been excluded, sufficient evidence was presented at Petitioner's trial to convict him for the two offenses with which he was charged. Petitioner has not met either prong of
Petitioner contends that the trial court's denial of his petition for writ of habeas corpus violated his Fifth and Fourteenth Amendment rights. ECF No. 1 at 17. He argues in his § 2254 petition that the trial court lacked jurisdiction and that his constitutional rights were violated because he was not given Miranda rights.
Petitioner raised these claims in a petition for writ of habeas corpus filed in the circuit court. Ex. II at 3, 7. The petition was denied by order entered December 21, 2015, in which the court found the claims were not properly raised in a habeas petition, citing
Petitioner appealed the denial of his petition for writ of habeas corpus and the state district court of appeal affirmed on July 13, 2016. Ex. LL. See
Precedent holding that a habeas petition may not be used to raise claims that could and should have been brought on direct appeal or in a timely, authorized post-conviction motion are firmly established and regularly followed in Florida. The Eleventh Circuit has concluded that the procedural requirements of Florida's Rule 3.850 constitute independent and adequate state grounds under applicable law.
Further, whether the trial court lost jurisdiction pursuant to a violation of the timeframes in Florida Rule of Criminal Procedure 3.191 is a state law issue which was decided adversely to Petitioner by the state courts. The Eleventh Circuit has explained that "[t]here are three sources of speedy trial rights for criminal defendants: (1) the Sixth Amendment to the U.S. Constitution; (2) the federal Speedy Trial Act; and (3) state speedy trial rules."
Petitioner presented this speedy trial jurisdictional claim to the state courts solely as a state law issue. Any allegation of violation of federal rights in this Court does not convert his state law issue into a claim that is cognizable in § 2254 federal habeas proceedings. "[F]ederal habeas corpus relief does not lie for errors of state law."
Petitioner has not demonstrated that the state courts' adjudication of this claim was contrary to or an unreasonable application of any federal law as determined by the Supreme Court or an unreasonable determination of the facts. Petitioner has not demonstrated entitlement to habeas relief and Ground 15 should be denied.
Petitioner contends in his last ground that the trial court erred and deprived him of Due Process and Equal Protection by treating his Notice of Void Judgment and Demand for Discharge as successive and denying it without a hearing. ECF No. 1 at 18. He argues that the court abused its discretion by treating his "`NOTICE' proving the judgment void" as a successive Rule 3.850 motion. Id. In his reply, Petitioner further argues that his jurisdictional challenge can be raised at any time. ECF No. 25-1 at 2.
As noted earlier, on August 27, 2014, Petitioner filed a "Notice of Void Judgment and Demand for Discharge" in the trial court based on the speedy trial issue. Ex. W at 1-4. On December 1, 2014, Petitioner filed a "Supplemental Postconviction Claim," raising the additional claim that he should be discharged from his conviction because, when he was first taken into custody, he was not apprised of his
On January 21, 2015, the circuit court denied his notice of void judgment and supplemental claim by "Order Denying Postconviction Relief." Ex. W at 16-17. The court found that the claims were successive post-conviction claims that were procedurally barred because they should have been raised at trial or on direct appeal. Id. at 16. Petitioner appealed the denial to the First District Court of Appeal, which affirmed per curiam without discussion on April 23, 2015. Ex. Z. The mandate was issued on June 24, 2015. See
The trial court's order explained that Petitioner's conviction and sentence had been affirmed on appeal almost two years earlier, that a Rule 3.850 motion had been filed and denied, and that denial had been affirmed on appeal. In neither his direct appeal of his convictions and sentence nor his earlier Rule 3.850 did Petitioner raise the claims he raised in the Notice of Void Judgment and Motion for Discharge and in his Supplemental Postconviction Claim. The two filings were properly treated as successive Rule 3.850 claims raising issues collateral to the judgment and sentence. Florida Rule of Criminal Procedure 3.850 provides that a post-conviction motion may properly raise as grounds a claim that the court did not have jurisdiction to enter the judgment or sentence or that the judgment is otherwise subject to collateral attack. Fla. R. Crim. P. 3.850(a)(2), (6). The rule provides that a second or successive motion is an "extraordinary pleading" and may be dismissed if it alleges new grounds that could have been raised in a prior motion. Fla. R. Crim. P. 3.850(h)(2). The rule expressly states that it does not authorize relief based on grounds that could have or should have been raised at trial and if preserved on direct appeal of the judgment and sentence. Fla. R. Crim. P. 3.850(c)(7). As noted earlier, the Eleventh Circuit has concluded that the procedural requirements of Florida's Rule 3.850 constitute independent and adequate state grounds that preclude federal habeas consideration.
Petitioner has not provided any basis to find that the trial court erred in treating the Notice of Void Judgment and Demand for Discharge and the Supplemental Postconviction Claim as successive and untimely post-conviction claims under Rule 3.850 and summarily denying it. Moreover, Petitioner's
Based on the foregoing, Petitioner John H. Cirota is not entitled to federal habeas relief. Accordingly, the § 2254 petition (ECF No. 1) should be denied.
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." Rule 11(b) provides that a timely notice of appeal must still be filed, even if the court issues a certificate of appealability.
Petitioner fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2);
The second sentence of Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." The parties shall make any argument as to whether a certificate should issue by objections to this Report and Recommendation.
Leave to appeal in forma pauperis should also be denied. See Fed. R. App. P. 24(a)(3)(A) (providing that before or after notice of appeal is filed, the court may certify appeal is not in good faith or party is not otherwise entitled to appeal in forma pauperis).
It is therefore respectfully
