CHARLENE EDWARDS HONEYWELL, District Judge.
Petitioner William Del Toro, a Florida inmate, filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his Hillsborough County convictions. Respondent agrees that the amended petition is timely. (Dkt 10). Del Toro did not file a reply. Upon consideration, the petition will be DENIED.
Del Toro was convicted after a jury trial of sexual battery on a person less than 12 years of age (count one) and lewd or lascivious molestation on a person less than 12 years of age (count two). (Dkt. 13, Ex. 2, pp. 146-47). He was sentenced to life imprisonment on count one and 30 years' imprisonment on count two. (Id., pp. 163-65). The state appellate court per curiam affirmed the judgment and sentences. (Dkt. 13, Ex. 9). The state appellate court also per curiam affirmed the denial of Del Toro's motion and amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Dkt. 13, Exs. 12, 13, 15, 19, 21).
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. See Penry v. Johnson, 532 U.S. 782, 792 (2001). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:
A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The AEDPA was meant "to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("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.").
The state appellate court affirmed the denial of postconviction relief in a per curiam decision. This decision warrants deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ("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.").
A federal habeas petitioner must exhaust his claims for relief by raising them in state court before presenting them in his petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[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.").
The requirement of exhausting state remedies as a prerequisite to federal review is satisfied if the petitioner "fairly presents" his claim in each appropriate state court and alerts that court to the federal nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971). "If the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is established." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).
Claims of ineffective assistance of counsel are analyzed under Strickland v. Washington, 466 U.S. 668 (1984). Del Toro must demonstrate that his counsel performed deficiently in that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id.
Del Toro must also show that he suffered prejudice by demonstrating "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." Id. at 694. Obtaining relief on a claim of ineffective assistance of counsel is difficult because federal habeas review is "doubly" deferential to counsel's performance and the state court's decision. Richter, 562 U.S. at 105. Accordingly, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Del Toro alleges that trial counsel was ineffective in failing to move to suppress his statements to police, which were introduced through Detective Jacqueline Potenziano's testimony. He claims that his statements should have been suppressed because the State offered no independent evidence to corroborate Detective Potenziano's testimony. He contends that counsel did not realize the State intended to introduce his statements because counsel failed to conduct sufficient discovery and research. This claim is unexhausted because Del Toro did not present it in his postconviction motions. (Dkt. 13, Ex. 12, pp. 42-44; Ex. 13, pp. 67-69). As Del Toro cannot return to state court to raise the claim in an untimely postconviction motion, see Fla. R. Crim. P. 3.850(b), the claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Del Toro does not demonstrate that an exception applies to overcome the default.
Notwithstanding the default, Del Toro fails to establish entitlement to relief. Florida law provides a hearsay exception for a party's admissions. § 90.803(18), Fla. Stat. But this law does not require the admissions to be corroborated by independent proof, see id., and Del Toro has not cited any authority to support his contention. Additionally, his claim that counsel was unaware that the prosecution would introduce the statements is entirely speculative. See, e.g.,Wilson v. United States, 962 F.2d 996, 998 (11th Cir. 1992) ("Conclusory allegations of ineffective assistance are insufficient." (quotation marks and citation omitted)); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim). Further, the record indicates that co-counsel was prepared to cross-examine Detective Potenziano about Del Toro's statements. (Dkt. 23, pp. 304-13, 319-21). Del Toro has not shown that counsel was ineffective in failing to move to suppress his statements or that he was prejudiced by counsel's conduct.
Within Ground One, Del Toro addresses his Miranda warnings. Accordingly, his claim is liberally interpreted as raising the claim presented in ground one of his postconviction motion. There, Del Toro argued that counsel was ineffective in not seeking to suppress his statements to police because his Miranda warnings were insufficient. He alleged that he was provided the Tampa Police Department's standard warnings, which Florida courts later found inadequate to inform suspects of their right to counsel during questioning.
(Dkt. 13, Ex. 21, p. 21).
The Second District Court of Appeal did not invalidate the Tampa Police Department's standard Miranda warnings until October 2007, after Del Toro's March 2007 trial. See Powell v. State, 969 So.2d 1060 (Fla. 2d DCA 2007). Therefore, it would have appeared to counsel that the warnings were constitutionally adequate at the time she could have filed a motion to suppress. Further, as the state court addressed, the warnings were approved by the United States Supreme Court. Florida v. Powell, 559 U.S. 50 (2010). Accordingly, Del Toro has not shown that the state court's decision involved an unreasonable application of Strickland, or was based on an unreasonable determination of fact. Del Toro is not entitled to relief on Ground One.
Del Toro claims that counsel was ineffective in eliciting information about his prior convictions. The victim was Del Toro's daughter, who alleged that Del Toro sexually battered her when she was in second grade. In his amended postconviction motion, Del Toro cited the following portion of counsel's cross-examination of the victim's mother:
(Dkt. 23, pp. 245-46).
The state court denied Del Toro's ineffective assistance claim after an evidentiary hearing:
(Dkt. 13, Ex. 15, pp. 166-67) (court's record citations omitted) (emphasis in original).
The state court's determination that counsel was credible is a finding of fact that is presumed to be correct. Del Toro has not rebutted this presumption by clear and convincing evidence. See Rolling v. Crosby, 438 F.3d 1296, 1301 (11th Cir. 2006) ("The factual findings of the state court, including the credibility findings, are presumed to be correct unless [the petitioner] rebuts the presumption by clear and convincing evidence." (citing 28 U.S.C. § 2254(e)(1))). See also Rice v. Collins, 546 U.S. 333, 341-42 (2006) ("Reasonable minds reviewing the record might disagree about the [witness's] credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination"); Baldwin v. Johnson, 152 F.3d 1304, 1316 (11th Cir. 1998) ("We must accept the state court's credibility determination and thus credit [the attorney's] testimony over the petitioner's."); Devier v. Zant, 3 F.3d 1445, 1456 (11th Cir. 1993) ("Findings by the state court concerning historical facts and assessments of witness credibility are . . . entitled to the same presumption accorded findings of fact under 28 U.S.C. § 2254(d).").
Testimony that the court found credible reflects that Del Toro agreed with counsel's strategy to bring out his criminal history.
(Id., pp. 251-52).
With respect to eliciting the nature of his prior convictions, counsel testified, "I was clearly attempting to paint him as a person was [sic] not a saint but who would never engage in this kind of activity because I referred to him, during the course of that examination of the witness, as a scrapper." (Id., p. 254). While agreeing that she had no specific recollection or notes, counsel testified that she believed "it was probably something we discussed." (Id., p. 255).
Del Toro does not show that counsel was ineffective in pursuing this strategy. "The inquiry into whether a lawyer has provided effective assistance is an objective one: a petitioner must establish that no objectively competent lawyer would have taken the action that his lawyer did take." Van Poyck v. Fla. Dep't of Corr., 290 F.3d 1318, 1322 (11th Cir. 2002). Counsel will be deemed ineffective in making a tactical decision "only if it was so patently unreasonable that no competent attorney would have chosen it." Dingle v. Sec'y, Dep't of Corr., 480 F.3d 1092, 1099 (11th Cir. 2007). Del Toro fails to show that no competent attorney would have chosen the strategy that counsel chose. Nor has he established a reasonable probability that the outcome of the trial would have been different had counsel not undertaken this strategy. Accordingly, Del Toro has not established that the state court's rejection of his claim involved an unreasonable application of Strickland or was based on an unreasonable determination of fact. Del Toro is not entitled to relief on Ground Two.
The victim alleged that the sexual activity occurred when she was in second grade. She did not report it to police until she was in high school, when she was arrested for possession of a knife and was taken to a juvenile facility referred to as the JAC Center. When asked during background questioning whether she had ever been molested, she disclosed the sexual activity. A JAC Center employee directed her to call the Florida Department of Children and Families ("DCF") hotline. As a consequence, the Hillsborough County Sheriff's Office and Tampa Police Department were notified. Detective Potenziano testified about the victim's disclosure:
(Dkt. 23, p. 332).
Del Toro argues that counsel was ineffective in failing to object because the introduction of the victim's disclosure through Detective Potenziano's testimony violated Crawford v. Washington, 541 U.S. 36 (2004).
Notwithstanding the default, Del Toro does not show entitlement to relief. Although the state postconviction court did not expressly address this claim, which was raised as a part of ground five of the postconviction motion, the court is presumed to have denied the argument on the merits. See Richter, 562 U.S. at 99. Del Toro does not show that the denial of relief involved an unreasonable application of Strickland or was based on an unreasonable determination of fact.
In Crawford, the Supreme Court held that the Confrontation Clause permits "[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford, 541 U.S. at 59. First, Del Toro has not established that the victim's disclosure was testimonial, as it was made in response to background questioning when she was arrested for matters unrelated to the sexual activity. See id. at 52 (testimonial statements include those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."); Davis v. Washington, 547 U.S. 813, 822 (2006) (statements are testimonial when "circumstances objectively indicate that . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.").
But even if the victim's disclosure was testimonial, its admission through Detective Potenziano's testimony was not barred under Crawford. "[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements." Crawford, 541 U.S. at 59 n.9. The victim testified at trial and was cross-examined about her disclosure at the JAC Center. (Dkt. 13, Ex. 3, Vol. III, pp. 208-10). Therefore, Del Toro fails to show that counsel was ineffective in not objecting. Del Toro is not entitled to relief on Ground Three.
Del Toro alleges a due process violation. He claims that the jury instructions and verdict form were inconsistent with the charging information, "ultimately taking the burden off the prosecution" to prove the victim's age. (Dkt. 4, p. 14).
Del Toro did not exhaust this claim by raising it on direct appeal. (Dkt. 13, Exs. 5, 6). State procedural rules do not provide for second direct appeals. See Fla. R. App. P. 9.140(b)(3) (a defendant wishing to appeal a final judgment must do so within "30 days following rendition of a written order imposing sentence."). Therefore, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Del Toro does not argue or establish that an exception applies to overcome the default.
Notwithstanding the default, Del Toro does not show that the State was relieved of its burden of proof or presented insufficient evidence of the victim's age in violation of due process. The trial court instructed the jury that the State must prove the offenses beyond a reasonable doubt. (Dkt. 23, pp. 392-93, 395). The jury is presumed to have followed this instruction. See Brown v. Jones, 255 F.3d 1273, 1280 (11th Cir. 2001) ("We have stated in numerous cases . . . that jurors are presumed to follow the court's instructions."). Therefore, in specifically finding that the victim was under the age of 12, the jury determined that the State met its burden of proving her age. (Dkt. 13, Ex. 2, p. 147).
In federal habeas proceedings, a petitioner's challenge to the sufficiency of the evidence will provide relief "if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324 (1979). As Del Toro admits, the victim testified that she was under the age of 12 when the sexual activity occurred. (Dkt. 13, Ex. 3, Vol. III, p. 179). The victim is presumed to have been competent to testify. See § 90.601, Fla. Stat. And she offered direct evidence about her age at the time of the offenses. See, e.g., Kocaker v. State, 119 So.3d 1214, 1224 (Fla. 2013) ("Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact." (citation omitted)). Del Toro does not cite any authority supporting his contention that the State was required to corroborate the victim's testimony with independent evidence. Accordingly, Del Toro fails to establish that no rational trier of fact could have found him guilty beyond a reasonable doubt because of insufficient evidence about the victim's age. He is not entitled to relief on Ground Four.
Del Toro argues that trial counsel was ineffective in failing to convey an eight-year plea offer to him. This claim is unexhausted because Del Toro did not raise it in his postconviction motions. (Dkt. 13, Exs. 12, 13). Acknowledging the lack of exhaustion and resulting procedural default, Del Toro alleges that he has established the cause and prejudice exception under Martinez v. Ryan, 566 U.S. 1 (2012). Ineffective assistance of postconviction counsel generally does not constitute cause to overcome a procedural default. See Coleman v. Thompson, 501 U.S. 722, 752-55 (1991). Martinez recognizes a narrow, equitable exception to this rule:
Martinez, 566 U.S. at 17.
"To overcome the default, a prisoner must . . . demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 14. See also Duffy v. Sec'y, Dep't of Corr., No. 16-11756, 2018 WL 1061380 at *1 (11th Cir. Feb. 27, 2018) ("A defaulted claim is substantial if the resolution of its merits would be debatable among jurists of reason." (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003))).
Del Toro's defaulted claim of ineffective assistance of trial counsel is not substantial. First, the claim is vague and conclusory. Del Toro presents no evidence that the State in fact made an eight-year offer, nor does he explain under what circumstances he learned that counsel failed to communicate such an offer to him. See, e.g.,Wilson, 962 F.2d at 998; Tejada, 941 F.2d at 1559.
Further, Del Toro cannot demonstrate prejudice. To establish prejudice as a result of ineffective assistance when a plea offer has lapsed, a petitioner must "demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law." Missouri v. Frye, 566 U.S. 134, 147 (2012).
Del Toro has not shown a reasonable probability that the trial court would have accepted a plea for an overall term of eight years. He was charged in count one with violating § 794.011(2), Fla. Stat., by committing sexual battery on a person less than twelve years old. (Dkt. 13, Ex. 2, p. 11). Section 794.011(2)(a) provides that "[a] person 18 years of age or older who commits sexual battery upon . . . a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141." Section 775.082(1)(a), Fla. Stat., provides that a person convicted of a capital felony who is not sentenced to death "shall be punished by life imprisonment." Therefore, a conviction for sexual battery on a victim less than 12 years old carried a mandatory sentence of life imprisonment.
Del Toro fails to demonstrate that his defaulted claim of ineffective assistance of trial counsel is substantial. Consequently, he has not established cause and prejudice to overcome the procedural default of Ground Five.
Any of Petitioner's claims not addressed in the Order have been determined to be without merit.
It is therefore
1. Del Toro's amended petition for writ of habeas corpus (Dkt. 4) is
2. The Clerk is directed to enter judgment against Del Toro and to close this case.
3. Del Toro is not entitled to a certificate of appealability ("COA"). A petitioner does not have absolute entitlement to appeal a district court's denial of his habeas petition. 28 U.S.C. § 2253(c)(1). A COA must first issue. Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Del Toro "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tenna rd v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Del Toro has not made this showing. Because Del Toro is not entitled to a COA, he is not entitled to appeal in forma pauperis.
(Dkt. 13, Ex. 3, Vol. II, p. 14).
