Trejo-Lozano v. Secretary, Department of Corrections(Manatee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DAVID TREJO-LOZANO,

Petitioner,

-vs- Case No. 8:18-cv-2206-WFJ-JSS

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________/

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). Respondent filed a response

opposing the petition (Doc. 17), to which Petitioner replied (Doc. 20). Upon

consideration, the petition will be denied.

I. BACKGROUND AND PROCEDURAL HISTORY

Petitioner was convicted of four counts of lewd and lascivious molestation

upon a child less than 12 years of age and sentenced to life in prison (Doc. 17-2, Exs.

5-6). The convictions and sentences were affirmed on appeal on June 8, 2011 (Id.,

Ex. 10).

On February 27, 2012, Petitioner filed a post-conviction motion under Rule

3.850, Florida Rules of Criminal Procedure, in which he alleged five claims of

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ineffective assistance of trial counsel (Id., Ex. 12, docket pp. 29-35). The state post-

conviction court denied grounds one and five and ordered the State to respond to

grounds two, three, and four (Doc. 17-2, Ex. 13). After the State filed its response

(id., Ex. 14), the court denied ground two and struck ground four with leave to

amend (Id., Ex. 15). Petitioner filed an amended Rule 3.850 motion in which he

amended ground four (Id. Ex. 16). The court denied ground four and granted an

evidentiary hearing on ground three (Id., Ex. 17). The evidentiary hearing was held

on December 17, 2014 (Id., Ex. 18). On January 27, 2015, the court issued a final

order denying ground three (Id., Ex. 19).

Petitioner did not file a timely appeal. However, he filed a Petition for Belated

Appeal on June 4, 2015 (Id., Ex. 20). After the petition was amended (id., Ex. 22), it

was granted by the appellate court on August 10, 2015 (Id., Ex. 23). The denial of

Petitioner’s Rule 3.850 motion was affirmed on appeal (Id., Ex. 26). The appellate

court mandate issued on April 27, 2018 (Id., Ex. 27).

On August 31, 2018, Petitioner filed his federal habeas petition in this Court

(Doc. 1) in which he alleges five grounds for relief:

1. The state trial court erred in admitting Petitioner’s confessions because they

were coerced by Ms. Martinez (the ex-wife of Petitioner and the victim’s mother),

who was acting as an agent for the police and told Petitioner she still had feelings for

him and would reconcile their relationship if he confessed;

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2. Trial counsel was ineffective in failing to move to suppress Petitioner’s

confessions to Ms. Martinez because they were coerced;

3. Trial counsel was ineffective in failing to move to suppress Petitioner’s

videotaped confession to law enforcement because it was obtained in violation of his

Miranda rights;

4. Trial counsel was ineffective in failing to move to suppress Petitioner’s

videotaped confession because his intoxication from cocaine rendered his confession

involuntary; and

5. Trial counsel was ineffective in failing to hire a forensic psychologist to

review reports and a videotaped interview of the victim and provide testimony that

the victim’s allegations were influenced by Ms. Martinez or Ms. Garza.

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

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highly deferential and that state-court decisions must be given the benefit of the

doubt).

A. Standard of Review Under the AEDPA

Under the AEDPA, habeas relief may not be granted regarding 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

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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 the evidence 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.

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.

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“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).

C. Exhaustion and Procedural Default

The writ of habeas corpus cannot be granted unless the petitioner has

exhausted all available state court remedies. Coleman v. Thompson, 501 U.S. 722, 731

(1991); Lucas v. Sec’y, Dep’t of Corr., 682 F.3d 1342, 1351 (11th Cir. 2012) (citing 28

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U.S.C. § 2254(b),(c)).1 Exhausting state remedies requires a petitioner to “fairly

present” his claim in each appropriate state court “thereby alerting that court to the

federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing O’Sullivan

v. Boerckel, 526 U.S. 838, 848 (1999) and Duncan v. Henry, 513 U.S. 364, 365 (1995)

(per curiam)). The petitioner first must have “fairly presented” both the facts and

substance of the constitutional federal habeas claim to the state courts. Anderson v.

Harless, 459 U.S. 4, 6 (1982) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). A

state prisoner properly raises a federal constitutional claim by citing the federal

source of law, or a case deciding the claim on federal grounds. Howell v. Mississippi,

543 U.S. 440, 443–44 & n.2 (2005). The state prisoner must have presented the same

claim to the state courts as the one being raised in the federal habeas petition. Picard,

404 U.S. at 276.

Federal habeas review may be precluded in certain circumstances. If the claim

was raised in state court but the state court found the claim was defaulted on state

procedural grounds, the claim is procedurally barred from habeas review. Coleman,

501 U.S. at 729–30. Under the procedural default doctrine, a claim is barred if the

claim was not raised in state court and “the court to which the petitioner would be

required to present [the] claims in order to meet the exhaustion requirement would

1 Accord Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (“A rigorously enforced total exhaustion

rule will encourage state prisoners to seek full relief first from the state courts, thus giving

those courts the first opportunity to review all claims of constitutional error.”).

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now find the claims procedurally barred.” Id. at 735 n.1. To avoid a procedural bar, a

petitioner must show “either cause for and actual prejudice from the default or a

fundamental miscarriage of justice from applying the default.” Lucas, 682 F.3d at

1353; Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001).

III. ANALYSIS

A. The petition is timely

Respondent moves to dismiss the petition as time-barred under 28 U.S.C. §

2244(d), arguing that more than one year passed after Petitioner’s judgment became

final (Doc. 17, pp. 5-9).

The AEDPA establishes a one-year statute of limitations in which a state

prisoner may file a federal habeas petition. 28 U.S.C. § 2244(d)(1). Lawrence v.

Florida, 549 U.S. 327, 331 (2007). The limitations period runs from “the date on

which the judgment became final by the conclusion of direct review or the expiration

of the time for seeking such review. . . .” § 2244(d)(1)(A). And “[t]he time during

which a properly filed application for State post conviction or other collateral review

with respect to the pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.” § 2244(d)(2).

Petitioner’s judgment of conviction was affirmed by the appellate court on

June 8, 2011. Therefore, for purposes of § 2244(d), the judgment became final ninety

(90) days later on September 6, 2011. See Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235,

1236–37 (11th Cir. 2004) (holding that Florida prisoner’s conviction became “final”

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for AEDPA purposes on date the 90–day period for seeking certiorari review in

Supreme Court expired); Supreme Court Rules 13(1) and (3) (for a petition for

certiorari to be timely, it must be filed within 90 days after entry of the judgment or

order sought to be reviewed). Thus, Petitioner’s AEDPA statute of limitations period

commenced on September 7, 2011. He therefore had until September 7, 2012, in

which to file a timely federal habeas petition under § 2254. His habeas petition was

filed on August 31, 2018, approximately 6 years later. Accordingly, his petition is

untimely unless the limitations period was tolled for a sufficient period by properly

filed state court post-conviction applications.

After the limitations period commenced on September 7, 2011, it was tolled

173 days later on February 27, 2012, when Petitioner filed his Rule 3.850 motion.

The limitations period remained tolled until February 26, 2015, 30 days after the

Rule 3.850 motion was denied on January 27, 2015. See Cramer v. Sec’y, Dep’t of Corr.,

461 F.3d 1380, 1383 (11th Cir. 2006) (a post-conviction application remains pending

until the time to seek appellate review expires if a petitioner does not file a notice of

appeal).

Another 98 days of the limitations period elapsed before it was tolled again on

June 4, 2015, when Petitioner filed his petition for a belated appeal of the order

denying his Rule 3.850 motion.2 The limitations period remained tolled until April

2 After the petition for belated appeal was amended (Doc. 17-3, Ex. 22)), it was granted (Id.,

Ex. 23). Accordingly, the AEDPA’s limitations period was tolled while the petition for

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27, 2018, when the appellate court mandate issued after the order denying the Rule

3.850 motion was affirmed. See San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir.

2011) (“The AEDPA clock resumes running when the state’s highest court issues its

mandate disposing of the motion for post-conviction relief.”). As of that date,

Petitioner had 94 (i.e., 365-173-98=94) days remaining within which to file a timely

federal habeas petition. The limitations period ran unabated for those 94 days before

expiring on July 30, 2018. Petitioner filed his federal habeas petition on August 31,

2018, 32 days after the federal limitations period expired. Accordingly, his federal

habeas petition is time-barred unless he can demonstrate the applicability of

equitable tolling, see Holland v. Florida, 560 U.S. 631, 645 (2010), or that he is actually

innocent of the crime for which he was convicted. See McQuiggin v. Perkins, 569 U.S.

383 (2013).

Petitioner does not contend that he is actually innocent of the crimes for

which he was convicted. He does, however, assert entitlement to equitable tolling.

The limitations period under § 2244(d) is subject to equitable tolling. Sibley v.

Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004). Section 2244 “permits equitable

tolling ‘when a movant untimely files because of extraordinary circumstances that

are both beyond his control and unavoidable with diligence.’” Steed v. Head, 219 F.3d

1298, 1300 (11th Cir. 2000) (quoting Sandvik v. United States, 177 F.3d 1269, 1271

belated appeal and the belated appeal were pending. See Williams v. Crist, 230 F. App’x 861,

867 (11th Cir. 2006) (a successful petition for belated appeal tolls the statute of limitations).

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(11th Cir. 1999) (per curiam)). Equitable tolling only applies, however, where the

litigant satisfies his burden of establishing that he has been pursuing his rights

diligently and that some extraordinary circumstance stood in his way and prevented

timely filing. Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006) (petitioner must

show both extraordinary circumstances and diligence).

Petitioner contends that he is entitled to equitable tolling because: 1) he did

not receive the January 27, 2015 order denying his Rule 3.850 motion until May 15,

2015; and 2) he was unable to prepare a timely federal habeas petition since he was

without access to his legal documents and unable to see and read printed documents

due to a medical condition affecting his eyes between March 20, 2018, and August 1,

2018 (See Doc. 1, docket pp. 14–15; Doc. 20). According to Petitioner, he did not

receive the January 27, 2015 order denying his Rule 3.850 motion because it was

mailed to the Central Florida Reception Center (“CFRC”) (a Florida Department of

Corrections institution) rather than the Manatee County Jail, where he had been

transferred for the December 2014 evidentiary hearing on his Rule 3.850 motion

(Doc. 17-3, Ex. 20, docket pp. 243–44). CFRC returned the order to the state court

because Petitioner was not in the custody of the Department of Corrections when the

order was received on January 29, 2015 (Id., docket pp. 244, 249).

Because Petitioner had not received notice of the final disposition of his Rule

3.850 motion, he sent a notice of inquiry to the clerk of the trial court in May 2015

(Id., docket p. 244). On May 15, 2015, Petitioner received a copy of the January 27,

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2015 order denying his Rule 3.850 motion (Id.). Petitioner filed a petition for belated

appeal on June 4, 2015 (Id., docket p. 242), and an amended petition for belated

appeal on June 24, 2015 (Id., Ex. 22, docket p. 253). The petition was granted (Id.,

Ex. 23).

Given the record, the Court finds that Petitioner is entitled to equitable tolling

from February 26, 2015, when the time to seek appellate review of the January 27,

2015 order denying his Rule 3.850 motion expired, through May 15, 2015, when

Petitioner received his copy of that order. The state court mailing the January 27,

2015 order to the wrong institution, and CFRC returning the order to the state court,

was an extraordinary circumstance beyond Petitioner’s control that prevented him

from knowing the disposition of the Rule 3.850 proceeding and filing a timely notice

of appeal. And Petitioner acted with reasonable diligence in sending a notice of

inquiry to the state court less than 4 months after the final order was issued and in

filing a petition for belated appeal 20 days after receiving a copy of the order. See

Drew v. Dep’t of Corr., 297 F.3d 1278, 1288 (11th Cir. 2002) (“A lengthy delay

between the issuance of a necessary order and an inmate’s receipt of it might provide

a basis for equitable tolling if the petitioner has diligently attempted to ascertain the

status of that order and if the delay prevented the inmate from filing a timely federal

habeas corpus petition.”) (citations omitted), cert. denied, 537 U.S. 1237 (2003);

Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.) (per curiam) (finding that equitable

tolling may apply where petitioner, despite his diligence, did not receive notice of

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denial of state post-conviction relief for four months), reh’g granted in part, 223 F.3d

797 (5th Cir. 2000).

Giving Petitioner the benefit of equitable tolling, only 20 days of the

limitations period (rather than 98) elapsed between February 26, 2015, when the time

to appeal the order denying the Rule 3.850 motion expired, and June 4, 2015, when

the petition for belated appeal was filed. Therefore, Petitioner had until October 16,

2018 (rather than July 30, 2018), to timely file his federal habeas petition.

Accordingly, Petitioner’s petition, filed August 31, 2018, is timely.3

B. Petitioner’s claims are procedurally barred or fail on the merits

1. Grounds One, Two, and Five are procedurally barred

Respondent argues that Grounds One, Two, and Five should be dismissed as

procedurally barred from federal habeas review. The Court agrees.

Ground One

Petitioner contends that the state trial court erred in admitting his confessions

to Ms. Martinez because she coerced the confessions while acting as an agent for the

police. This claim was raised in state court in Petitioner’s direct appeal (Doc. 17-2,

Ex. 8). In response, the State argued both that the claim was not preserved for

3 Because the petition is timely with the benefit of equitable tolling between February 26,

2015, and May 15, 2015, the Court need not address Petitioner’s remaining contention that

he likewise is entitled to equitable tolling between March 20, 2018, and August 1, 2018.

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appellate review because it was never raised in the trial court and without merit (Id.,

Ex. 9). The appellate court affirmed Petitioner’s convictions without a written

opinion (Id., Ex. 10).

This claim is procedurally barred from federal habeas review because it was

procedurally defaulted in the state appellate court, having not been properly

preserved for review. In Florida, “[f]or an issue to be preserved for appeal, it must be

presented to the lower court, and the specific legal argument or ground to be argued

on appeal must be part of that presentation.” Doorbal v. State, 983 So. 2d 464, 492

(Fla. 2008). Petitioner did not present the argument he makes here, and that he made

in the state appellate court, to the state trial court. The state appellate court affirmed

without opinion and this Court “may not assume that had the state court issued an

opinion, it would have ignored its own procedural rules and reached the merits of

this [issue]. In fact, the most reasonable assumption is that had the state court ruled,

it would have enforced the procedural bar.” Tower v. Phillips, 7 F.3d 206, 211 (11th

Cir. 1993).

“[C]onsistent with the longstanding requirement that habeas petitioners must

exhaust available state remedies before seeking relief in federal court,” the Supreme

Court has held that, “when a petitioner fails to raise his federal claims in compliance

with relevant state procedural rules, the state court’s refusal to adjudicate the claim

ordinarily qualifies as an independent and adequate state ground for denying federal

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review.” Cone v. Bell, 556 U.S. 449, 465 (2009). Because Petitioner failed to present

his claim to the state trial court, the denial of the claim by the state appellate court is

presumed to rest on the independent and adequate state ground of lack of

preservation, and therefore this claim is procedurally barred.

Petitioner fails to demonstrate cause for the default and prejudice. And he

cannot meet the “fundamental miscarriage of justice” exception because he presents

no “new reliable evidence” that he is actually innocent. Schlup, 513 U.S. at 327.

Because Petitioner satisfies neither exception to procedural default, Ground One is

procedurally barred from federal review.

Even if Ground One were not procedurally barred, it would fail on the merits.

Petitioner has presented a federal constitutional claim regarding Ground One in

neither this Court nor state court. Rather, he has presented a claim of trial court error

under Florida law. Specifically, on direct appeal he argued that the trial court erred

in admitting his confessions to Ms. Martinez because they were untrustworthy under

Fla. Stat § 92.565 (Doc. 17-2, Ex. 8). A claim that the admission of evidence in a

state criminal trial failed to conform with state law requirements is not cognizable on

federal habeas review. Futch v. Dugger, 874 F.2d 1483, 1487 (11th Cir. 1989).

Accordingly, Ground One does not warrant federal habeas relief.

Grounds Two and Five

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In Ground Two, Petitioner contends that counsel was ineffective in failing to

move to suppress his confessions to Ms. Martinez. In Ground Five, he contends that

counsel was ineffective in failing to hire a psychologist as an expert witness to

challenge the victim’s allegations. Although Petitioner raised these claims in his Rule

3.850 motion in state court (see Doc. 17-2, Ex. 12), he failed to raise them on appeal

from the denial of the Rule 3.850 motion (see Doc. 17-3, Ex. 24).

To obtain appellate review of these claims in state court, Petitioner had to

raise and address the merits of the issues in his Initial Brief. See Rule 9.141(b)(3)(C),

Fla. R. App. P. He therefore failed to invoke Florida’s established appellate review

process as to these claims. Consequently, he failed to exhaust his state remedies

regarding these claims. See Cortes v. Gladish, 216 F. App’x. 897, 899–900 (11th Cir.

2007) (unpublished) (“had Cortes received an evidentiary hearing [on issues raised in

his 3.850 motion], his failure to address issues in his appellate brief would constitute

a waiver”); Khianthalat v. Sec’y, Dep’t of Corr., 2017 WL 9285601, at *4 (11th Cir.

Dec. 20, 2017) (concluding that ineffective assistance of trial counsel claims raised in

state Rule 3.850 motion but not argued on post-conviction appeal were procedurally

barred from federal habeas review).

Any future attempt to exhaust state remedies would be futile under the state’s

procedural default doctrine, because the Florida rule requiring submission of an

appellate brief bars Petitioner from returning to state court to challenge the denial of

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these claims in a second appeal of the denial of the Rule 3.850 motion. See Rule

9.141(b)(3)(C), Fla.R.App.P. And any further attempt to raise the claims in another

Rule 3.850 motion would be subject to dismissal as untimely and successive. See

Rule 3.850(b), (h), Fla.R.Crim.P.

Petitioner’s failure to assert these claims on post-conviction appeal results in

the default of these claims. See Leonard v. Wainwright, 601 F.2d 807, 808 (5th Cir.

1979) (stating that exhaustion of a claim raised in a Rule 3.850 motion includes an

appeal from the denial of the motion). He makes none of the requisite showings to

excuse his procedural default. The default therefore bars federal habeas review of

Grounds Two and Five.

2. Grounds Three and Four fail on the merits

Ground Three

Petitioner contends that counsel was ineffective in failing to move to suppress

the videotaped confession he gave to law enforcement after he was arrested and

received his Miranda warnings.4 He argues that his rights under the Fifth

Amendment were violated because he confessed only after officers confronted him

with the confessions he previously made to Ms. Martinez. Since his confessions to

Ms. Martinez were obtained illegally, Petitioner argues, his confession to the police

4 See Miranda v. Arizona, 384 U.S. 436 (1966) (holding that the Fifth Amendment privilege

against self-incrimination prohibits admitting statements given by a suspect during

“custodial interrogation” without a prior warning).

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likewise was obtained illegally because he believed the Miranda warnings were

“superfluous” or “worthless” after the police already were aware of his confessions

to Ms. Martinez.

This claim was raised in Claim Two of Petitioner’s Rule 3.850 motion (Doc.

17-2, Ex. 12, docket pp. 423-29). In denying the claim, the state post-conviction court

stated:

The Defendant argues that his trial counsel was ineffective for

failing to file a motion to suppress his videotaped confession, which he

argues was illegal because, after being confronted with the statements

he made during conversations with the victim’s mother, Angela

Martinez, which were monitored by law enforcement, he felt that his

Miranda warnings were "superfluous" or "worthless." He claims that

because his waiver of rights under Miranda was made after he made a

confession which law enforcement obtained illegally, his post-Miranda

statements should not have been admitted as evidence against him

under the "fruit of the poisonous tree" doctrine.

In support of his argument, the Defendant cites to Missouri v.

Seibert. In Missouri v. Seibert, the U.S. Supreme Court found that the law

enforcement practice of a "two prong" interrogation in which law

enforcement first withholds Miranda warnings until after a confession is

made and, second, provides the warnings, obtains a waiver and then

uses subsequent incriminating statements as evidence against a

defendant to be unconstitutional. Recognizing that the threshold

inquiry in reviewing such a practice is whether the Miranda warnings

reasonably convey the constitutional rights, the Court explained:

[W]hen Miranda warnings are inserted during coordinated

and continuing interrogation, they are likely to mislead and

depriv[e] a defendant of knowledge essential to his ability

to understand the nature of his rights and the

consequences of abandoning them. By the same token, it

would ordinarily be unrealistic to treat two spates of

integrated and proximately conducted questioning as

independent interrogations subject to independent

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evaluation simply because Miranda warnings formally

punctuate them in the middle.

Missouri v. Seibert is not analogous to the present case because no two-

prong interrogation by law enforcement occurred here. The Defendant

was not being interrogated by law enforcement at the time he made the

first statements, and the conversations with Angela Martinez were not

conducted when the Defendant was in custody. Only later, after being

taken into custody and after waiving his rights under Miranda, did he

make the inculpatory statements to law enforcement which were

admitted at the trial. The conversations with Martinez were not in any

way integrated or continuous with the post-Miranda questioning by law

enforcement.

The rights that a Miranda warning seeks to protect are not

triggered unless a defendant is facing custodial interrogation by law

enforcement. "For Miranda purposes, custodial interrogation means

questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any

significant way." "The standard for "custody" is whether, based on the

totality of the circumstances, a reasonable person would feel that his

freedom of movement has been restricted to a degree associated with an

actual arrest." In the present case, although law enforcement listened to

Martinez's phone and in-person conversations with the Defendant, and

the conversations were conducted by Martinez for the purpose of

getting incriminating statements from the Defendant, he was not in

custody at the time because these conversations occurred before he was

picked up by law enforcement. Because he was not in custody when he

made statements to Martinez, the statements were not illegally coerced.

"Under the 'fruit of the poisonous tree doctrine', the exclusionary

rule bars the admission at trial of physical evidence and live witness

testimony obtained directly or indirectly through the exploitation of the

police illegality." Because the statements made to Martinez were not

illegally obtained, there was no basis for suppression of the video tape

of the post Miranda statements to law enforcement based upon this

doctrine. The Defendant had been advised of his constitutional rights,

and he waived those rights both orally and in writing before he made

the incriminating statement to law enforcement.

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Moreover, the Defendant claims that upon his arrest, he was

“immediately confronted with statements that he had made to his ex-

wife during several 'controlled' phone calls and on in person discussion

during which she wore a 'wire' at the direction of' law enforcement. As

the State pointed out in its Response, the detectives who conducted his

interview recorded the entire interview, and they never confronted him

with statements he made to his wife during the recorded conversations.

Detective Bliss only told him that some allegations came out when the

daughter was at the hospital and asked him if he spoke to his wife, and

the Defendant admitted that he spoke to his wife and that she had

explained what happened. His statements during the recorded

conversations were never brought up by law enforcement and as a

result, the law enforcement officers would not have been found to have

used the statements to undermine the protections of the Miranda waiver.

Because a motion to suppress the videotaped confession based

upon this argument would have been denied, the Defendant was not

prejudiced by trial counsel’s failure to file such a motion. Therefore, this

Ground Two shall be denied as conclusively refuted by the record.

(Doc. 17-3, Ex. 15, docket pp. 164–67) (footnotes omitted) (emphasis in original).

The state appellate court affirmed the denial of the Rule 3.850 motion without a

written opinion (Id., Ex. 26).

Petitioner’s claim relies on the faulty premise that his admissions to Ms.

Martinez were obtained unconstitutionally. To the extent that he argues his rights

under the Fifth Amendment were violated because he did not receive Miranda

warnings before confessing to Ms. Martinez, Miranda is inapplicable to this claim

because Petitioner does not allege or show that he was in custody during his

conversations with Ms. Martinez. See United States v. Young, 377 F. App’x 965, 968

(11th Cir. 2010) (“Miranda only applies where ‘a person in custody is subjected to

either express questioning or its functional equivalent.’”) (quoting Rhode Island v.

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Innis, 446 U.S. 291, 300–01 (1980)); United States v. Street, 472 F.3d 1298, 1310 (11th

Cir. 2006) (“[A] person is in ‘custody’ for Miranda purposes only when there is a

‘formal arrest or restraint on freedom of movement of the degree associated with a

formal arrest.’”) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).

Moreover, Miranda warnings were not required even if, as Petitioner argues, Ms.

Martinez was working as an agent for the police because Petitioner does not allege

that when he confessed to Ms. Martinez, he believed that she was working with the

police. See Illinois v. Perkins, 496 U.S. 292, 296 (1990) (police officer working

undercover and representing himself to be a fellow prisoner does not have to give

Miranda warnings to preserve the admissibility of a confession).

To the extent that Petitioner contends his rights under the Fourteenth

Amendment were violated because Ms. Martinez coerced him into confessing by

telling him that if he admitted what he had done they could reconcile their

relationship and she would not inform the police, the contention is without merit.

“[A] defendant in a criminal case is deprived of due process of law if his conviction is

founded, in whole or in part, upon an involuntary confession.” Jackson v. Denno, 378

U.S. 368, 376 (1964). “The applicable standard for determining whether a confession

is voluntary is whether, taking into consideration the totality of the circumstances,

the statement is the product of the accused's free and rational choice.” Leon v.

Wainwright, 734 F.2d 770, 772 (11th Cir. 1984) (internal quotation marks omitted).

21

“This means that it ‘must not be extracted by any sort of threats or violence, nor

obtained by any direct or implied promises, however slight, nor by the exertion of

any improper influence.’” Id. (quoting Bram v. United States, 168 U.S. 532, 542-43

(1897)). “[C]oercive police activity is a necessary predicate to the finding that a

confession is not ‘voluntary’ within the meaning of the Due Process Clause of the

Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). A

confession is involuntary if the suspect’s “will was overborne in such a way to render

his confession the product of coercion.” Arizona v. Fulminante, 499 U.S. 279, 288

(1991).

Petitioner has failed to demonstrate that his will was overborne by Ms.

Martinez. Ms. Martinez testified that she told Petitioner she still had feelings for him

and that they could “work it out” if he told her the truth (Doc. 17-2, docket pp. 155-

56). She denied, however, telling him they could reconcile their relationship if he told

her he “did it.” (Id. , p. 155). Nor is there any indication from the trial transcript that

she promised Petitioner she would reunite with him if he confessed (Id., docket pp.

138-65).

In determining whether Petitioner’s will was overborne and confessions

involuntary, the Court must consider the totality of the circumstances. Hubbard v.

Haley, 317 F.3d 1245, 1252 (11th Cir. 2003). “Among the factors [the Court] must

consider are the defendant’s intelligence, the length of his detention, the nature of the

22

interrogation, the use of any physical force against him, or the use of any promises or

inducements by police.” Id., 317 F.3d at 1253 (citations omitted).

During the Rule 3.850 evidentiary hearing, Petitioner’s trial counsel testified

that Petitioner “was not of limited intelligence” and had experience with law

enforcement and the court system (Doc. 17-3, docket p. 221). Moreover, Petitioner

was not detained or in custody when speaking with Ms. Martinez, did not have to

talk to her, and could hang up the telephone or walk away from her at any time. And

there is no allegation or indication that either she or anyone else used physical force

or threats to get Petitioner to confess. Although she told Petitioner she still had

feelings for him and that they could reconcile their relationship if he told her the

truth, that was not sufficient to overbear Petitioner’s will. See United States v. Vera,

701 F.2d 1349, 1364 (11th Cir.1983) (“[A] mere admonition to the accused to tell the

truth does not render a confession involuntary.”); United States v. June, 312 F. App’x.

990, 991 (9th Cir.2009) (“A police officer’s repeated exhortations to tell the truth do

not amount to coercion.”). At most, Ms. Martinez’s statements to Petitioner

amounted to trickery, which alone does not render a confession involuntary. See

United States v. Castandeda–Castaneda, 729 F.2d 1360, 1363 (11th Cir.1984) (citations

omitted). Accordingly, Petitioner cannot show that his attorney’s performance was

deficient in failing to move to suppress his videotaped confession to the police

because his prior statements to Ms. Martinez were coerced.

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Even if the statements to Ms. Martinez were coerced, Petitioner cannot show

that counsel was deficient in failing to move to suppress his subsequent confession to

the police. First, Petitioner’s contention that he waived his Miranda rights only after

the police confronted him with his statements to Ms. Martinez is belied by the

record. The state post-conviction court found that the police did not confront

Petitioner with those statements before he confessed (Doc. 17-3, Ex. 15, docket p.

167). The finding is supported by the transcript of the videotaped statement which

reveals that the officers never mentioned the statements he made to Ms. Martinez

(Doc. 17-3, Ex. 14, docket pp. 100-58).

Second, even if the officers confronted Petitioner with his statements to Ms.

Martinez before his videotaped confession, and even if the statements to Ms.

Martinez were obtained unconstitutionally, the confession to the officers was not

unconstitutional because it was separate and apart from the statements to Ms.

Martinez. Petitioner argues that his confession to the officers was unconstitutional

under Missouri v. Seibert, 542 U.S. 600 (2004), because his pre-Miranda statements to

Ms. Martinez tainted the voluntariness of his post-Miranda confession to the officers.

Seibert holds that if police deliberately withhold Miranda warnings during custodial

interrogation and elicit a confession, then provide Miranda warnings and again obtain

a confession, the second, post-Miranda confession will be inadmissible. Id. at 604. See

also, e.g., United States v. Courtney, 463 F.3d 333, 337 (5th Cir. 2006) (because “the first

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two statements were not obtained in violation of Miranda [, since the defendant was

not in custody during either interview,] the district court erred in applying Seibert.”).

But Petitioner points to no record evidence indicating such a deliberate tactic.

Moreover, he has failed to establish that he was subjected to custodial interrogation

before he received Miranda warnings. Therefore, because Seibert was inapplicable to

the circumstances in Petitioner’s case, counsel was not deficient in failing to move to

suppress the videotaped confession as unconstitutionally obtained.

Petitioner has failed to demonstrate that the state court’s decision is contrary

to, or an unreasonable application of, clearly established federal law, or is based on

an unreasonable determination of the facts. Accordingly, Ground Three warrants no

federal habeas relief.

Ground Four

Petitioner contends that trial counsel was ineffective in failing to move to

suppress Petitioner’s videotaped confession because he was too intoxicated from

cocaine to voluntarily waive his Miranda rights. He alleges that he informed counsel

he had spent time in a drug and alcohol rehabilitation center, used cocaine “heavily”

until the time he was arrested, and was under the influence of cocaine when he

confessed to the officers.

25

This claim was raised in state court in Claim Three of Petitioner’s Rule 3.850

motion (Doc. 17-2, Ex. 12, docket pp. 429-31). After an evidentiary hearing, the state

post-conviction court denied the claim:

In Ground Three, Defendant alleges that counsel was ineffective

for failing to move to suppress his videotaped confession. The

Defendant asserts that he involuntarily waived his Miranda rights prior

to the confession due to the large amount of cocaine he had used before

his arrest. Defendant claims that he repeatedly informed counsel that he

was under the influence of cocaine at the time of his confession, and for

that reason he requested that counsel file a motion to suppress it.

Defendant contends that counsel’s failure to move to suppress the

confession prejudiced him because without the confession, the State

would not have been able to prove its case.

Being under the influence of drugs or alcohol does not affect the

admissibility of a confession unless the defendant is so intoxicated as to

be manic. Lindsey v. State, 63 So. 832, 833 (Fla. 1913). See also

DeConingh v. State, 433 So. 2d 501, 503 n.2 (Fla. 1983); Carter v.

State, 801 So. 2d 113, 115 (Fla. 2d DCA 2001). In Burns v. State, 584 So.

2d 1073, 1075 (Fla. 4th DCA 1991 ), the Fourth District Court of

Appeals focuses the issue of “mania” on “whether the defendant is

aware and able to comprehend in a general way what he is doing and to

communicate with coherence and rationality.” The court in Burns

defines rationality as “whether the defendant’s responses or

communications have a contextual relationship.” Id. Therefore, to

render a confession inadmissible, it is not enough to simply be under

the influence of an intoxicant, but the extent of intoxication is the

limiting factor.

At the hearing, Defendant failed to produce any credible

testimony or evidence indicating that he was intoxicated to the point of

mania at the time he confessed to the charges filed in this case.

Defendant’s former public defender, Jennifer Fury, testified that she

watched the videotaped confession multiple times, both before and after

she had been notified of Defendant’s intoxication. Attorney Fury

asserted that she saw no potential suppression issues, as Defendant

was not slurring his words, his answers were appropriately responsive

and coherent, his emotions seemed in line with the questioning, and

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there were no other signs of impairment. Based on this testimony,

which the Court finds credible, the Court concludes that Defendant has

failed to demonstrate a plausible basis to seek suppression of his

videotaped confession.

Attorney Fury further testified she believed that she had a better

chance of keeping the videotaped confession from being presented

during the trial under the restrictions of § 92.565, Florida Statutes,

which limits the admissibility of confessions in sexual abuse cases. The

record reflects that, following a hearing held under that statute on July

23, 2009, the Court deemed Defendant’s videotaped confession

admissible. Even so, Attorney Fury asserted that she did not want to file

a frivolous motion to suppress.

The Court finds that Defendant failed to meet either prong of the

Strickland test as it relates to Ground Three. Defendant has failed to

show that Attorney Fury’s performance was deficient or that there is a

reasonable probability that the outcome of the proceedings would have

been different had she moved to suppress the videotaped evidence.

Ultimately, trial counsel cannot be deemed ineffective for failing to

pursue and prevail on a meritless issue. Tefteller, 734 So.2d at 1020.

(Doc. 17-3, Ex. 19, docket pp. 238–39) (footnote omitted).

“It is settled that statements or confessions made during a time of mental

incompetency or insanity are involuntary and, consequently, inadmissible.” Sullivan

v. State of Ala., 666 F.2d 478, 482 (11th Cir. 1982). When assessing the voluntariness

of a statement, intoxication is an appropriate factor that may be considered. See, e.g.,

United States v. Gaddy, 532 F.3d 783, 788 (8th Cir.2008) (noting that alcohol and drug

use are relevant to analysis of voluntariness of confession). However, a claim of

intoxication does not necessarily render a statement involuntary. Hubbard v. Haley,

317 F.3d 1245, 1253–54 (11th Cir.2003) (concluding defendant’s statement was

freely given even though he had consumed alcohol).

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The record does not support a conclusion that Petitioner was so impaired by

cocaine that his confession was involuntary. During the evidentiary hearing on

Petitioner’s Rule 3.850 motion, Petitioner’s trial counsel testified that she reviewed

the videotaped statement “several times” looking for a “suppression issue.” (Doc. 17-

3, Ex. 18, docket p. 206). She watched the video again after Petitioner had told her

he had used cocaine for days before the statement and had little sleep, but she still

saw no basis to move to suppress the statement (Id., docket p. 208). She saw that

Petitioner was not slurring his speech, showed no irrational behavior, and was

responding appropriately to the officers’ questions (Id., docket pp. 208-11). Although

Petitioner was emotional and crying, counsel believed those were appropriate

responses to the questions being asked and the circumstances of the case in which

Petitioner committed sexual batteries on his two young daughters (Id., docket pp.

210-11). Having found no basis to move to suppress the confession, counsel

strategically decided to attempt to keep the confession out under § 92.565, Florida

Statutes, which limits the admissibility of confessions in sexual abuse cases (Id.,

docket pp. 215-16).

The state post-conviction court found counsel’s testimony credible (Doc. 17-3,

Ex. 19, docket p. 239). The state court's determination that counsel’s testimony was

credible is a finding of fact that is presumed correct, and this presumption can only

be rebutted 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

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credibility findings, are presumed to be correct unless [a petitioner] rebuts the

presumption by clear and convincing evidence.”) (citing 28 U.S.C. § 2254(e)(1)); see

also Bishop v. Warden, GDCP, 726 F.3d 1243, 1259 (11th Cir. 2013) (“In the absence

of clear and convincing evidence, [a federal court has] no power on federal habeas

review to revisit the state court’s credibility determinations.”); Consalvo v. Sec’y for

Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (“Determining the credibility of

witnesses is the province and function of the state courts, not a federal court

engaging in habeas review.”). Petitioner has not rebutted the presumption of

correctness by clear and convincing evidence.5

Counsel’s testimony, accepted as credible by the state court, shows that

counsel reviewed Petitioner’s videotaped confession multiple times, saw nothing that

indicated Petitioner’s alleged use of cocaine rendered his confession involuntary, and

concluded that a motion to suppress would be meritless. Accordingly, Petitioner fails

to show that counsel performed deficiently on the basis alleged. See Freeman v. United

States, 2018 WL 6318358, at *10 (11th Cir. July 31, 2018) (unpublished) (“It is well

established that counsel cannot be deficient for failing to preserve or argue a meritless

claim.”); Jacobs v. Sec’y Fla. Dep’t of Corr., 2012 WL 364089, at *6 (M.D. Fla. Feb. 2,

5 The Court finds that Petitioner’s testimony during the Rule 3.850 evidentiary hearing that

he felt paranoid and felt like “he wasn’t there” during the confession (Doc. 17-3, Ex. 18,

docket p. 226) is insufficient to overcome the presumption of correctness of the state post-

conviction court’s credibility determination.

29

2012) (“Trial counsel’s performance cannot be deemed deficient for failing to file a

meritless motion to suppress.”).

Petitioner has not demonstrated that the state court unreasonably applied

Strickland or unreasonably determined the facts in denying this claim. Accordingly,

he is not entitled to federal habeas relief on Ground Four.

It is therefore ORDERED that:

1. The Petition for Writ of Habeas Corpus (Doc. 1) is DENIED.

2. The Clerk of the Court shall enter judgment against Petitioner and close

this case.

3. This Court should grant an application for a Certificate of Appealability

only if Petitioner makes “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). He cannot make this showing.6 Accordingly, a

Certificate of Appealability is DENIED. And because Petitioner is not entitled to a

Certificate of Appealability, he may not proceed on appeal in forma pauperis.

6 Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States

District Courts:

The district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant. Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate

should issue. . . .If the court denies a certificate, a party may not appeal the

denial but may seek a certificate from the court of appeals under Federal Rule

of Appellate Procedure 22. A motion to reconsider a denial does not extend

the time to appeal.

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ORDERED in Tampa, Florida on July 9, 2021.

WILLIAM F.

UNITED STATES DISTRICT JUDGE

Copies to:

Petitioner, pro se

Counsel of Record

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