Aguirre v. Secretary, Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JOSE MARGARITO AGUIRRE,

Petitioner,

v. Case No: 5:19-cv-565-TPB-PRL

SECRETARY, DEPARTMENT OF

CORRECTIONS and FLORIDA

ATTORNEY GENERAL,

Respondents.

___________________________________/

ORDER DENYING THE AMENDED PETITION AND

DISMISSING CASE WITH PREJUDICE

I. Status

Petitioner, Jose Margarito Aguirre, an inmate of the Florida penal system,

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

Habeas Corpus by a Person in State Custody (Doc. 1). He is proceeding on an

Amended Petition (Doc. 12). Respondents filed a Response (Doc. 16).1 The Court

provided Petitioner with an opportunity to reply (Doc. 13), but he did not do so. This

case is ripe for review.

II. Relevant Factual and Procedural History

The facts are set out in Petitioner’s initial brief filed on direct appeal (Resp.

Ex. C at 1-6). According to the brief’s factual summary, one night, Petitioner and

Fernando Castaneda drove in a black Dodge to the Rodeo Bar in Mount Dora (id. at

1 Attached to the Response are several exhibits. The Court cites the exhibits as “Resp. Ex.”

1-2). Petitioner’s friends, Richard Herrera, Cynthia,2 and Jesse, arrived at the

Rodeo Bar at the same time in a separate vehicle. When they all arrived, Herrera

had a .40 caliber firearm with him and left it in Jesse’s car when they all went into

the back room of the bar (id.).

Jeremiah Barriner, Kellie Adams, and Demetrius “Michi” Barriner (Jeremiah

Barriner’s brother) were also in the back room of the bar (id.). At closing time,

Petitioner and Michi got into an altercation, resulting in Petitioner getting kicked

out of the bar (id.). At trial, the bar owner testified that when Petitioner was being

escorted out of the bar, he made threatening remarks to Michi and Michi’s group of

friends (id. at 2-3). Michi testified at trial that after Petitioner was kicked out of the

bar, the bar owner suggested that Michi and his friends wait before exiting the bar

because he was concerned about Petitioner’s aggressive actions towards them (id. at

3). After briefly waiting, Michi, Jeremiah Barriner, and Kellie Adams began

walking to their car and when they stopped to converse, the black Dodge

approached them and Petitioner, who was in the passenger seat of the Dodge,

pointed a gun out the window (id.). According to Michi and Kellie Adams, Petitioner

then stated, “I have something for you . . .” before firing several gunshots in their

direction (id.). Two of those shots struck Jeremiah Barriner, killing him.

Cynthia and Herrera testified at trial that they were also in the black Dodge

when Petitioner fired the shots. According to them, when they left the bar with

Petitioner, someone in Michi’s group of friends shouted, “We’re going to put

2 In the trial transcript, the witnesses also refer to Cynthia and Cindy (see Resp. Ex. B at

603).

[Petitioner] on a T-shirt” (id.). Cynthia, Herrera, and Petitioner interpreted that

statement as a threat to kill Petitioner (id.). According to Cynthia, just before

Petitioner began shooting, she saw Michi, who was standing next to Jeremiah

Barriner, lift his shirt as someone uttered the threatening statement again (id.).

Cynthia testified that when Michi lifted his shirt, she believed he was attempting to

show that he had a firearm (id.). Michi, however, testified that he was unarmed and

did not make any threatening statements, nor did he lift his shirt when the black

Dodge approached his group (id.).

Herrera testified that when he was leaving the bar with Petitioner, Petitioner

asked for Herrera’s gun and Petitioner took possession of the firearm when he got

into the black Dodge (id.). According to Herrera, as they drove past Michi’s group,

Cynthia pointed at the group and said, “There goes the motherf**ker who . . . hit . . .

choked me” (id.). Herrera stated that Petitioner then said to Michi’s group, “I got

something for you motherf**kers,” before firing three or four shots in the group’s

direction (id.).

Fernando Castaneda, who was driving the black Dodge when Petitioner shot

Jeremiah Barriner, testified that after Petitioner fired the shots, he yelled, “Go . . .

go . . . go,” so Castaneda drove away quickly and ended up at Cynthia’s house (id. at

4-5). The next morning, Herrera took the firearm to his grandmother’s house, where

Petitioner’s father disassembled the gun, cut it into parts, and discarded it off a

roadside in Apopka (id.). Petitioner’s father subsequently led police to the discarded

gun parts (id.).

An autopsy of Jeremiah Barriner revealed that he suffered one gunshot

wound to his back and one gunshot wound near his ankle (id. at 5). At trial,

Petitioner claimed he acted in self-defense (id.). He testified that he feared for his

life when Michi said he would put Petitioner on a T-shirt. According to Petitioner,

when Michi lifted his shirt, Petitioner fired at the ground with no intent of shooting

anyone (id. at 6). Petitioner explained that he fled to Texas after the incident

because Jeremiah Barriner’s friends began posting online threats against Petitioner

(id.).

After the state rested its case, trial counsel moved for a judgment of

acquittal:

MR. CARRANZA: Okay. Your Honor, at this point

we would move for a judgment of acquittal. We don’t

believe the State has proven a prima facie case.

Specifically, Your Honor, for the second-degree murder,

we don’t believe that the State has proven a prima facie

case of the depraved mind. We believe that with cross-

examination and with direct examination it is clear that

this incident did not have any evil intent, a depraved

mind.

We believe the physical evidence in regard to the

trajectory of the bullet and mister -- and the testimony

from Cindy Aguirre stating that Mr. Aguirre stated and

he physically already showing that he shot to the right

and shot to the ground. We believe that the State has

proven a prima facie case of manslaughter at this point,

but we don’t believe it rises to second-degree murder.

THE COURT: Motion is denied.

(Resp. Ex. B at 559-60). Following Petitioner’s trial testimony, trial counsel renewed

his motion for judgment of acquittal, which the trial court again denied (id. at 644).

Following closing arguments, the jury found Petitioner guilty of second

degree murder, specifically finding that Petitioner discharged a firearm causing

death or great bodily harm during the commission of the offense (Resp. Ex. A at

140). The trial court adjudicated Petitioner as a Prison Releasee Reoffender and

sentenced him to a life term of incarceration (id. at 183-86).

On direct appeal, Petitioner, with the benefit of counsel, filed an initial brief

(Resp. Ex. C) pursuant to Anders v. California, 386 U.S. 738 (1967), representing

that no good faith argument of reversible error could be made. In the Anders brief,

however, appellate counsel raised two issues for potential review: (1) whether the

trial court erred in denying Petitioner’s motion for judgment of acquittal, and (2)

whether the trial court erred in denying Petitioner’s motion for a mistrial (Resp. Ex.

C). Without requiring a response from the state, the Fifth District Court of Appeal

per curiam affirmed Petitioner’s judgment and conviction without a written opinion

(Resp. Exs. D-E).

Petitioner later filed several pro se postconviction motions with the state

courts, including a Florida Rule of Criminal Procedure 3.850 motion raising three

claims (Resp. Ex. Q). The trial court summarily denied the Rule 3.850 motion (Resp.

Ex. T), and the Fifth DCA per curiam affirmed the trial court’s decision without a

written opinion (Resp. Ex. W). This action followed.

III. Governing Legal Principles

A. Standard of Review Under AEDPA

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

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

Diagnostic & Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016). “‘The

purpose of AEDPA is to ensure that federal habeas relief functions as a guard

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

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

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

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

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

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

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

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

explanation, “the federal court should ‘look through’ the unexplained decision to the

last related state-court decision that does provide a relevant rationale” and

“presume that the unexplained decision adopted the same reasoning.” Wilson v.

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

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

federal court cannot grant habeas relief unless the state court’s adjudication of the

claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,”

or “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” 28 U.S.C. § 2254(d)(1), (2). A state court’s

factual findings are “presumed to be correct” unless rebutted “by clear and

convincing evidence.” Id. § 2254(e)(1).

AEDPA “imposes a highly deferential standard for

evaluating state court rulings” and “demands that state-

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

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

marks omitted). “A state court’s determination that a

claim lacks merit precludes federal habeas relief so long

as fairminded jurists could disagree on the correctness of

the state court’s decision.” Harrington v. Richter, 562 U.S.

86, 101 (2011) (internal quotation marks omitted). “It

bears repeating that even a strong case for relief does not

mean the state court’s contrary conclusion was

unreasonable.” Id. [at 102] (citing Lockyer v. Andrade, 538

U.S. 63, 75 (2003)). The Supreme Court has repeatedly

instructed lower federal courts that an unreasonable

application of law requires more than mere error or even

clear error. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 18

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

fails to give proper deference to state courts by conflating

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

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

unreasonable application of federal law is different from

an incorrect application of federal law.”).

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

citations modified).

B. Exhaustion and Procedural Default

There are prerequisites to federal habeas review. Before bringing a § 2254

habeas action in federal court, a petitioner must exhaust all state court remedies

available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To

exhaust state remedies, the petitioner must “fairly present[]” every issue raised in

his federal petition to the state’s highest court, either on direct appeal or on

collateral review. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted).

Thus, to properly exhaust a claim, “state prisoners must give the state courts one

full opportunity to resolve any constitutional issues by invoking one complete round

of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting

“that Boerckel applies to the state collateral review process as well as the direct

appeal process.”).

A state prisoner’s failure to properly exhaust available state remedies leads

to a procedural default which raises a potential bar to federal habeas review. The

United States Supreme Court has explained the doctrine of procedural default as

follows:

Federal habeas courts reviewing the constitutionality of a

state prisoner’s conviction and sentence are guided by

rules designed to ensure that state-court judgments are

accorded the finality and respect necessary to preserve

the integrity of legal proceedings within our system of

federalism. These rules include the doctrine of procedural

default, under which a federal court will not review the

merits of claims, including constitutional claims, that a

state court declined to hear because the prisoner failed to

abide by a state procedural rule. See, e.g., Coleman,[3] 111

S. Ct. 2546; Sykes,[4] 97 S. Ct. 2497. A state court’s

invocation of a procedural rule to deny a prisoner’s claims

precludes federal review of the claims if, among other

requisites, the state procedural rule is a nonfederal

ground adequate to support the judgment and the rule is

firmly established and consistently followed. See, e.g.,

Walker v. Martin, 131 S. Ct. 1120, 1127-1128, (2011);

3 Coleman v. Thompson, 501 U.S. 722 (1991).

4 Wainwright v. Sykes, 433 U.S. 72 (1977).

Beard v. Kindler, 130 S. Ct. 612, 617-618 (2009). The

doctrine barring procedurally defaulted claims from being

heard is not without exceptions. A prisoner may obtain

federal review of a defaulted claim by showing cause for

the default and prejudice from a violation of federal law.

See Coleman, 111 S. Ct. 2546.

Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be excused

under certain circumstances. Even though a claim has been procedurally defaulted,

a federal court may still consider the claim if a state habeas petitioner can show

either (1) cause for and actual prejudice from the default; or (2) a fundamental

miscarriage of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010).

C. Ineffective Assistance of Counsel

“The Sixth Amendment guarantees criminal defendants effective assistance

of counsel. That right is denied when a defense counsel’s performance falls below an

objective standard of reasonableness and thereby prejudices the defense.”

Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (citing Wiggins v. Smith, 539 U.S. 510,

521 (2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish

ineffective assistance, a person must show that: (1) counsel’s performance was

outside the wide range of reasonable, professional assistance; and (2) counsel’s

deficient performance prejudiced the challenger in that there is a reasonable

probability that the outcome of the proceeding would have been different absent

counsel’s deficient performance. Strickland, 466 U.S. at 687.

Further, “[t]he question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether that

determination was unreasonable - a substantially higher threshold.” Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is “any

reasonable argument that counsel satisfied Strickland’s deferential standard,” then

a federal court may not disturb a state-court decision denying the claim. Richter,

562 U.S. at 105. As such, “[s]urmounting Strickland’s high bar is never an easy

task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a

‘strong presumption’ that counsel’s representation was ‘within the wide range of

reasonable professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d

1248, 1262 (11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this

presumption is combined with § 2254(d), the result is double deference to the state

court ruling on counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also

Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013); Rutherford v.

Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).

IV. Analysis

A. Ground One

Petitioner argues that he is “actually innocent” of second degree murder

because there is no evidence that Petitioner acted with “a depraved mind” during

the killing (Doc. 12 at 18). In support of this assertion, Petitioner argues that when

moving for judgment of acquittal, trial counsel argued that the evidence did not

support this element of the crime and, to that end, he appears to claim the trial

court’s denial of his motion for judgment of acquittal violated his due process rights

under the Fourteenth Amendment5 (id.).

Petitioner exhausted this claim when he, through appellate counsel, raised

this claim as a possible appellate issue in his Anders brief on direct appeal.6 The

Fifth DCA found this claim lacked merit and per curiam affirmed Petitioner’s

judgment and conviction without a written opinion (Resp. Ex. D). Thus, the Court

addresses the claim in accordance with the deferential standard for federal court

review of state court adjudications.

When reviewing an insufficiency of the evidence claim in a habeas petition, a

federal court must determine “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.

5 The Court notes that a freestanding actual innocence claim is not cognizable on federal

habeas review. See Collins v. Sec’y, Dep’t of Corr., 809 F. App’x 694, 696 (11th Cir. 2020). But

considering the substance of Petitioner’s allegations, the Court construes this issue as a claim that

the trial court erred in denying Petitioner’s motion for judgment of acquittal. In any event,

Petitioner’s claim that he is “actually innocent” because he committed the lesser included offense of

manslaughter instead of second degree murder does not demonstrate innocence and is without merit.

6 Petitioner appears to maintain that this claim is unexhausted because appellate counsel

raised the claim in an Anders brief and thus the appellate court did not consider the issue on the

merits (Doc. 12 at 18). He also explains that he then raised this claim in his Rule 3.850 motion, but

the trial court declined to address the merits of the claim because it was not cognizable on collateral

review (id.). Petitioner seemingly tries to overcome any procedural bar by arguing that this Court’s

failure to consider the claim will result in a “manifest injustice” (id.). But Respondents do not argue

that this claim is unexhausted. And the Court notes the Eleventh Circuit has found that an

adjudication of a claim presented in an Anders brief can satisfy the exhaustion requirement. See

Jenkins v. Bullard, 210 F. App’x 895, 898 (11th Cir. 2006). This is so, because the Anders procedure

requires an appellate attorney to note possible appellate issues in the Anders brief and the appellate

court is required to conduct an independent review of the record to determine whether those possible

issues are of arguable merit. Id. Thus, when an issue is raised in an Anders brief, it satisfies the

exhaustion requirement under AEDPA. Id.; see also McClain v. Sec’y, Dep’t of Corr., 855 F. App’x

610, 613 (11th Cir. 2021).

307, 319 (1979). The court must assume that the jury resolved any evidentiary

conflicts in favor of the prosecution, and the court must defer to that resolution. Id.

Second degree murder is “[t]he unlawful killing of a human being, when

perpetrated by any act imminently dangerous to another and evincing a depraved

mind regardless of human life, although without any premeditated design to effect

the death of any particular individual.” § 782.04(2), Fla. Stat. The depraved mind

element of second degree murder requires “ill will, hatred, spite, or an evil intent.”

Poole v. State, 30 So. 3d 696, 698 (Fla. 2d DCA 2010). In most cases, this intent

must be inferred from the circumstances. Antoine v. State, 138 So. 3d 1064, 1074

(Fla. 4th DCA 2014) (quoting Williams v. State, 239 So. 2d 127, 130 (Fla. 4th DCA

1970)). To establish that the defendant acted with a depraved mind, the state must

present evidence of circumstances showing more than an “impulsive overreaction”

to an attack. Wiley v. State, 60 So. 3d 588, 591 (Fla. 4th DCA 2011) (citing Light v.

State, 841 So. 2d 623, 626 (Fla. 2d DCA 2003)); Dorsey v. State, 74 So. 3d 521, 522

(Fla. 4th DCA 2011). Also, it is well-settled law in Florida that “[e]ven though a

defendant has no intent to hit or kill anyone, firing a gun into a crowd of people

constitutes second degree murder” because such acts indicate an indifference to

human life and demonstrate ill will. Pressley v. State, 395 So. 2d 1175, 1177 (Fla. 3d

DCA 1981)(citing Golding v. State, 26 Fla. 530, 8 So. 311 (1890); United States

Fidelity & Guaranty Co. v. Perez, 384 So.2d 904 (Fla. 3d DCA 1980).

Here, the state presented evidence that as soon as Petitioner left the bar, he

asked for the firearm and then shot several times into a group of people, killing

Jeremiah Barriner. Although at trial Petitioner argued that he fired in self-defense

because he thought Michi was brandishing a gun, whether Petitioner acted in self-

defense was a factual issue properly presented to the jury. As such, upon thorough

review of the record and the applicable law, the Court finds that the state court’s

decision to deny Petitioner’s claim is neither contrary to nor an unreasonable

application of federal law, and it is not based on an unreasonable determination of

the facts given the evidence presented to the state court. Ground One is denied.

B. Ground Two

Petitioner argues that his trial counsel was ineffective for failing to

investigate Jeremiah Barriner’s past propensity for violence (Doc. 1 at 19).

Petitioner raised this claim in his Rule 3.850 motion (Resp. Ex. Q at 10). The trial

court summarily denied the claim, finding as follows:

Evidence of the victim’s reputation is admissible to

disclose his or her propensity for violence and the

likelihood that the victim was the aggressor, the notion

being that reputation evidence demonstrates the product

of what is generally discussed in the community. Antoine

v. State, 138 So. 3d 1064 (Fla. Dist. Ct. App. 2014). Such

reputation testimony is admissible in a self-defense case

as circumstantial evidence to prove the victim’s conduct,

that at the crucial time the victim acted consistently with

his reputation for violence. Id. However, Defendant did

not claim that Victim was the aggressor; instead he

argues that Mr. Bannister was the aggressor. During

Defendant’s testimony in court, he alleges he had no

issues with either [sic] Victim or Jeremiah Barriner in the

past. Defendant knew of the individuals from the

community, however, had not had any prior altercations

or controversies; not even an exchange of words prior to

the night of June 6th, 2015. Raising past traits of violence

by the victim who was not the aggressor would have been

incorrect during trial. Accordingly, the motion is denied as

to count two.

(Resp. Ex. T at 4-5) (record citations omitted). The Fifth DCA affirmed the trial

court’s summary denial without a written opinion (Resp. Ex. W).

The Court addresses the claim in accordance with the deferential standard for

federal court review of state court adjudications. In doing so, the Court defers to the

state court’s finding that Petitioner never claimed that the victim, Jeremiah Barriner,

was the aggressor, but argued at trial that he acted in self-defense because he

believed Michi was in possession of a firearm. Thus, evidence of the victim’s

propensity for violence would have been irrelevant to Petitioner’s claim of self-

defense. Under the deferential standard of AEDPA review, the state court’s

adjudication of this claim was neither contrary to nor an unreasonable application of

Strickland, and it was not based on an unreasonable determination of the facts given

the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d).

Ground Two is denied.

Accordingly, it is

ORDERED AND ADJUDGED:

1. The Amended Petition (Doc. 12) is DENIED and this case is

DISMISSED with prejudice.

2. The Clerk of Court shall enter judgment accordingly, terminate any

pending motions, and close this case.

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

appealability. Because the Court has determined that a certificate of appealability

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

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

termination shall serve as a denial of the motion.

DONE AND ORDERED at Tampa, Florida, this 6th day of February, 2023.

f / / ‘

/ | a

—| i / ‘ {

TOM BARBER

UNITED STATES DISTRICT JUDGE

Jax-7

C: Jose Margarito Aguirre, #U39112

Counsel of record

7 The Court should issue a certificate of appealability only if Petitioner makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(¢)(2). To make this substantial

showing, Petitioner “must demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were

‘adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2008) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Here, after consideration of the record

as a whole, the Court will deny a certificate of appealability.

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