Lozoya v. Secretary, Department of Corrections (Hillsborough County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JESUS LOZOYA,

Petitioner,

v. Case No. 8:19-cv-520-KKM-AEP

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________

ORDER

Jesus Lozoya, a Florida prisoner, timely1 filed a pro se amended Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 5.) Having considered the petition ( .),

1 A state prisoner has one year from the date his judgment becomes final to file a § 2254 petition.

§ 2244(d)(1). This one-year limitation period is tolled during the pendency of a properly filed state motion

seeking collateral relief. § 2244(d)(2). Lozoya’s convictions and sentences were affirmed on August 12,

2011. Lozoya’s judgment became final 90 days later, on November 10, 2011, when the time to petition the

Supreme Court of the United States for a writ of certiorari expired. , 309 F.3d 770, 774

(11th Cir. 2002). Before the judgment became final, Lozoya filed a petition alleging ineffective assistance

of appellate counsel under Florida Rule of Appellate Procedure 9.141(d) and provided it to prison officials

for mailing on August 30, 2011. The state appellate court apparently did not receive the petition until

Lozoya contacted the court in 2018. Because the petition was deemed filed on August 30, 2011,

, 487 U.S. 266, 276 (1988), it remained pending until the state appellate court denied it

on May 14, 2018. Lozoya filed his amended § 2254 petition less than one year later, on March 22, 2019.

The amended § 2254 petition is therefore timely.

the response in opposition (Doc. 12), and Lozoya’s reply (Doc. 25), the Court orders that

the petition is denied. Furthermore, a certificate of appealability is not warranted.

I. BACKGROUND

A. Procedural Background

The State of Florida charged Lozoya and co-defendants Miguel Quijada and

Epifanio Muniz with one count of kidnapping with intent to inflict bodily harm or terrorize

and charged Lozoya and Muniz with one count of aggravated battery and Quijada with

simple battery. (Doc. 15-1, Ex. 5.) Lozoya rejected an offer from the State for a prison

sentence of five-and-a-half years in exchange for pleading guilty as charged. ( ., Ex. 6.)

A state jury convicted Lozoya of kidnapping with intent to inflict bodily harm or

terrorize, as charged, and of the lesser-included offense of battery. ( ., Ex. 7.) The state

trial court sentenced him to an overall term of 25 years in prison. ( ., Ex. 8.) The state

appellate court per curiam affirmed the judgment and sentence. ( ., Ex. 13.) Lozoya filed

a counseled motion for postconviction relief under Florida Rule of Criminal Procedure

3.850. (Doc. 15-2, Ex. 15.) The state court denied the motion after an evidentiary hearing.

(Docs. 15-3, 15-4, & 15-5, Ex. 20.) The state appellate court per curiam affirmed the

denial of relief. (Doc. 15-6, Ex. 26.)

B. Factual Background and Trial Testimony2

Enrique Narvaez was walking near his residence on the evening of August 7, 2009,

when Miguel Quijada and Epifanio Muniz approached him, accused him of stealing some

rims, and began to hit him. (Doc. 15-8, Ex. 32, pp. 83-84, 86.) Narvaez ran, but his path

was cut off by a Hummer driven by Lozoya. ( ., p. 85.) When Lozoya exited the Hummer,

Narvaez recognized Lozoya as they had known each other for about a year and half. ( .)

Lozoya, Quijada, and Muniz all hit Narvaez, and Lozoya used an object Narvaez referred

to as a “stick” or a 2x4. ( ., pp. 86-87.) Lozoya appeared to be in charge and told the others

to hit Narvaez. ( ., p. 87.) When Narvaez fell down, all three perpetrators picked him up

and forced him inside the Hummer. ( ., pp. 103-04.) Muniz tied Narvaez’s hands behind

his back with a cable. ( ., p. 87.) All three men continued to hit Narvaez. ( ., pp. 87,

105.) His legs were burned with a lighter. ( ., p. 88.)

Lozoya drove the Hummer to the residence of Mateo Hernandez, whom Narvaez

also knew. ( ., pp. 88, 102.) Narvaez denied voluntarily getting into the Hummer to go

see Hernandez. ( ., p. 105.) When they arrived, Hernandez got inside the Hummer and

also hit Lozoya. ( ., p. 88.) Hernandez and Lozoya said that they were going to kill

Narvaez and throw him in a lake. ( ., p. 89.) Lozoya, Quijada, and Muniz left Narvaez at

Hernandez’s house. ( .) Hernandez accused Narvaez of wanting to steal from him and

2 The factual background is derived from the trial transcript unless otherwise noted.

said that he would kill Narvaez. ( ., pp. 110-11.) Narvaez heard Hernandez tell his niece

that he had paid $2,000 for Narvaez to be brought to his home. ( ., p. 113.)

At about 4:00 a.m., police arrived (apparently following a tip from Hernandez’s

niece) and took Narvaez to a hospital. ( ., pp. 89, 111-13, 115.) Officer Michael Bard

responded to the hospital and documented Narvaez’s injuries, which included multiple

bruises, marks on his forehead and face, cuts and scrapes on his back and sides, and cuts

and burn marks on his feet. ( ., pp. 139-41.) Narvaez testified at trial that he still had

scars from the burns inflicted on him, and he showed the jury a scar on his leg. ( ., pp.

90-91.)

Two eyewitnesses testified to the incident. Sean Rossi observed two people running

into the development where he lived and heard the person in front screaming for help. ( .,

p. 119.) Rossi saw an orange Hummer pull up. ( ., pp. 119, 122.) After the driver got out,

Rossi observed two people, including the driver, beat the victim. ( ., pp. 120, 122, 125-

26.) The people “threw” the victim into the Hummer and drove off. ( ., p. 120.)

Mark Pfister, an off-duty detective, was outside on his friend’s third-floor balcony

when he saw what looked like people running and being chased by a vehicle. ( , pp. 129-

130.) He observed one person running, followed by two others on foot, and observed the

Hummer overtake the person in the front. ( ., p. 130.) Pfister went inside to get his phone

and when he came back to the balcony, he saw a person on the ground in front of the

Hummer and could tell that someone had gotten out of the car. ( ., p. 131.) He heard

yelling and sounds like a person being beaten. ( .) Due to his positioning and his distance

of approximately 300-350 yards, Pfister could not see all the activity, but he called 911.

( ., pp. 131-32.)

Co-defendant Miguel Quijada testified at trial and admitted his involvement in the

offenses. Quijada testified that Lozoya directed him, along with Muniz, to get out of the

vehicle and talk to Narvaez, and that when Narvaez saw them he began running. ( ., p.

162.) Quijada testified to Lozoya driving around and cutting off Narvaez’s path. ( .)

Quijada became tired and started walking; when he reached the others, he began hitting

Narvaez. ( .) Quijada heard Muniz say that he knew Narvaez had stolen rims. ( ., pp.

162-63.) Quijada saw Lozoya pick something up off the ground and hit Narvaez with it,

causing Narvaez to fall. ( ., p. 163.) Lozoya opened the vehicle’s door; Quijada and Muniz

complied with Lozoya’s direction to put Narvaez inside. ( ., pp. 163-64, 173-74.) Muniz

tied Narvaez’s hands with a wire. ( ., p. 164.) Quijada testified that he did not beat

Narvaez in the car on the drive to Mateo Hernandez’s house. ( ., p. 166.)

At Hernandez’s house, Quijada saw Hernandez strike Narvaez. ( ., p. 168.)

Quijada testified that Hernandez had been robbed and believed that Narvaez was involved

in or knew about the robbery. ( ., pp. 167-69.) Narvaez repeatedly said that he did not

know what they were talking about. ( ., p. 169.) Quijada heard Hernandez say that he

had paid for Narvaez to be brought to his house and that he could pay for someone to kill

Narvaez if he did not disclose information about the robbery. ( ., pp. 169-70.)3

Detective Robert McLellan investigated an orange Hummer. The Hummer’s owner

met with Detective McLellan at the police station. ( ., p. 145.) The owner stated that he

was not using the vehicle, that he had parked it at Lozoya’s residence, and that Lozoya was

making payments on it. ( ., pp. 145-47.) Lozoya—who had not been developed as a

suspect at the time—accompanied the vehicle’s owner to the police station and told

Detective McLellan that he left the Hummer with two men in Lakeland but did not

provide any identifying information about these individuals. ( .) Narvaez identified the

involved vehicle at a police-impound lot. ( ., p. 93.) Narvaez identified Lozoya, Quijada,

and Muniz when Detective McLellan showed him three photopacks. ( ., p. 91-93.)

Narvaez identified each man’s photograph “almost immediately” and expressed that he was

100 percent positive of his identification of all three. ( ., pp. 148-52.)

II. STANDARD OF REVIEW UNDER SECTION 2254

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

proceeding. , 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief

under the AEDPA can be granted only if a petitioner is in custody “in violation of the

3 Neither Mateo Hernandez nor Lozoya’s co-defendant Epifanio Muniz testified at trial. The prosecutor

told the state trial court at sentencing that Muniz had been apprehended in Texas and extradited to Florida

and was awaiting trial. (Doc. 15-8, Ex. 33, p. 9.) The record does not disclose whether Hernandez faced

charges in connection with these events or, if so, how the charges were resolved.

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Section 2254(d)

provides that federal habeas relief cannot be granted on a claim adjudicated on the merits

in state court unless the state court’s adjudication:

(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.

For purposes of § 2254(d)(1), a decision is “contrary to” clearly established federal

law “if the state court arrives at a conclusion opposite to that reached by [the Supreme]

Court on a question of law or if the state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.” , 529 U.S. 362,

413 (2000). The phrase “clearly established Federal law” encompasses the holdings only of

the Supreme Court of the United States “as of the time of the relevant state-court decision.”

at 412. A decision involves an “unreasonable application” of clearly established federal

law “if the state court identifies the correct governing legal principle from [the Supreme]

Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”

For purposes of § 2254(d)(2), a state court’s findings of fact are presumed correct.

, 438 F.3d 1296, 1301 (11th Cir. 2006) (“The factual findings of the

state court, including the credibility findings, are presumed to be correct . . . .”). A

petitioner can rebut the presumption of correctness afforded to a state court’s factual

findings only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

The AEDPA was meant “to prevent federal habeas ‘retrials’ and to ensure that state-

court convictions are given effect to the extent possible under law.” , 535 U.S.

685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state court’s application

of clearly established federal law is objectively unreasonable, and . . . an unreasonable

application is different from an incorrect one.” at 694. As a result, to obtain relief under

the AEDPA, “a state prisoner must show that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” , 562 U.S. 86, 103 (2011);

, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application of clearly

established federal law must be objectively unreasonable” for a federal habeas petitioner to

prevail and that the state court’s “clear error” is insufficient).

When the last state court to decide a federal claim explains its decision in a reasoned

opinion, a federal habeas court reviews the specific reasons as stated in the opinion and

defers to those reasons if they are reasonable. , 138 S. Ct. 1188, 1192

(2018). When the relevant state-court decision is not accompanied with reasons for the

decision—such as a summary affirmance without discussion—the federal court “should

‘look through’ the unexplained decision to the last related state-court decision that does

provide a relevant rationale [and] presume that the unexplained decision adopted the same

reasoning.” The state may contest “the presumption by showing that the unexplained

affirmance relied or most likely did rely on different grounds than the lower state court’s

decision . . . .”

In addition to satisfying the deferential standard of federal court review of a state

court adjudication, a federal habeas petitioner must exhaust his claims by raising them in

state court before presenting them in a federal petition. 28 U.S.C. § 2254(b)(1)(A);

, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state

courts an opportunity to act on his claims before he presents those claims to a federal court

in a habeas petition.”). A petitioner satisfies this exhaustion requirement if he fairly presents

the claim in each appropriate state court and alerts that court to the federal nature of the

claim. , 592 F.3d 1144, 1156 (11th Cir. 2010).

The doctrine of procedural default provides that “[i]f the petitioner has failed to

exhaust state remedies that are no longer available, that failure is a procedural default which

will bar federal habeas relief, unless either the cause and prejudice or the fundamental

miscarriage of justice exception is established.” , 256 F.3d 1135, 1138 (11th

Cir. 2001). A petitioner shows cause for a procedural default when he demonstrates “that

some objective factor external to the defense impeded the effort to raise the claim properly

in the state court.” , 169 F.3d 695, 703 (11th Cir. 1999). A petitioner

demonstrates prejudice by showing that “there is at least a reasonable probability that the

result of the proceeding would have been different” absent the constitutional violation.

, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental miscarriage

of justice’ occurs in an extraordinary case, where a constitutional violation has resulted in

the conviction of someone who is actually innocent.”

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Lozoya brings several claims for ineffective assistance of trial counsel under the Sixth

Amendment. Under the well-known, two-part standard articulated in

, 466 U.S. 668 (1984), to succeed, he must show both deficient performance

by his counsel and prejudice resulting from those errors. . at 687.

The first part “requires showing that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

The lynchpin of this analysis is whether counsel’s conduct “was reasonable considering all

the circumstances.” . at 688. A petitioner establishes deficient performance if “the

identified acts or omissions [of counsel] were outside the wide range of professionally

competent assistance.” . at 690. A court “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.” . “[C]ounsel is strongly presumed to have rendered adequate assistance and

made all significant decisions in the exercise of reasonable professional judgment.”

The second part requires showing that the deficient performance prejudiced the

defense. at 687. “An error by counsel, even if professionally unreasonable, does not

warrant setting aside the judgment of a criminal proceeding if the error had no effect on

the judgment.” . at 691. To demonstrate prejudice, a petitioner must show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” at 694.

“The question [on federal habeas review of an ineffective assistance claim] ‘is not

whether a federal court believes the state court’s determination’ under the

standard ‘was incorrect but whether that determination was unreasonable—a substantially

higher threshold.’” , 556 U.S. 111, 123 (2009) (quoting

, 550 U.S. 465, 473 (2007)). Consequently, federal petitioners rarely prevail on

claims of ineffective assistance of counsel because “[t]he standards created by

and § 2254(d) are both highly deferential, and when the two apply in tandem, review is

doubly so.” , 562 U.S. at 105 (quotation and citations omitted).

IV. ANALYSIS

A. Ground Four

Lozoya contends that trial counsel was ineffective for failing to sufficiently cross-

examine Narvaez. Lozoya argues that counsel should have cross-examined Narvaez about

his participation in a pre-trial intervention (PTI) program for a grand theft charge4 as well

as Narvaez’s alleged extortion of Lozoya’s family. Lozoya asserts that an adequate cross-

examination would have damaged Narvaez’s credibility and showed his interest in testifying

for the State to assist him in his PTI participation. The state postconviction court granted

an evidentiary hearing on Lozoya’s claim.

Lozoya’s family initially retained attorney Gabriela Munoz to represent him in the

criminal proceeding. (Doc. 15-9, Ex. 34, Vol. 1, p. 31.) Lozoya’s sister Louisa Lozoya had

hired Munoz for past matters and therefore had a relationship with Munoz. ( .; Doc. 15-

10, Ex. 34, Vol. 2, pp. 50-51.) Louisa served as the family’s primary contact with Munoz.

(Doc. 15-9, Ex. 34, Vol. 1, pp. 36-37; Doc. 15-10, Ex. 34, Vol. 2, pp. 51, 53.) As trial

approached, the Lozoya family and Munoz decided to hire another attorney to try the case.

(Doc. 15-9, Ex. 34, Vol. 1, p. 34; Doc. 15-10, Ex. 34, Vol. 2, p. 64.) At Munoz’s

recommendation, the family hired attorney Jack Crooks. (Doc. 15-10, Ex. 34, Vol. 2, p.

4 A pretrial intervention program may be available for eligible persons charged with a crime and “shall

provide appropriate counseling, education, supervision, and medical and psychological treatment as

available and when appropriate for the persons released to such programs.” § 948.08(1), (2), Fla. Stat. “In

the PTI program, the defendant agrees to abide by the terms and conditions of the [agreement]. Upon

successful completion of the program, the court dismisses the charges.” , 29 So.3d 1172,

1173 (Fla. 4th DCA 2010). “The prosecution of a defendant on pretrial release for PTI who does not fulfill

his or her obligations may continue at the discretion of the prosecuting authority.” , 147

So.3d 1100, 1102 (Fla. 3d DCA 2014).

64.) Munoz stated that she withdrew from representation when Crooks appeared in the

case but that she remained involved as a courtesy to the Lozoya family to help Crooks and

to facilitate communication since she knew the family and spoke Spanish, as did Lozoya

and his family. ( ., pp. 59-60, 62-63, 71, 78, 85.) Lozoya’s family did not have direct

interaction with Crooks, and Crooks spoke to Lozoya through Munoz because she spoke

Spanish. (Doc. 15-9, Ex. 34, Vol. 1, p. 37; Doc 15-10, Ex. 34, Vol. 2, pp. 50-51; Doc. 15-

11, Ex. 35, pp. 3, 10, 13-14.) The state postconviction court noted in its order that the

record contained no motion to withdraw or motion to substitute counsel, and the court

concluded that it was “clear that [Munoz] continued to act as counsel in some capacity . . .

even though Mr. Crooks was trying the case. (Doc. 15-3, Ex. 20, p. 14.)

1. Failure to Cross-Examine Narvaez About PTI

Munoz testified that she was aware Narvaez had entered the PTI program and that

he was in compliance with its terms. (Doc. 15-10, Ex. 34, Vol. 2, pp. 55, 66.) Munoz

testified that Narvaez had been on PTI prior to her being retained and that it was not a

situation in which Narvaez “had a pending case where they were extending an offer of PTI.

He was already in PTI, in compliance.” ( ., p. 70.) Therefore, Munoz had no reason to

believe that Narvaez was offered PTI in exchange for truthful testimony. ( .)

Munoz testified that Narvaez had appeared for a deposition and stated his intent to

proceed with the charges. ( ., pp. 54-57.) Munoz communicated this information to the

Lozoya family because they thought Narvaez was not interested in pursuing the charges

and might not appear for trial. ( .) Munoz testified that she did not discuss legal strategy

with Crooks, who conducted Narvaez’s cross-examination. ( ., p. 80.)

Crooks testified that he could not recall whether he knew that Narvaez was in a PTI

program. (Doc. 15-11, Ex. 35, pp. 4-5.) Crooks testified that if he had known, he still

would not have questioned Narvaez about his PTI status as a strategic matter, even though

he agreed that it was possible such questioning could have impeached Narvaez’s credibility.

( ., pp. 5, 19-20.)5Crooks testified that he wanted to avoid giving the jury the impression

that the defense believed “well, gee, [Narvaez is] on PTI so everything [Lozoya] did is

okay.” ( ., pp. 21-22.)

The postconviction court denied Lozoya’s ineffective assistance claim. The court

declined to address whether counsel performed deficiently in not cross-examining Narvaez

5 The Florida Supreme Court addressed the cross-examination of a witness who had been charged with a

crime and was on PTI:

“When charges are pending against a prosecution witness at the time he [or she] testifies,

the defense is entitled to bring this fact to the jury’s attention to show bias, motive, or self-

interest.” , 524 So.2d 403, 408 (Fla.), , 488 U.S. 901,

109 S.Ct. 250, 102 L.Ed.2d 239 (1988). However, evidence of bias is subject to a section

90.403, Florida Statutes (1993), balancing and may be inadmissible if its unfair prejudice

to a witness or a party substantially outweighs its probative value. Charles W. Ehrhardt,

§ 608.5 (1996 ed.). How far the inquiry can proceed into the details of

the matter is within the court’s discretion. , 495 So.2d 154, 159-60

(Fla. 1986) (finding that court did not abuse its discretion by limiting inquiry into details

of pending criminal charges after witness had been examined about fact of charge),

, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987).

, 696 So.2d 738, 743 (Fla. 1997) (footnote omitted).

about his PTI participation. (Doc. 15-3, Ex. 20, p. 8.) The court instead ruled that, “even

without addressing counsel’s performance, Defendant has failed to demonstrate prejudice.”

( .) The court stated that Narvaez “testified that these offenses occurred, and identified

Defendant as the leader of and as one of the men who committed the offenses.” ( .) The

court noted that Narvaez’s testimony was corroborated by the two independent

eyewitnesses, as well as by Quijada, and that evidence connected Lozoya to the orange

Hummer. ( .) The court also pointed out that Narvaez’s injuries were observed by police

and that photographs of his injuries were entered into evidence. ( .)

The court found that “[i]n light of the strength of the testimony and evidence

adduced at trial, . . . there is not a reasonable probability that the outcome of the

proceedings would have been different but for counsel’s failure to cross-examine Mr.

Narvaez about his participation in PTI for the offense of grand theft.” ( .)

Lozoya does not show that the state court unreasonably rejected his claim on

’s prejudice prong. As the state court addressed, the prosecution presented other

evidence that supported the version of events to which Narvaez testified. Lozoya does not

show that cross-examining Narvaez about the fact that he entered the PTI program would

have so damaged his credibility that there is a reasonable probability the outcome of trial

would have been different. Thus, Lozoya does not show that the state court unreasonably

applied or unreasonably determined the facts in denying this claim.

2. Failure to Cross-Examine Narvaez About Extortion

Four members of the Lozoya family—Lozoya’s mother, Louisa Lozoya Sr., sisters

Louisa and Celene Lozoya, and brother Francisco Lozoya—testified to Narvaez’s alleged

extortion of their family. Lozoya’s mother testified that, about six months before trial,

Narvaez demanded $3,000 to testify regarding the “bunch of lies” he told police. (Doc. 15-

9, Ex. 34, Vol. 1, p. 6.)6 Lozoya’s mother did not have the money available, and on several

occasions, she gave him sums of $100 or $200. ( ., pp. 6-8.) The day before trial, she

testified, Narvaez came to her house and demanded the balance of $2,500. ( ., p. 8.) He

told her that if she did not pay him, he would make certain Lozoya spent the rest of his life

in prison. ( .) After Lozoya’s mother obtained the money from Francisco that day and

paid it to Narvaez, Narvaez stated that he was going to come to court and tell the truth.

( ., p. 9.)

Celene testified that she observed several of the earlier interactions between Narvaez

and her mother, and that Narvaez said he wanted money to tell the truth in court and admit

that there was no kidnapping. ( ., pp. 15-16, 18.) Francisco testified to providing $2,500

to his mother the day before the trial and to hearing Narvaez say he would tell the truth at

trial and Lozoya would be released. ( ., pp. 23-24.)

6 Lozoya asserts in his § 2254 petition that Narvaez also sought a vehicle from his family. (Doc. 5, p. 15.)

The evidentiary hearing testimony does not reveal that Narvaez demanded a vehicle.

Louisa testified that she went to see her mother the day before trial when Narvaez

arrived and said he needed the money to tell the truth. ( ., pp. 32-33.) Her mother told

her about Narvaez’s earlier demands. ( ., p. 38.) Louisa testified that, on the morning of

trial, after the jury had been selected, she told Munoz what had happened while they were

in a hallway outside the courtroom. ( ., pp. 38-39, 47.) Louisa testified that Munoz said

she would take care of it. ( ., p. 39.)

Louisa also testified that she first learned about an exchange of money with Narvaez

the day before trial. ( ., p. 43.) The family did not contact police, and aside from Louisa’s

discussion with Munoz, none of the family members attempted to inform Lozoya’s

attorneys about the extortion allegations. ( ., pp. 9, 11, 17-18, 20-21, 25, 45; Doc. 15-10,

Ex. 34, Vol. 2, pp. 46-47.)

Munoz testified that Louisa7 told her about the payment on the morning of trial.

(Doc. 15-10, Ex. 34, Vol. 2, pp. 72-74.) Munoz testified that the only information she

recalled about “money changing hands” involved the meeting between Narvaez and

Lozoya’s family the day before trial. ( ., pp. 59, 73-74.) She testified that Crooks was

present when Louisa told her about the exchange of money but agreed that she was not

certain whether Crooks heard the information. ( ., pp. 65, 74-75, 79.)

7 Munoz recalled having some communication with Lozoya’s girlfriend and indicated that on the day of

trial Lozoya’s girlfriend might have mentioned the demand for money. (Doc. 15-10, Ex. 34, Vol. 2, pp. 53,

56.) Lozoya’s girlfriend was not identified and did not testify at the state court evidentiary hearing.

Munoz testified to earlier contact between Narvaez and the Lozoya family. Munoz

testified that she believed this situation was “not one-sided” and that family members told

her they had given Narvaez money and “some things” and he asked for more. ( ., pp. 66-

67.) Munoz explained that, while money had initially gone from the family to Narvaez “at

the beginning of the case,” she believed the situation “flipped” and Narvaez later asked for

money in exchange for not appearing in court. ( ., p. 67.) She told the family that their

interactions with Narvaez were risky because they could be viewed as witness tampering

and as adverse to Lozoya’s defense. ( ., p. 57.) She did not think it was in Lozoya’s best

interest to raise any earlier exchange because, based on what she knew “during [her]

representation . . . it would have made [Lozoya] seem like he was the one committing the

crime.” ( . pp 82, 87.) Munoz was concerned that this information “not only could expose

[Lozoya] to worse consequences, it would make him look much worse in front of a jury.”

( ., p. 90.) Munoz testified that she relayed to Crooks all information she knew about the

case, including any earlier exchange. ( ., p. 64.)

Crooks testified that he had no recollection of any discussion about an exchange of

money. (Doc. 15-11, Ex. 35, pp. 8, 10, 14, 26.) Crooks recalled that Lozoya felt fairly

certain that Narvaez was not going to appear at trial, but Crooks did not know why Lozoya

thought so. ( ., p. 9.) Crooks testified that unless he had clear evidence of extortion, he

would be “hesitant to go into that area” because it could have exposed Lozoya to a charge

of tampering with a witness “if it came out that way” and that “unless there’s some evidence

that makes it clear which way it’s going, I wouldn’t have raised it in trial[.]” ( ., pp. 9, 16.)

Similarly, Crooks testified that if there was any evidence that Lozoya’s family had offered

the victim money not to appear, he would have chosen not to “go there” because “you don’t

know what can of worms you’re going to open.” ( ., pp. 24-25.)

Crooks agreed that he would have pursued the matter and raised it on cross-

examination to attack Narvaez’s credibility if he had clear evidence that Narvaez extorted

the Lozoya family. ( ., pp. 11-12, 14-15, 17-18.) But Crooks testified that he did not

know there were potential witnesses who could testify to alleged extortion. ( ., p. 18.)

The state postconviction court rejected Lozoya’s claim that trial counsel was

ineffective for not cross-examining Narvaez about his alleged extortion of Lozoya’s family.

The court found that Lozoya did not demonstrate that Crooks performed deficiently. The

court ruled that, based on the evidentiary hearing testimony, Lozoya “failed to sufficiently

demonstrate that Mr. Crooks was even aware of what transpired the night before trial and

the witnesses to that exchange.” (Doc. 15-3, Ex. 20, p. 14.)8 Therefore, the court

concluded, Lozoya “has failed to demonstrate that Mr. Crooks performed deficiently in

failing to cross-examine Mr. Narvaez on this extortion issue.” ( .)

8 To the extent the state court’s decision rested on its determination that the evidentiary hearing testimony

of Crooks, Louisa, and Munoz were credible, that determination is a factual finding that is presumed

correct. , 438 F.3d at 1301. Lozoya does not rebut the presumption by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

The court declined to determine whether Munoz “was still counsel of record or

should have advised or discussed with Mr. Crooks what Louisa told her about the exchange

of money the night before trial or otherwise performed deficiently[.]” ( .) However, the

court found that Lozoya did not demonstrate prejudice resulting from the failure to cross-

examine Narvaez about the alleged extortion. In explaining its prejudice analysis, the court

again cited the evidence of guilt presented against Lozoya, such as testimony of the two

eyewitnesses and Quijada, which supported Narvaez’s testimony, as well as evidence of

Narvaez’s injuries and Lozoya’s connection to the orange Hummer. ( ., pp. 14-15.) The

court concluded that “[i]n light of the testimony and evidence adduced at trial, the Court

finds there is not a reasonable probability that the result of the proceedings would have

been different had counsel cross-examined Mr. Narvaez on his purported extortion of the

Lozoya family.” ( ., p. 15.)

Lozoya has not shown that the state court’s rejection of his claim was unreasonable.

First, he does not demonstrate that the state court unreasonably determined that Crooks

did not perform deficiently given the lack of evidence that Crooks knew of the alleged

extortion. This Court also notes what Crooks himself observed—cross-examination on this

topic exposed his client to worse implications in front of the jury, potentially causing more

harm than benefit. In that respect, a sound strategic decision to avoid accusations of witness

tampering can hardly be deemed deficient performance. Nor does Lozoya show that the

state court unreasonably applied ’s prejudice prong. As the state court pointed

out, the other witnesses’ testimony was consistent with Narvaez’s testimony about the

offenses. Thus, even if Narvaez had been discredited by cross-examination about the

extortion allegations, other independent evidence supported the State’s theory of guilt.

Lozoya does not show that the state court unreasonably applied or unreasonably

determined the facts in denying his ineffective assistance claims. He is not entitled to relief

on Ground Four.

B. Grounds One, Two, and Three

1. Introduction

Lozoya’s remaining grounds allege that trial counsel was ineffective for not properly

advising him when he was considering the State’s plea offer for five-and-a-half years in

prison. He contends that, if not for counsel’s inadequate advice, he would have accepted

the offer. Lozoya concedes that these claims are not exhausted because he did not raise

them in his counseled state court postconviction motion. Because Lozoya cannot return to

state court to raise the claims in an untimely postconviction motion, Fla. R. Crim. P.

3.850(b), they are procedurally defaulted. , 256 F.3d at 1138. Lozoya does not

argue or establish that the fundamental miscarriage of justice exception applies to overcome

the default. .

But Lozoya does contend that the cause and prejudice exception applies under

, 566 U.S. 1 (2012). In recognizing a narrow exception to the rule that

ineffective assistance of postconviction counsel does not constitute cause to overcome a

procedural default, holds:

Where, under state law, claims of ineffective assistance of trial counsel must

be raised in an initial-review collateral proceeding, a procedural default will

not bar a federal habeas court from hearing a substantial claim of ineffective

assistance at trial if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.

. at 17.

To establish cause under , a petitioner must demonstrate that the defaulted

ineffective assistance of trial counsel claim “is a substantial one, which is to say that [he]

must demonstrate that the claim has some merit.” . at 14. A claim that does not have any

merit or that is wholly without factual support is not substantial. at 15-16. A

petitioner shows that his defaulted claim is substantial under by demonstrating

that “reasonable jurists ‘would find it debatable whether the petition states a valid claim of

the denial of a constitutional right.’” ., 988 F.3d 1326,

1331 (11th Cir. 2021) (quoting , 759 F.3d 1210, 1269-70 (11th

Cir. 2014)). Thus, when a petitioner had counsel in his initial-review postconviction

proceeding, he may establish cause for the default of an ineffective assistance of trial counsel

claim by showing both that his postconviction counsel was ineffective under for

not raising the claim and that the claim is substantial under .

., 729 F. App’x 669, 670 (11th Cir. 2018).

The Sixth Amendment right to counsel “extends to the plea-bargaining process.”

, 566 U.S. 156, 162 (2012). When a petitioner alleges that counsel’s

deficient performance led to the rejection of a plea offer, he must make certain showings

to demonstrate resulting prejudice. The petitioner must demonstrate that if not for

counsel’s deficient performance, there is a reasonable probability that (1) he would have

accepted the plea offer and the State would not have withdrawn the offer; (2) the court

would have accepted the plea; and (3) the conviction or sentence, or both, under the terms

of the plea offer would have been less severe than that which was imposed. . at 163-64.

2. Ground One

Lozoya contends that trial counsel was ineffective for failing to tell him that Narvaez

extorted his family. Lozoya contends that he was “confident that Narvaez would tell the

truth that Lozoya did not kidnap, put in fear, or torture him, and that they had been friends

for several years. Instead, because Lozoya’s [sic] never caved to the extortion, Narvaez lied

on the stand to the shock and dismay of Petitioner.” (Doc. 5, p. 7.) Lozoya appears to claim

that, if he knew of the extortion (and thus realized that there was a possibility Narvaez

would not testify as Lozoya expected), he would have accepted the plea offer.9

Lozoya does not demonstrate that postconviction counsel was ineffective for not

raising this claim. As an initial matter, Lozoya fails to establish that postconviction counsel

was aware of this potential ineffective assistance of trial counsel claim. Lozoya’s argument

does not involve a question of law apparent from the face of the record. Rather, it concerns

Lozoya’s decision-making process and whether certain information would have affected

his choice to reject the plea offer. Lozoya does not demonstrate that he conveyed the claim,

including his reason for rejecting the State’s offer, to postconviction counsel.

Lozoya contends that he is not proficient in English and that his brother Francisco

communicated with postconviction counsel. Lozoya attaches Francisco’s affidavit, which

states that Francisco told postconviction counsel that it was trial counsel’s fault that Lozoya

did not take the plea because trial counsel did not tell him about Narvaez’s demand for

money to tell the truth. (Doc. 5-3.) Francisco’s “affidavit” is unsworn and he states only

that the information contained in it is “true to the best of my recollection.” ( .) Notably

absent is a statement that, under penalty of perjury, the representations are true and correct.

28 U.S.C. § 1746(2); , No. 8:10-cv-320, 2011 WL 1557863, at

9 As in Ground Four, Lozoya contends that Narvaez demanded money as well as a vehicle from his family.

(Doc. 5, p. 6.) However, Lozoya’s family members’ testimony concerned the demands for money. Lozoya

does not establish that the alleged extortion involved a vehicle.

*1 (M.D. Fla. Apr. 25, 2011) (Whittemore, J.) (“Mere submission of a document calling

itself an does not make it an affidavit.” (quotation marks omitted)). The Court

concludes that this affidavit—more properly deemed an unsworn declaration—is

insufficient to establish that postconviction counsel was made aware of this potential

ineffective assistance of counsel claim concerning Lozoya’s decision-making at the time the

State presented the offer. , ., 797 F. App’x 488, 495

(11th Cir. 2019) (concluding that a habeas petitioner’s “unsworn and unverified

allegations” about a prospective witness were “insufficient” to show that the prospective

witness would have been willing to testify at trial and would have testified as the petitioner

claimed); , 476 F.2d 179, 180 (5th Cir. 1973) (explaining that a

court need not consider “unverified factual allegations” offered in support of a habeas

petition).

Nor does Lozoya establish that his ineffective assistance of trial counsel claim is

substantial under . The record supports the conclusion that Lozoya simply was

not willing to accept a plea deal. Counsel stated at the sentencing hearing that Lozoya did

not accept the offer because he could not come to terms with going to prison. (Doc. 15-8,

Ex. 33, pp. 3-4.) Lozoya did not contest counsel’s representation. When Lozoya addressed

the state trial court at sentencing, he asked, despite having been convicted of a first-degree

felony punishable by life in prison, § 787.01(1)(a)3., (2), Fla. Stat., if there was “any

way that I can get some kind of house arrest or some kind of long probation?” ( ., p. 8.)

Lozoya’s comment supports counsel’s representation that Lozoya could not grasp

going to prison and undercuts his assertion that he would have accepted a deal to serve five

and a half years in prison had he known of information potentially affecting Narvaez’s

testimony. , , 729 F. App’x at 670 (finding that the petitioner failed to

establish that postconviction counsel was ineffective for not arguing that trial counsel

inadequately advised him about a plea offer when the petitioner “offer[ed] nothing

indicating—much less showing a reasonable probability—that he had any intent to plead

guilty”). And Lozoya rejected the offer despite knowing that the State intended to proceed

to trial, as stated in the written rejection of the plea offer. (Doc. 15-1, Ex. 6.)

Even if the ineffective assistance of trial counsel claim was raised, the evidentiary

hearing testimony likely would have defeated it. As addressed, Crooks testified that he had

no recollection of any information about extortion. (Doc. 15-11, Ex. 35, pp. 8, 10, 14, 26.)

Louisa’s and Munoz’s testimony reflects that Louisa informed Munoz of the alleged

extortion the on the day of trial. (Doc. 15-9, Ex. 34, Vol. 1, p. 38, 39, 43; Doc. 15-10, Ex.

34, Vol. 2, pp. 59, 73-74.) And Louisa testified that she first became aware of the exchange

of money the day before trial. (Doc. 15-9, Ex. 34, Vol. 1, p. 43.) Trial commenced on

August 2, 2010. (Doc. 15-7, Ex. 31.) Lozoya signed the plea rejection form four days

earlier, on July 29, 2010. (Doc. 15-1, Ex. 6.)

Thus, it is not apparent that either Crooks or Munoz were aware of the alleged

extortion10 on July 29, 2010, and neither could have told Lozoya about it before he decided

to reject the offer. Further, the record refutes Lozoya’s assertion that the plea offer was

available up until the day of trial. The rejection of the plea agreement that Lozoya signed

on July 29, 2010, states, “I understand that this offer will be withdrawn, that no further

offers for a plea bargain may be made, and that this case will proceed to trial.” (Doc. 15-1,

Ex. 6.)

Lozoya does not show that his defaulted ineffective assistance of trial counsel claim

was substantial under . Nor does he show that postconviction counsel knew of

this potential claim. Accordingly, Lozoya does not show that his postconviction counsel

was ineffective for failing to raise the defaulted ineffective assistance of trial counsel claim

in state court. As Lozoya has not established cause under to excuse the procedural

default, this claim is barred from federal habeas review. Ground One does not warrant

federal habeas relief.11

10 Again, although Muniz’s testimony references an earlier exchange of money, it appears that she was

referring to an earlier instance where she believed the family approached Narvaez with money and items

before Narvaez began demanding money from the family.

11 The gravamen of Lozoya’s ineffective assistance of trial counsel claim is that he would have accepted the

plea offer if not for trial counsel’s alleged deficiency in failing to tell him about the extortion. To the extent

3. Ground Two

Lozoya argues that trial counsel was ineffective for failing to tell him that Narvaez

had entered a PTI program for his grand theft charge. Lozoya claims that counsel should

have informed him that Narvaez was on PTI to “avoid prosecution on those charges, and

that as a condition of PTI, Narvaez was to remain crime free, and testify against Lozoya.”

(Doc. 5, p. 9.) Lozoya asserts that counsel knew “that PTI participants have the incentive

to show bias, self-interest, or testify falsely.” ( ., p. 10.) Lozoya contends that had he

known about Narvaez’s participation in this program, he would have accepted the plea offer

because he would have realized that Narvaez “would never tell the truth at [Lozoya’s]

pending trial. Telling the truth at trial meant Narvaez would have had to expose his own

criminal activities of fighting, stealing, using and selling drugs.” ( .)

Lozoya does not overcome the procedural default under because he fails

to show that his defaulted ineffective assistance of trial counsel claim is substantial or that

postconviction counsel was ineffective for not raising it. As with Ground One, Lozoya fails

to establish that postconviction counsel knew that information about Narvaez’s

participation in PTI would have affected Lozoya’s decision-making process and caused him

to accept the plea. While Francisco’s affidavit states that Francisco brought the factual basis

of this claim to postconviction counsel’s attention, that “affidavit” is insufficient to show

Lozoya also contends that trial counsel was ineffective for not addressing the extortion during trial, his

claim is duplicative of Ground Four, which has been addressed and denied.

that postconviction counsel knew of the claim. Additionally, as addressed above, the record

indicates that Lozoya had no intention of agreeing to go to prison for five-and-a-half years

when the offer was made, and he rejected the plea offer despite knowing that that State

was ready to proceed to trial.

Furthermore, this Court makes note of the State’s written closing argument filed

after the postconviction evidentiary hearing. Although the State appears to agree that

Narvaez was on PTI at the time of Lozoya’s trial, the State indicated that Narvaez entered

the PTI program on February 26, 2009, before the offenses occurred on August 7, 2009,

and that “the PTI contract Mr. Narvaez entered into did not have any terms or conditions

relating to truthful testimony or cooperation” in Lozoya’s case. (Doc. 15-2, Ex. 19, pp.

110-12.) The State also asserted that Narvaez “did not have any open or active cases

pending with the Office of the State Attorney” at the time of Lozoya’s trial. ( ., p. 110.)

Lozoya does not refute the State’s representations about Narvaez’s state court case;

in particular, he offers no evidence that the terms of Narvaez’s PTI required his cooperation

in Lozoya’s case.12 Therefore, it is not apparent Narvaez was motivated to testify in a certain

way to assure compliance with his PTI terms as Lozoya asserts. Additionally, Lozoya’s

claim that counsel knew PTI participants are more likely to testify in a certain way to win

12 Consistent with the State’s assertions, as addressed, Munoz testified at the evidentiary hearing that she

was aware Narvaez entered the PTI program several months before she was retained and that she had no

reason to believe the State offered participation in the PTI program to Narvaez in exchange for his

testimony. (Doc. 15-10, Ex. 34, Vol. 2, pp. 69-70.)

the State’s approval is unfounded and conclusory. Thus, Lozoya’s claims are too speculative

to demonstrate entitlement to relief. , 941 F.2d 1551, 1559 (11th Cir.

1991) (stating that a petitioner’s “unsupported allegations” that are “conclusory in nature

and lacking factual substantiation” cannot sustain an ineffective assistance claim).

Lozoya does not show that his claim alleging ineffective assistance of trial counsel

for not advising Lozoya that Narvaez was on PTI is substantial. He does not establish that

postconviction counsel was ineffective under for not raising this insubstantial

claim. Therefore, Lozoya does not establish cause to excuse the default of his ineffective

assistance of trial counsel claim under and that claim is barred from federal habeas

review. Ground Two does not entitle Lozoya to federal habeas relief.

4. Ground Three

Lozoya argues that trial counsel was ineffective for failing to advise him that co-

defendant Miguel Quijada made a plea deal with the State under which Quijada received

“leniency” in exchange for testifying at trial. (Doc. 5, p. 11.) Lozoya claims that the State

gave Quijada use and derivative use immunity, and assured Quijada no further charges

would be filed against him. ( .) Lozoya states that Quijada pleaded guilty on June 3, 2010,

but that his sentencing was “postponed” until after Lozoya’s trial. ( ., p. 12.)

Lozoya claims that this omission “cause[d] him to reject his own plea offer from the

State for 5 ½ years, believing that Quijada would testify in a completely different manner

at trial.” ( .) Lozoya claims that he “was counting on Quijada to testify truthfully, that

Narvaez had been dragged into the Hummer after he requested to be taken to see Mateo

Hernandez. Had this truth been presented to the jury, Lozoya would not have been

convicted of kidnapping Narvaez.” ( ., p. 13.) He also contends that Quijada failed to

mention in his testimony that “it was actually Lozoya who stopped him and Muniz from

beating Narvaez” and that Narvaez “wanted to be taken to Mateo Hernandez to prove he

didn’t steal his drugs.” ( ., p. 12.)

Lozoya does not establish that his postconviction counsel was ineffective for not

raising this ineffective assistance of trial counsel claim. As Lozoya appears to recognize in

his petition, and as the record shows, Quijada entered an open plea. ( ., p. 11.) Lozoya

fails to come forward with any evidence showing a deal with the State whereby Quijada

would receive leniency for his testimony.

Quijada testified at trial that no deal existed regarding his sentence and stated that

he was guilty. Quijada testified on direct examination:

Q On June third of this year did you plead guilty to charges in this case?

A Yes, sir.

Q Have you been sentenced yet?

A No, sir.

Q Has there been any agreement whatsoever regarding what sentence

you are going to receive?

A No, sir.

Q At any time have you or your lawyer gotten a promise or guarantee

from me or my office about a sentence?

A No, sir.

Q Has there been any offer or promise in exchange for your testimony

today?

A No, sir.

(Doc. 15-8, Ex. 32, p. 158.)

Quijada testified on cross-examination:

Q And I believe the prosecutor asked you, you pled guilty on this. You

have not been sentenced and you indicated that you have not received any

promises as to what your sentence might be?

A No, sir.

Q Okay. You obviously have some expectations though don’t you or

hopes?

A I mean, I don’t know what I’m going to get. Some time, you know,

because I’m guilty of what I done. I know that I did a crime. I don’t expect

to get off like, just like that, you know?

Q Well, you have not signed anything or nobody has signed anything

saying well, look, we’re only going to do this much, have they?

A No, sir.

Q But have you not had some explanations of what they believe probably

will happen to you?

A No, sir.

Q Nobody has said anything?

A Nobody has said anything to me or promised me anything.

Q So then what possessed you then to just plead guilty?

A Excuse me?

Q Why did you plead guilty?

A Because I’m pretty much guilty of the crime.

( ., pp. 172-73.)

Lozoya also claims that the use and derivative use immunity given to Quijada

motivated him to testify in the State’s favor. A proffer of Quijada’s testimony taken after

he pleaded guilty shows that the prosecutor told Quijada he was granted use and derivate

use immunity. (Doc. 15-6, Ex. 29, Attachment M, p. 5.) In explaining that immunity, the

prosecutor told Quijada that he suspected this matter was drug-related and that if Quijada

disclosed information about illegal activity, such information would not be used against

him and would not be used to bring additional charges. ( ., pp. 5-6.)

Use and derivative use immunity are granted to any witness compelled by subpoena.

§ 914.04, Fla. Stat. (stating that a person under subpoena is not excused from testifying

or producing evidence because the testimony or evidence “may tend to convict him or her

of a crime . . . but no testimony so given or evidence so produced shall be received against

the person upon any criminal investigation or proceeding”). Thus, Lozoya does not

establish that granting such immunity was part of a plea deal to give Quijada leniency for

his testimony in Lozoya’s trial.

Lozoya has not established that Quijada had any deal to receive “leniency” by

testifying against him. As he does not establish that there was any such deal about which

counsel could have informed him, Lozoya does not show that his defaulted ineffective

assistance of trial counsel claim is substantial under . Nor does he show that

postconviction counsel was ineffective for not raising this claim of ineffective assistance of

trial counsel. Lozoya does not overcome the default of Ground Three under .

Accordingly, it is barred from review and affords no federal habeas relief.13

V. CERTIFICATE OF APPEALABILITY

A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Instead, a district court or

court of appeals must first issue a certificate of appealability (COA). . “A [COA] may

issue . . . only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a COA, Lozoya must show that

reasonable jurists would find debatable both the merits of the underlying claims and the

procedural issues he seeks to raise. , 529 U.S. 473, 484 (2000).

Lozoya has not made the requisite showing. Finally, because Lozoya is not entitled to a

COA, he is not entitled to appeal in forma pauperis.

It is therefore ORDERED that Lozoya’s amended Petition for Writ of Habeas

Corpus (Doc. 5) is DENIED. The CLERK is directed to enter judgment against Lozoya

and in Respondent’s favor and to CLOSE this case.

ORDERED in Tampa, Florida, on March 25, 2022.

13 Lozoya seeks an evidentiary hearing on his claims. The Court determines that an evidentiary hearing is

not warranted. , 550 U.S. 465, 474 (2007) (stating that “if the record refutes the applicant’s

factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary

hearing”).

pee 4 Mizelle :

United States District Judge

36