“It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial[.]”
How later courts described this case
- “It does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial[.]”
- stating the language in § 2254(d)(1) “requires an examination of the state-court decision at the time it was made”
- to successfully sustain a Brady claim, a defendant must show favorable evidence – either exculpatory or impeaching, was willfully or inadvertently suppressed by the state, and the evidence was material, resulting in prejudice to defendant
- finding interference by state officials that impeded the raising of a claim
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FELIX LUIS CUEVAS-RODRIGUEZ,
Petitioner,
v. Case No. 3:20-cv-904-MMH-LLL
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et al.,
Respondents.
________________________________
ORDER
I. Status
Petitioner Felix Luis Cuevas-Rodriguez, an inmate of the Florida penal
system, initiated this action on July 29, 2020,1 by filing a Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254 (Petition; Doc. 1).2 In the Petition,
Cuevas-Rodriguez challenges a 2015 state court (Duval County, Florida)
judgment of conviction for vehicular homicide, reckless driving causing serious
injury, and criminal use of personal identification. He raises four grounds for
relief. See Petition at 5-10. Respondents submitted an Answer to Petition for
Writ of Habeas Corpus (Response; Doc. 26). They also submitted an Appendix
1 See Houston v. Lack, 487 U.S. 266, 276 (1988) (mailbox rule).
2 For purposes of reference to pleadings, the Court will cite the document page
numbers assigned by the Court’s electronic docketing system.
with Exhibits A-AAA.3 See Doc. 28. Cuevas-Rodriguez filed a brief in reply
(Reply; Doc. 30). This action is ripe for review.
II. Relevant Procedural History
On September 30, 2014, the State of Florida charged Cuevas-Rodriguez
by information in Case No. 2014-CF-8280 with vehicular homicide, reckless
driving causing serious bodily injury, and two counts of driving without a
driver’s license causing death or serious bodily injury. Ex. A at 17-18. The State
of Florida later filed an amended information to correct the date of the offenses.
Id. at 240-41. Previously, in Case No. 2013-CF-5271, the State had charged
Cuevas-Rodriguez by information with one count of criminal use of a personal
identification. Ex. B at 15. The trial court granted a motion by the State to
consolidate the cases. Ex. A at 250-52. On May 7, 2015, Cuevas-Rodriguez
entered an open plea of no contest in both cases reserving the right to appeal
the denial of a dispositive motion to dismiss which was premised upon the
State’s failure to bring him to trial within 180 days under the Interstate
Agreement on Detainers Act (IADA). Ex. A at 488-521; Ex. B at 348-49. The
trial court sentenced Cuevas-Rodriguez to five years in prison in Case No.
3 The Court refers to the exhibits contained in the Appendix with Exhibits (Doc.
28) as “Ex.” and references the page number in the bottom center of the page, as do
Respondents. See generally Response.
2
2013-CF-5171, and for Case No. 2014-CF-8280, the court sentenced him to
fifteen years in prison on count one and five years in prison on counts two
through four, all counts to run concurrently. Ex. A at 359-65, 517-21; Ex. B at
350-55.
The First District Court of Appeal (First DCA) consolidated the appeals
for purposes of briefing. Ex. C. Cuevas-Rodriguez, with the benefit of counsel,
filed a Second Amended Initial Brief, arguing the trial court erred when it
denied Cuevas-Rodriguez’s amended motion to dismiss for the State’s failure
to comply with the speedy trial provisions of the IADA. Ex. D. The State filed
an Answer Brief. Ex. E. Cuevas-Rodriguez filed a reply brief. Ex. F. On May
13, 2016, the First DCA per curiam affirmed Cuevas-Rodriguez’s convictions
and sentences citing Gee v. State, 954 So. 2d 83 (Fla. 1st DCA 2007). Ex. G.
The First DCA issued the mandate on June 8, 2016. Ex. H.
During the pendency of the direct appeal, on September 15, 2015,
Cuevas-Rodriguez filed a pro se motion for postconviction relief pursuant to
Florida Rule of Criminal Procedure 3.850. Ex. I. 4 On June 15, 2016, he filed
an amended Rule 3.850 motion. Ex. O. And, on July 6, 2016, he filed a second
4 In reciting the procedural history, the Court identifies the date of Cuevas-
Rodriguez’s filings giving him the benefit of the mailbox rule.
3
amended Rule 3.850 motion. Ex. P. He also moved to incorporate additional
grounds and facts. Ex. Q. On October 17, 2016, Cuevas-Rodriguez filed a fourth
amended Rule 3.850 motion. Ex. R at 1-11. The trial court entered an order
referring to the fourth amended motion as the current motion and striking
grounds three and six as legally insufficient with leave to amend. Id. at 12-17.
On December 28, 2016, Cuevas-Rodriguez moved to voluntarily dismiss
grounds three and six. Id. at 21-23. Thereafter, on February 15, 2017, he filed
a motion amending those grounds and asked the court to strike his earlier
motion to dismiss those grounds. Id. at 24-29. On April 3, 2017, Cuevas-
Rodriguez filed an addendum, id. at 55-61, and on April 4, 2017, he filed
another, id. at 33-54.
On May 17, 2017, the trial court entered an order dismissing all of the
previously filed postconviction motions and granting Cuevas-Rodriguez leave
to amend to consolidate all of his claims into one motion. Id. at 62-67. In its
order, the court set forth the applicable law regarding postconviction claims
following a guilty plea, citing both Strickland v. Washington, 466 U.S. 668
(1984) and Hill v. Lockhart, 474 U.S. 52 (1985). Ex. R at 64-65. On June 16,
2017, Cuevas-Rodriguez filed an amended motion for postconviction relief, id.
at 68-84, and also filed an addendum adding an additional claim of ineffective
4
assistance of counsel, Ex. S. The court ordered the State to respond to the
amended motion and addendum, Ex. T, and the State complied. Ex. R at 85-
101. Cuevas-Rodriguez next moved to amend/correct his postconviction claims.
Id. at 102-105. He also filed a motion to supplement with an exhibit to ground
five, id. at 125-37, and filed a reply to the State’s response, id. at 138-54. On
December 6, 2017, the postconviction court entered an order permitting the
addition of ground nine and directing the State to respond to ground nine. Id.
at 155-57. On November 20, 2017, Cuevas-Rodriguez filed a “Second Amended
Motion for Post-Conviction Relief Adding Ground 9.” Id. at 158-71. The State
filed a response conceding that Cuevas-Rodriguez was entitled to relief on
ground nine, a double jeopardy claim. Id. at 175-215. Cuevas-Rodriguez filed a
reply and an amended reply. Id. at 237-51.
On July 5, 2018, the court entered an order granting an evidentiary
hearing on ground five(b) (whether the State had access to the identity of and
contact information for a witness that Cuevas-Rodriguez claims is referenced
in a medical examiner’s report from March 12, 2013) and ground nine (whether
defense counsel rendered ineffective assistance of counsel by advising Cuevas-
Rodriguez to plead no contest to counts three and four in Case No. 2014-CF-
8280). Id. at 252-57. The court appointed counsel to represent Cuevas-
5
Rodriguez. Id. at 260, 261-62, 266-67. The trial court conducted evidentiary
proceedings on November 21, 2018 and December 14, 2018. Ex. R at 685-762,
763-81. Thereafter, on December 26, 2018, the court entered its order denying
relief on grounds one, two, three, four, five, six, seven, eight, and the
Addendum claim, granting relief on the double jeopardy claim raised in ground
nine, and vacating the convictions and sentences for counts three and four in
Case No. 2014-CF-8280. Id. at 268-92. The court directed the clerk of the court
to amend the judgment and sentence to remove the convictions and sentences
for counts three and four (the two counts of driving without a license causing
death or serious bodily injury). Id. at 291. The court attached portions of the
record to its order. Id. at 293-621.
Cuevas-Rodriguez filed a notice of appeal. Id. at 622-25. Through counsel
he filed an initial brief raising two claims: (1) trial counsel provided ineffective
assistance of counsel when she failed to adequately investigate the facts
surrounding Cuevas-Rodriguez’s case, and (2) the trial court committed
reversible error in denying his claims of ineffective assistance of counsel
without conducting an evidentiary hearing. Ex. U. The State filed an answer
brief. Ex. V. On April 23, 2020, the First DCA affirmed per curiam the trial
6
court’s decision without a written opinion. Ex. W. Rodriguez v. State, 294 So.
3d 275 (Fla. 1st DCA 2020). The mandate issued on May 21, 2020. Ex. X.
III. One-Year Limitations Period
Respondents calculate the Petition was timely filed. Response at 13-15.
This action was timely filed within the one-year limitations period. See 28
U.S.C. § 2244(d).
IV. Evidentiary Hearing
In a habeas corpus proceeding, the burden is on the petitioner to
establish the need for a federal evidentiary hearing. See Chavez v. Sec’y, Fla.
Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a
hearing could enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas relief.” Schriro v.
Landrigan, 550 U.S. 465, 474 (2007); Jones v. Sec’y, Fla. Dep’t of Corr., 834
F.3d 1299, 1318-19 (11th Cir. 2016). “It follows 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.” Schriro, 550 U.S. at 474.
The pertinent facts of this case are fully developed in the record before the
Court. Because the Court can “adequately assess [Cuevas-Rodriguez’s] claim[s]
7
without further factual development,” Turner v. Crosby, 339 F.3d 1247, 1275
(11th Cir. 2003), an evidentiary hearing will not be conducted.
V. Governing Legal Principles
A. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs a state prisoner’s federal petition for habeas corpus. 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) (quotation marks omitted)). As such, federal habeas review of
final state court decisions is “‘greatly circumscribed’ and ‘highly deferential.’”
Id. (quoting Hill v. Humphrey, 662 F.3d 1335, 1343 (11th Cir. 2011) (quotation
marks omitted)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the claim 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 a written opinion explaining its rationale in order for the state court’s
decision to qualify as an adjudication on the merits. See Harrington v. Richter,
8
562 U.S. 86, 100 (2011). Where the state court’s adjudication on the merits is
unaccompanied by an explanation, the United States Supreme Court has
instructed:
[T]he federal court should “look through” the
unexplained decision to the last related state-court
decision that does provide a relevant rationale. It
should then presume that the unexplained decision
adopted the same reasoning.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The presumption may be
rebutted by showing that the higher state court’s adjudication most likely
relied on different grounds than the lower state court’s reasoned decision, such
as persuasive alternative grounds that were briefed or argued to the higher
court or obvious in the record it reviewed. Id. at 1192, 1196.
If the claim was “adjudicated on the merits” in state court, § 2254(d) bars
relitigation of the claim unless the state court’s decision (1) “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) “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); Richter, 562 U.S. at 97-98.
The Eleventh Circuit describes the limited scope of federal review pursuant to
§ 2254 as follows:
9
First, § 2254(d)(1) provides for federal review for
claims of state courts’ erroneous legal conclusions. As
explained by the Supreme Court in Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000),
§ 2254(d)(1) consists of two distinct clauses: a
“contrary to” clause and an “unreasonable application”
clause. The “contrary to” clause allows for relief only
“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.” Id. at 413, 120 S. Ct. at 1523
(plurality opinion). The “unreasonable application”
clause allows for relief only “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.” Id.
Second, § 2254(d)(2) provides for federal review for
claims of state courts’ erroneous factual
determinations. Section 2254(d)(2) allows federal
courts to grant relief only if the state court’s denial of
the petitioner’s claim “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)(2). The Supreme Court has not yet defined §
2254(d)(2)’s “precise relationship” to § 2254(e)(1),
which imposes a burden on the petitioner to rebut the
state court’s factual findings “by clear and convincing
evidence.” See Burt v. Titlow, 571 U.S. ---, ---, 134 S.
Ct. 10, 15, 187 L.Ed.2d 348 (2013); accord Brumfield v.
Cain, 576 U.S. ---, ---, 135 S. Ct. 2269, 2282, 192
L.Ed.2d 356 (2015). Whatever that “precise
relationship” may be, “‘a state-court factual
determination is not unreasonable merely because the
federal habeas court would have reached a different
conclusion in the first instance.’” Titlow, 571 U.S. at --
10
-, 134 S. Ct. at 15 (quoting Wood v. Allen, 558 U.S. 290,
301, 130 S. Ct. 841, 849, 175 L.Ed.2d 738 (2010)).
Tharpe v. Warden, 834 F.3d 1323, 1337 (11th Cir. 2016). Also, deferential
review under § 2254(d) generally is limited to the record that was before the
state court that adjudicated the claim on the merits. See Cullen v. Pinholster,
563 U.S. 170, 182 (2011) (stating the language in § 2254(d)(1) “requires an
examination of the state-court decision at the time it was made”).
Thus, “AEDPA erects a formidable barrier to federal habeas relief for
prisoners whose claims have been adjudicated in state court.” Burt v. Titlow,
134 S. Ct. 10, 16 (2013). “Federal courts may grant habeas relief only when a
state court blundered in a manner so ‘well understood and comprehended in
existing law’ and ‘was so lacking in justification’ that ‘there is no possibility
fairminded jurists could disagree.’” Tharpe, 834 F.3d at 1338 (quoting Richter,
562 U.S. at 102-03). This standard is “meant to be” a “difficult” one to meet.
Richter, 562 U.S. at 102. Thus, to the extent that the petitioner’s claims were
adjudicated on the merits in the state courts, they must be evaluated under 28
U.S.C. § 2254(d).
B. Exhaustion/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
11
remedies that are 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).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28
U.S.C. § 2254(b)(1), thereby giving the State the
“‘“opportunity to pass upon and correct” alleged
violations of its prisoners’ federal rights.’” Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L.Ed.2d
865 (1995) (per curiam) (quoting Picard v. Connor, 404
U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438 (1971)). To
provide the State with the necessary “opportunity,”
the prisoner must “fairly present” his claim in each
appropriate state court (including a state supreme
court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Duncan, supra, at 365-366, 115 S. Ct. 887; O’Sullivan
v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 144
L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
12
A state prisoner’s failure to properly exhaust available state remedies
results in 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,[5] supra, at 747–
748, 111 S. Ct. 2546; Sykes,[6] supra, at 84–85, 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, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558
U.S. --, --, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417
(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, 501 U.S.,
at 750, 111 S. Ct. 2546.
5 Coleman v. Thompson, 501 U.S. 722 (1991).
6 Wainwright v. Sykes, 433 U.S. 72 (1977).
13
Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Thus, procedural defaults may
be excused under certain circumstances. Notwithstanding that 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). In order for a petitioner to establish cause,
the procedural default “must result from some
objective factor external to the defense that prevented
[him] from raising the claim and which cannot be
fairly attributable to his own conduct.” McCoy v.
Newsome, 953 F.2d 1252, 1258 (11th Cir. 1992)
(quoting Carrier, 477 U.S. at 488, 106 S. Ct. 2639).[7]
Under the prejudice prong, [a petitioner] must show
that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier,
477 U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may
receive consideration on the merits of a procedurally defaulted claim if the
petitioner can establish that a fundamental miscarriage of justice, the
7 Murray v. Carrier, 477 U.S. 478 (1986).
14
continued incarceration of one who is actually innocent, otherwise would
result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice,
there remains yet another avenue for him to receive
consideration on the merits of his procedurally
defaulted claim. “[I]n an extraordinary case, where a
constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal
habeas court may grant the writ even in the absence
of a showing of cause for the procedural default.”
Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This
exception is exceedingly narrow in scope,” however,
and requires proof of actual innocence, not just legal
innocence. Johnson v. Alabama, 256 F.3d 1156, 1171
(11th Cir. 2001).
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that
it is more likely than not that no reasonable juror would have convicted him’
of the underlying offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.
2001) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be
credible,’ a claim of actual innocence must be based on reliable evidence not
presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) (quoting
Schlup, 513 U.S. at 324). With the rarity of such evidence, in most cases,
allegations of actual innocence are ultimately summarily rejected. Schlup, 513
U.S. at 324.
15
C. Ineffective Assistance of Trial Counsel
“The Sixth Amendment guarantees criminal defendants the effective
assistance of counsel. That right is denied when a defense attorney’s
performance falls below an objective standard of reasonableness and thereby
prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per
curiam) (citing Wiggins v. Smith, 539 U.S. 510, 521 (2003), and Strickland, 466
U.S. at 687).
To establish deficient performance, a person
challenging a conviction must show that “counsel’s
representation fell below an objective standard of
reasonableness.” [Strickland,] 466 U.S. at 688, 104 S.
Ct. 2052. A court considering a claim of ineffective
assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range”
of reasonable professional assistance. Id., at 689, 104
S. Ct. 2052. The challenger’s burden is to show “that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Id., at 687, 104 S. Ct. 2052.
With respect to prejudice, a challenger must
demonstrate “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.” Id., at 694, 104 S. Ct. 2052.
It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.”
Id., at 693, 104 S. Ct. 2052. Counsel’s errors must be
“so serious as to deprive the defendant of a fair trial, a
16
trial whose result is reliable.” Id., at 687, 104 S. Ct.
2052.
Richter, 562 U.S. at 104. The Eleventh Circuit has recognized “the absence of
any iron-clad rule requiring a court to tackle one prong of the Strickland test
before the other.” Ward, 592 F.3d at 1163. Since both prongs of the two-part
Strickland test must be satisfied to show a Sixth Amendment violation, “a
court need not address the performance prong if the petitioner cannot meet the
prejudice prong, and vice-versa.” Id. (citing Holladay v. Haley, 209 F.3d 1243,
1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.” Strickland, 466 U.S. at
697.
A state court’s adjudication of an ineffectiveness claim is accorded great
deference.
“[T]he standard for judging counsel’s representation is
a most deferential one.” Richter, 562 U.S. at ---, 131 S.
Ct. at 788. But “[e]stablishing that a state court’s
application of Strickland was unreasonable under §
2254(d) is all the more difficult. The standards created
by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review
is doubly so.” Id. (citations and quotation marks
omitted). “The question is not whether a federal court
believes the state court’s determination under the
Strickland standard was incorrect but whether that
17
determination was unreasonable — a substantially
higher threshold.” Knowles v. Mirzayance, 556 U.S.
111, 123, 129 S. Ct. 1411, 1420, 173 L.Ed.2d 251 (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 ---, 131 S. Ct. at 788.
Hittson v. GDCP Warden, 759 F.3d 1210, 1248 (11th Cir. 2014); Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009). In other words, “[i]n addition to the
deference to counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference — this one to a state court’s decision — when we are
considering whether to grant federal habeas relief from a state court’s
decision.” Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004). As such,
“[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
With respect to an ineffective assistance challenge to the voluntariness
of a guilty or no contest plea, a petitioner must show there is a “reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 59. The ineffective
assistance of counsel may require a plea be set aside on the ground that it was
involuntary because voluntariness implicates not only threats and
inducements but also ignorance and incomprehension. Finch v. Vaughn, 67
18
F.3d 909, 914 (11th Cir. 1995) (citations omitted). This Court is mindful that
in a post-conviction challenge to a guilty or nolo plea, the representations of
the defendant, his counsel, and the prosecutor at the plea hearing, plus the
findings of the judge, constitute “a formidable barrier.” Blackledge v. Allison,
431 U.S. 63, 73-74 (1977). Indeed, a defendant’s solemn declarations in open
court “carry a strong presumption of verity.” Id. at 74. Thus, later contentions
by a defendant contrary to the record may be deemed wholly incredible based
on the record.
VI. Findings of Fact and Conclusions of Law
A. Ground One
As Ground One, Cuevas-Rodriguez alleges he received ineffective
assistance of counsel with respect to his double jeopardy claim. Petition at 5.
In ground nine of his amended postconviction motion, Cuevas-Rodriguez
alleged trial counsel was ineffective for counseling him to enter a plea to counts
three and four in Case No. 2014-CF-8280 despite the fact that those charges
violated the double jeopardy clause. Ex. R at 158-71. The State conceded that
it would be proper for the trial court to vacate the convictions on counts three
and four. Id. at 176. Nevertheless, the court granted and held an evidentiary
hearing to address his claim in ground nine. Id. at 256.
19
The court found that double jeopardy precluded the convictions for
counts three and four, the double jeopardy violation was apparent from the
face of the record, and based on the facts, including the state’s concession as to
double jeopardy, it was “unnecessary to decide whether Counsel performed
ineffectively as it relates to the double jeopardy violation.” Id. at 290. Appellate
counsel did not include a claim of ineffective assistance of counsel for
counseling Cuevas-Rodriguez to enter a plea to counts three and four when
those charges violated double jeopardy. Ex. U. Appellate counsel also did not
argue that the trial court erred by not finding ineffective assistance of counsel
for permitting Cuevas-Rodriguez to plead to counts three and four.
Respondents contend that Cuevas-Rodriguez did not properly exhaust
this ineffectiveness claim in the state courts, and therefore the claim is
procedurally defaulted. Response at 24-27. Cuevas-Rodriguez acknowledges
that he did not exhaust this claim in state court but argues that his appellate
counsel was ineffective for failing to raise the claim once Cuevas-Rodriguez
made her aware of the claim. Petition at 5-6.
The Court finds Cuevas-Rodriguez did not exhaust the claim raised in
Ground One. Although he appealed with the assistance of counsel, he did not
include this claim in the appellate brief. Thus, the claim was abandoned.
20
Because any future attempt to exhaust it would be futile, the claim is
procedurally defaulted.
To the extent Cuevas-Rodriguez is attempting to argue that the
procedural bar should be excused pursuant to Martinez, the holding in
Martinez is inapplicable to this situation and does not provide satisfactory
cause for the default. Martinez, 566 U.S. at 16 (“It does not extend to attorney
errors in any proceeding beyond the first occasion the State allows a prisoner
to raise a claim of ineffective assistance at trial[.]”). As Martinez has limited
scope it is simply inapplicable to Cuevas-Rodriguez’s case. See Capocci v.
Stewart, No. 16-0507-WS-M, 2017 WL 373452, at *4 n.5 (S.D. Ala. Jan. 25,
2017) (not reported in F. Supp.) (recognizing that federal courts decline to
extend Martinez to procedural default of ineffective assistance of appellate
counsel claims as the Martinez decision is narrow). Indeed, Martinez provides
a narrow, equitable, non-constitutional exception. As such, Cuevas-Rodriguez’s
procedural default is not excused.
As Cuevas-Rodriguez is procedurally barred from raising Ground One,
he must demonstrate cause and prejudice for the default. In his Reply, Cuevas-
Rodriguez contends he lost contact with his appellate counsel “due to the
pandemic and transferring to outside court.” Reply at 9. He relates that his
21
counsel filed her brief on July 29, 2019, and he was extradited to Connecticut
almost four months later, on November 25, 2019. Id. He contends the prison
and the courts shut down shortly after his arrival and asserts he was unable
to communicate with his counsel or the Court due to Covid restrictions. Id.
The Court is not persuaded by Cuevas-Rodriguez’s argument. He
acknowledges that he knew of the claim and told his counsel of the claim prior
to her filing the appellate brief. And, he was not transferred to another state
for almost four months after the filing of the initial appellate brief. Cuevas-
Rodriguez has not pointed to any external impediment that prevented him
from raising the claim. Ward, 592 F.3d at 1176-77 (finding interference by
state officials that impeded the raising of a claim). Indeed, Covid restrictions
did not come into play in the United States until approximately March of 2020,
at least seven months after his appellate brief was filed. As such, there was no
external impediment that prevented Cuevas-Rodriguez from raising this
claim.
Cuevas-Rodriguez has failed to establish cause and prejudice or that a
fundamental miscarriage of justice will result if the Court fails to address the
claim on its merits. Notably, Cuevas-Rodriguez received the relief to which he
was entitled: the trial court vacated the two convictions for driving without a
22
driver’s license causing serious injury or death as these offenses were
duplicative of the more serious offense charged in count one and the offense
charged in count two (vehicular homicide and reckless driving causing serious
injury). The trial court imposed concurrent sentences; therefore, there was no
change in the length of sentence once the two improper convictions were
vacated.
The Court further finds this is not an extraordinary case as Cuevas-
Rodriguez has not made a showing of actual innocence rather than mere legal
innocence. When Cuevas-Rodriguez considered making an open plea, he faced
a maximum of fifteen years in prison for vehicular homicide, a second-degree
felony, regardless of the calculation for the other offenses. Ex. A at 366.
Without the two charges for driving without a driver’s license, the minimum
score still would have been at least twelve years. Ex. A at 491. As noted by the
State, “[t]he DWLS Charges did not affect . . . the Court’s sentence[.]” Ex. R at
176. As such, the Court finds that the claim in Ground One is procedurally
defaulted and the fundamental miscarriage of justice exception is inapplicable.
Cuevas-Rodriguez’s procedural default bars this Court’s review of Ground One.
23
Alternatively Cuevas-Rodriguez’s ineffectiveness claim is without merit.
The postconviction court found defense counsel Belkis Plata’s testimony
credible:
Attorney Plata testified at the evidentiary
hearing. Attorney Plata has been practicing law for
eight years, has been continuously in good standing
with the Florida Bar, and is Board Certified in juvenile
law. She began her career as a public defender, where
she was employed for nearly four years. Attorney Plata
testified that she received the entirety of Defendant’s
file from his former attorneys. She further testified
that she received complete discovery from the State on
April 2, 2015, more than a month before Defendant
entered his plea in this case. Finally she testified that
she received Ms. Meacham’s report as part of the
State’s discovery file. This Court observed Attorney
Plata’s testimony and found it credible.
Id. at 282.
At the time of her representation of Cuevas-Rodriguez, Ms. Plata was an
experienced criminal defense attorney who had formerly been a public
defender. “When courts are examining the performance of an experienced trial
counsel, the presumption that [her] conduct was reasonable is even stronger.”
Hardwick v. Benton, 318 F. App’x 844, 846 n.2 (11th Cir. 2009) (per curiam)
(quoting Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000)).
Indeed, there is a strong presumption that an experienced trial counsel’s
performance is not ineffective. And, notably, this Court has “no license to
24
redetermine credibility of witnesses whose demeanor has been observed by the
state trial court, but not by” this Court. Consalvo v. Sec’y for Dep’t of Corr., 664
F.3d 842, 845 (11th Cir. 2011) (per curiam) (internal quotation marks omitted)
(quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
Ms. Plata testified that she was aware of the double jeopardy issue. Ex.
R at 755. She said she discussed the issue with Cuevas-Rodriguez on April 17,
2015. Id. Ms. Plata testified she advised against his entering a plea straight
up to the court and rushing to immediate sentencing. Id. at 747. She attested
that Cuevas-Rodriguez did not heed her advice. Id. According to Ms. Plata,
Cuevas-Rodriguez told her he did not want her to interject during the plea
concerning the double jeopardy issue. Id. at 756-57. However, Ms. Plata was
“confident that we would be able to get [the charges] dropped when we got to
that point, but we weren’t there yet.” Id. She conceded that she probably should
have brought it up during the plea proceeding but it would have been against
her client’s wishes. Id. at 757-58. When asked whether or not the existence of
the two driving on suspended license charges would have made any difference
in Cuevas-Rodriguez’s decision to plead straight up to the court that day, Ms.
Plata responded, “[a]bsolutely not.” Id. at 758.
25
To prevail on a claim of ineffective assistance of counsel, a petitioner
must demonstrate both deficient performance and prejudice. The Court is not
convinced that Ms. Plata performed deficiently under these circumstances.
Regardless, even assuming arguendo deficient performance by counsel,
Cuevas-Rodriguez has not shown any resulting prejudice. Indeed, no prejudice
resulted from counsel’s failure to interject at the plea proceeding or prior to the
open plea proceeding. She discussed the double jeopardy issue with Cuevas-
Rodriguez, so he was aware of the matter prior to the open plea to the court,
and no prejudice resulted. Moreover, Cuevas-Rodriguez has not shown a
reasonable probability exists that the outcome of the case would have been
different if counsel had objected. Prior to his plea, Cuevas-Rodriguez knew that
the sentencing range he was facing was 12 to 15 years in prison, and dismissal
of the two driving with a suspended license counts would not meaningfully
impact that range. Ex. R at 177, 696-97. With or without those two counts, the
margin he had to work with would still have been in the range of 12 to 15 years.
Ex. A at 366 (Criminal Punishment Code Scoresheet). Moreover, his
convictions on those two counts have been vacated. For all of the foregoing
reasons, Cuevas-Rodriguez is not entitled to habeas relief on the claim in
Ground One.
26
B. Ground Two
As Ground Two, Cuevas-Rodriguez asserts that the state postconviction
court erred when it denied his ineffectiveness claim without an evidentiary
hearing beyond those matters heard at the evidentiary proceeding. Petition at
7. In doing so, he challenges a defect in the state postconviction process.
Respondents argue that Cuevas-Rodriguez’s assertions involve “state law and
procedure not cognizable on federal habeas corpus review,” Response at 30,
and this Court agrees.
The Eleventh Circuit “has repeatedly held defects in state collateral
proceedings do not provide a basis for habeas relief.” Carroll v. Sec’y, Dep’t of
Corr., 574 F.3d 1354, 1365 (11th Cir. 2009) (citations omitted). “The reasoning
behind this well-established principle is straightforward: a challenge to a state
collateral proceeding does not undermine the legality of the detention or
imprisonment - i.e., the conviction itself – and thus habeas relief is not an
appropriate remedy.” Id. (citations omitted); Anderson v. Sec’y for Dep’t of
Corr., 462 F.3d 1319, 1330 (11th Cir. 2006) (per curiam); Quince v. Crosby, 360
F.3d 1259, 1261-62 (11th Cir. 2004); Spradley v. Dugger, 825 F.2d 1566, 1568
(11th Cir. 1987) (“Neither the state court’s failure to hold a hearing on
petitioner’s 3.850 motion nor its failure to attach the relevant portions of the
27
record in any way undermines the validity of petitioner’s conviction. Because
[the] claim[] goes to issues unrelated to the cause of petitioner’s detention, it
does not state a basis for habeas relief”) (citations omitted). As such, Cuevas-
Rodriguez is not entitled to federal habeas relief on the claim in Ground Two.
C. Ground Three
In Ground Three, Cuevas-Rodriguez contends that his trial counsel was
ineffective when she failed to adequately investigate the facts of his charges.
Petition at 8. In support of this claim, he asserts that the State committed a
Brady8 violation when it failed to provide defense counsel the contact
information for Ms. Wendy Meacham, the investigator for the medical
examiner’s office, and trial counsel failed to adequately investigate the matter.
(Doc. 1-5 at 3). Specifically, Cuevas-Rodriguez contends Ms. Plata never
investigated the discrepancies between Sergeant Bazinet’s9 statements in the
affidavits in support of the arrest warrant and his statements to Ms. Meacham.
8 Brady v. Maryland, 373 U.S. 83 (1963) (to successfully sustain a Brady claim,
a defendant must show favorable evidence – either exculpatory or impeaching, was
willfully or inadvertently suppressed by the state, and the evidence was material,
resulting in prejudice to defendant).
9 At the time of the accident, Sergeant Bazinet was a corporal with the Florida
Highway Patrol assigned to the traffic homicide investigations unit. Ex. R at 721,
771-72. By the time of the postconviction evidentiary hearing, he was a Sergeant. Id.
at 721.
28
Id. at 3-4. Cuevas-Rodriguez argues the Brady violation goes hand-in-hand
with counsel’s failure to properly investigate the charges against him. Id. at 4.
As such, he contends he is entitled to relief on the claims he presented in
ground five of the amended motion for postconviction relief.
On June 16, 2017, Cuevas-Rodriguez filed his operative amended motion
for postconviction relief. Ex. R at 68-84. He raised eight grounds. In the fifth
ground he argued, “[d]efense counsel Belkis C. Plata rendered (IAC) by failing
to conduct deposition or call in as a witness Trooper David Bazinet the leading
investigator of the accident and a Brady violation, and prosecutorial [sic].”10
Ex. R at 76. In addressing the claim in ground five of the amended motion for
postconviction relief, the postconviction court broke the claim into two parts,
an ineffective assistance of counsel claim for failure to depose Trooper, now
10 In ground five of the operative state postconviction motion, Cuevas-
Rodriguez contended there was a Brady violation because the State Attorney’s Office
omitted exculpatory evidence, the identity of the “Ford Mustang witness(es).” Ex. R
at 77. He asserted that Angela Corey and Frank Gaulden failed to disclose the Ford
Mustang witness(es) who could have described how Cuevas-Rodriguez’s vehicle was
traveling, the existence of the Ford Mustang, the existence of the stopped vehicle on
the center lane of the highway, and how both Cuevas-Rodriguez’s vehicle and the
Ford Mustang swerved to the left and to the right, respectively, to avoid a collision
with the stopped vehicle in the center lane of the highway. Id. at 79. Cuevas-
Rodriguez contended the state had the witness’s name, address, and phone number
but intentionally omitted this evidence and did not provide it to the defense. Id.
According to Cuevas-Rodriguez, “[h]ad it not been for counsel’s errors, the defendant
would not have pleaded ‘no contest’, and would have insisted on going to trial.” Id. at
79-80.
29
Sergeant, Bazinet and a Brady claim that the State withheld contact
information for an exculpatory witness. Id. at 278.
Here the Court considers the claim of ineffective assistance of counsel
raised in Ground Three of the Petition.11 Respondents concede that Cuevas-
Rodriguez exhausted his state court remedies by raising this ineffective
assistance of counsel claim by asserting it in ground five of his amended motion
for postconviction relief and at the evidentiary hearings, and by raising it on
appeal from the denial of postconviction relief. Response at 31-32.
In his amended state postconviction motion, Cuevas-Rodriguez argued:
Attorney Plata tendered ineffective assistance
after she failed to immediately conduct a deposition on
[sic] Trooper David Bazinet who in one report stated
that both the Ford Mustang and the stopped/parked
vehicle on the center lane of the highway had left the
scene of the accident “prior” to the arrival of law
enforcement. Then, while giving a statement to the
Medical Examiner’s Investigator, Trooper David
Bazinet indicated that he had made contact with the
Ford Mustang who gave a description on the events
leading to the accident. This witness stated to Trooper
Bazinet that he/she and the Defendant were driving
on I-95 (Northbound) and he/she witnessed a stopped
vehicle on the middle of the highway, and that he/she
swerved to the “left” and Defendant swerved to the
“right” to avoid a rear-end collision with the stopped
(sideways) vehicle. When counsel learned from the
11 The Court will consider Cuevas-Rodriguez’s Brady claim of prosecutorial
misconduct in its analysis of Ground Four.
30
Defendant about this information, she refused to call
in Trooper David Bazinet for a deposition. Counsel
continued to say that she was focusing on a “no
contest” plea to get the Defendant out on a
supersedeas bond”[sic]. Counsel refused to suppress
any evidence concerning the mysterious Ford
Mustang. Had counsel conducted a deposition on
David Bazinet, she would have discovered that trooper
Bazinet had spoken and collected information from the
Ford Mustang witnesses; discovered that the Ford
Mustand [sic] witnessed the parked vehicle on the
center laner [sic] of the highway; discovered that the
Ford Mustang had distracted witness Beaurden
moments prior to the accident; and, that the Mustang
intentionally and irratically [sic] assisted in causing
this accident. Counsel would have also discovered that
the Trooper was available for trial; and, the substance
of the expected testimony was or would have been that
he had spoken to the operator of the Ford Mustang and
intentionally omitted this material fact “after” he
learned the Defendant was driving on a fraudulent
license and had allegedly concealed his true identity to
Trooper David Bazinet report dated.
Ex. R at 76-77 (alterations in original).
The postconviction court succinctly summarized the allegation raised in
ground five(a) as follows:
Defendant alleges Sergeant Bazinet of the
Florida Highway Patrol offered conflicting accounts
concerning his interaction with the driver of a Ford
Mustang that was also allegedly involved in the traffic
incident that led to Defendant’s charges. Defendant
claims that in his Affidavit for Arrest Warrant,
Sergeant Bazinet wrote that the Ford Mustang had
left the scene of the accident prior to the arrival of law
31
enforcement. Defendant also claims that Sergeant
Bazinet is quoted in a medical examiner’s report as
having made contact with the Ford Mustang driver
who provided a description of the traffic incident at
issue.
Id. at 278.
The postconviction court first considered the record of Cuevas-
Rodriguez’s plea and found that it belied his contentions that defense counsel
failed to properly investigate the charges against him. Id. at 279-80. The court
pointed out that at the plea proceeding Cuevas-Rodriguez expressed complete
satisfaction with his counsel. Id. at 280. The court quoted the plea record and
found it “conclusively establishes that Defendant understood and agreed that,
by entering his no contest plea to all of the charges against him, he waived his
right to call, confront, and cross-examine witnesses.” Id. at 280-81. The court
explained, “[n]ecessarily included within the cross-examination of witnesses is
the ability to impeach a witness with his prior inconsistent statements
(including those made during a deposition).” Id. at 281. The court found
Cuevas-Rodriguez “knowingly waived this right during his plea colloquy.” Id.
The court further noted that Cuevas-Rodriguez stated that he was “very
much” satisfied with counsel’s representation, “and that she had not failed to
undertake any course of conduct (such as deposing a witness) that would give
32
Defendant pause in entering his plea.” Id. Based on the record, the court
rejected Cuevas-Rodriguez’s attempt to go behind his representations during
the plea proceeding finding the claim regarding counsel’s failure to depose
Sergeant Bazinet to be in direct contravention of Cuevas-Rodriguez’s
representations during the plea colloquy. Id.
In denying relief on ground five(a), the postconviction court also
determined that any failure to depose Sergeant Bazinet resulted in no
prejudice. The court explained:
Moreover, during the evidentiary hearing,
Sergeant Bazinet testified that he never located or
made contact with the driver of the Ford Mustang.
Sergeant Bazinet has over eighteen years of
experience with the Florida Highway Patrol and this
Court found his testimony credible. Because
Defendant’s theory of prejudice rests entirely on the
information Sergeant Bazinet allegedly obtained from
his conversations with the Ford Mustang driver, it is
clear that no prejudice could have resulted from
attorney Plata not deposing Sergeant Bazinet.
Because the record conclusively refutes Ground
Five(a) of Defendant’s motion, it is denied.
Id. The postconviction court denied relief and the First DCA per curiam
affirmed the denial of relief without a written opinion. Ex. W.
To the extent that the First DCA decided the claim on the merits, the
Court will address the claim in accordance with the deferential standard for
33
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Cuevas-Rodriguez is not
entitled to relief on the basis of this claim.
Nevertheless, even if the appellate court’s adjudication of the claim is
not entitled to deference, Cuevas-Rodriguez’s ineffectiveness claim is without
merit. The postconviction court credited Sergeant Bazinet’s testimony given at
the evidentiary hearing. Since the state court observed Sergeant Bazinet’s
testimony and apparently found him more credible, this Court will not make
any redetermination of credibility. Consalvo, 664 F.3d at 845. Sergeant Bazinet
testified that he never spoke to the driver of the Mustang as the Mustang was
not present at the scene. Ex. R at 723. Sergeant Bazinet explained that he
gathered information from Trooper Thomason.12 Id. Sergeant Bazinet testified
that he did not tell Ms. Meacham that he spoke with the driver of the Mustang
12 Trooper Thomason related that “[t]he Ford Mustang and the vehicle that
was crossing the northbound travel lanes did not remain at the scene and were not
successfully identified.” Ex. R at 129.
34
as he never located the driver of the Mustang. Id. at 725-26. According to
Sergeant Bazinet, Ms. Meacham simply misunderstood Sergeant Bazinet
when they spoke on the phone. Id. at 728. In light of this testimony, Cuevas-
Rodriguez has failed to show that counsel was deficient when she failed to
depose Sergeant Bazinet. Based on the Florida Highway Patrol report, the
driver of the Mustang was never identified and did not provide a witness
statement. Sergeant Bazinet confirmed that reported fact when he testified at
the evidentiary hearing and the court found his testimony credible. This Court
will give deference to that credibility determination.
Even assuming arguendo deficient performance by counsel, Cuevas-
Rodriguez has not shown any resulting prejudice. As noted by the
postconviction court, because Cuevas-Rodriguez’s theory of prejudice rested
entirely on the information Sergeant Bazinet allegedly obtained from his
conversations with the Ford Mustang driver, no prejudice could have resulted
from attorney Plata not deposing Sergeant Bazinet. Cuevas-Rodriguez has not
shown a reasonable probability exists that the outcome of the case would have
been different if counsel had deposed Sergeant Bazinet. Cuevas-Rodriguez’s
ineffectiveness claim is without merit because he has shown neither deficient
35
performance nor resulting prejudice. Accordingly, he is not entitled to federal
habeas relief on the claim in Ground Three.
D. Ground Four
Next, the Court addresses Ground Four of the Petition. There, Cuevas-
Rodriguez asserts that the state postconviction court erred when it summarily
denied a claim of prosecutorial misconduct by State Attorney Angela B. Corey.
Petition at 10. In his support of this claim, Cuevas-Rodriguez states:
I was extradited to Florida August 28, 2014 and
arraigned on Four Counts: 1) Vehicular Homicide
(sister), 2) Reckless Driving Causing Serious Injury
(Mom), 3) Driving w/o a DL Causing Death or Serious
Injury (sister), and 4) Driving w/o a DL Causing Death
or Serious Injury (Mom). State Attorney Angela B.
Corey knew that Trooper Bazinet had committed
perjury and tampered with evidence in order to charge
me with a crime I did not commit. I was pro-se and
accused the State Attorney of “corruption.” Angela
Corey did not take it litely [sic]. She threatened me
during depositions of getting me the maximum
sentences allowed by statute and a for sure conviction.
Attorney Plata pressured me to open plea or suffer
consequences.
Id. Cuevas-Rodriguez contends he raised the same claim in his motion for
postconviction relief, but the state court denied it. Id. Respondents argue that
Cuevas-Rodriguez did not properly exhaust a stand-alone claim of
prosecutorial misconduct as he did not raise it in his amended motion for
36
postconviction relief. Response at 62-63. Additionally, Respondents contend
that Cuevas-Rodriguez has failed to establish cause and prejudice or point to
any facts warranting the application of the fundamental miscarriage of justice
exception to the defaulted claim. Id. at 63. As such, Respondents assert the
procedural default bars habeas review. Id. Respondents also argue, to the
extent Cuevas-Rodriguez did allege prosecutorial misconduct in ground five of
the amended motion for postconviction relief, the claim should be denied. Id.
at 58-63.
In his Reply, Cuevas-Rodriguez changes his argument, he contends the
State committed a Brady violation when it failed to disclose Wendy Meacham’s
identity and contact information, not that of the operator of the Ford Mustang.
Reply at 19. The Florida Highway Patrol’s report narrative states: “[t]he Ford
Mustang and the vehicle that was crossing the northbound travel lanes did not
remain at the scene and were not successfully identified.” Ex. R at 129.
However, Ms. Meacham’s March 12, 2013 Hospital Death Investigation
concerning the death of Merarie Angelica Cuevas contains the following
statement:
I made contact with Cpl. Bazinet who provided
the following information: The decedent was one of
three occupants in a Ford Edge (small SUV) that was
traveling northbound on Interstate 95 when the
37
vehicle reportedly swerved to miss a vehicle that was
stopped in the roadway. The vehicle the decedent was
traveling in swerved to the right and went off the
roadway, traveling along the tree line before
impacting a tree on the passenger side. A witness
who was also traveling northbound advised the
responding trooper that the vehicle that was
stopped in the roadway was sideways and he
(witness) swerved to the left and the decedent’s
vehicle swerved to the right. The stopped vehicle
left the scene prior to the arrival of law enforcement or
rescue.
Id. at 128 (emphasis added). Ultimately, Cuevas-Rodriguez argues that the
State Attorney’s Office intentionally and criminally omitted exculpatory
evidence of the driver of the Ford Mustang in order to justify false charges.
In his earlier postconviction motions, Cuevas-Rodriguez raised some
claims of prosecutorial misconduct which he did not pursue in his operative
amended motion for postconviction relief: prosecutorial misconduct of
Assistant State Attorney Frank Gaulden, Ex. Q at 2; prosecutorial misconduct
of Gaulden and Corey, Ex. R at 8; and prosecutorial misconduct of Gaulden, id.
at 27. The court dismissed these earlier motions granting Cuevas-Rodriguez
leave to amend to consolidate all claims in one motion. Id. at 62-67.
Respondents assert that other than the claim of prosecutorial misconduct
presented in ground five of the operative amended motion for postconviction
relief, Cuevas-Rodriguez’s claims of prosecutorial misconduct are unexhausted
38
and procedurally defaulted as they were dismissed and not raised in the
amended motion. Response at 62-63.
To the extent Cuevas-Rodriguez is attempting to raise any claims of
prosecutorial misconduct that were dismissed by the state court, the claims are
unexhausted and procedurally defaulted as he did not include them in his
amended motion for postconviction relief as required by the state court’s order.
He has failed to show cause and prejudice or that a fundamental miscarriage
of justice will result if these claims are not addressed on their merits.
As to the sole exhausted claim, the postconviction court denied relief:
In Ground Five(b), Defendant alleges that the
State committed a Brady violation. Specifically,
Defendant offers that the State had access to the
identity of and contact information for a witness that
Defendant claims is referenced in a medical
examiner’s report from March 12, 2013. Defendant
contends that the witness is referred to on page one of
a report (Report #13-0420) authored by medical
examiner Wendi [sic] Meacham. Defendant believes
this witness to be the driver of the Ford Mustang
allegedly involved in the traffic incident that resulted
in Defendant being charged in this case. Defendant
alleges that the witness provided an account of the
incident that mirrored Defendant’s version of events
and that the State had access to the witness’s name,
address, and phone number, but intentionally hid this
information from Defendant in an effort [to] conceal
any exculpatory evidence that the witness could
provide.
39
Ex. R at 281-82 (footnote omitted).
The postconviction court applied the appropriate standard for reviewing
a claimed Brady violation. Id. The court analyzed Cuevas-Rodriguez’s claim
that the State failed to disclose the identity of a witness or the investigator’s
report, which Cuevas-Rodriguez argued constituted exculpatory evidence, and
found the claim to be meritless. Id. at 282-83. The court also found attorney
Plata’s testimony credible (she attested that she received the complete
discovery file from the State, and Ms. Meacham’s report was part of the State’s
discovery packet she received).13 Id. at 282. Given this testimony, the court
found that the State did not suppress the report. Id. at 283. The court stated:
To the extent Defendant claims that the State
committed a Brady violation by not furnishing him
with a copy of Ms. Meacham’s report, this claim fails
because Attorney Plata’s testimony demonstrates that
[the] State did not suppress the report. To the extent
Defendant claims that the State violated Brady by not
providing him with contact information for the driver
of the Ford Mustang, this claim fails because
Defendant failed to present any evidence that the
State possessed such information. See Fla. R. Crim. P.
3.850(f)(8)(B) (“At an evidentiary hearing, the
defendant shall have the burden of presenting
evidence and the burden of proof in support of his or
13 The report is from the Office of the Medical Examiner, and it includes an
address, phone number, and the name of the investigator, W. Meacham. Ex. R at 128.
Thus, the State provided the defense with the identity of the investigator, contact
information, and a copy of her report.
40
her motion, unless otherwise provided by law.”).
Indeed, Sergeant Bazinet testified that he never made
contact with the driver of the Ford Mustang. Likewise,
Ms. Meacham testified that she never had contact with
the driver of the Ford Mustang. This Court observed
Sergeant Bazinet’s and Ms. Meacham’s testimony and
found them each to be credible. On these facts, it is
clear that Defendant failed to carry the evidentiary
burden imposed on him under Rule 3.850.
Ex. R at 283.
As noted above, the court determined that the Brady claim failed to the
extent Cuevas-Rodriguez argued the State violated Brady by not providing him
with contact information for the driver of the Ford Mustang because Cuevas-
Rodriguez failed to present any evidence that the State ever possessed such
information. Id. Neither Sergeant Bazinet nor Ms. Meacham testified that they
had contact with the driver of the Ford Mustang. Id. The postconviction court
found their testimony credible, id., and this Court is not in a position to revisit
credibility determinations and extends deference to the state court’s credibility
determinations. Consalvo, 664 F.3d at 845. The First DCA per curiam affirmed
the denial of postconviction relief without a written opinion. Ex. W.
To the extent that the First DCA decided the claim on the merits,14 the
Court will address the claim in accordance with the deferential standard for
14 See Wilson, 138 S. Ct. at 1192.
41
federal court review of state court adjudications. After a review of the record
and the applicable law, the Court concludes that the state court’s adjudication
of this claim was not contrary to clearly established federal law, did not involve
an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Thus, Cuevas-Rodriguez is not
entitled to relief on the basis of this claim.
Nevertheless, even if the appellate court’s adjudication of the claim is
not entitled to deference, Cuevas-Rodriguez’s claim is without merit. Favorable
evidence was not willfully or inadvertently suppressed by the State. The State
gave Ms. Meacham’s report to the defense as part of discovery. Thus, the State
did not suppress the report or Ms. Meacham’s identity. Moreover, the State did
not suppress the identity of the driver of the Mustang as it was never known
to the troopers or investigators. The driver of the Mustang did not stop at the
scene, and the driver’s identity was not discovered by the State. Notably, the
State did provide the notes of Ralph Bearden’s statement through the State’s
Second Supplemental Discovery Exhibit. Ex. A at 199-206. Mr. Bearden’s
statement reflects that he was a driver who saw the events leading up to the
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crash, the crash, and the aftermath of the crash.15 Id. His name, address, and
interview were disclosed. Id. at 28-30. The record demonstrates the State
provided the defense with a witness’s name, address, interview, and the notes
of his statement to the responding trooper.
Cuevas-Rodriguez is not entitled to habeas corpus relief on the claim in
Ground Four as the State Attorney’s Office did not omit exculpatory evidence
of the driver of the Ford Mustang or Ms. Meacham. As such, the claim of
prosecutorial misconduct raised in Ground Four is due to be denied.
VII. Certificate of Appealability
Pursuant to 28 U.S.C. § 2253(c)(1)
If Cuevas-Rodriguez seeks issuance of a certificate of appealability, the
undersigned opines that a certificate of appealability is not warranted. The
Court should issue a certificate of appealability only if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, Cuevas-Rodriguez “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.
15 Mr. Bearden was not the driver of the Mustang or the car that was situated
across the roadway. Ex. A at 200-206.
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274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that
“the issues presented were ‘adequate to deserve encouragement to proceed
further,’” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Where a district court has rejected a petitioner’s constitutional claims on
the merits, the petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims debatable or wrong.
See Slack, 529 U.S. at 484. However, when the district court has rejected a
claim on procedural grounds, the petitioner must show that “jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. Upon
consideration of the record as a whole, the Court will deny a certificate of
appealability.
Therefore, it is now
ORDERED AND ADJUDGED:
1. The Petition (Doc. 1) is DENIED, and this action is DISMISSED
WITH PREJUDICE.
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2. The Clerk of the Court shall enter judgment denying the Petition
and dismissing this case with prejudice.
3. If Cuevas-Rodriguez appeals the denial of the Petition, 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.
4. The Clerk of the Court is directed to close this case and terminate
any pending motions.
DONE AND ORDERED at Jacksonville, Florida, this 15th day of
September, 2023.
MARCIA MORALES HOWARD
United States District Judge
sa 8/29
Felix Luis Cuevas-Rodriguez
Counsel of Record
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