TJOFLAT, Circuit Judge:
On June 15, 1982, a jury in the Broward County Circuit Court, Florida, convicted Omar Blanco of the first-degree capital murder
In 1987, Blanco petitioned the United States District Court for the Southern District of Florida for a writ of habeas corpus
Blanco's case was thereafter returned for a new penalty-phase proceeding to the Broward County Circuit Court.
We begin our review of the District Court's judgment by describing what took place during the new penalty phase, from the time the Blanco v. Singletary mandate reached the Broward County Circuit Court until the death sentence was imposed. From there, we discuss the review of the sentence by the Florida Supreme Court, which sustained it on direct appeal and, later, on collateral review. After that, we review the District Court's entertainment and rejection of Blanco's petition for a writ of habeas corpus.
The new penalty phase began with the appointment of counsel to represent Blanco, who was indigent.
On June 19, 1992, Moldof moved the Circuit Court to appoint a psychologist to assist him in the presentation of mitigating evidence, citing Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
At some point during the ensuing eight and a half months, Dr. Marina, having the benefit of the information provided by the other specialists, told Moldof that a psychiatrist was needed. Dr. Marina's suggested that a psychiatrist was necessary to review the mental health information at hand and to form an opinion as to whether a case could be made that, at the time of the murder, Blanco was experiencing "an extreme mental or emotional disturbance" or lacked the "capacity to appreciate the criminality of his conduct," both of which constitute mitigating circumstances under Florida law.
On May 27, 1993, Moldof moved the court for the appointment of a psychiatrist. Because Blanco did not speak English, the psychiatrist needed to be fluent in Spanish. The court granted the motion on June 18, 1993, and appointed the physician Moldof chose, Dr. Anestasio Castiello,
At a hearing on September 8, 1993, Moldof reported on his interaction with Dr. Maulion. He said to the court, "I've seen his work[]. He seems to be more than acceptable. He is doing an excellent job." At that same hearing, Moldof commented that Dr. Maulion "says he needs a neuropsychologist and [a] neurologist to do some testing of Mr. Blanco to confirm what he thinks he's finding. I've already got permission."
In addition to obtaining the appointment of these mental health experts, Moldof obtained discovery of evidence the State would be presenting to the jury in the second penalty phase. Some of the discovery requests sought evidence the State would be introducing in support of its case for a death sentence recommendation. The State notified Moldof that, to establish the aggravated circumstance that the defendant had previously been convicted of a "felony involving the use or threat of violence to the person,"
The new penalty phase of Blanco's trial began on April 18, 1994. The State's case in chief contained evidence that the State had presented during the guilt phase of the 1982 trial, so that the jury would know how the murder of John Ryan occurred and how Blanco came to be identified as the assailant. The witnesses the State called and the physical evidence it introduced established the following facts.
On the evening of January 14, 1982, Thalia Vezos, age fourteen, was at home in bed, reading a book. At around 11 p.m., she noticed a man in the hallway outside her bedroom; he had a gun and was carrying a brown wallet-type object. The man gestured to Thalia to keep silent, entered her room, and cut the wires to her telephone. After leaving Thalia's room, the man encountered Thalia's uncle, John Ryan, in the hallway. A struggle ensued and the man shot Ryan. Ryan stumbled into Thalia's bedroom and fell on Thalia, who was still on her bed. The man followed Ryan into the bedroom, shot him an additional six times, and fled. After the man left the house, Thalia ran next door to a neighbor's house and called the police.
After the police arrived on scene, they interviewed Thalia. She described the intruder as a Hispanic male, measuring between 5'8" and 5'10" and weighing between 180 and 190 pounds. The police also interviewed George Abdeni, who lived across the street from the Vezoses. Abdeni related that he had seen an individual with physical characteristics like those Thalia had described walking east from the scene of the crime. He was wearing a gray jogging suit. The police dispatcher immediately issued a police BOLO with the information Thalia and Abdeni had provided.
Officer Curtis Price was on duty in his car near the location of the crime, heard the BOLO over his police radio, and began looking for someone of that description. Approximately fifteen minutes later, he saw an individual who matched the description provided by the BOLO riding a bicycle down highway A1A. Officer Price followed this individual, later determined to be Blanco, for approximately one-tenth of a mile and called for backup.
After the backup arrived, Blanco was placed under arrest and taken to the scene of the crime. There, the officers presented Blanco to Abdeni, who identified him as the individual he had seen. The police searched the Vezoses' residence and found a man's purse near the door to Thalia's bedroom; the purse contained Blanco's identification papers and Thalia's watch. Police also recovered seven shell casings from a .380 caliber automatic firearm scattered in Thalia's bedroom and the adjacent hallway.
When they completed their work at the crime scene, the police took Blanco to the police station. After he was booked, his
In accordance with the parties' pretrial stipulation, the State introduced a certified copy of the March 14, 1984, convictions for the armed burglary and armed robbery of an Emerald Hills residence on December 29, 1981; the date of these convictions indicates that Blanco committed those crimes shortly after he arrived in the United States from Cuba in 1980, in what was known as the "Freedom Flotilla."
Moldof began the presentation of Blanco's defense by calling ten lay witnesses to the stand and introducing written statements of Blanco's mother and father, who were in Cuba. He then called two of his mental health experts, Dr. Maulion and Dr. Bukstel, to testify.
Dr. Maulion stated that his examination of Blanco, his review of Blanco's medical records, and his study of the reports and information provided by the other court-appointed experts revealed that Blanco had a "central nervous system brain injury, [a] history of seizures and fits, and present cognitive impairment." A person with Blanco's diagnosis, he said, "can be perfectly all right now and in just a moment's notice, he can turn around and be either irritable, sad, depressed, angry, or violent." He stated that the brain damage could trigger a startled response if Blanco were confronted with a situation like the one he experienced when he encountered John Ryan on the night of the murder. In Dr. Maulion's opinion, Blanco committed the crime while "under the influence of an extreme mental or emotional disturbance," and his "capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired."
Moldof then chose to call Dr. Bukstel to the witness stand to follow Dr. Maulion. Dr. Bukstel opined that, based on his examination of Blanco and his review of a battery of psychological tests and records provided by medical professionals in Cuba, Blanco had a number of "organic" factors indicating some level of brain damage, a seizure disorder, and mental retardation. He disagreed with Dr. Maulion, however, about whether the medical evidence established the statutory mitigating factors Dr. Maulion had found. In his view, Blanco had not committed the Ryan murder "while ... under the influence of extreme mental or emotional disturbance," and he had been able "to appreciate the criminality of his conduct." He agreed, though, with Dr. Maulion's opinion that Blanco's ability "to conform his conduct to the requirements of law was substantially impaired." After Dr. Bukstel testified, the defense rested. The State put on no rebuttal.
On May 5, 1994, the jury returned its verdict. By a vote of ten to two it recommended that the court impose a death sentence. The court scheduled Blanco's sentencing hearing for January 6, 1995. Prior to the hearing, the parties submitted sentencing memoranda. The State argued
In his memorandum, Moldof argued that two statutory mitigating circumstances applied: the capital felony was committed while he was under the influence of extreme mental or emotional disturbance, id. § 921.141(6)(b) (1983), and Blanco's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, id. § 921.141(6)(f) (1983). Moldof argued, in addition, that fourteen non-statutory mitigating circumstances applied.
On January 6, the day of the sentencing hearing, the court asked counsel whether there were any issues that needed to be settled.
Following this exchange, the hearing commenced, and after entertaining the parties' submissions and arguments, the court announced its findings. The court found two aggravating circumstances — that Blanco previously had committed a violent felony and that he committed the Ryan murder during an armed burglary and for pecuniary gain; one statutory mitigating circumstance — that Blanco's ability to conform his conduct to the requirements of law was substantially impaired;
Blanco appealed his sentence to the Florida Supreme Court. He presented seven claims of trial court error in the second penalty phase of his case. Only one is before us in this appeal: Blanco argued that the trial court denied him due process of law when it refused to appoint the mental health expert of his choice, Dr. Arturo Gonzales, in violation of Ake.
The Circuit Court rejected both claims in an order dated July 1, 2003, denying Blanco's post-conviction motion in full. The first claim lacked merit because the court found that the State had not made the purported life sentence offer; moreover, as Blanco alleged in his motion, Blanco had chosen to assert his constitutional right to stand trial. The second claim lacked merit because Blanco had access to the evidence the State had allegedly withheld and any attempts to collaterally attack the validity of the March 14, 1984, convictions would be procedurally barred.
Blanco appealed the Circuit Court's July 1, 2003, decision to the Florida Supreme Court. His appeal failed. Blanco v. State, 963 So.2d 173 (Fla.2007) (per curiam). Addressing his claim that Moldof had rendered ineffective assistance in failing to communicate the State's offer of a life sentence with parole eligibility after twenty-five years, the court found that the record clearly established that the State had made no such offer. Id. at 179. The court
With the Florida Supreme Court having denied his claims, Blanco turned to the United States District Court for the Southern District of Florida for relief and, on August 31, 2007, petitioned that court for a writ of habeas corpus. His petition presented six claims for relief. Three of the claims, each challenging the constitutional validity of his death sentence, are before us in this appeal: (1) the Broward County Circuit Court denied Blanco the due process of law required under Ake when it refused to appoint the psychiatrist of his choice, Dr. Gonzales, and when the psychiatrist he did appoint, Dr. Maulion, failed to provide him with competent psychiatric assistance at trial; (2) Moldof rendered ineffective assistance of counsel in failing adequately to inform him of the State's purported offer of a life sentence with parole eligibility after twenty-five years; and (3) the State committed a Brady violation by withholding material exculpatory evidence.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, dictated the standards the District Court would use in resolving these issues. Under AEDPA, a federal court may not grant habeas relief on a claim adjudicated on the merits in state court unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of 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).
The statutory phrase "clearly established Federal law" refers only to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). A state court decision is "contrary to" such 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." Id. at 412-13, 120 S.Ct. at 1523. The "unreasonable application" clause of § 2254(d) permits a federal court to grant habeas relief "if the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. at 1523. If the state court incorrectly applies federal law, that alone is not enough to warrant habeas relief. Instead, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 2149, 158 L.Ed.2d 938 (2004)). Notably, AEDPA also establishes a presumption that the state court's findings of fact are correct. 28 U.S.C. § 2254(e)(1). This presumption can be rebutted only by clear and convincing evidence. Id. The District Court's review of a state high court's adjudication of the merits of a claim is accordingly
The District Court concluded that the Florida Supreme Court's adjudication of Blanco's Ake claim was neither contrary to, nor involved an unreasonable application of, clearly established Supreme Court precedent. See Blanco v. Secretary, No. 07-61249-CIV-MARRA-JOHNSON (S.D.Fla. Dec. 7, 2010). In Ake, a prosecution for capital murder, the Court held that where an indigent
470 U.S. at 83, 105 S.Ct. at 1087, 1096. The right to have access to a competent mental health expert is a due process requirement that extends to the "sentencing phase" of a criminal case. Id. at 84, 105 S.Ct. at 1097.
Before both the Florida Supreme Court and the District Court, Blanco took a two-pronged approach to his Ake claim: first, Blanco argued that the trial court erred in refusing to appoint Dr. Arturo Gonzalez, his choice of psychiatrist; and second, notwithstanding the initial appointment, Dr. Maulion's performance at trial was so ineffective that it, in essence, morphed into trial court error.
The Supreme Court of Florida noted that, as an indigent defendant, while Blanco was entitled to the assistance of a competent psychiatrist, Blanco had "no `constitutional right to choose a psychiatrist of his ... personal liking.'" Blanco v. State, 706 So.2d 7, 9-10 (Fla.1997) (quoting Ake, 470 U.S. at 83, 105 S.Ct. at 1096). Thus, the supreme court concluded that the trial court properly appointed Dr. Maulion, a physician who was board certified in psychiatry, neurology, addiction medicine, and pain management, and who had previously testified as an expert witness in forensic psychiatry. The Florida Supreme Court rejected Blanco's second argument as well, holding that "[t]he fact that [Dr.] Maulion's testimony did not live up to Blanco's expectations cannot in any way be categorized as a trial court error." Blanco, 706 So.2d at 9. The District Court agreed on both counts, and rejected Blanco's argument that the Florida Supreme Court misapplied Ake. See Blanco v. Secretary, No. 07-61249-CIV-MARRA-JOHNSON, at 23 (S.D.Fla. Dec. 7, 2010).
The District Court then turned to Blanco's ineffective assistance claim, that Moldof failed adequately to inform Blanco of the State's offer of a life sentence with parole eligibility after twenty-five years. The Florida Supreme Court described the ineffective assistance claim this way: "Blanco ... argues that his second penalty phase counsel was ineffective for failing to inform him of a plea deal the State offered, and that upon Blanco's rejection of the deal the State acted vindictively in seeking the death penalty." Blanco, 963 So.2d at 179. The court rejected the argument as "meritless because the record clearly indicates the State never offered Blanco any plea deal." Id. The District Court found that the record was far from clear as to whether there was an offer. See Blanco v. Secretary, No. 07-61249-CIV-MARRA-JOHNSON, at 27, 30 (S.D.Fla. Dec. 7, 2010). To the contrary, the District Court concluded that the Florida Supreme Court's decision denying the claim was based on an unreasonable determination of the facts given the evidence presented to the trial court in support of the claim. See
The District Court held an evidentiary hearing on the claim on February 17 and 18, 2011, to flush out the facts and to determine whether Moldof's performance satisfied the standard for effective assistance of counsel the United States Supreme Court established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland,
466 U.S. at 687, 104 S.Ct. at 2064.
At the evidentiary hearing, the District Court received testimony from an attorney who represented the State — State Attorney Michael Satz — and the attorneys who represented Blanco — Hilliard Moldof and Judith Hall.
Blanco testified that he remembered his lawyers coming to the jail to talk to him about the State's offer. Id. at 8-10. Blanco admitted that he understood at least some of what Moldof explained. Blanco also stated that he understood that there were two penalty options, death and some sort of life sentence. Moreover, Blanco understood some complex legal terminology, including that he currently had a 3.850 motion pending, and that he would need to waive that pending 3.850 in exchange for the deal. Blanco insisted, however, that had he understood the meaning of the term parole — that he could be released after serving twenty-five years of a life sentence — he would have accepted the State's offer.
Id.
The District Court also found that Moldof and Hall did not leave the jail believing that Blanco had not understood what the State was offering. Id. at 7. Rather, the court found that Blanco rejected the offer out of a desire to speak to his family before making a decision and because he consistently believed he was not guilty and did not want to do anything which would be inconsistent with that belief. Id. at 12.
The District Court accordingly concluded that Moldof's performance in conveying the State's offer was not deficient because Blanco admitted that he understood some complex legal terms, did not question Moldof about the offer, expressed legitimate reasons for rejecting the offer, had access to an interpreter before resentencing, and at some point during the previous twelve years had heard the life sentence option translated into Spanish. Id. at 12-13. Blanco therefore failed to establish the first element of an ineffective assistance claim under Strickland, deficient performance. Although the court did not reach Strickland's second element, prejudice, the court noted in passing that it was not altogether clear from the evidence that Blanco would have accepted the offer given his strong belief that he was innocent. Id. at 12.
The District Court dismissed Blanco's Brady claim — that the State withheld material exculpatory evidence that Blanco did not commit the armed robbery and armed
Id. (quoting Tompkins v. Sec'y, Dept. of Corr., 557 F.3d 1257, 1258 (11th Cir.2009)).
On March 29, 2011, the District Court entered a final judgment denying habeas corpus relief. See Blanco v. Secretary, No. 07-61249-CIV-MARRA-JOHNSON, at 9-10 (S.D.Fla. Mar. 29, 2011). Blanco timely appealed the judgment. The District Court thereafter granted his application for a certificate of appealability ("COA") with respect to the three claims discussed in parts I.C.1, I.C.2, and I.C.3. See Blanco v. Secretary, No. 07-61249-CIV-MARRA-JOHNSON (S.D.Fla. May 17, 2011).
In reviewing the District Court's judgment, we are in the same position as the District Court was when it considered Blanco's petition. Specifically, we ask whether the Florida Supreme Court's adjudication of the claims designated in the COA 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."
We turn our attention first to the claim based on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), then shift our attention to the other claims designated in the COA.
Blanco was entitled to the appointment of a "competent psychiatrist." Ake, 470 U.S. at 83, 105 S.Ct. at 1096. We held in Clisby v. Jones, 960 F.2d 925, 929-30 (11th Cir.1992) (en banc), that the following analysis should be employed when addressing Ake claims such as Blanco's:
Id. at 929-30 (alterations in original) (citations omitted) (internal quotation marks omitted).
Blanco's argument before this court, just as it was before the District Court, was essentially two-fold: (1) that the trial court denied Blanco due process in the initial appointment of Dr. Maulion;
As to his argument that the initial appointment of Dr. Maulion deprived him of due process, the Circuit Court had before it an extensive amount of information regarding Dr. Maulion's background and his potential fitness for appointment to serve as an expert. Blanco summed up this information well in the brief he submitted to the Florida Supreme Court in appealing his sentence, Blanco v. State, 706 So.2d 7 (Fla.1997). Blanco said this about Dr. Maulion:
Brief for Appellant at 22, Blanco v. State, 706 So.2d 7 (Fla.1997) (No. 85118) (citations omitted). As if the Circuit Court's appointment of Dr. Maulion did not satisfy Ake's due process requirement of the provision of competent psychiatric assistance, the Florida Supreme Court noted that "in addition to appointing Dr. Maulion, the court appointed, at county expense, a psychologist, a neuropsychologist, a neurologist, and a sociologist to assist in Blanco's defense." Blanco, 706 So.2d at 10. In short, we need not hesitate to conclude that the trial judge acted reasonably in making the initial appointments of Dr. Maulion as well as the other experts who assisted him, and in doing so, the court clearly satisfied Ake's due process requirement.
That may be well and good, Blanco says, but Dr. Maulion's trial performance — his testimony — was ineffective, and this shortcoming rendered the sentencing phase of the trial fundamentally unfair. Put another way, Blanco argues that, while Dr. Maulion appeared competent on paper at the time of his appointment, his incompetence did not become apparent until he testified at trial. In advancing this argument, however, Blanco overlooks the fundamental proposition that the denial of due process in the Ake sense must be due to trial court error: it must be the trial judge, not the mental health expert, who denies the defendant due process by taking some action that renders the proceeding fundamentally unfair. See Conklin v. Schofield, 366 F.3d 1191, 1206 (11th Cir.2004). As we instructed in Clisby, 960 F.2d at 928-29, 934 and later in Provenzano v. Singletary, 148 F.3d 1327, 1333-34 (11th Cir.1998),
If Moldof thought that Dr. Maulion's testimony rendered the second penalty phase of the case fundamentally unfair, he should have asked the trial judge to bring the sentencing hearing of January 6, 1995 to a halt and grant Blanco a new penalty phase proceeding before the jury on the ground that the court had failed to provide him with competent psychiatric assistance. Or Moldof could have waited until after the court imposed a death sentence and moved the court, within ten days, pursuant to Florida Rule of Criminal Procedure 3.590, to vacate the jury's verdict and grant Blanco a new penalty-phase.
Blanco apparently believes that Moldof's colloquy with the trial judge on January 6, 1995 — the day the judge imposed the sentence and eight months after the jury made its sentencing recommendation — somehow obligated the judge to intervene, and that the judge's failure to intervene rendered the second penalty phase fundamentally unfair. The subject of the colloquy was Dr. Maulion's performance before the jury. Moldof said that "[Dr. Maulion] was really not a forceful witness for the defense." But, in nearly his next statement, he confessed that he did not raise the issue before the court any earlier because, "quite frankly, I guess ... if that's my fault, then it's my fault. One of the problems is ... psychiatry is as much an art as a science to me."
Even putting aside Blanco's failure to identify any error to the trial court, the Florida Supreme Court continued that "[t]he fact that Maulion's testimony did not live up to Blanco's expectations cannot in any way be categorized as trial court error." Blanco, 706 So.2d at 9. We agree.
In sum, Blanco's claim, albeit implicitly, is that the trial judge, acting on its own initiative, should have granted Blanco a new penalty phase trial on the ground that
We move now to the claim that Moldof rendered ineffective assistance in failing adequately to inform Blanco before the new penalty phase of his case began that the State had offered him a life sentence, with parole eligibility after twenty-five years. The new penalty phase of Blanco's case began on Monday, April 18, 1994. Blanco claims that on Thursday or Friday of the previous week, State Attorney Satz informed Moldof that the State would abandon its pursuit of a death sentence if Blanco abandoned his Rule 3.850 challenge to his convictions, which was then pending in the Broward County Circuit Court.
In examining the record, the Florida Supreme Court found no evidence of the offer Blanco has described. The District Court, however, concluded that the record was not clear on the point and therefore scheduled an evidentiary hearing to resolve the issue. And, as indicated in part I.C.2, supra, based on the testimony adduced at the hearing, the District Court then found that the alleged offer had been made;
Blanco challenges these findings of fact as clearly erroneous, arguing that the District Court should have accepted his testimony and granted the writ. We are not persuaded. To explain why, we begin with the events that took place between the issuance of the mandate in Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991), on
The May 29, 1992, mandate required that the retrial of the sentencing phase begin within thirty days. To satisfy that requirement, the Circuit Court set the case for trial before a jury on June 22. On June 12, the court held a status conference. Blanco, who had been returned to the Broward County Jail for the retrial, appeared before the court. The court informed Blanco that the sentencing phase of his case would begin on June 22, and asked him if he wanted the court to appoint counsel. Blanco said that he did, and, after a brief interlude, the court appointed Moldof. Because Moldof could not possibly be ready for trial on June 22, and because Blanco consented to a continuance, the court continued the trial, eventually scheduling it to begin on April 18, 1994. Blanco remained in the Broward County Jail all the while.
One of Blanco's cell mates at the jail was Eduardo Chong, who had been sentenced to a seventeen-year prison term for armed kidnaping. On March 3, 1993, the State Attorney's office received a letter from Chong, who was then housed at the South Florida Reception Center in Dade County. Chong wrote:
On May 7, 1993, the State, anticipating that Blanco would contend before the jury that someone else committed the Ryan murder, moved the Circuit Court in limine to bar Blanco from doing that. In Blanco's response to the motion filed on July 26, 1993, Moldof moved the court
The Circuit Court heard the State's motion in limine on August 10, 1993. At the conclusion of the hearing, the court ruled from the bench that Florida case law permitted the State to present evidence of the murder, "so that the jury does not have to make an advisory sentence in a vacuum," and that Blanco would be precluded from introducing "evidence as to lingering doubt or residual doubt."
On January 12, 1994, Blanco moved the Circuit Court pursuant to Rule 3.850 for "An Evidentiary Hearing on Newly Discovered Evidence."
Following these recitals, Moldof requested that the Circuit Court reconsider its August 10, 1993, ruling barring Blanco from presenting the jury with the lingering doubt evidence he proffered in Blanco's response to the State's motion in limine. Moldof reminded the court that it had made the ruling without the benefit of an evidentiary hearing. He therefore "request[ed] an evidentiary hearing to determine if the Defendant will be allowed to present any evidence of his non-involvement in the events which led to the death" of John Ryan, i.e., "newly discovered evidence, which could not have been discovered by reasonable diligence at the time of the [1982] trial suggesting that the Defendant was not the individual that was responsible for the homicide."
In sum, Blanco was pursuing two objectives. First, he wanted the Circuit Court to vacate his murder and armed burglary convictions and to grant a new trial. Second, absent a new trial, he wanted an opportunity to establish his innocence before the jury in the second penalty phase of the case.
On February 25, 1994, the Circuit Court held the evidentiary hearing Blanco requested. Moldof called two witnesses to establish Blanco's innocence of the Ryan murder, Roberto Alonso and Carmen Congora, the wife of Alonso's brother, Ray Alonso. Congora testified that, on the night of the Ryan murder, she was at home with Roberto Alonso, who was visiting, when Enrique Gonzalez arrived with her husband, Ray. Gonzalez was wearing a pullover. It was covered with blood, so he took it off. Ray Alonso asked Gonzalez why he "went after the guy with a gun." Gonzalez replied that "he didn't want to go after [the victim] but the guy came and the gun went off a lot of times."
Roberto Alonso testified that Gonzalez was armed and "had a bunch of blood on the left side of his shirt. That's why he took his clothes off and my brother took it and put it in [the] garbage[.]"
In addition to the testimony of these two witnesses, Blanco presented the court with a statement from his mother, Zenaida Blanco, who was in Cuba. She wrote that she had spoken to a woman, Maria Del Carmen Guerra, who said that her son, Julio Guerra, was in prison with Gonzalez (in Cuba) and that Gonzalez confessed to Julio that he committed the Ryan murder. Blanco then presented letters from Maria Del Carmen Guerra and Julio Guerra. In his letter, Julio Guerra wrote that he had heard the confession directly from Gonzalez.
The State vigorously cross-examined Congora and Roberto Alonso.
After Moldof completed his presentation, Satz called three witnesses to the stand, Eduardo Chong, Carlos Ruiz, and Jorge Gonzalez.
The Circuit Court reserved ruling on Blanco's motion until April 28, 1994, while the second penalty phase before the jury was underway. In an order filed that day, the court denied the motion, finding the testimony of Congora and Alonso not credible and totally refuted by the testimony and physical evidence introduced at trial in 1982. In short, if afforded a new trial, Blanco would be found guilty as before.
The District Court also had before it facts that further illustrated Blanco's strong belief in his own innocence from the Rule 3.850 motion he presented to the Circuit Court on September 16, 1999, and from statements he made in various briefs he filed before the Florida Supreme Court.
We start with the facts stated in the Rule 3.850 motion Blanco filed on September 16, 1999. The State's offer of a life sentence with parole eligibility appears in two of the claims Blanco's motion presented, Claims XV and XVI. Claim XV, Violation
(Emphasis added).
Claim XVI, Ineffective Assistance of Counsel, alleges the following:
(Emphasis added).
Read together, these claims allege that before the jury was impaneled to begin the second penalty phase of Blanco's trial (1) both parties were aware of the evidence that would be put to the jury; (2) the evidence would establish the same facts established at the 1982 trial; (3) the State's position was that, based on those facts, a death sentence would be "inappropriate"; (4) the trial judge had been fully informed of such facts and, like the State, agreed that a death sentence would be inappropriate; (5) Blanco rejected the State's offer of a life sentence plea bargain and chose to go to trial because, as he testified at his 1982 trial, he did not kill John Ryan; (6) the State and trial judge changed their positions as to the appropriateness of a death sentence; and (7) the State urged the judge to impose a death sentence and the judge imposed it to punish Blanco for exercising his constitutional right to take his case to the jury.
In addition to these protestations of innocence, the record before the District Court contained additional support for Blanco's position that he was actually innocent, including statements made in both (1) the brief Blanco submitted to the Florida Supreme Court in Blanco v. State, 702 So.2d 1250 (Fla.1997), his appeal from the Circuit Court's denial of his January 6, 1994, Rule 3.850 motion;
In fine, we conclude that Blanco failed to establish either Strickland prong and is therefore not entitled to relief. Blanco's counsel was not ineffective in the conveyance of the plea offer because the record is replete with evidence that Blanco understood that a life sentence meant life with an opportunity to get out of jail (parole eligibility after twenty-five years) and, thus, that Blanco knew what the State allegedly offered in the plea deal. See Chandler v. United States, 218 F.3d 1305, 1313, 1315 (11th Cir.2000) (en banc) (holding that the ineffectiveness prong of Strickland is a high bar, requiring a showing that "no competent counsel would have taken [the action in question]"). For example, in a hearing before the trial court on August 10, 1993 — well before the date of the alleged plea offer — the following was said at a pre-resentencing hearing in the presence of both Mike Buch, a Spanish interpreter from the Court Administrator's Office, and Blanco:
(Emphasis added).
As indicated in the hearing quoted above, Blanco was present, along with a translator, when Satz and Moldof discussed that there were two penalties possible: death or life with parole after twenty-five years. If the death penalty was not imposed, Moldof described the life sentence "alternative" to mean that "[Blanco] is going to be able to get out one day." Thus, the record makes clear that Blanco had heard that the only other option available meant that he could get out of prison someday; Blanco may or may not have understood the term "parole" but he certainly had been told that the non-death option meant he could potentially get out of prison after twenty-five years. Because Blanco admitted he understood some complex legal terms; did not question Moldof about the offer; expressed other legitimate reasons for rejecting the offer; had access to an interpreter before resentencing; and, as indicated, had heard the non-death
In addition to failing to demonstrate deficient performance on Moldof's part, Blanco failed to show prejudice. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Acceptance of the State's life sentence offer would have required Blanco to abandon his position that Enrique Gonzalez committed the murder and admit that he, instead, was the culprit. The District Court found that Blanco did not want to admit to the killing because he steadfastly believed that he was innocent and that Enrique Gonzales actually committed the murder. The court was aware that Blanco consistently claimed that he was innocent of the crime, as is evidenced by the fact that he protested his innocence during his 1982 trial; in his July 26, 1993, response to the State's motion in limine; at the hearing the court held on that motion on August 10, 1993; in prosecuting the Rule 3.850 motion he filed on January 12, 1994; in the Rule 3.850 motion he filed on September 16, 1999; in briefs he submitted to the Florida Supreme Court; in the District Court; and in this court. The District Court did not clearly err in finding that Blanco's belief in his innocence motivated his rejection of the offer and, likewise, the District Court correctly determined that Blanco could not show prejudice as a result of the rejection on this basis.
In sum, given the record before the District Court, we reject Blanco's Strickland claim.
Blanco's final claim, based on the Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),
Blanco raised this claim for the first time in his fourth Rule 3.850 motion, the amended version of which was filed on May, 29, 2001. The Circuit Court rejected this claim, reasoning that no information was withheld and that, even if it was not affirmatively disclosed, Blanco had equal access to the information contained in
This is not a second or successive petition given the Supreme Court's recent holding in Magwood v. Patterson, ___ U.S. ___, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010). In Magwood, as in Blanco's case, a writ of habeas corpus was issued pursuant to 28 U.S.C. § 2254 vacating the petitioner's death sentence. Id. at 2791. A new sentencing hearing was held, and the petitioner was again sentenced to death. Id. He appealed the new sentence under § 2254, arguing that the conviction was improperly based on an aggravating factor, even though this factor had been relied upon to support his original sentence and the defendant had not raised this argument in his § 2254 attack on his original sentence.
Id. at 2801 (emphasis in original).
This describes the situation we face here. The factual predicate for Blanco's Brady claim was available when he filed the § 2254 petition attacking his first death sentence. But with respect to the judgment before us, the "intervening judgment," the Brady claim is new. The District Court therefore erred in dismissing the claim as second or successive.
As noted above, the Florida Supreme Court treated Blanco's Brady claim as an attack on his March 14, 1984, convictions for armed robbery and armed burglary and held the claim procedurally barred. That the court did so is understandable; Blanco's May 29, 2001, Rule 3.850 motion alleged that he did not commit those crimes and the court reasonably concluded that the motion sought the vacatur of those convictions and a new trial. We read the motion as the Florida Supreme Court read it, but we also believe that it alleged that the Brady material the State withheld in 1992 to 1994 rendered the second penalty phase of his trial fundamentally unfair. Blanco posits that the material would have enabled him to impeach the weight of the March 14, 1984, convictions as statutory aggravating circumstances by showing that he was wrongly convicted. And under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), evidence that he did not commit the crimes would constitute a non-statutory mitigating circumstance.
Blanco's Brady claim is that the State withheld evidence of the deals it
On April 9, 1982, a jury convicted Blanco and Enrique Gonzalez of armed robbery and armed burglary for their roles in the theft of a television from an Emerald Hills residence. Fidel Romero, who was indicted with Blanco and Gonzalez, was tried separately and convicted. Romero appealed his convictions, but they were affirmed on July 13, 1983. See Romero v. State, 435 So.2d 318, 321 (Fla. 4th Dist.Ct.App.1983). Blanco and Gonzalez also appealed. Their convictions were reversed on August 31, 1983, based on an improper search and seizure. See Blanco v. State, 438 So.2d 404, 405 (Fla. 4th Dist.Ct.App.1983).
The State chose to retry Blanco for both offenses. To do that, the State decided to enlist Romero's and Gonzalez's cooperation. To obtain Romero's, the State entered into this arrangement in December 1983: Romero's seventy-five-year prison sentence would be reduced to a sentence of 791 days, with credit for 791 days time already served, and a probation term of seven years' and six months'; Romero would testify truthfully against Blanco, keep in touch with the State Attorney's office, and submit to psychological evaluations and therapy, if necessary.
The State's deal with Gonzalez, reached on January 10, 1984, required him to plead guilty to both the robbery and burglary charges; be sentenced to prison for two years, with credit for two years already served; and pay a public defender fee of $2,600.
The date for Blanco's new trial was originally set for January 16, 1984. On January 13, 1984, Blanco's counsel presented the Circuit Court with two motions. The first was a motion for a continuance. The grounds for the motion were, in relevant part:
The second January 13 motion was a motion to require the State to divulge plea negotiations. It read, in relevant part:
Finally, on January 18, 1984, counsel moved the Circuit Court to dismiss the information or, in the alternative, to enter an order excluding Fidel Romero from testifying. This motion stated, in relevant part:
Blanco's trial began on March 12, 1984, and took two days. Romero testified for the State. Romero's direct examination, through an interpreter, provides some insight into the Brady claim before this court:
Additionally, a relevant portion of Romero's testimony on cross-examination was as follows:
During his closing argument to the jury — on March 14, 1984 — Blanco's counsel continued to highlight that the State had made a deal with Romero in exchange for his testimony:
On March 14, 1984, the jury found Blanco guilty as charged. On March 27, 1985, his convictions were affirmed on appeal. See Blanco v. State, 466 So.2d 1152 (Fla. 4th Dist.Ct.App.1985).
Fast-forwarding eight years later to the resentencing, Blanco claims that the State failed to disclose its deals with Romero and Gonzalez when it announced that it would use the March 14, 1984, convictions to establish an aggravating circumstance before the jury. Thus, his Brady claim.
The problem Blanco faces in prosecuting the claim is that the record establishes that his attorneys
For the foregoing reasons, the judgment of the District Court denying Blanco's petition for a writ of habeas corpus is AFFIRMED.
SO ORDERED.
Fla. Stat. § 812.13(1), (2)(a) (1983).
Fla. Stat. § 810.02(1)-(2) (1983).
Blanco filed his second motion, which attacked his death sentence only, on August 1, 1989. The Circuit Court denied that motion as moot on April 18, 1994, the day Blanco's second penalty phase began.
The third motion, filed January 12, 1994, sought the vacatur of Blanco's convictions on the ground that newly discovered evidence established that Enrique Gonzalez and Fidel Romero committed the Ryan murder. The Circuit Court denied the motion on April 28, 1994; the Florida Supreme Court affirmed. See Blanco v. State, 702 So.2d 1250, 1252 (Fla. 1997) (concluding that the newly discovered evidence was not persuasive). (We note that the portion of the opinion affirming the April 28, 1994 order misstates the dates the second and third Rule 3.850 motions were filed. Also, the record contains two nearly identical orders from the Circuit Court denying the motion, one dated April 28, 1994, and the other dated May 5, 1994, which contains an additional sentence notifying the defendant of his right to appeal. These discrepancies are not relevant here.)
Fla. R.Crim. P. 3.590(b).
Brief for Appellant at 56, fn. 8, Blanco v. State, 706 So.2d 7 (Fla.1997) (No. 85118) (citations omitted).
Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978).
