Maldonado v. Secretary, Department of Corrections (Hardee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JAVIER MALDONADO

Petitioner,

v. Case No. 8:20-cv-744-CEH-SPF

SECRETARY, DEPARTMENT

OF CORRECTIONS,

Respondent.

/

O R D E R

This cause comes before the Court on Javier Maldonado’s petition for the writ

of habeas corpus under 28 U.S.C. § 2254. (Doc. 1) Maldonado challenges his state

convictions for trafficking in amphetamine, possession of cannabis, and possession of

drug paraphernalia. Upon consideration of the petition and the response (Doc. 6), and

in accordance with the Rules Governing Section 2254 Cases in the United States District

Courts, the petition will be DENIED.1

1 Although afforded the opportunity, Maldonado did not file a reply.

Facts2

The police executed a search warrant at Maldonado’s father’s home. The police

searched the home, the curtilage, and vehicles on the property. During the search the

police found partially smoked marijuana cigars inside a vehicle. They discovered in

Maldonado’s bedroom—which he shared with his brother—$1799 in cash, a black

cloth bag that contained 48 grams of methamphetamine, and small Ziploc bags.

Maldonado was arrested and interviewed by the police. He admitted the marijuana

found in the car and the black bag containing the methamphetamine belonged to him.3

Maldonado was charged with trafficking in amphetamine (Count 1), possession of

cannabis (Count 2), and possession of drug paraphernalia (Count 3).

A jury convicted Maldonado of all three charges and he was sentenced on

Count 1 to twelve years imprisonment and to time served on each of Counts 2 and 3.

The state appellate court affirmed Maldonado’s convictions and sentences and denied

his state Rule 3.850 motion for post-conviction relief.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

governs this proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir.

1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly

2 This factual summary derives from Maldonado’s brief on direct appeal and the

record. (Doc. 6-2, Exs. 4, 5, 6, 9, 12)

3 The audio recording of the police interview was played for the jury at trial.

deferential standard for federal court review of a state court adjudication, states in

pertinent part:

An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings 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.

In Williams v. Taylor, 529 U.S. 362, 412–13 (2000), the Supreme Court

interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power

of a federal habeas court to grant a state prisoner’s

application for a writ of habeas corpus with respect to

claims adjudicated on the merits in state court. Under

§ 2254(d)(1), the writ may issue only if one of the following

two conditions is satisfied - - the state-court adjudication

resulted in a decision that (1) “was contrary to . . . clearly

established Federal Law, as determined by the Supreme

Court of the United States” or (2) “involved an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.” Under the “contrary to” clause, a federal habeas

court may grant the writ if the state court arrives at a

conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case differently

than this Court has on a set of materially indistinguishable

facts. Under the “unreasonable application” clause, a

federal habeas court may grant the writ if the state court

identifies the correct governing legal principle from this

Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.

“The focus . . . is on whether the state court’s application of clearly established

federal law is objectively unreasonable, . . . an unreasonable application is different

from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694 (2002). “As a condition for

obtaining habeas corpus from a federal court, 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.” Harrington v. Richter, 562 U.S.

86, 103 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) (“It is the

objective reasonableness, not the correctness per se, of the state court decision that we

are to decide.”). 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, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. “The [AEDPA]

modified a federal habeas court’s role in reviewing state prisoner applications in order

to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given

effect to the extent possible under law.” Cone, 535 U.S. at 693. A federal court must

afford due deference to a state court’s decision. “AEDPA prevents defendants—and

federal courts—from using federal habeas corpus review as a vehicle to second-guess

the reasonable decisions of state courts.” Renico v. Lett, 559 U.S. 766, 779 (2010). See

also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“This is a ‘difficult to meet,’ . . . and

‘highly deferential standard for evaluating state-court rulings, which demands that

state-court decisions be given the benefit of the doubt’. . . .”) (citations omitted).

In a per curiam decision without a written opinion, the state appellate court on

direct appeal affirmed Maldonado’s convictions and sentences. (Doc. 6-2, Ex. 14) In

another per curiam decision the state appellate court affirmed the denial of

Maldonado’s Rule 3.850 motion. (Doc. 6-2, Ex. 24) The state appellate court’s

affirmances warrant deference under Section 2254(d)(1) because “the summary nature

of a state court’s decision does not lessen the deference that it is due.” Wright v. Moore,

278 F.3d 1245, 1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002),

cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at

99 (“When a federal claim has been presented to a state court and the state court has

denied relief, it may be presumed that the state court adjudicated the claim on the

merits in the absence of any indication or state-law procedural principles to the

contrary.”).

Review of the state court decision is limited to the record that was before the

state court.

We now hold that review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated

the claim on the merits. Section 2254(d)(1) refers, in the past

tense, to a state-court adjudication that “resulted in” a

decision that was contrary to, or “involved” an

unreasonable application of, established law. This

backward-looking language requires an examination of the

state-court decision at the time it was made. It follows that

the record under review is limited to the record in existence

at that same time, i.e., the record before the state court.

Pinholster, 563 U.S. at 181–82. Maldonado bears the burden of overcoming by clear

and convincing evidence a state court factual determination. “[A] determination of a

factual issue made by a State court shall be presumed to be correct. The applicant shall

have the burden of rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a

finding of fact but not to a mixed determination of law and fact. Parker v. Head, 244

F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

Standard for Ineffective Assistance of Counsel

Maldonado claims ineffective assistance of counsel, a difficult claim to sustain.

“[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d

1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th

Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains that

Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of

counsel claim:

The law regarding ineffective assistance of counsel claims is

well settled and well documented. In Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), the Supreme Court set forth a two-part test for

analyzing ineffective assistance of counsel claims.

According to Strickland, [f]irst, the defendant must show

that counsel’s performance was deficient. This requires

showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the defendant

must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial

whose result is reliable. Strickland, 466 U.S. at 687, 104 S.

Ct. 2052.

Strickland requires proof of both deficient performance and consequent

prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an

ineffective assistance claim . . . to address both components of the inquiry if the

defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When

applying Strickland, we are free to dispose of ineffectiveness claims on either of its two

grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance and

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

Strickland, 466 U.S. at 690. “[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.” 466 U.S. at 690. Strickland requires

that “in light of all the circumstances, the identified acts or omissions were outside the

wide range of professionally competent assistance.” 466 U.S. at 690.

Maldonado must demonstrate that counsel’s alleged error prejudiced the

defense because “[a]n 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.” 466 U.S. at 691. To meet this burden, Maldonado 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.” 466 U.S. at 694.

Strickland cautions that “strategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable; and strategic

choices made after less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690–91. Maldonado cannot meet his burden merely by

showing that the avenue chosen by counsel proved unsuccessful.

The test 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 . . . . 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). Accord Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,

in every case, could have done something more or something different. So, omissions

are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent or appropriate,

but only what is constitutionally compelled.’”) (en banc) (quoting Burger v. Kemp, 483

U.S. 776, 794 (1987)).

Under 28 U.S.C. § 2254(d) Maldonado must prove that the state court’s

decision was “(1) . . . contrary to, or involved an unreasonable application of, clearly

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

(2) . . . based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” Sustaining a claim of ineffective assistance

of counsel is very difficult because “[t]he standards created by Strickland and § 2254(d)

are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’

so.” Richter, 562 U.S. at 106. See also Pinholster, 563 U.S. at 202 (a petitioner must

overcome this “‘doubly deferential’ standard of Strickland and [the] AEDPA”), Johnson

v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011) (“Double deference is doubly

difficult for a petitioner to overcome, and it will be a rare case in which an ineffective

assistance of counsel claim that was denied on the merits in state court is found to

merit relief in a federal habeas proceeding.”), and Pooler v. Sec’y, Dep’t of Corr., 702 F.3d

1252, 1270 (11th Cir. 2012) (“Because we must view Pooler’s ineffective counsel

claim—which is governed by the deferential Strickland test—through the lens of

AEDPA deference, the resulting standard of review is ‘doubly deferential.’”), cert.

denied, 134 S. Ct. 191 (2013).

Ground One

Maldonado contends that the trial court violated his Sixth and Fourteenth

Amendment rights to due process and a fair trial by denying his motion for judgment

of acquittal. He argues that the State failed to prove that he knew that a large quantity

of methamphetamine was concealed in the black bag found in the bedroom.

Maldonado alleges that the drugs were discovered in a bedroom that he and his brother

shared whenever they visited their father. In his statement to the police Maldonado

admitted that the black bag was his, that he had paid for “a baggie of ‘meth,’” and that

the amount of drugs he had was for personal use. (Doc. 1 at 6) Maldonado argues

that the State failed to prove that he had sole dominion or control of the premises and

that the trial court’s denial of his motion for judgment of acquittal resulted in a denial

of his federal rights to due process and a fair trial.

The Respondent correctly argues that this ground is unexhausted and

procedurally barred because Maldonado did not preserve his federal claim for

appellate review. (Doc. 6 at 4) Maldonado did not file a reply and does not challenge

the Respondent’s assertion of procedural default.

In moving for a judgment of acquittal, Maldonado did not apprise the state trial

court of a federal claim challenging the sufficiency of the State’s evidence. 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). Because he did not

assert a federal constitutional violation in moving for a judgment of acquittal at trial,

Maldonado did not present to the state trial court the federal claim that he makes here,

and that he made in the state appellate court. (Doc. 6-2, Ex. 12 at 6–9) Maldonado

cannot return to state court to present his federal claim in a successive appeal. See Fla.

R. App. P. 9.140(b)(3). Accordingly, the federal claim is procedurally defaulted. See

Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022) (noting that if a prisoner failed to present

a federal claim to the state court and the state court would dismiss the claim based on

a procedural failure, the claim is technically exhausted because, in the habeas context,

“state-court remedies are . . . ‘exhausted’ when they are no longer available, regardless

of the reason for their unavailability.”) (quoting Woodford v. Ngo, 548 U.S. 81, 92–93

(2006)).

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.” Smith v. Jones, 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.” Wright v. Hopper, 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. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.

2003).

Absent a showing of cause and prejudice, a petitioner may obtain federal habeas

review of a procedurally defaulted claim only if review is necessary to correct a

“fundamental miscarriage of justice.” Edwards v. Carpenter, 529 U.S. 446, 451 (2000);

Murray v. Carrier, 477 U.S. 478, 495–96 (1986). A fundamental miscarriage of justice

occurs if a constitutional violation has probably resulted in the conviction of someone

who is “actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995); Johnson v.

Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet the “fundamental miscarriage

of justice” exception, a petitioner must show constitutional error coupled with “new

reliable evidence—whether . . . exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513

U.S. at 324.

Maldonado’s failure to fairly present a federal claim in the state court deprived

the state court of a “full and fair opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process.”

Boerckel, 526 U.S. at 845. Maldonado fails to demonstrate cause and prejudice

excusing the default. Carrier, 477 U.S. at 495–96. 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 Maldonado fails to proffer

specific facts showing an exception to procedural default, Ground One is procedurally

barred from federal review.

Ground Two

Maldonado contends that his trial counsel rendered ineffective assistance by not

filing a motion to suppress evidence obtained from his father’s house pursuant to a

search warrant. He argues that the police obtained a search warrant based on a prior

allegation of sales of illegal drugs that was disproven and dismissed. (Doc. 1 at 8)

Maldonado claims that he exercised no dominion or control over either the cash, the

black bag that contained methamphetamine, or the partially smoked marijuana cigars.

(Id.) He argues that if his trial counsel had moved to suppress the evidence and argued

that no factual basis existed for the issuance of the search warrant, the evidence would

have been suppressed and the charges dismissed.

The Respondent asserts that Maldonado presented this ground to the state

post-conviction court in his Rule 3.850 motion but the court did not specifically

address the ground in its order denying relief. (Doc. 6 at 7–8) More specifically, the

Respondent alleges that “[t]he state post-conviction court addressed only Maldonado’s

claim that counsel was ineffective for not arguing to the jury that the evidence was

insufficient because the prior alleged sale was dismissed and did not address his claim

that counsel was ineffective for failing to argue a lack of probable cause to the court.”

(Id. at 8)

In Ground One of his Rule 3.850 motion Maldonado argued that “law

enforcement was allegedly granted a search warrant on a property which police

provided no evidence that said property was owned or rented to this defendant and no

evidence that defendant had any control or dominion either exclusively or jointly, of

said property or automobiles.” (Doc. 6-2, Ex. 16 at 5) He contended that if his trial

counsel had argued that there was no “factual based evidence” that he was involved

in any illegal activity “as evidenced by the fact that the primary allegation of sales of

meth was dismissed for lack of factual basis,” the “court and jury would have

determined that there was insufficient probable cause for [the] search and the outcome

of the trial would have been a dismissal of the charges . . . .” (Id.)

Maldonado did not present to the state post-conviction court a claim of

ineffective assistance of counsel based on counsel’s failure to file a motion to

suppress—the claim that he presents in Ground Two of the federal petition.

Maldonado’s references to “probable cause” were in support of his claim that counsel

failed to argue that a factual basis existed for the charges against him and not an

independent claim of ineffective assistance based on a failure to file a motion to

suppress evidence. Consequently, that claim is unexhausted and procedurally

defaulted. Because Maldonado fails to proffer specific facts showing an exception to

procedural default, the claim is procedurally barred from federal review.4

To the extent that Maldonado presents in Ground Two of the federal petition

the same claim of ineffective assistance of counsel based on an alleged lack of factual

basis to support the charges that he presented to the state post-conviction court in

Ground One of his Rule 3.850 motion, he is not entitled to relief. The state

post-conviction court denied that claim as follows (Doc. 6-2, Ex. 17 at 1–3) (court’s

record citations omitted):

In ground one, Defendant asserts that had defense counsel

raised or argued that there was no factual evidence that

Defendant was involved or engaged in any illegal activity

with anyone anywhere as evidenced by the fact that the

primary allegation of sale of meth was dismissed for lack of

factual basis and/or evidence, Defendant would have been

acquitted.

First, the court notes that the sale of meth charge Defendant

references in his claim was a charge of “sale of

methamphetamine within 1000 feet of a church” in case

11CF67. The two cases, as evidenced by the record in this

case (11CF68), proceeded together on the pre-trial docket.

During the sentencing hearing in this case (February 24,

2015), the State announced a nolle prose in 11CF67 stating

that the confidential informant was no longer available to

be called at trial. The State’s subsequently-filed notice

4 Notwithstanding the default, the claim fails on the merits. To obtain relief on a claim

of ineffective assistance of counsel for failing to file a motion to suppress, a petitioner must

prove that (1) counsel’s representation fell below an objective standard of reasonableness, (2)

he has a meritorious Fourth Amendment claim, and (3) a reasonable probability of a different

verdict exists absent the excludable evidence. See Zakrzewski v. McDonough, 455 F.3d 1254,

1260 (11th Cir. 2006). Maldonado fails to satisfy these requirements. He presents no evidence

showing a defect in the search warrant and fails to otherwise establish a meritorious Fourth

Amendment claim. Consequently, he cannot establish his claim of ineffective assistance of

counsel for not filing a motion to suppress. See Zakrzewski, 455 F.3d at 1260.

indicates that “facts and evidence will not support

prosecution.” The State’s decision in February of 2015 to

not continue prosecution in 11CF67 due to unavailability of

a confidential informant does not impact Defendant’s

conviction in June of 2014 in the above-styled case.

Second, during trial there was factual evidence presented

that Defendant was involved or engaged in illegal activities.

The jury heard testimony from law enforcement about the

methamphetamine, marijuana, small baggies, and “crank

boat” they found, and those items were published for the

jury to view. Additionally, the jury heard Defendant’s taped

statement in which he states he lives at the house and the

dressers in the bedroom (where some drugs were found) are

all his, and he also admits to the marijuana “roaches” being

his, the “crank boat” being his and the bag of meth being

his. As there was factual evidence that Defendant was

involved or engaged in illegal activity, an argument that

there was “no factual evidence” would have been meritless.

Counsel did argue to the jury that Defendant was just a kid

trying to protect and help out his brother who shared the

bedroom with Defendant.

Counsel is not ineffective for failing to make a meritless

argument that there was “no factual evidence.” Defendant

proceeded to trial and the State presented their evidence

against him. Defendant was not prejudiced. Ground one is

denied.

As the state post-conviction court noted, the State presented evidence

demonstrating a factual basis for the charged offenses. Moreover, the state

post-conviction court in rejecting Maldonado’s claim of ineffective assistance of

counsel in his state Rule 3.850 motion has answered the question of what would have

happened if counsel had challenged the factual basis for the charges. See, e.g., Herring

v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir. 2005) (“The Florida Supreme

Court already has told us how the issues would have been resolved under state law

had [petitioner’s counsel] done what [petitioner] argues he should have done . . . . It is

a ‘fundamental principle that state courts are the final arbiters of state law, and federal

habeas courts should not second guess them on such matters.’”) (quoting Agan v.

Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)); Callahan v. Campbell, 427 F.3d 897, 932

(11th Cir. 2005) (“[T]he Alabama Court of Criminal Appeals has already answered

the question of what would have happened had [petitioner’s counsel] objected to the

introduction of [petitioner’s] statements based on [state law]—the objection would

have been overruled . . . . Therefore, [petitioner’s counsel] was not ineffective for

failing to make that objection.”). Maldonado fails to show a reasonable probability

exists that the charges against him would have been dismissed if counsel had argued

that no factual basis existed that Maldonado engaged in any illegal activity.

Consequently, because Maldonado fails to satisfy Strickland’s requirements, he cannot

establish ineffective assistance by his trial counsel. The state courts’ rejection of this

ground is neither contrary to, or an unreasonable application of, Strickland nor was the

ruling based on an unreasonable determination of the facts in light of the evidence

presented in the state court. See 28 U.S.C. § 2254(d)(1), (d)(2). Ground Two warrants

no relief.

Ground Three

Maldonado contends that his trial counsel rendered ineffective assistance by not

properly presenting his defense and not ensuring that the State proved each element of

the charged offenses. He alleges that his sole defense was that neither the drugs nor

the contraband belonged to him, that he did not reside at his father’s house, and that

he had no dominion or constructive possession of the contraband aside from that

which was found on his person. Maldonado claims that the jury would have acquitted

him if his trial counsel had properly argued a lack of dominion or a lack of constructive

possession.

Maldonado presented these allegations to the state court in Grounds Two and

Four of his Rule 3.850 motion. The state post-conviction court denied relief as follows

(Doc. 6-2, Ex. 17 at 2–3) (court’s record citations omitted):

In ground two, Defendant asserts that there was no factual

evidence that he had or exercised any control or dominion

over the searched residence or the Ford Mustang.

Defendant asserts that had his attorney argued that there

was no fact-based evidence showing Defendant had any

control or dominion over any part of the residence, the

outcome of the trial would have been dismissal of all

charges for lack of factual based evidence.

However, the jury heard Defendant’s taped statement in

which he admitted to staying at the residence, sleeping

inside the bedroom where drugs were found, and stating

that all the dressers in the bedroom were his. The jury also

heard Defendant’s taped statement in which he stated that

the Mustang was his brother’s car, but he admitted that the

marijuana “roaches” and “crank boat” from inside the car

were his. Law enforcement testified that the cigar blunts

with marijuana, a bag of marijuana, and a “crank boat”

were located in the Ford Mustang; a yellow Ziploc bag was

found in Defendant’s sock; $1799 dollars was found in the

same dresser as Defendant’s ID card; and

methamphetamine was found in the bedroom.

Additionally, counsel did move for a judgment of acquittal

on the basis that the State failed to present factual evidence

to show that Defendant was in possession of

methamphetamine; however, that motion was denied.

Given the foregoing, the court finds counsel was not

ineffective, nor was Defendant prejudiced. Ground two is

denied.

. . . .

In ground four, Defendant asserts that had trial counsel

argued that both Defendant and his brother had personal

belongings in the same dresser, and no contraband was

found in any drawer were Defendant had a few items of

clothing or personal effects, the jury would have had

insufficient evidence to sustain a conviction and would have

dismissed the charges.

However, the record indicates defense counsel did question

law enforcement about Defendant and his brother sharing

the room where items were found. During closing

statement, defense counsel argued that Defendant was a kid

trying to protect and help out his brother. As stated above,

the jury also heard Defendant’s taped statement where he

admitted to ownership of the items, and stated that all of the

dressers in the room belonged to him. Counsel was not

ineffective, nor was Defendant prejudiced. Ground four is

denied.

To prove constructive possession, the State must show the defendant had: “(1)

dominion and control over the contraband and (2) knowledge that the contraband was

within his presence.” Knight v. State, 186 So. 3d 1005, 1012 (Fla. 2016) (citing J.S.M.

v. State, 944 So.2d 1143, 1144 (Fla. 2d DCA 2006)). “Additionally, ‘[w]hen, as in this

case, contraband is found in a location that was accessible to more than one person, a

defendant’s knowledge of its presence and ability to exercise dominion and control

will not be inferred; these elements must be established by independent proof.’”

Santiago v. State, 991 So. 2d 439, 441–42 (Fla. 2d DCA 2008) (quoting Wagner v. State,

950 So.2d 511, 513 (Fla. 2d DCA 2007)). “Such proof may consist of evidence of

incriminating statements and circumstances, other than the mere location of the

substance, from which a jury might infer knowledge of the presence of the contraband

on the premises.” State v. Cadore, 59 So. 3d 1200, 1203 (Fla. 2d DCA 2011) (citation

omitted).

The State presented to the jury Maldonado’s recorded statement to the police in

which he admitted that “the stuff’s mine,” that the room in which the drugs were found

was his room, and that all the dressers in the room were his. (Doc. 6-2, Ex. 5, trial

transcript at 170–71) Maldonado admitted that the marijuana found in the vehicle

belonged to him and that he had methamphetamine in the bag found in the bedroom.

(Id. at 174–79) Accordingly, the State presented sufficient evidence of constructive

possession.5 See Knight, 186 So. 3d at 1012.

The state courts’ rejection of these allegations of ineffective assistance of counsel

is neither contrary to, or an unreasonable application of, Strickland nor was the ruling

based on an unreasonable determination of the facts in light of the evidence presented

in the state court. See 28 U.S.C. § 2254(d)(1), (d)(2). Ground Three warrants no relief.

Ground Four

Maldonado contends that his trial counsel rendered ineffective assistance by not

properly moving for dismissal based on alleged violations of his right to remain silent.

5 Trial counsel argued in the motion for judgment of acquittal that “the State has not

presented any factual evidence to show that Mr. Maldonado was the one in possession of

these items.” (Doc. 6-2, Ex. 5, trial transcript at 205) The trial judge denied the motion. (Id.

at 206)

He argues that various circumstances rendered his statements to the police

involuntary:

(1) Coercion

Maldonado contends that the police “instituted a ‘carrot and stick’ approach of

coercion in obtaining a confession from Petitioner in that they did threaten to arrest

Petitioner’s father and brother if he did not admit to ownership of the contraband

drugs.” (Doc. 1 at 12) Maldonado alleges that the police assured leniency for his

family if he admitted owning the drugs and paraphernalia and that “[i]n order to spare

his aging father and younger brother the unwarranted indignities of arrest [] Petitioner

did provide a somewhat vague and apprehensive admission to law enforcement.” (Id.)

Maldonado claims that after his arrest he was questioned “on the record” and that his

responses were again “vague, apprehensive, and involuntary.” (Id.) He argues that

his trial counsel should have moved for dismissal based on this alleged violation of his

right to remain silent.

The state post-conviction court denied relief on this claim as follows (Doc. 6-2,

Ex. 17 at 3) (court’s record citations omitted):

In [this ground], Defendant asserts that defense counsel

failed to argue that law enforcement coerced Defendant into

an involuntary confession by threatening to arrest

Defendant’s father or brother if Defendant did not confess

to the allegations by law enforcement. Defendant asserts

that had his attorney raised this issue to the jury, the jury

would have seen that Defendant’s confession was not

voluntary and the jury would have dismissed the charges.

However, the record indicates that defense counsel argue[d]

this general issue to the jury;[6] more specifically, during her

closing statement counsel reiterated that law enforcement

would have taken Defendant’s brother to jail if Defendant

had not taken the blame for the drugs. Counsel instructed

the jury that whether or not Defendant’s statement was true

was something they would have to decide. Additionally, the

court instructed the jury that if they concluded Defendant’s

out-of-court statement was not freely and voluntarily made,

then they could disregard it. Nonetheless, the jury found

Defendant guilty as charged. The court finds counsel was

not ineffective, nor was Defendant prejudiced. [This]

[g]round . . . is denied.

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). Statements that result from “intimidation, coercion, or deception” by the

police are not voluntary and must be suppressed. Colorado v. Connelly, 479 U.S. 157,

163 (1986). Police coercion is a necessary component to finding that a defendant

“involuntarily” waived his right to remain silent. United States v. Ouedraogo, 824 F.

App’x 714, 722 (11th Cir. 2020) (citing Connelly, 479 U.S. at 167). To determine

voluntariness, a court must assess “the totality of the circumstances—both the

characteristics of the accused and the details of the interrogation.” Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973). Sufficiently coercive conduct generally involves

6 Trial counsel argued to the jury (Doc. 6-2, Ex. 5, trial transcript at 230):

You heard on the statement that he and his brother share a room.

Sergeant Coronado told you they share a room. Sergeant

Coronado told you Solomon was there when he arrived with a

search warrant. Sergeant Coronado told you if Javier hadn’t

taken the blame for it they were both going to jail. It sure sounds

like a kid protecting his brother.

subjecting the accused to an exhaustingly long interrogation, the application of

physical force or the threat to do so, or the making of a promise that induces a

confession. See Connelly, 479 U.S. at 163 n.1. “Absent police conduct causally related

to the confession, there is simply no basis for concluding that any state actor has

deprived a criminal defendant of due process of law.” Id. at 164.

Maldonado presents no evidence that his free will was overborne by police

deception or threats to arrest his relatives. He fails to demonstrate that his decision to

tell the police that the contraband belonged to him was coerced. Moreover, no

evidence shows, and Maldonado does not assert, that he did not understand his

Miranda warnings. His failure to provide evidence to support a finding that his

statement was the result of improper threats or coercion precludes relief on his claim

of ineffective assistance of counsel. The state post-conviction court neither

unreasonably applied Strickland nor unreasonably determined the facts by rejecting this

claim. See 28 U.S.C. § 2254(d)(1), (d)(2).

(2) Drug use

Maldonado contends that his trial counsel failed to move to dismiss the charges

or argue to the jury that the police violated his right to remain silent and coerced him

to make statements after he advised officers that he was a drug user and had recently

taken drugs. He alleges that he habitually used methamphetamine and that, “[a]s a

result of his habitual and frequent drug use, . . . he was unable to think and/or

understand the questions and/or actions of law enforcement at the time.” (Doc. 1

at 13) Maldonado claims that he “lacked the capacity for conscious choice in

responding to [l]aw [e]nforcement’s questioning.” (Id.)

When Maldonado presented these allegations to the state post-conviction court

in his Rule 3.850 motion, he argued that counsel was ineffective for not moving to

suppress his statements. (Doc. 6-2, Ex. 16 at 9–10) In his federal petition Maldonado

faults counsel for not moving to dismiss the charges based on alleged coercion by the

police—a different claim than he presented to the state court. Accordingly, the claim

presented in the federal petition is unexhausted and procedurally defaulted.7

To the extent that the federal petition, liberally construed, see Haines v. Kerner,

404 U.S. 519 (1972), asserts the same claim of ineffective assistance of counsel

presented to the state post-conviction court, Maldonado is not entitled to relief. The

state post-conviction court denied relief on this claim as follows (Doc. 6-2, Ex. 17 at 4):

In [this] ground . . ., Defendant asserts counsel failed to

move to suppress his taped confession made while he was

under the effect of a controlled substance. Defendant states

he is a strong user of methamphetamines and that he had

told detectives he’d smoked two days before his arrest.

Defendant states he told his counsel of his addiction but trial

counsel disregarded that information.

However, whether or not Defendant has a drug addiction

or used methamphetamine two days before his arrest would

not be grounds to have his confession suppressed given the

totality of the circumstances in this case. The court finds

7 The Respondent addresses this claim as alleging ineffective assistance of counsel for

not filing a motion to suppress based on Maldonado’s drug use, the claim presented to the

state court in the Rule 3.850 motion. (Doc. 6 at 16–18) The Respondent does not address the

claim of ineffective assistance of counsel for not moving to dismiss the charges based on the

drug use, the claim presented in the federal petition. Notwithstanding the default, the claim

fails on the merits because Maldonado presents no evidence of impairment or police coercion.

counsel was not ineffective, nor was Defendant prejudiced.

See Reddish v. State, 167 So. 2d 858, 862 (Fla. 1964). [This]

[g]round . . . is denied.

“The mere fact that the defendant had taken drugs prior to giving the statement

does not render it inadmissible. The evidence must show the defendant was so affected

as to make his statement, after appropriate warnings, unreliable or involuntary.”

United States v. Taylor, 508 F.2d 761, 763 (5th Cir. 1975) (citations omitted).8

Maldonado cites no evidence demonstrating that he was under the influence of drugs

when he was questioned by the police or that his habitual drug use affected his ability

to understand and answer questions. During the recorded interview, Maldonado

evinced no impairment, understood the questions asked of him, and gave coherent

answers. (Doc. 6-2, Ex. 5, trial transcript at 165–83) His failure to provide evidence

to support a finding that his statement was the result of improper threats or coercion

precludes relief on his claim of ineffective assistance of counsel. The state

post-conviction court neither unreasonably applied Strickland nor unreasonably

determined the facts by rejecting this claim. See 28 U.S.C. § 2254(d)(1), (d)(2).

(3) Disability

Maldonado contends that his trial counsel failed to move to dismiss the charges

or argue to the jury that the police violated his right to remain silent and coerced him

to make statements despite his telling them that “he had little education and that his

8 Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued

before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th

Cir. 1981) (en banc).

ability to read, write, and/or comprehend was very limited.” (Doc. 1 at 13)

Maldonado alleges that the police refused to acknowledge his disabilities and that

“Police Chief Scheel clearly is heard badgering Petitioner throughout the taped

interview until Petitioner would offer some admissions that were acceptable to [l]aw

[e]nforcement.” (Id.) Maldonado argues that the officers’ alleged disregard for his

disabilities rendered his statements unknowing, unintelligent, and involuntary.

The state post-conviction court denied relief on this claim as follows (Doc. 6-2,

Ex. 17 at 3–4) (court’s record citation omitted):

In [this] ground . . ., Defendant asserts counsel failed to

object and argue that Defendant’s lack of education clearly

showed he was unable to comprehend the difference

between a voluntary and coerced confession, asserting he

was badgered during his confession where law enforcement

disregarded the question to Defendant about whether he

could read. Defendant asserts that the jury would have had

insufficient factual evidence that the taped confession was

legal, ethical, and voluntary, and there would have been

insufficient evidence to sustain a conviction.

However, it is unclear how counsel bringing up Defendant’s

lack of education (or possible inability to read) would have

assisted Defendant at trial. The jury was able to listen to the

taped statement and decide issues concerning credibility for

themselves. The court instructed the jury that the

Defendant’s out-of-court statement must be considered with

caution and weighed with great care to determine if it was

freely and voluntarily made. The court specifically

instructed that if the jury concluded Defendant’s out-of-

court statement was not freely and voluntarily made, then

they could disregard it. Given the foregoing, the court finds

counsel was not ineffective, nor was Defendant prejudiced.

As the state court noted, the jury heard Maldonado’s taped statement to the

police which included the following exchange (Doc. 6-2, Ex. 5, trial transcript at 166–

67):

CHIEF SCHEEL: Can you -- can you read?

SERGEANT CORONADO: Can you read?

MR. MALDONADO: (Inaudible.)

CHIEF SCHEEL: Okay.

SERGEANT CORONADO: It don’t matter. Just sign.

The trial judge instructed the jury regarding Maldonado’s statement as follows

(Doc. 6-2, Ex. 5, trial transcript at 265–66):

A statement claimed to have been made by the defendant

outside the court has been placed before you. Such a

statement should always be considered with caution and be

weighed with great care to make certain if it was freely and

voluntarily made. Therefore, you must decide from the

evidence that the defendant’s alleged statement was

knowingly, voluntarily, and freely made.

In making this determination—

I believe I said you must decide. The correct instruction is

you must determine from the evidence that the defendant’s

alleged statement was knowingly, voluntarily, and freely

made.

In making this determination you should consider the total

circumstances including but not limited to whether when

the defendant made the statement he had been threatened

in order to get him to make it and whether anyone had

promised him anything in order to get him to make it. If you

conclude the defendant’s out-of-court statement was not

freely and voluntarily made, you should disregard it.

Maldonado does not describe what he told the police about either his ability to

read or his level of education, nor does he state what information was in the inaudible

portion of the audio recording played for the jury. Moreover, as the state court noted,

the jury was able to hear the audio recording and assess the voluntariness of

Maldonado’s statements. He fails to show a reasonable probability exists that, if

counsel had argued that a lack of education rendered Maldonado unable to

comprehend the difference between a voluntary and coerced confession, the jury

would have acquitted him. Consequently, Maldonado cannot satisfy Strickland. The

state courts’ rejection of this claim is neither contrary to, or an unreasonable

application of, Strickland nor was the ruling based on an unreasonable determination

of the facts in light of the evidence presented in the state court. See 28 U.S.C.

§ 2254(d)(1), (d)(2).

(4) Omitted portions of the recording

Maldonado contends that his trial counsel was ineffective for “failing to move

to dismiss the entirety of all statements from the record based on the incomplete and

therefore prejudicial nature where Petitioner’s complete statement was not provided.”

(Doc. 1 at 13) The record shows that during her direct examination of Sergeant

Coronado the prosecutor inquired as follows (Doc. 6-2, Ex. 5, trial transcript at 164):

Q: I’m showing you what’s been marked as State’s Exhibit

12 for identification. Do you recognize that?

. . . .

A: Yes.

. . . .

Q: What is—what is on that disc?

A: It is [the] defendant’s taped statement.

Q: When was the last time you listened to that?

A: Yesterday.

Q: Some irrelevant things were edited but other than that[,]

has it been materially changed?

A: No.

Q: Was it a fair representation of the conversation that you

had with the defendant?

A: Yes.

Maldonado alleges that “[f]avorable and/or mitigating evidence [was] removed and

the coercive procedures utilized in obtaining said statements by [l]aw [e]nforcement

was [sic] deliberately tampered with.” (Doc. 1 at 13) He argues that “[c]ounsel was

ineffective in failing to move to dismiss the entirety of all statements from the record

based on the incomplete and therefore prejudicial nature where Petitioner’s complete

statement was not provided.” (Id.)

The state post-conviction court denied relief on this claim as follows (Doc. 6-2,

Ex. 17 at 5):

In [this] ground . . ., Defendant states the prosecutor

admitted that some irrelevant things were deleted from the

taped confession. Defendant asserts that had counsel

argued that any information deleted by the State was

tampering with evidence, the jury would have dismissed the

charges.

Defendant does not indicate what information was omitted

from the taped statement. Nonetheless, the court finds

counsel was not ineffective, nor was Defendant prejudiced.

Redaction of irrelevant portions of taped statements is

permissible and does not constitute the State “tampering

with evidence.” See, as example, Dessett v. State, 951 So. 2d

46 (Fla. 4th DCA 2007). Counsel was not ineffective for

failing to argue that the State redacting irrelevant

information from Defendant’s taped statement constituted

tampering with evidence. Defendant has also failed to show

how he was prejudiced. [This] [g]round . . . is denied.

Maldonado offers no evidence showing that the edited recording omitted any

favorable or mitigating evidence. He does not describe what information was edited

and does not show that the State tampered with the recording. Consequently,

Maldonado cannot show that counsel had a basis for moving to dismiss the charges as

he suggests. The state courts’ rejection of this claim is neither contrary to, or an

unreasonable application of, Strickland nor was the ruling based on an unreasonable

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

28 U.S.C. § 2254(d)(1), (d)(2).

Accordingly, Maldonado’s petition for the writ of habeas corpus (Doc. 1) is

DENIED. The Clerk shall enter a judgment against Maldonado and CLOSE this case.

DENIAL OF BOTH A

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

IT IS FURTHER ORDERED that Maldonado is not entitled to a 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). Rather, a

district court must first issue a certificate of appealability (“COA”). Section 2253(c)(2)

limits the issuing of a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” To merit a certificate of appealability, Maldonado

must show that reasonable jurists would find debatable both (1) the merits of the

underlying claims and (2) the procedural issues he seeks to raise. See 28 U.S.C. §

2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926,

935 (11th Cir 2001). Because he fails to show that reasonable jurists would debate

either the merits of the claims or the procedural issues, Maldonado is entitled to neither

a certificate of appealability nor leave to appeal in forma pauperis.

Accordingly, a certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Maldonado must obtain permission from the circuit court to

appeal in forma pauperis.

Chav aries duJtarndea ho TDA pi ed □□

Charlene Edwards Honeywell

United States District Judge

DONE and ORDERED in Tampa, Florida on July 17, 2023.

Copies furnished to:

Counsel of Record

Unrepresented Parties

30