Cato v. State of Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

REYNALDO R. CATO,

Petitioner,

v. Case No. 3:17-cv-20-J-32MCR

SECRETARY, FLORIDA

DEPARTMENT OF CORRECTIONS,

et. al.,

Respondents.

________________________________

ORDER

I. Status

Petitioner Reynaldo R. Cato, an inmate of the Florida penal system, initiated

this action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus

by a Person in State Custody. See Doc. 1. He challenges a state court (Duval County,

Florida) judgment of conviction for burglary of a dwelling. He is currently serving a

twenty-five-year term of incarceration as a habitual felony offender with a fifteen-year

minimum mandatory as a prison release reoffender. Respondents filed a Response.

See Doc. 17 (Resp.).1 Petitioner declined to file a reply. See Doc. 20. This case is ripe

for review.

1 Attached to the Response are several exhibits. See Doc. 17-1 through Doc. 17-

5. The Court cites to the exhibits as “Resp. Ex.”

II. Governing Legal Principals

Standard Under AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a

state prisoner’s federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic

& Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct.

1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief functions

as a guard against extreme malfunctions in the state criminal justice systems, and not

as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).

The first task of the federal habeas court is to identify the last state court

decision, if any, that adjudicated the petitioner’s claims on the merits. See Marshall v.

Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need

not issue an opinion explaining its rationale in order for the state court’s decision to

qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100

(2011). Where the state court’s adjudication on the merits is unaccompanied by an

explanation,

the federal court should “look through” the unexplained

decision to the last related state-court decision that does

provide a relevant rationale. It should then presume that

the unexplained decision adopted the same reasoning. But

the State may rebut the presumption by showing that the

unexplained affirmance relied or most likely did rely on

different grounds than the lower state court’s decision, such

as alternative grounds for affirmance that were briefed or

argued to the state supreme court or obvious in the record

it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

When a state court has adjudicated a petitioner’s claims on the merits, a federal

court cannot grant habeas relief unless the state court’s adjudication of the claim 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)(1), (2). A state court’s factual findings are

“presumed to be correct” unless rebutted “by clear and convincing evidence.” Id. §

2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that state-

court decisions be given the benefit of the doubt.” Renico v.

Lett, 559 U.S. 766, 773 (2010) (internal quotation marks

omitted). “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, 562 U.S. 86, 101 (2011)

(internal quotation marks omitted). “It bears repeating that

even a strong case for relief does not mean the state court’s

contrary conclusion was unreasonable.” Id. [at 102] (citing

Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme

Court has repeatedly instructed lower federal courts that an

unreasonable application of law requires more than mere

error or even clear error. See, e.g., Mitchell v. Esparza, 540

U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of

clear error fails to give proper deference to state courts by

conflating error (even clear error) with unreasonableness.”);

Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n

unreasonable application of federal law is different from an

incorrect application of federal law.”).

Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations

modified).

III. Analysis

Ground One

Petitioner argues that the trial court erred in imposing a twenty-five-year HFO

sentence because the question of whether an enhanced sentence was necessary for the

protection of the public was not determined by the jury. Doc. 1 at 17. Petitioner raised

this argument in his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct

sentence filed in state court, in which he argued that in Cunningham v. California,

549 U.S. 270 (2007), the United States Supreme Court found that Florida’s HFO

statute violates the Sixth Amendment and Apprendi v. New Jersey, 530 U.S. 466

(2000). Resp. Ex. E at 3-9. The trial court summarily denied this claim, finding in

pertinent part:

First, the Defendant submits that pursuant to the

United States Supreme Court’s decision in Cunningham[ ],

Florida’s habitual felony offender statute, found in section

775.084, Florida Statutes, violates the Sixth Amendment

and Apprendi[ ]. In Cunningham, the Supreme Court held

that a California sentencing statute, where circumstances

in aggravation were found by the judge, not the jury, and

only needed to be established by a preponderance of the

evidence, not beyond a reasonable doubt, violated Apprendi

[ ]. Apprendi held that except for a prior conviction, “any fact

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490.

According to the Defendant, because the habitual

felony offender statute presumes that the increased

sentence is necessary for the protection of the public, under

Cunningham it is necessary that a jury find that the

enhanced sentence is necessary for the protection of the

public, and established beyond a reasonable doubt. Section

775.084(3)(a), Florida Statutes, reads in relevant part:

if the state attorney pursues a habitual felony

offender sanction or a habitual violent felony

offender sanction against the defendant and

the court, in a separate proceeding pursuant to

this paragraph, determines that the defendant

meets the criteria under subsection (1) for

imposing such sanction, the court must

sentence the defendant as a habitual felony

offender or a habitual violent felony offender,

subject to imprisonment pursuant to this

section unless the court finds that such

sentence is not necessary for the protection of

the public. If the court finds that it is not

necessary for the protection of the public to

sentence the defendant as a habitual felony

offender or a habitual violent felony offender,

the court shall provide written reasons.

The Defendant concedes that Florida courts have

consistently found that section 775.084 does not violate

Apprendi. In accordance with these previous decisions of the

courts of this state, the Court declines to vacate the

Defendant’s habitual felony offender sentence. See West v.

State, 82 So. 3d 987 (Fla. 1st DCA 2011); Thompson v. State,

23 So. 3d 235 (Fla. 1st DCA 2009); Gudinas v. State, 879 So.

2d 616 (Fla. 2004).

Resp. Ex. E at 15-16. Petitioner challenged the trial court’s denial during his direct

appeal. Resp. Ex. F at 8. The First District Court of Appeal per curiam affirmed the

trial court’s denial and Petitioner’s judgment and sentence without a written opinion.

Resp. Ex. I.

To the extent that the First DCA affirmed the trial court’s denial on the merits,

the Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. Petitioner’s enhanced twenty-five-

year HFO sentence was based upon Petitioner’s prior 2002 conviction for sale or

delivery of cocaine and his prior 2010 conviction for fleeing or attempting to elude.

Resp. Ex. A at 18, 195; see also § 775.084(1)(a), Fla. Stat.; Dinkens v. State, 976 So. 2d

660, 662 (Fla. 1st DCA 2008) (holding “the habitual felony offender statute is based

solely on prior convictions and therefore does not require a jury determination

pursuant to Apprendi.”). Apprendi does not apply to increases in a sentence due to

recidivism. See Apprendi, 530 U.S. at 488-90 (recognizing recidivism as a traditional

basis for a sentencing court’s increase in an offender’s sentence); see also Almendarez-

Torres v. United States, 523 U.S. 224 (1998) (holding that a defendant’s prior

conviction is merely a “sentencing factor” that does not have to be submitted to the

jury and proved beyond a reasonable doubt); see also Dinkens, 976 So. 2d at 662

(noting arguments that Apprendi applies to Florida’s HFO sentencing scheme have

“been repeatedly rejected by Florida courts.”). As such, after a review of the record and

the applicable law, the Court concludes that the state court’s adjudication of the claim

was not contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. Ground One is due to be denied.

Ground Two

Petitioner asserts that his fifteen-year PRR minimum mandatory sentence

violates Apprendi and Alleyne v. United States, 133 S. Ct. 2151 (2013). Doc. 1 at 24.

Petitioner raised this issue in his Rule 3.800(b)(2) motion. Resp. Ex. D at 10. The trial

court summarily denied the claim as follows:

In his second argument, the Defendant submits that

his fifteen-year minimum mandatory term as a prison

release reoffender violates Apprendi. In support of his

argument, the Defendant cites to the United States

Supreme Court’s recent decision in Alleyne[ ]. Alleyne held

that facts that increase the mandatory minimum sentence

are “elements” of a crime that must be submitted to the jury.

Id. at 2155. Essentially, Alleyne held that Apprendi applies

with equal force to facts increasing the mandatory

minimum as it does to facts increasing the statutory

maximum. Id. at 2153. The Defendant argues that his

minimum mandatory sentence as a prison release

reoffender violates Alleyne for three reasons: (1) the

temporal relationship between the current offense and

release from prison was determined by the judge rather

than the jury; (2) the lack of extenuating circumstances

which preclude the just imposition of a prison release

reoffender sentence was determined by the prosecutor

rather than a jury; and (3) the Defendant’s qualification as

a prison release reoffender was established by a

preponderance of the evidence rather than beyond a

reasonable doubt.

Alleyne did nothing to change the fact that Apprendi

does not require that proof of prior convictions be submitted

to a jury and found beyond a reasonable doubt. In Apprendi,

the Supreme Court stated, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

530 U.S. at 490 (emphasis added). The Supreme Court

specifically noted in Alleyne that it was not revisiting this

narrow exception that proof of a prior conviction need not be

submitted to a jury. 133 S. Ct. at 1260 n.l.

This Court finds persuasive the holding in U.S. v.

Flowers, 531 F[]. App[’]x. 975 (11th Cir. 2013). In Flowers,

the appellant argued that the sentencing court’s finding of

his predicate Armed Career Criminal Act convictions

violated the Sixth Amendment because it raised his

minimum mandatory sentence to fifteen years. Id. at 984.

The appellant averred that Alleyne mandated a reversal of

his sentence. Id. In affirming his sentence, the Eleventh

Circuit held that Alleyne did not address prior-conviction

sentencing enhancements. Id. at 985. The court held that

Alleyne merely extended the rationale of Apprendi, which

noted that the Sixth Amendment did not require the fact of

a prior conviction to be submitted to a jury and proved

beyond a reasonable doubt. Id.

Section 775.082(9)(a), Florida Statutes, defines a

prison release reoffender as a defendant who commits, or

attempts to commit, one of the specifically enumerated

offenses within three years from the release from prison for

an offense for which the sentence is punishable by more

than one year in the state of Florida. This statute simply

requires proof that the current offense was committed

within a certain time period from the defendant’s release

from prison. Such findings do not constitute “elements” of a

crime that would fall under the requirements of Alleyne.

As the Defendant correctly points out, the

Defendant’s argument was rejected in Calloway[ ]. In

Calloway, the appellant argued that the imposition of his

prison release reoffender sentence without a jury

determination that he had committed the robbery within

three years of his release from prison violated Apprendi. Id.

at 13. The appellant claimed that the fact of his date of

release from prison did not fall within the prior conviction

exception of Apprendi, and therefore was required to be

found beyond a reasonable doubt by the jury. Id. In

affirming his sentence, the Court noted that the provisions

in section 775.084, allowing for enhanced sentencing if the

new offense was committed within a certain period of time

from the defendant’s release from prison, are similar to the

prison release reoffender provision in section 775.082(9)(a).

Id. at 14. For both the habitual felony offender statute and

the prison release reoffender statute, the trial court must

find that the instant offense was committed within a certain

period of time from the date of the defendant’s last release

from prison. Id. The court held that date of release from

prison is a part of a defendant’s prior record and thus does

not need to be presented to a jury and proved beyond a

reasonable doubt. Id.

The Court does not find that Alleyne has cast doubt

on the holding in Calloway. Because the findings necessary

to impose a minimum mandatory sentence under the prison

release reoffender statute are similar to those findings

necessary to impose an enhanced sentence pursuant to the

habitual felony offender statute in that they both require a

finding that a prior conviction exists within a particular

time period, the Court does not find that the Defendant’s

minimum mandatory sentence violates either Apprendi or

Alleyne. As such, the Court does not find that it was error

to impose the fifteen year minimum mandatory term.

Resp. Ex. D at 16-19. Petitioner challenged the trial court’s denial during his direct

appeal. Resp. Ex. F at 8. The First DCA per curiam affirmed the trial court’s denial

and Petitioner’s judgment and sentence without a written opinion. Resp. Ex. I.

To the extent that the First DCA affirmed the trial court’s denial on the merits,

the Court will address the claim in accordance with the deferential standard for

federal court review of state court adjudications. In imposing Petitioner’s PRR

sentence, the trial court relied on Petitioner’s prior conviction for fleeing or attempting

to elude, from which Petitioner was released from incarceration within three years of

the date of the commission of the burglary. Resp. Ex. A at 19. The Court again

recognizes that the United States Supreme Court held that prior convictions are not

an “element” that must be found by a jury. See Almendarez-Torres, 523 U.S. at 226;

see also Mendelson v. Fla. Dep’t of Corr., No. 19-10130-J, 2019 WL 3206630, at *2

(11th Cir. May 30, 2019) (citing Almendarez-Torres and holding that petitioner’s PRR

sentence did not violate Apprendi). As such, after a review of the record and the

applicable law, the Court concludes that the state court’s adjudication of the claim was

not contrary to clearly established federal law, did not involve an unreasonable

application of clearly established federal law, and was not based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings. Ground Two is due to be denied.

Ground Three

Petitioner contends that he is in receipt of newly discovered evidence in the form

of a sworn affidavit executed by Mario Nelson in which Nelson admits that he was the

individual who committed the burglary. Doc. 1 at 8. Petitioner raised this claim in his

Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, see Resp.

Ex. J at 24-25, and attached Nelson’s affidavit as support, see id. at 31. The trial court

summarily denied the claim as follows:

In his first ground for relief, Defendant maintains a

fellow inmate admitted to committing the instant offense.

Defendant attaches an affidavit from said inmate to his

“(3.850) Motion for Post-conviction Relief,” filed on or about

August 11, 2014. Defendant further contends he did not

commit this crime. To support this argument, Defendant

states his deoxyribonucleic acid (“DNA”) was at the crime

scene because he had previously been in the apartment to

use heroin.

The instant affidavit is considered to be a type of

newly discovered evidence, and therefore, that standard

applies. See Murrah v. State, 773 So. 2d 622, 623 (Fla. 1st

DCA 2000). Under rule 3.850(b)(1), a claim of newly

discovered evidence requires the facts on which the claim is

predicated were unknown to the movant or the movant’s

attorney and could not have been ascertained by the

exercise of due diligence. Fla. R. Crim. P. 3.850(B)(l).

To obtain a new trial based on newly

discovered evidence, a defendant must

demonstrate that: (1) the evidence was not

known by the trial court, the party, or counsel

at the time of trial, and it must appear that the

defendant or defense counsel could not have

known of it by the use of diligence; and (2) the

newly discovered evidence is of such nature

that it would probably produce an acquittal on

retrial.

Hitchcock v. State, 991 So. 2d 33 7, 349 (Fla. 2008); see also

Huffman v. State, 909 So. 2d 922 (Fla. 2d DCA 2005)

(concluding newly discovered evidence must be admissible

and “must be of such a nature that it would probably

produce an acquittal on retrial.”) These determinations

require an evidentiary hearing, unless the affidavit is

inherently incredible or obviously immaterial to the verdict.

Stephens v. State, 829 So. 2d 945, 945-46 (Fla. 1st DCA

2002).

The testimony and evidence at trial established that

when the victim left her home on the day of the offense, none

of her windows were broken, and she had not observed a

blood stain on her windowsill. (Ex. D at 210, 224.) When the

Jacksonville Sheriff’s Office (“JSO”) arrived, however, there

was a broken window, open door, and a bloodstain on the

windowsill. (Ex. D at 227-228.) The JSO evidence technician

dispatched to the scene processed the blood from the

windowsill, and testified its color was indicative of fresh

blood. (Ex. D at 242.) Further, when the technician took

blood samples, the area in which the blood was present did

not have the dust and debris that coated the rest of the

windowsill. (Ex. D at 243.) Florida Department of Law

Enforcement (“FDLE”) found Defendant to be a match to the

DNA recovered at the crime scene. (Ex. D at 315.) JSO

arrested Defendant based on the results of the DNA testing

at FDLE. (Ex. D at 266-67.) Notably, there was evidence at

trial that multiple individuals may have been involved in

this crime. (Ex. D at 302.)

The Court finds the attached affidavit inherently

incredible and immaterial to the verdict based on the

testimony and evidence described above. Stephens, 829 So.

2d at 945-46. Accordingly, Defendant is not entitled to relief.

Resp. Ex. J at 77-78. The First DCA per curiam affirmed the trial court’s summary

denial without a written opinion. Resp. Ex. K.

To the extent that the First DCA affirmed the trial court’s denial on the merits,

the Court must accept the state court’s finding of fact because of the high deference

afforded to it. The only exception is if the state court’s finding was unreasonable based

on the evidence before it. This exception does not apply here. In considering this

claim, the state court compared Petitioner’s allegations to the evidence presented at

trial. Petitioner claimed that his DNA (blood) was found at the crime scene because he

was at the apartment “in August of 2011 to use heroin.” Resp. Ex. J at 24. However,

the burglary occurred on April 15, 2012, and evidence demonstrates that Petitioner’s

blood was fresh when police arrived on scene. Resp. Ex. C at 242. Further, the state

court noted that during trial, one of the officers testified that an eyewitness to the

crime reported that she saw multiple individuals commit the burglary.2 Id. at 302-03.

Thus, Nelson’s affidavit that he committed the crime does not wholly exonerate

Petitioner as Nelson and Petitioner could have committed the burglary together. As

such, the Court concludes that the state court’s finding that Nelson’s affidavit was

incredible and immaterial was not based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding. The state court’s

adjudication of the claim was also not contrary to clearly established federal law, and

it did not involve an unreasonable application of clearly established federal law. Thus,

Petitioner is not entitled to relief on the basis of this claim. Ground Three is due to be

denied.

2 Detective Bush testified that during his investigation of the burglary, he spoke

with an eyewitness: Ms. Reese. Resp. Ex. C at 302. According to Detective Bush, Ms.

Reese reported that she saw two individuals commit the burglary; however, she was

unable to identify who either of the burglars were from a photospread and she did not

testify at trial. Id. at 302-03.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Petition (Doc. 1) is DENIED and this case is DISMISSED with

prejudice.

2. The Clerk shall enter judgment dismissing this case with prejudice,

terminate any pending motions, and close the file.

3. If Petitioner appeals this denial, the Court denies a certificate of

appealability. Because this Court has determined that a certificate of appealability is

not warranted, the Clerk shall terminate from the pending motions report any motion

to proceed on appeal as a pauper that may be filed in this case. Such termination shall

serve as a denial of the motion.?

DONE AND ORDERED at Jacksonville, Florida, this 17th day of December,

2019.

TIMOTHY J. CORRIGAN

United States District Judge

3 The Court should issue a certificate of appealability only if the Petitioner

makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard 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)).

Here, after consideration of the record as a whole, the Court will deny a certificate of

appealability.

13

Jax-7

C: Reynaldo Cato, #J19035

Bryan G. Jordan, Esq.