Torres v. Sec'y, Dep't of Corr.

JOSE A. TORRES, SR., Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:16-cv-3194-T-36JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

March 23, 2020

ORDER

Petitioner, a Florida prisoner, initiated this action by filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1). He subsequently filed an amended petition (Doc. 6) and a second amended petition (Doc. 16). Respondent filed a response in opposition to the second amended petition (Doc. 22), to which Petitioner replied (Doc. 35). Upon consideration, the second amended petition will be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

On September 25, 2009, Petitioner was convicted of aggravated battery with a deadly weapon and sentenced to fifteen (15) years in prison (Respondent's Exs. 3-4). The conviction and sentence were affirmed on appeal on May 6, 2011 (Respondent's Ex. 8). Petitioner's motion for rehearing was denied on August 9, 2011 (Respondent's Ex. 9).

On October 5, 2011, Petitioner filed a petition for habeas corpus relief alleging ineffective assistance of appellate counsel (Respondent's Ex. 11). The petition was denied on November 15, 2011 (Respondent's Ex. 12).

On April 11, 2012, Petitioner filed a petition for a writ of habeas corpus in a state circuit court alleging that the judge who sentenced him was without authority to do so because he "had not been sworn into office" at the time of sentencing (Respondent's Ex. 13). The petition was denied on May 16, 2012 (Respondent's Ex. 15). The order denying the petition was affirmed on appeal on March 20, 2013 (Respondent's Ex. 16), and the appellate court mandate issued on April 15, 2013 (Respondent's Ex. 17).

On November 21, 2012, Petitioner filed a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure, alleging ineffective assistance of trial counsel (Respondent's Ex. 18). The motion was dismissed on December 17, 2012, after Petitioner moved to voluntarily withdraw it (Respondent's Ex. 20). Petitioner filed another Rule 3.850 motion on December 7, 2012 (Respondent's Ex. 21). While that motion was pending, Petitioner filed a motion to amend the Rule 3.850 motion (Respondent's Ex. 23) and a motion to supplement/amend (Respondent's Ex. 24). Some of the claims in the Rule 3.850 motion were denied on October 11, 2013 (Respondent's Ex. 26), and the remainder of the claims were denied on August 28, 2014 (Respondent's Ex. 27). The order denying the Rule 3.850 motion was affirmed (Respondent's Ex. 29), and the appellate court mandate issued on March 1, 2016 (Respondent's Ex. 31). Petitioner sought certiorari review of the affirmance in the United States Supreme Court (Respondent's Ex. 32) which was denied on October 3, 2016 (Respondent's Ex. 33).

On February 16, 2016, Petitioner filed another petition for a writ of habeas corpus in a state circuit court alleging the trial court lacked subject matter jurisdiction to convict and sentence him (Respondent's Ex. 34). The circuit court transferred the petition to another circuit court (Respondent's Ex. 35), and Petitioner appealed the transfer (Respondent's Ex. 36). Thecircuit court to which the petition was transferred then transferred the petition to the circuit court in which Petitioner had been convicted (Respondent's Ex. 38). On April 13, 2016, the petition was dismissed after Petitioner moved to voluntarily dismiss it (Respondent's Ex. 40). On January 23, 2017, the appellate court affirmed the order of the circuit court (in which Petitioner filed the petition) transferring the petition (Respondent's Ex. 41). The appellate court mandate issued on February 20, 2017 (Respondent's Ex. 42).

On November 9, 2016, Petitioner filed his initial petition for a writ of habeas corpus in this Court (Doc. 1). He subsequently filed his amended petition on December 7, 2016 (Doc. 6), and his second amended petition on March 28, 2017 (Doc. 16).

II. GOVERNING LEGAL PRINCIPLES

Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order 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); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).

A. Standard of Review Under the AEDPA

Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that 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 phrase "clearly established Federal law," encompasses only the holdings of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).

"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the 'contrary to' and 'unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):

Under the "contrary to" clause, a federal court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.

If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.

Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of theevidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).

B. Standard for Ineffective Assistance of Counsel

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.¹ Id. at 687-88. A court must adhere to a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689-90. "Thus, 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. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir. 1989).

As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:

has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. Courts also should at the start presume effectiveness and should always avoid second guessing with the benefit of hindsight. Strickland encourages reviewing courts to allow lawyers broad discretion to represent their clients by pursuing their own strategy. We are not interested in grading lawyers'performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).

III. ANALYSIS

A. The second amended petition is timely

Respondent contends that the second amended petition should be dismissed as untimely. The AEDPA created a limitation period for petitions for writ of habeas corpus filed pursuant to 28 U.S.C. §2254. "A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. . . ." 28 U.S.C. §2244(d)(1)(A). Additionally, "[t]he time during which a properly filed application for State post...