Opinion
CASE NO. 08-20730-CIV-LENARD/WHITE.
December 15, 2010
Steven M. Larimore, Clerk, U.S. District Court, MIAMI FL,
BILL McCOLLUM, Attorney General, MICHAEL C. GREENBERG, Assistant Attorney General, Florida Bar No. 0487678, Miami, Florida.
Petitioner , Julio Cesar Bellizia, represented by Julio Cesar Bellizia, DC #B00684, Okeechobee Correctional Instittution, Okeechobee, FL, PPP, PRO SE.
Respondent , Florida Department of Corrections, Secretary, James McDough, represented by Noticing 2254 State Attorney General, LEAD ATTORNEY, ATTORNEY TO BE NOTICED, Michael C. Greenberg, Davie, FL, LEAD ATTORNEY, ATTORNEY TO BE NOTICED, Richard L. Polin, Attorney General Office, Department of Legal Affairs, Miami, FL, LEAD ATTORNEY, ATTORNEY TO BE NOTICED.
ORDER GRANTING PETITIONER'S MOTION TO ENFORCE MANDATE OF THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE ELEVENTH CIRCUIT (D.E. 55)
THIS CAUSE is before the Court on Petitioner Julio Cesar Bellizia's ("Bellizia") Motion to Enforce Mandate ("Motion," D.E. 55), filed on November 12, 2010. Respondent Walter A. McNeil ("Respondent") has not opposed Bellizia's Motion; however, he has submitted two status reports apprising this Court of Bellizia's state court proceedings. Upon review of the Motion and the record, the Court finds as follows.
This Motion was originally denied as moot. On December 15, 2010, the Court sua sponte vacated the denial as moot. (Order Vacating in Part Order Denying as Moot Motion to Enforce Mandate, D.E. 60.)
On July 14, 2009, this Court granted Julio Cesar Bellizia's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Order Conditionally Granting Petition for Writ of Habeas Corpus, D.E. 32.) The Court found that Bellizia had demonstrated that the performance of his attorney at his 2002 trial was constitutionally deficient when she failed to argue that the weight of the heroin allegedly possessed by Bellizia was illegally calculated, ordering Bellizia to be brought before the state court and he be re-sentenced or there be an otherwise appropriate disposition of his case. Respondent appealed the Order (Notice of Appeal, D.E. 34) and the Court stayed the relief pending the Eleventh Circuit's decision on appeal. (Order Provisionally Granting Respondent's Emergency Motion to Stay, D.E. 44.) On October 1, 2010, the Eleventh Circuit affirmed the judgment of the Court, issuing its Mandate (D.E. 53).
Attached as Exhibit A.
Bellizia is currently incarcerated, having been sentenced in 2002 to a mandatory minimum term of twenty-five years.
Attached as Exhibit B.
On November 12, 2010, Bellizia filed the instant Motion, indicating that since the issuance of the Mandate over thirty days prior, no further action had been taken by Respondent, and that he has been incarcerated for ten (10) years for crimes for which the maximum possible penalty is three (3) years. (See Mot. at 3.) On December 13, 2010, Respondent filed a Status Report (D.E. 58), in compliance with the Court's November 29, 2010 Order (D.E. 57), wherein he provides the current status of Bellizia's state court proceedings. Pursuant to the order of Circuit Court Judge Diane Ward of the Eleventh Judicial Circuit, Bellizia was to have been transferred to a South Florida facility on or before December 6, 2010. (Status Report at 2.) However, as of December 13, over sixty days since the issuance of the Eleventh Circuit's Mandate, no counsel has been appointed and no date for re-sentencing or other disposition has been set.
Attached as Exhibit C.
The Status Report and its exhibits are attached as Exhibit D.
A copy of the full docket in this action is attached as Exhibit E.
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1. Julio Cesar Bellizia's Motion to Enforce Mandate (D.E. 55), filed on November 12, 2010, is GRANTED.
2. A hearing shall be set for a date no later than December 31, 2010 for either re-sentencing or other appropriate disposition of Bellizia's case consistent with the order of this Court and the Mandate of the United States Court of Appeals for the Eleventh Circuit. At least five (5) days prior to this hearing, counsel shall be appointed to represent Bellizia.DONE AND ORDERED in Chambers at Miami, Florida, this 15th day of December, 2010.
The attached hand-written document has been scanned and is also available in the SUPPLEMENTAL PAPER FILE
GraphATTACHMENT/EXHIBIT 1
United States Court of Appeals
For the Eleventh Circuit No. 09-13838 District Court Docket No. 08-20730-CV-JAL JULIO CESAR BELLIZIA, Petitioner-Appellee, versus FLORIDA DEPARTMENT OF CORRECTIONS, Secretary, Walter A. McNeil, Respondent-Appellant. Appeal from the United States District Court for the Southern District of FloridaJUDGMENT
It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court. Entered: August 20, 2010 For the Court: John Ley, Clerk By: Gilman, NancyORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (D.E. 1)
THIS CAUSE is before the Court on the Report and Recommendation of Magistrate Judge Patrick A. White ("Report," D.E. 24), issued on January 9, 2009, recommending that Petitioner Julio Cesar Bellizia's Petitioner for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 be denied. Petitioner filed Objections (D.E. 27) to the Report on February 23, 2009. The Court issued an Order to Show Cause (D.E. 28) on June 3, 2009. Respondent filed a Response to the Order to Show Cause (D.E. 29) on June 15, 2009. Having reviewed the Report, the Objections, and the Response to the Order to Show Cause, the Court finds as follows.I. Factual and Procedural Background
Petitioner was admitted to the hospital after collapsing at Miami International Airport. X-rays taken of Petitioner's abdomen revealed the presence of numerous foreign objects, causing hospital personnel to notify law enforcement authorities. Cylpha Obando, a registered nurse assigned to the Critical Care Unit, was responsible for monitoring Petitioner's condition. At one point Petitioner's blood oxygen was so low that physicians needed to intubate him (i.e., put a tube into his airway) and place him on a respirator.
When Petitioner ultimately awakened, he began to cough. His coughing caused him to expel a blue plastic pellet filled with a beige creamy substance. Nurse Obando placed the pellet into a biohazard bag and notified her supervisor. When Nurse Obando asked Petitioner about the pellet, he wrote her a note in Spanish about a son and sick mother. Shortly thereafter, Officer Eddie Avila responded to the hospital and Nurse Obando produced the expelled pellet and Petitioner's backpack that contained passports, clothing, plane tickets, and Venezuelan currency. Officer Avila placed Petitioner under arrest, and the property was submitted to the property unit.
The following day, an exploratory laparotomy was performed and 32 cylindrical pellets, which were four inches long and two inches wide, were removed from Petitioner's stomach. X-rays also revealed seven foreign objects in the large bowel. Due to the risk of infection, doctors decided to not surgically remove the pellets but to let Petitioner pass the remaining pellets naturally. Petitioner ultimately passed four pellets that resembled a latex glove, and all pellets recovered were tendered to law enforcement.
Petitioner was charged by information with trafficking in illegal drugs in violation of Florida Stat. 893.135(1)(c)(1)(c). (D.E. 15; App. B.) Specifically, the information alleged that Petitioner was in actual or constructive possession of 28 grams or more but less than 30 kilograms of various illegal substances, including heroin. (Id.)
Fla. Stat. 893.135(1)(c)(1)(c) (2002) provides in relevant part:
Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of . . . heroin . . . commits a felony of the first degree, which felony shall be known as "trafficking in illegal drugs". . . . If the quantity involved . . . [i]s 28 grams or more, but less than 30 kilograms, such person shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years and pay a fine of $500,000.
The defense at trial was one of duress. Petitioner maintained that he had acted as a drug mule to protect his brother and/or mother whose lives had been threatened by drug traffickers.
Criminalist Caroline Milanes testified as a government witness at trial. Milanes was responsible for weighing and testing the contents of the pellets removed from Petitioner's stomach. In testing the contents, Milanes took the plastic off of only one of the pellets; the substance inside the pellet was tested and identified as heroin. (Tr. at 435-36.) Milanes then weighed the remaining pellets with their plastic coverings on, but did not test the substance inside the remaining pellets. (Tr. at 436-38.) Milanes calculated the weight of the rest of the pellets by weighing the plastic covering of the single "unwrapped pellet." (Tr. 437.) She then assumed that all the pellets were wrapped the same way and that each pellet's plastic covering weighed the same. (Tr. 437.) The total weight of all the pellets, minus the assumed weight of all the plastic coverings, was 291.2 grams. (Tr. at 435.)
Following the close of the government's case, Petitioner's counsel moved for acquittal based on the government's failure to make a prima facie case. (Tr. 449-50.) The motion was denied. Petitioner's counsel also moved for a judgment of acquittal again following the close of Petitioner's case. Petitioner's counsel argued that the criminalist Caroline Milanes had failed to specifically identify the powder in the tested pellet as "heroin." (Tr. 600-02.) Petitioner's counsel did not raise the argument that the criminalist had failed to test the contents of the other 35 pellets, still wrapped in their plastic. The motion for judgment of acquittal was denied.
The case was sent to the jury, and the jury convicted Petitioner of the charged offense. (D.E. 15; App. A, C.) He was sentenced to a mandatory minimum term of imprisonment of twenty-five years. (D.E. 15; App. D.) Petitioner prosecuted a direct appeal from his conviction, raising the following sole claim: "The prosecutor's improper closing argument, which was approved by the trial judge, advising the jury that Defendant had the same burden of proof as the State in this case and that he had to prove his defense of duress denied Defendant a fair trial." (D.E. 15; App. E.) The Florida Third District Court of Appeal affirmed Petitioner's conviction and sentence in a per curiam decision without written opinion. (D.E. 15; App. G).
Petitioner also pursued postconviction relief in the State courts, first challenging his conviction and sentence by way of a pro se motion with supporting exhibits pursuant to Fla. R. Crim. P. 3.850. (D.E. 15; App.H). The trial court denied Petitioner postconviction relief. Although Petitioner argued in his motion that his attorney was ineffective for failing to move for a judgment of acquittal based on the State's failure to test every pellet, the trial court found that Petitioner's trial attorney had preserved any issue regarding the sufficiency of the evidence. Therefore, the trial court denied Petitioner's claim because he failed to raise it in his direct appeal.
While federal courts typically must give deference to State court adjudications of claims in a habeas petition see 28 U.S.C. § 2254(d)(1), such deference is not required if the State court failed to address the merits of a claim asserted by the petitioner. See Davis v. Sec'y for the Dep't of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003)
Petitioner took an appeal from the trial court's ruling and the denial of postconviction relief was per curiam affirmed without written opinion. (D.E. 15; App. K). Petitioner's motion for rehearing was denied. (D.E. 15; App. L.) He next unsuccessfully challenged his sentence in a pro se motion to correct illegal sentence with attached exhibits pursuant to Fla. R. Crim. P. 3.850, claiming that his conviction and mandatory minimum sentence was violative of the principles established in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). (D.E. 15; App. M, N, P, Q.) Petitioner then came to this Court, filing the instant pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (See D.E. 1.)
II. The Petition and Report
Petitioner argues nine grounds for relief in his Petition; only two of the grounds for relief are valid, and therefore, will be the only ones addressed herein. Petitioner contends in his two valid claims that he received ineffective assistance of counsel: (1) when his lawyer failed to move for a judgment of acquittal based on the insufficiency of the State's evidence as a matter of law to sustain the conviction and imposition of a twenty-five-year mandatory term of imprisonment, due to the State's failure to test each pellet for heroin; and (2) when his lawyer failed to challenge as insufficient the evidence presented by the State's criminalist.
Magistrate Judge White rejected both of these claims. First, Magistrate Judge White found that Petitioner's counsel had addressed the sufficiency of the evidence in the two motions for judgment of acquittal. Accordingly, the Magistrate Judge found that Petitioner could not prove that his counsel was deficient. Second, the Magistrate Judge found that, even if his counsel's performance was deficient, he did not suffer prejudice, because Florida law allows the random positive testing of a sample of a suspected illegal substance which was commingled with other similar-looking substances. Magistrate Judge White relied on opinions from Florida's Third District Court of Appeals regarding random testing of marijuana and pills. (D.E. 24 at 16-17 (citingRoss v. State, 528 So.2d 1237, 1240 (Fla. 3 DCA 1988); Asmer v. State, 416 So. 2d 485, 486 (Fla. 4 DCA 1982))).
III. Discussion
As discussed in greater detail below, Petitioner has presented a valid claim for violation of his Sixth Amendment right to effective assistance of counsel. Controlling case law in Florida's Third District Court of Appeals requires that the State must weigh each individually wrapped package of powder drugs to satisfy the minimum statutory weight for trafficking convictions. Petitioner trial counsel's failure to raise the State's failure to weigh every pellet recovered from Petitioner was constitutionally deficient representation and prejudiced Petitioner. Finally, Petitioner has overcome the procedural default for failing to raise these claims on direct appeal.
A. Ross v. State mandates that the State must weigh each individually wrapped package of powder drugs to satisfy minimum statutory weight
The relevant law governing Petitioner's claims comes from Ross v. State, 528 So.2d 1237 (Fla. 3 DCA 1988). In Ross, the defendant was arrested and charged with trafficking in cocaine under Florida Stat. 893.135(1)(b), after police recovered a brown paper bag thrown away by defendant containing two bundles. One of these bundles contained 36 separately wrapped, plastic packets of white powder. Id. at 1238. The second bundle contained fifty-six separately wrapped, plastic packets of white powder. Id. The State tested only two of 92 packets, one from each bundle, and then attempted to include the weight of the contents of all 92 packages to support a trafficking conviction. Id. at 1241.
The Third District Court of Appeals reversed the conviction and held that, when a defendant is charged with cocaine trafficking, and the subject cocaine is contained in a series of separately wrapped packets, the government does not satisfy its burden of proving that the cocaine satisfies the minimum statutory weight by chemically testing only one of the packets and then visually examining the contents of the remaining packets:
It is essential in order to sustain a cocaine trafficking conviction that each packet of white powder be chemically tested, by random sample, to contain cocaine, and that the total weight of the material in the tested packets equal or exceed twenty-eight (28) grams; a visual examination of untested packets of this weight is insufficient to convict because the white powder contained therein may be milk sugar or any one of a vast variety of other white powdery chemical compounds not containing cocaine. Moreover, the fact that one or two packets containing cocaine are found among other packets containing similar-looking white powder is no assurance that the latter untested packets also contain cocaine in view of (1) the vast number of other chemical compounds which have a similar white powdery appearance, and (2) the fact that the material in the untested packets was not commingled with the material in the tested packets.
The court in Ross specifically distinguished its decision from those decisions allowing the random positive testing of one suspect illegal pill commingled in a single packet containing other similar-looking pills, as in Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982), or the random positive testing of a sample of suspect marijuana commingled in a single bag containing similar-looking material, as in Kenny v. State, 382 So.2d 304 (Fla. 1st DCA 1978), and Wright v. State, 351 So.2d 1127 (Fla. 1st DCA 1977). The difference is that
the random positive samples of suspect illegal pills or suspect marijuana is taken from a single packet or bag and is thus commingled with other similar-looking material. It is therefore a fair inference that the latter, similar-looking, commingled material is the same as the random positive sample taken therefrom. One cannot, however, make a similar inference where the untested material is not commingled with the random sample — as where the untested suspect illegal pills, marijuana, or cocaine is contained in a separately wrapped package from which a random sample is not taken for testing.Id. at 1240. The Third DCA has extended the holding of Ross to heroin. See State v. Clark, 538 So. 2d 500 (Fla. 3 DCA 1989).
B. Petitioner's counsel was constitutionally deficient for failing to challenge the testing procedures for the subject heroin.
1. The merits of Petitioner's claim
Petitioner's claim of ineffective assistance of counsel has merit. In this case, the subject heroin for which Petitioner was convicted was allegedly contained in 36 separate "pellets," i.e., plastic balloons. The chemist/criminalist Caroline Milanes testified at trial that she had only tested one of the 36 pellets for heroin. Following a positive test for heroin in that individual pellet, she weighed the other pellets, but did not remove the plastic casing from the other pellets or conduct any additional tests to determine whether the other pellets contained heroin. The weight of all the pellets, including the pellets that did not have their contents tested, was admitted as evidence to prove that Petitioner was in possession of more than 28 grams of heroin. This was improper under Ross, which, as outlined above, requires that, with respect to powder drugs wrapped in separate packaging, a sample must come from each package in order to have the amount in each container included in the total alleged amount of contraband.
Respondent contends in his Response to the Court's Order to Show Cause that Ross is distinguishable from the facts presented in the Petition. (See D.E. 29.) Respondent makes four arguments in his attempt to distinguish the instant facts from Ross.
First, Respondent argues that Ross only applies to street level drug distribution, not the transportation and smuggling of heroin at the wholesale level prior to being processed for street level distribution. Respondent argues that this is a relevant and actual distinction because there was a fair inference in Ross that the substance was not cocaine, but instead was counterfeit, as selling counterfeit cocaine is a common practice in street level distribution. Respondent cites no legal authority for its position and the Court is extremely reluctant to carve out such a large exception to Florida state law on its own accord.
Second, Respondent argues that Ross is inapplicable to the instant facts because Ross involved a situation in which "no fair inference could have been made that the untested material contained cocaine." (D.E. 29 at 6 (emphasis supplied).) Respondent argues that, in the case of heroin mules, the inference is that the substances recovered from the mule's stomachs is heroin, and that it would be highly unlikely not to be heroin. The Third DCA in Ross held that a fact finder could not make a fair inference that untested material is the same as randomly tested material where the untested material is not commingled with the random sample — "as where the untested suspect illegal pills, marijuana, or cocaine is contained in a separately wrapped package from which a random sample is not taken for testing." 528 So. 2d at 1240. There is nothing from the opinion in Ross from which the Court could extrapolate that drugs recovered from a mule are distinguishable from drugs seized under any other circumstance. As such, again, the Court declines to make such a distinction without any supporting legal authority.
Third, Respondent argues that the substance tested in the instant case was more akin to "rock" cocaine than powder cocaine, and therefore, as rock cocaine is not subject to the separate testing requirements of Ross, see Bond v. State, 538 So. 2d 499 (Fla. 3d DCA 1989), the holding of Ross does not apply to the instant case. Respondent's argument fails because he cannot point to any record evidence to support his assertion that the substance inside the pellets was in rock form. Instead, while it is admittedly not particularly clear on the issue, the record suggests that the substance inside the pellets was more akin to powder drugs than rock drugs. For example, Nurse Obando testified that the substance inside the regurgitated pellet was "like a creamy thing, like beige to yellowish color inside." (Tr. 299.) Additionally, Dr. Rodriguez, the surgeon, testified that when she operated on Petitioner, she pulled out whole pellets, as well as "fragments." (Tr. 377.) Although her testimony is not completely clear, the most logical interpretation of Dr. Rodriguez's testimony is that she was referring to the plastic coverings of pellets that had ruptured, and that the contents of the ruptured pellets had dissolved into his stomach and caused him to become sick. The Court finds that the strongest inference from Dr. Rodriguez's testimony is that the substance was in powder form and dissolved in his stomach after the plastic coverings of the pellets had ruptured. Finally, as noted above, the Third DCA has extended the holding of Ross to heroin. See State v. Clark, 538 So. 2d 500 (Fla. 3 DCA 1989). Respondent has pointed to no cases distinguishing "rock" heroin from "powder" heroin.
Respondent's last argument is that Petitioner admitted during the trial that he had swallowed plastic pellets containing heroin as part of his defense at trial of duress. Respondent argues: "Since Petitioner not only failed to dispute during trial that the substance recovered was heroin, but expressly admitted that it was; Petitioner cannot now claim that the State failed to prove that the substance was heroin." (D.E. 29 at 16.) The Court disagrees for two reasons. First, Petitioner's claim in the instant Petition is ineffective assistance of counsel; as such, Respondent's argument that his counsel argued duress at trial completely misses the point of Petitioner's claim. Second, it was the State's burden at trial, not Petitioner's, to prove that the substance in the pellets was heroin and weighed over 28 grams, and besides passing references in opening and closing arguments, there is no indication in the record that Petitioner formally stipulated that all of the substance in the pellets was heroin.
Accordingly, Respondent's attempts to distinguish Ross from the facts of the instant Petition fail.
Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant can succeed on an ineffective assistance of counsel claim if he proves that: (1) his counsel was deficient, i.e., he made errors so serious that counsel was not functioning as guaranteed under the Sixth Amendment; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Concerning the deficiency prong, the Eleventh Circuit has stated that "review of counsel's performance must be highly deferential," and courts should "avoid second-guessing counsel's performance." Osborne v. Terry, 466 F.3d 1298, 1305-06 (11th Cir. 2006). Thus, to establish deficient performance, a petitioner must "prove by a preponderance of the evidence that no competent counsel would have taken the action that his counsel did take."Grossman v. McDonough, 466 F.3d 1325, 1345 (11th Cir. 2006). Concerning the prejudice prong, it is not enough for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Strickland, 466 U.S. at 693. Rather, a reasonable probability is one sufficient to undermine confidence in the outcome. Id. at 694.
Counsel's failure to object or move for judgment of acquittal based on Ross, resulted in ineffective assistance of counsel under Strickland. Contrary to the finding of Magistrate Judge White, Petitioner's counsel failed to raise the violation of the rule in Ross in either of the motions for judgment of acquittal. The first motion for acquittal was a generic motion for acquittal based on the State's failure to prove a prima facie case. (Tr. 449-50.) The second motion challenged in a general manner the failure of the criminalist to testify as to the analysis she conducted to determine that the single pellet that was tested contained heroin. (Tr. 600-02.) But Petitioner's counsel did not mention Ross or otherwise make any argument as to the criminalist's failure to test the contents of each of the 35 wrapped pellets. No competent counsel — that is, no counsel that was aware of the law — would have failed to argue that the weight of the heroin allegedly possessed by Petitioner was illegally calculated. Thus, Petitioner's trial counsel's performance was constitutionally deficient.
Additionally, the prejudice suffered by Petitioner is apparent. Assuming that all the pellets were roughly the same size and there were 36 pellets in evidence, each pellet weighed less than ten grams (291 grams divided by 36 pellets). As only one pellet was admissible to determine the statutory weight (the pellet that the criminalist had tested), had Petitioner's trial counsel challenged the State's failure to test the contents of all the pellets, the State would not have been able to establish Petitioner's possession of the requisite 28 grams and at most he would have been convicted of a lesser offense. That would have resulted in a reduction in the charged offense and a far less substantial sentence. See Ross, 528 So.2d at 1241 ("Based on the applicable law, as stated above, the defendant's conviction for trafficking in cocaine must be reversed because the state failed to prove that the defendant was in possession of a mixture of cocaine weighing twenty-eight (28) grams or more. The state did establish, however, that the defendant was in possession of a mixture of cocaine weighing less than twenty-eight (28) grams based on the two (2) packets, seized from the defendant, which Mr. Bodie subsequently tested positive for cocaine. Accordingly, the trial court erred in denying the defendant's motions for judgment of acquittal at trial because the charge should have been reduced to simple possession of cocaine.").
2. Overcoming the procedural default
Petitioner's appointed counsel in his direct appeal also failed to raise the issue of the State's failure to test the contents of all the pellets found in Petitioner's stomach in violation ofRoss. Accordingly, the trial court, in ruling on Petitioner's motion for post-conviction relief — the first time that Petitioner raised this specific claim — found that Petitioner was barred from collaterally attacking his sentence and conviction on this claim.
Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a habeas proceeding. McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989). This rule generally applies to all claims, including constitutional claims. See Reed v. Farley, 512 U.S. 339, 354 (1994)
"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate . . . `cause' and actual `prejudice'. . . ." Bousley v. United States, 523 U.S. 614, 622 (1998); accord Black v. United States, 373 F.3d 1140, 1142 (11th Cir. 2004) ("Generally, if a challenge to a conviction or sentence is not made on direct appeal, it will be procedurally barred in a 28 U.S.C. § 2255 challenge.").
Ineffective assistance of counsel may satisfy the cause exception to a procedural bar. United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000) (citations and quotation omitted). In order to do so, however, the claim of ineffective assistance must have merit. Id. To determine whether it does, the Court must decide whether the arguments Petitioner alleges his counsel failed to raise were significant enough to have affected the outcome of his appeal. Id. "The most direct way to approach this question is to examine the alleged trial errors to see if they contain sufficient merit — actual or arguable — that his appellate counsel can be faulted for not having raised them."Miller v. Dugger, 858 F.2d 1536, 1538 (11th Cir. 1988) (quotation and ellipses omitted).
As the Court has found that Petitioner's claim of ineffective assistance has merit, and would clearly have affected the outcome of his appeal, Petitioner has demonstrated cause and prejudice to overcome the procedural default rule. Accordingly, it is hereby ORDERED AND ADJUDGED that:
1. The Objections to the Report and Recommendation of Magistrate Judge Patrick A. White (D.E. 24) are GRANTED.
2. The Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (D.E. 1) is conditionally GRANTED, subject to paragraphs 3 and 4 below.
3. Respondent is directed to forthwith take all action necessary to ensure that the State trial court is apprised of this Order and that counsel is appointed to represent Petitioner.
4. The State trial court is directed to forthwith take all action necessary to remedy the constitutional violation addressed herein.
The Court declines to mandate the precise remedy to be applied by the State court. See Barry v. Brower, 864 F.2d 294, 300 (3d Cir. 1988) ("Both the historic nature of the writ and principles of federalism preclude a federal court's direct interference with a state court's conduct of state litigation. . . . The respect due the tribunals of a sovereign state within our federal system . . . requires that its courts be given an opportunity to correct their own errors.").
5. Respondent, no later than September 1, 2009, shall notify the Court as to the date of the resentencing or other disposition of Petitioner's case.
6. The Clerk of Court shall enter judgment accordingly and close this case.
7. Additionally, the Clerk of Court is directed to serve certified copies of this Order to the parties listed below.
DONE AND ORDERED in Chambers at Miami, Florida this 14th day of July, 2009.
The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued as the mandate of this court.
Also enclosed are the following:
Original Exhibits, consisting of: one folder
Original record on appeal or review, consisting of: one volume
The clerk of the court or agency shown above is requested to acknowledge receipt on the copy of this letter enclosed to the clerk.
A copy of this letter, and the judgment form if noted above,but not a copy of the court's decision, is also being mailed to counsel and pro se parties. A copy of the court's decision was previously mailed to counsel and pro se parties on the date it was issued.
JUDGMENT
It is hereby ordered, adjudged, and decreed that the attached opinion included herein by reference, is entered as the judgment of this Court.Before BARKETT and MARCUS, Circuit Judges, and HOOD, District Judge.
Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.
Walter A. McNeil, the Secretary for the Florida Department of Corrections ("the State"), appeals the district court's grant of Julio Cesar Bellizia's 28 U.S.C. § 2254 habeas corpus petition. The district court granted Bellizia's § 2254 petition, finding that his trial counsel was ineffective for failing to move for a judgment of acquittal during Bellizia's trial in state court on the ground that the State failed to prove that Bellizia possessed twenty-eight grams or more of heroin for purposes of applying a twenty-five-year mandatory minimum sentence, as required by Ross v. State, 528 So. 2d 1237 (Fla. 3d Dist. Ct. App. 1988). The district court found that had Bellizia's counsel challenged the State's failure to test the contents of each of the thirty-two pellets, which allegedly contained heroin, Bellizia would not have been subject to the twenty-five-year mandatory minimum sentence, and thus granted his habeas petition. The State appeals. We affirm.
I. BACKGROUND
At trial, Bellizia testified that he was approached by two men who threatened to kill his mother and brother unless he helped them transport drugs into the United States. He knew the men were drug traffickers. He swallowed the approximately thirty-three pellets given to him prior to boarding his flight from Venezuela to Miami, but testified that, while he suspected that they contained drugs, he was not sure of the type or amount. Upon arrival in Miami, Bellizia lost consciousness and was admitted to the hospital where the pellets were discovered and surgically removed.
The criminalist at the Miami-Dade Police Department Crime Lab tested one pellet, which was found to contain heroin, but did not test the remainder. Instead, she weighed the one pellet containing heroin, assumed the remaining thirty-one pellets contained heroin of approximately the same weight (9.1 grams each), and concluded, on that basis, that Bellizia possessed a net weight of 291.2 grams of heroin. Based thereupon, Bellizia was convicted of trafficking in twenty-eight grams or more of heroin, and sentenced to the twenty-five-year mandatory minimum. The state trial and appellate courts affirmed his conviction and sentence, and his pro se Rule 3.850 motions for post-conviction relief were denied.
Bellizia then timely filed the instant § 2254 habeas corpus petition, arguing inter alia that his trial counsel was ineffective for failing to move for a judgment of acquittal based upon the insufficiency of the State's evidence pursuant to Ross, and that he was prejudiced due to the erroneous imposition of the twenty-five-year mandatory minimum sentence. The district court reviewed the claim de novo and granted Bellizia's motion, which the State appeals.
While federal courts typically must give deference to state court adjudications of claims in a habeas petition, see 28 U.S.C. § 2254(d)(1), such deference is not required if the state court failed to the address the merits of a claim asserted by the petitioner. See Davis v. Sec'y for the Dep't of Corr., 341 F.3d 1310, 1313 (11th Cir. 2003). Thus, we agree with the district court that deference was not required because the state courts failed to address the merits of Bellizia's claim. The district court found that Bellizia overcame the procedural default rule by demonstrating cause and prejudice in his meritorious Strickland claim. In any event, the State does not challenge this finding by the district court and accordingly is deemed to have abandoned them on appeal. See Mize v. Hall, 532 F.3d 1184, 1189 n. 3 (11th Cir. 2008).
II. DISCUSSION
When reviewing the grant of a § 2254 petition, we review "questions of law and mixed questions of law and fact, including ineffective assistance of counsel claims, de novo, and review findings of fact for clear error." Pardo v. Sec'y, Fla. Dep't of Corr., 587 F.3d 1093, 1098 (11th Cir. 2009) (citation omitted). We construe pro se filings, like Bellizia's, liberally. See United States v. Webb, 565 F.3d 789, 792 (11th Cir. 2009).
In this case, Bellizia contends that his counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668 (1984) for failing to argue that, under Ross, the State was required to prove that every pellet contained heroin and to weigh each pellet. Because the State had not met its burden, Bellizia would not have been subject to a twenty-five-year mandatory-minimum sentence, had his counsel raised the issue.
To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate both (1) that his counsel's performance was deficient, i.e. the performance fell below an objective standard of reasonableness, and (2) that he suffered prejudice as a result of that deficient performance. Strickland, 466 U.S. at 687-88. "To establish deficient performance, a defendant must show that his counsel's representation fell below an objective standard of reasonableness in light of prevailing professional norms at the time the representation took place."Cummings v. Sec'y for Dep't of Corr., 588 F.3d 1331, 1356 (11th Cir. 2009) (quotation and citation omitted). To demonstrate prejudice, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The petitioner has the burden of establishing that he was prejudiced by his lawyer's deficient performance. Id. at 696.
In Ross, the defendant was arrested and charged with trafficking in cocaine after police recovered a brown paper bag, which contained two bundles, that he threw away. 528 So. 2d at 1238. The first bundle contained thirty-six separately wrapped, plastic packets of white powder, and the second bundle contained fifty-six. Id. The State tested only two of the packets, one from each bundle, and then attempted to include the weight of the contents of all ninety-two packets to support a trafficking conviction. Id.
The Third District Court of Appeal reversed the conviction, holding that when a defendant is charged with cocaine trafficking, and the substance suspected to be cocaine is contained in separately wrapped packets, the State does not satisfy its burden of proving that the cocaine satisfies the minimum statutory weight by chemically testing only one of the packets and then visually examining the contents of the remaining packets. Id. at 1239-41. The court pointed out that visual examination of untested packets is insufficient to support a conviction because the fact that a packet containing contraband is found among other packets containing a substance of similar appearance is no assurance that the other untested packets contain the same contraband as there are a vast number of other chemical compounds that have a similar appearance. Id. at 1239-40. Moreover, a visual examination cannot determine the weight of the suspected contraband. Id. at 1240; see also State v. Clark, 538 So. 2d 500, 501 (Fla. 3d Dist. Ct. App. 1989) (applying Ross to heroin). Although Florida law allows for circumstantial evidence to be used to establish the identity of a controlled substance, it cannot be used to establish the weight of a controlled substance. Sheridan v. State, 850 So. 2d 638, 641 (Fla. 2d Dist. Ct. App. 2003). Thus, Ross sets out the controlling bright-line rule that the State must test each separately wrapped package that is suspected of containing controlled substances in order to establish the identity and weight of the controlled substance.
In this case, the district court made factual findings that the substance inside the separately wrapped pellets was "akin to powder drugs," and thus Ross mandated that the State was required to test each of the individually-wrapped pellets in order to meet its burden of proof as to the identity and weight of the alleged heroin. It is undisputed that the State failed to do so. Nonetheless Bellizia was convicted for possessing 28. lgrams of heroin and sentenced to a mandatory minimum term of imprisonment twenty-two years greater than the mandatory minimum sentence of three years that he would have received based upon the weight of the one and only pellet that was actually weighed. Ross had been the controlling law for many years on the precise issue that Bellizia's counsel faced. The district court did not err in concluding that "[n]o competent counsel — that is, no counsel that was aware of the law — would have failed to argue that the weight of the heroin allegedly possessed by [Bellizia] was illegally calculated." Based on this record, we cannot say that this determination was wrong.
Under Florida law, any person who knowingly brings heroin into Florida is guilty of trafficking in illegal drugs. Fla. Stat. Ann. § 893.135(1)(c)1. The mandatory minimum sentence for the amount of heroin in the single pellet tested by the State is three years' imprisonment, id. § 893.135(1)(c)1.a, as compared to the mandatory minimum of twenty-five years' imprisonment for the quantity the State attributed to Bellizia but did not test or prove at trial, id. § 893.135(1)(c)l.c.
Accordingly, upon review of the record and consideration of the parties' briefs, we affirm the district court's grant of Bellizia's § 2254 petition for habeas corpus relief.
AFFIRMED.
DECEMBER 13, 2010 STATUS REPORT
Respondent, WALTER A. MCNEIL, by and through undersigned counsel, hereby files this status report in the above matter PURSUANT TO THIS Court's order of November 29, 2010 and states the following:
1. On September 23, 2010, the Eleventh U.S. Circuit Court of Appeals denied the respondent's appeal of this court's partial granting of Bellizia's federal habeas petition.
2. On November 29, 2010, this Court ordered Respondent to file a status report regarding the status of Petitioner's state court proceeding, the district where Petitioner would be resentenced, the presiding judge and a copy of the state court docket in the case.
3. On November 19, 2010, Circuit Court Judge Diane Ward in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, signed an order to return prisoner to South Florida from the Okeechobee Correctional Institution for resentencing. (See Attached Order).
4. A copy of the order was filed with the clerk's office on November 22, 2010. (See Attached Docket).IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA Plaintiff, Defendant STATE OF FLORIDA, Case No. F99-39579 Section No. 013 vs. Judge Diane Ward Julio Bellizia,
ORDER TO RETURN PRISONER FOR RESENTENCING
It having been represented unto this Court that the defendant/witness, Julio Bellizia, 3/14/74, BLACK, Male, Prison #B00684, charged with in the above entitled cause or causes with the following crime or crimes: TRAFFICKING IN ILL DRUGS, is presently incarcerated at OKECCHOBBE CORRECTIONAL INSTITUTION, 3420 NE 168TH STREET, OKEECHOBEE FLORIDA 34972 as a prisoner of the State of Florida, under the custody of the Division of Corrections, and this Court having entertained the motion of the State Attorney of the Eleventh Judicial Circuit of Florida, to return the said prisoner to this jurisdiction for the purpose of appearing in the above entitled cause or causes, and being otherwise fully advised in the premises, it isORDERED AND ADJUDGED that the Director of the Dade County Corrections and Rehabilitation Department, be and he is hereby directed to take custody of the said prisoner and to safely return him to this Court for RESENTENCING, in the above entitled cause or causes on or before Monday, the 6 day of December, 2010, and the Director of the Division of Corrections of the State of Florida, be and he is hereby directed to deliver up the person of the said prisoner to the custody of the Director of the Dade County Corrections and Rehabilitation Department, taking proper receipt therefore, in order to effectuate the provisions hereof.
DONE AND ORDERED at Miami, Miami-Dade-County, Florida, this the19 day of November, 2010.
MOTION
The undersigned Assistant State Attorney moves for the entry of the above and foregoing order. Court Case No.: State Case No.: Name: Date of Birth: Date Filed: Date Closed: Warrant Type: Assessment Amount: Balance Due: Stay Due Date: Hearing Date: Hearing Time: Hearing Type: Court Room: Address: Previous Case: Next Case: Judge: Defense Attorney: Bfile Section: File Location: Box Number: Charges: Seq No. Charge Charge Type Disposition Additional Info: Probation Start Date: Probation End Date: Probation Length: Probation Type: Defendant in Jail: Defendant Release to: Bond Amount: Bond Status: Bond Type: Bond Issue Date: Dockets: Seq. No. Date Book/Page Docket DESCRIPTION ASSESSED PAID BALANCE
F99039579 131999CF0395790001XX BELLIZIA, JULIO CESAR 03/15/1974 11/24/1999 10/10/2002 $451.00 $0.00 10/10/2028 REGJB — JUSTICE BUILDING, ROOM No.: 3-3 1351 N.W. 12 ST ASSIGNED-Q, NOT MENDEZ, MARISA F013 RECORD CENTER 29-52 1 ILL DRGS/TRF/4/14G FELONY CONV AND SENT N SFRC, $0.00 357 11/22/2010 ORDER: RETURN PRISONER FOR RESENTENCING 356 09/28/2009 ORDER: CONITIONALLY GRANT PETITION FOR WRIT OF HABEAS CORP. PURS. 28 U.S.C . . . 355 09/28/2009 MEMORANDUM: — US DISTRICT CT. 9/14/09 STEVEN M. LARIMORE BY SUSAN SHORE D EPUTY CLK. 354 06/02/2009 COURT FEE PAYMENT 451.00 RECEIPT # 0335057 352 02/20/2009 ORDER: PARTIALLY GRANTING MOTION TO RETURN PROPERTY 351 02/18/2009 LETTER FROM: — FRWD TO JUDGE 347 01/21/2009 MOTION FOR RETURN OF PROPERTY FILED 12/05/2008 SET FOR 02/04/2009 AT 10:21 GRANTED 346 01/21/2009 REPORT RE: STATE'S RESPONSE SET FOR 02/04/2009 AT 09:33 341 12/29/2008 REPORT RE: STATE'S RESPONSE SET FOR 01/21/2009 AT 09:33 340 12/29/2008 MOTION FOR RETURN OF PROPERTY FILED 12/05/2008 SET FOR 01/21/2009 AT 15:09 CONTINUED 336 12/17/2008 MOTION PRO SE FILED 12/05/2008 SET FOR 12/29/2008 AT 10:13 CONTINUED 335 12/17/2008 REPORT RE: STATE'S RESPONSE SET FOR 12/29/2008 AT 09:40 334 12/17/2008 MOTION FOR RETURN OF PROPERTY FILED 12/05/2008 SET FOR 12/29/2008 AT 10:13 CONTINUED 333 12/05/2008 MOTION TO/FOR: RETURN OF PROPERTY FRWD TO JUDGE 332 06/05/2008 ORDER: DENYING DEFT'S PRO SE MOTION FOR REHEARING ON ORDER DENYING RULE 3.850 329 04/18/2008 026338/03907 RECORDABLE ORDER: DENYING DEFENDANTS SECOND MOTION FOR POST CONVICTION RELIEF 328 04/15/2008 REPORT RE: RULING ON COURT ORDER SET FOR 04/18/2008 AT 09:30 327 04/15/2008 MOTION FOR POST CONVICTION RELIEF FILED 04/09/2008 SET FOR 04/18/2008 AT 10:04 DENIED 325 04/09/2008 MOTION FOR POST CONVICTION RELIEF FILED 04/09/2008 SET FOR 04/15/2008 AT 10:05 CONTINUED 324 04/09/2008 MOTION FOR POST CONVICTION RELIEF 322 03/26/2008 REPORT RE: MANDATE SET FOR 04/01/2008 AT 09:30 321 03/19/2008 MANDATE/AFFIRMED DCA#3D07-2995 320 11/26/2007 APPELLATE COURT CASE NUMBER DCA/07-2995 319 11/21/2007 NOTICE OF APPEAL TRANSMITTED TO DCA 318 11/16/2007 026052/04001 NOTICE OF APPEAL 3.800 /PRO SE 317 11/05/2007 ORDER: PRO-SE MOTION FOR REHEARING — DENIED 315 09/21/2007 ORDER: DENYING AMENDED MOTION TO CORRECT ILLEGAL SENTENCE 308 09/14/2007 MOTION TO CORRECT SENTENCE FILED 07/31/2007 SET FOR 09/21/2007 AT 09:35 DENIED 309 09/14/2007 REPORT RE: STATE'S RESPONSE SET FOR 09/21/2007 AT 09:30 305 07/31/2007 REPORT RE: STATE'S RESPONSE SET FOR 08/14/2007 AT 09:30 304 07/31/2007 MOTION TO CORRECT SENTENCE FILED 07/31/2007 SET FOR 08/14/2007 AT 12:51 CONTINUED 303 07/20/2007 MOTION TO CORRECT SENTENCE FRWD TO JUDGE 301 02/22/2007 REPORT RE: MANDATE SET FOR 02/27/2007 AT 09:30 300 02/16/2007 MANDATE/AFFIRMED DCA#3D06-191 299 01/27/2006 APPELLATE COURT CASE NUMBER DCA/#3D06-191 298 01/25/2006 NOTICE OF APPEAL TRANSMITTED TO DCA 297 01/18/2006 024156/04620 NOTICE OF APPEAL PRO SE/ 3.850 296 12/22/2005 024109/02717 RECORDABLE ORDER: DEFTS MOTION FOR POST CONVICTION RELIEF 295 12/20/2005 REPORT RE: COMP W/CRT ORDER SET FOR 12/21/2005 AT 09:30 294 12/20/2005 MOTION FOR POST CONVICTION RELIEF FILED 12/20/2005 SET FOR 12/21/2005 AT 15:33 DENIED 291 11/18/2005 REPORT RE: COMP W/CRT ORDER SET FOR 12/20/2005 AT 09:30 290 11/18/2005 MOTION FOR POST CONVICTION RELIEF FILED 11/18/2005 SET FOR 12/20/2005 AT 10:30 CONTINUED 287 11/14/2005 MOTION FOR POST CONVICTION RELIEF FILED 11/18/2005 ORAL SET FOR 11/18/2005 AT 15:10 CONTINUED 286 11/14/2005 REPORT RE: COMP W/CRT ORDER SET FOR 11/18/2005 AT 09:30 280 11/04/2005 MOTION PRO SE FILED 11/14/2005 SET FOR 11/14/2005 AT 11:06 CONTINUED 281 11/04/2005 MOTION FOR POST CONVICTION RELIEF FILED 11/14/2005 SET FOR 11/14/2005 AT 11:06 CONTINUED 277 09/27/2005 MOTION FOR POST CONVICTION RELIEF FILED 10/19/2005 SET FOR 10/19/2005 AT 11:58 CONTINUED 276 09/27/2005 MOTION PRO SE FILED 10/19/2005 SET FOR 10/19/2005 AT 11:58 CONTINUED 270 09/16/2005 MOTION FOR POST CONVICTION RELIEF FILED 09/27/2005 SET FOR 09/27/2005 AT 11:49 CONTINUED 271 09/16/2005 MOTION PRO SE FILED 09/27/2005 SET FOR 09/27/2005 AT 11:49 CONTINUED 269 09/07/2005 MOTION PRO SE FILED 09/08/2005 SET FOR 09/08/2005 AT 13:53 CONTINUED 268 09/07/2005 REPORT RE: BY) DEFENDANT/RESP SET FOR 09/08/2005 AT 09:30 267 09/07/2005 MOTION FOR POST CONVICTION RELIEF FILED 09/08/2005 SET FOR 09/08/2005 AT 13:53 CONTINUED 266 08/24/2005 TRIAL PROS. ASSIGNED: MANIATTY, PHILIP 262 06/15/2005 REPORT RE: BY) DEFENDANT/RESP SET FOR 09/07/2005 AT 09:30 261 06/15/2005 MOTION PRO SE FILED 09/07/2005 ORAL SET FOR 09/07/2005 AT 11:47 CONTINUED 260 06/15/2005 MOTION FOR POST CONVICTION RELIEF FILED 09/07/2005 ORAL SET FOR 09/07/2005 AT 11:47 CONTINUED 256 05/04/2005 MOTION PRO SE FILED 06/15/2005 SET FOR 06/15/2005 AT 10:46 CONTINUED 254 04/13/2005 MOTION FOR POST CONVICTION RELIEF FILED 06/15/2005 SET FOR 06/15/2005 AT 10:46 CONTINUED 253 04/13/2005 REPORT RE: BY) DEFENDANT/RESP SET FOR 06/15/2005 AT 09:30 250 03/14/2005 MEMO RE: APPOINTMENT AS PRIVATE COURT APPOINTED COUNSEL 249 03/10/2005 DEFENSE ATTY PDEF/PUBLIC DEFENDER APPOINTMENT, AS 248 03/10/2005 REPORT RE: DEFENDANT/RESPONDENT SET FOR 04/13/2005 AT 09:30 247 03/10/2005 MOTION FOR POST CONVICTION RELIEF FILED 04/13/2005 SET FOR 04/13/2005 AT 11:12 CONTINUED 246 03/10/2005 TRIAL UNIT ASSIGNED: CAREER CRIMINAL UNIT 4 245 03/10/2005 TRIAL PROS. ASSIGNED: VIZCAINO, DIANA 244 03/09/2005 ORDER: APPOINTING CONFLICT ATTORNEY 243 03/09/2005 MOTION FOR POST CONVICTION RELIEF FILED 03/10/2005 SET FOR 03/10/2005 AT 10:20 CONTINUED 242 03/08/2005 REPORT RE: ACCEPT PCAC APPOINTMENT SET FOR 03/10/2005 AT 09:30 241 02/23/2005 TRIAL PROS. ASSIGNED: ASA, DIVISION 240 02/23/2005 MOTION FOR POST CONVICTION RELIEF FILED 03/09/2005 SET FOR 03/09/2005 AT 11:38 CONTINUED 239 02/23/2005 REPORT RE: ACCEPT PCAC APPOINTMENT SET FOR 03/09/2005 AT 09:30 235 02/22/2005 MOTION FOR POST CONVICTION RELIEF FILED 02/23/2005 SET FOR 02/23/2005 AT 10:50 CONTINUED 238 02/16/2005 TRIAL PROS. ASSIGNED: VIZCAINO, DIANA 236 02/15/2005 TRIAL PROS. ASSIGNED: ASA, DIVISION 234 02/15/2005 REPORT RE: RULING ON COURT ORDER SET FOR 02/23/2005 AT 09:30 233 02/14/2005 TRIAL PROS. ASSIGNED: VIZCAINO, DIANA 232 02/09/2005 TRIAL PROS. ASSIGNED: ASA, DIVISION 231 02/09/2005 REPORT RE: STATE'S RESPONSE SET FOR 02/15/2005 AT 09:30 230 02/09/2005 MOTION FOR POST CONVICTION RELIEF FILED 02/15/2005 SET FOR 02/15/2005 AT 10:11 CONTINUED 229 12/07/2004 MOTION FOR POST CONVICTION RELIEF FILED 02/09/2005 SET FOR 02/09/2005 AT 09:44 CONTINUED 228 12/07/2004 REPORT RE: STATE'S RESPONSE SET FOR 02/09/2005 AT 09:30 227 10/14/2004 RECORD OF APPEAL #3D02-3024/ BX# 202-83-7 VOLS. 226 10/07/2004 REPORT RE: STATE'S RESPONSE SET FOR 12/07/2004 AT 09:30 225 10/07/2004 MOTION FOR POST CONVICTION RELIEF FILED 12/07/2004. SET FOR 12/07/2004 AT 13:03 CONTINUED 224 09/07/2004 MOTION FOR POST CONVICTION RELIEF FILED 10/07/2004 SET FOR 10/07/2004 AT 10:19 CONTINUED 223 09/07/2004 REPORT RE: TRANSCRIPT SET FOR 10/07/2004 AT 09:30 220 08/31/2004 REPORT RE: STATE'S RESPONSE SET FOR 09/07/2004 AT 09:30 222 08/06/2004 DEFENSE ATTY PDEF/VERNA LOVE, DEBORAH 221 08/06/2004 MOTION FOR POST CONVICTION RELIEF FILED 09/07/2004 SET FOR 09/07/2004 AT 10:22 CONTINUED 218 08/04/2004 REPORT RE: FILING OF 3.850 MOTIONS SET FOR 08/06/2004 AT 09:00 219 07/27/2004 MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR POST CONV RELIEF 217 07/27/2004 MOTION FOR POST CONVICTION RELIEF 216 11/03/2003 MANDATE: — AFFIRMING, DCA#3D02-3024 215 04/08/2003 ORDER: PRO-SE MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS — GRANT ED 212 12/27/2002 RECORD ON APPEAL TRANSMITTED TO APPELLATE COURT DCA/#3D02-3024/ 7 VOLS 211 12/27/2002 PREPARATION OF RECORD ON APPEAL DCA #02-3024 VOLS. 7 210 12/23/2002 TRANSCRIPT OF PROCEEDING (ORIGINAL) OCTOBER 10, 2002 (O 1) 209 12/23/2002 TRANSCRIPT OF PROCEEDING (ORIGINAL) OCTOBER 9, 2002 (O 1) VOLS 1 2 208 12/23/2002 TRANSCRIPT OF PROCEEDING (ORIGINAL) OCTOBER 8, 2002 (O 1) VOLS 1 2 207 12/23/2002 TRANSCRIPT OF PROCEEDING (ORIGINAL) OCTOBER 7, 2002 (O 1) 206 12/09/2002 STATEMENT OF JUDICIAL ACTS AND DESIGNATIONS TO CRT REPORTER AMENDED/ PUBLIC DEFENDER 203 11/19/2002 DIRECTIONS TO MODIFY RECORD PUBLIC DEFENDER 202 11/19/2002 STATEMENT OF JUDICIAL ACTS AND DESIGNATIONS TO CRT REPORTER PUBLIC DEFENDER 201 11/13/2002 APPELLATE COURT CASE NUMBER DCA/#3D02-3024 197 11/12/2002 ORDER: PRO-SE MOTION FOR INDIGENT APPEAL MOT. TO APPOINT COUNSEL — GRANTED 204 11/05/2002 020770/03223 NOTICE OF APPEAL 195 11/05/2002 RECORD ON APPEAL DUE DATE — 12/23/2002 194 11/05/2002 NOTICE OF APPEAL TRANSMITTED TO DCA (DUP — FROM P.D.) 193 11/05/2002 NOTICE OF APPEAL TRANSMITTED TO DCA 192 11/05/2002 NOTICE OF APPEAL RECEIVED (PUBLIC DEFENDER) 205 11/01/2002 020770/03224 NOTICE OF APPEAL 187 11/01/2002 NOTICE OF APPEAL RECEIVED (PROSE) 191 10/21/2002 020741/03229 SENTENCE-COMMITMENT CT. 1, 25 YEARS 190 10/21/2002 020741/03226 JUDGMENT OF GUILT 186 10/21/2002 COMMITMENT ISSUED TO SHERIFF 185 10/16/2002 SENTENCING GUIDELINES SCORE SHEET 199 10/11/2002 RECEIPT FOR MONEY AS EVIDENCE 198 10/11/2002 RECEIPT FOR MONEY AS EVIDENCE 184 10/11/2002 REPORT RE: SCORE SHEET SET FOR 10/16/2002 AT 09:00 183 10/11/2002 EVIDENCE SUBMIT DATE 10/11/2002 180 10/10/2002 MEMORANDUM OF COSTS AMOUNT 451.00 179 10/10/2002 STAY GRANTED — DUE 10/10/2028 178 10/10/2002 CLOSING JUDGE SCHWARTZ, LAWRENCE A 177 10/10/2002 TRIAL HEARING SCHEDULED FOR 10/11/2002 AT 09:00 176 10/09/2002 EXHIBIT LIST JURY TRIAL 175 10/09/2002 JURY MINUTES 174 10/09/2002 TRIAL HEARING SCHEDULED FOR 10/10/2002 AT 09:00 173 10/08/2002 JURY PANEL SWORN 172 10/08/2002 JURY MINUTES 171 10/08/2002 TRIAL HEARING SCHEDULED FOR 10/09/2002 AT 09:00 170 10/07/2002 MOTION TO/FOR: FOR ORDER IN LIMINE 169 10/07/2002 MOTION TO/FOR: FOR ORDER IN LIMINE 168 10/07/2002 TRIAL HEARING SCHEDULED FOR 10/08/2002 AT 09:00 167 10/03/2002 AMENDED DISCOVERY 166 10/02/2002 ORDER: 165 10/01/2002 MOTION FOR PERMISSION TO TRAVEL FILED 10/02/2002 SET FOR 10/02/2002 AT 10:55 GRANTED 200 09/30/2002 SUBPOENA FOR TRIAL 01 164 09/26/2002 MOTION TO/FOR: FOR TRAVEL EXPENSES 163 09/26/2002 NOTICE OF HEARING 162 09/26/2002 MOTION FOR PERMISSION TO TRAVEL FILED 10/01/2002 ORAL SET FOR 10/01/2002 AT 11:22 CONTINUED 161 07/29/2002 DEPOSITION OF: OFC. CRISTI ADAMS 160 07/24/2002 DEPOSITION OF: DR. BRUCE BAGLEY 159 07/19/2002 MOTION FOR CONTINUANCE FILED 07/19/2002 ORAL SET FOR 07/19/2002 AT 12:23 GRANTED CRT 158 07/19/2002 TRIAL HEARING SCHEDULED FOR 10/07/2002 AT 09:00 157 07/19/2002 REPORT RE: PLEA SET FOR 09/30/2002 AT 10:30 156 07/18/2002 TRIAL HEARING SCHEDULED FOR 07/19/2002 AT 09:00 155 07/17/2002 TRIAL HEARING SCHEDULED FOR 07/18/2002 AT 09:00 154 07/16/2002 TRIAL HEARING SCHEDULED FOR 07/17/2002 AT 09:00 153 07/15/2002 TRIAL HEARING SCHEDULED FOR 07/16/2002 AT 09:00 149 05/20/2002 MOTION FOR CONTINUANCE FILED 05/20/2002 ORAL SET FOR 05/20/2002 AT 09:33 GRANTED PROS 148 05/20/2002 TRIAL HEARING SCHEDULED FOR 07/15/2002 AT 09:00 147 05/20/2002 REPORT RE: PLEA SET FOR 07/08/2002 AT 10:30 145 04/30/2002 TRIAL PROS. ASSIGNED: VIZCAINO, DIANA 146 04/22/2002 WITNESS SUBPOENA 1 142 04/01/2002 DEFENSE WITNESS LIST 141 02/19/2002 TRIAL HEARING SCHEDULED FOR 05/20/2002 AT 09:00 TRIAL HEARING RESET 140 02/19/2002 MOTION FOR CONTINUANCE FILED 02/19/2002 ORAL SET FOR 02/19/2002 AT 10:50 GRANTED DEFS 139 02/19/2002 REPORT RE: PLEA SET FOR 05/13/2002 AT 10:30 138 02/07/2002 MOTION TO/FOR: MTN FOR DISMISSAL OF PUBLIC DEFENDER AND ASSIGN OF PRIVATE COUNSEL 135 01/30/2002 REPORT RE: MOTIONS SET FOR 02/07/2002 AT 09:00 133 01/07/2002 TRIAL PROS. ASSIGNED: IMMASCHE, STEPHEN 131 11/14/2001 REPORT RE: PLEA SET FOR 02/19/2002 AT 10:30 130 11/13/2001 TRIAL PROS. ASSIGNED: GREENBERG, SCOTT 129 10/30/2001 DEPOSITION OF: GEORGE RODRIGUEZ 127 10/29/2001 MOTION FOR CONTINUANCE FILED 10/29/2001 ORAL SET FOR 10/29/2001 AT 11:49 GRANTED DEFS 126 10/29/2001 REPORT RE: STATUS SET FOR 11/14/2001 AT 09:00 125 10/23/2001 DEFENSE ATTY PDEF/POZO-REVILLA, ADA B 122 09/19/2001 NOTICE OF TAKING DEPOSITION 121 09/07/2001 NOTICE OF TAKING DEPOSITION 119 08/06/2001 TRIAL HEARING SCHEDULED FOR 11/05/2001 AT 09:00 TRIAL HEARING RESET 118 08/06/2001 MOTION FOR CONTINUANCE FILED 08/06/2001 ORAL SET FOR 08/06/2001 AT 10:24 GRANTED DEFS 117 08/06/2001 REPORT RE: PLEA SET FOR 10/29/2001 AT 10:30 116 08/03/2001 DEPOSITION OF: CARMEN FERNANDEZ, R.N. 120 08/01/2001 DEPOSITION OF: ALEXIS RAVELO 114 07/27/2001 MOTION TO COMPEL ACCURATE ADDRESS OF WITNESSES 113 07/27/2001 NOTICE OF HEARING 7/31/01 AT 9:00 A.M. 112 07/26/2001 MOTION TO COMPEL FILED 07/31/2001 ORAL SET FOR 07/31/2001 AT 10:54 WITHDRAWN 111 07/23/2001 DEPOSITION OF: NURSE CYLPHA OBANDO 110 07/23/2001 DEPOSITION OF: DR. JORGE LOPEZ 109 07/23/2001 DEPOSITION OF: NURSE MARIA SOLEDAD 108 07/23/2001 DEPOSITION OF: DR. MAGALY RODRIGUEZ 115 07/11/2001 NOTICE OF TAKING DEPOSITION 104 07/02/2001 MOTION TO/FOR: COMPEL FURTHER DISCOVERY 103 07/02/2001 NOTICE OF HEARING 07/06/01 102 07/02/2001 MOTION TO COMPEL FILED 07/06/2001 ORAL SET FOR 07/06/2001 AT 10:36 WITHDRAWN 101 06/28/2001 DEPOSITION OF: OFFICER ROMA SARRIA 100 06/25/2001 DEPOSITION OF: OFFICER TOMA REDMON 97 06/04/2001 DEPOSITION OF: OFFICER MILTON MCKINNON 96 06/04/2001 TRIAL PROS. ASSIGNED: VANHECKE, JEREMIAH 98 05/29/2001 SUBPOENA FOR DEPOSITION 1 99 05/25/2001 SUBPOENA FOR DEPOSITION 01 94 05/25/2001 MOTION TO COMPEL FILED 05/30/2001 ORAL SET FOR 05/30/2001 AT 10:10 NO RULING 95 05/23/2001 DEPOSITION OF: OFFICER EDDIE AVILA 92 05/15/2001 NOTICE OF TAKING DEPOSITION 90 05/15/2001 MEMO FROM STATE ATTORNEY / PUBLIC DEFENDER 89 05/14/2001 MEMO FROM STATE ATTORNEY / PUBLIC DEFENDER 91 05/11/2001 SUBPOENA FOR DEPOSITION 2 93 05/10/2001 AMENDED DISCOVERY 3 87 05/08/2001 MEMO FROM STATE ATTORNEY / PUBLIC DEFENDER 88 05/07/2001 NOTICE OF TAKING DEPOSITION 86 05/01/2001 NOTICE OF TAKING DEPOSITION 02 85 04/17/2001 NOTICE OF TAKING DEPOSITION 02 84 04/17/2001 MEMO FROM STATE ATTORNEY / PUBLIC DEFENDER 83 04/16/2001 TRIAL HEARING SCHEDULED FOR 08/13/2001 AT 09:00 TRIAL HEARING RESET 82 04/16/2001 MOTION FOR CONTINUANCE FILED 04/16/2001 ORAL SET FOR 04/16/2001 AT 11:06 GRANTED DEFS 81 04/16/2001 REPORT RE: PLEA SET FOR 08/06/2001 AT 10:30 80 04/10/2001 NOTICE OF TAKING DEPOSITION 79 04/04/2001 NOTICE OF TAKING DEPOSITION 76 03/19/2001 DEFENSE ATTY PDEF/NEWKIRK, BRETT W 75 01/22/2001 TRIAL HEARING SCHEDULED FOR 04/23/2001 AT 09:00 TRIAL HEARING RESET 74 01/22/2001 MOTION FOR CONTINUANCE FILED 01/22/2001 ORAL SET FOR 01/22/2001 AT 12:41 GRANTED DEFS 73 01/22/2001 REPORT RE: PLEA SET FOR 04/16/2001 AT 10:30 70 11/16/2000 TRIAL HEARING SCHEDULED FOR 01/29/2001 AT 09:00 TRIAL HEARING RESET 69 11/16/2000 MOTION FOR CONTINUANCE FILED 11/16/2000 ORAL SET FOR 11/16/2000 AT 15:58 GRANTED DEFS 68 11/16/2000 REPORT RE: PLEA SET FOR 01/22/2001 AT 10:30 67 11/15/2000 AMENDED DISCOVERY 64 10/23/2000 TRIAL PROS. ASSIGNED: CABRERA, ROGER 62 09/29/2000 REPORT RE: PLEA SET FOR 11/16/2000 AT 10:30 63 09/27/2000 MOTION FOR CONTINUANCE FILED 09/27/2000 ORAL SET FOR 09/27/2000 AT 16:20 GRANTED CRT 60 09/26/2000 TRIAL HEARING SCHEDULED FOR 09/27/2000 AT 09:00 59 09/25/2000 TRIAL HEARING SCHEDULED FOR 09/26/2000 AT 09:00 56 07/17/2000 MOTION FOR CONTINUANCE FILED 07/17/2000 ORAL SET FOR 07/17/2000 AT 14:21 GRANTED PROS 55 07/17/2000 TRIAL HEARING SCHEDULED FOR 09/25/2000 AT 09:00 54 07/17/2000 REPORT RE: PLEA SET FOR 09/18/2000 AT 13:00 51 05/15/2000 MOTION FOR CONTINUANCE FILED 05/15/2000 ORAL SET FOR 05/15/2000 AT 14:02 GRANTED DEFS 49 05/15/2000 REPORT RE: PLEA SET FOR 07/17/2000 AT 13:00 48 05/08/2000 TRIAL PROS. ASSIGNED: FERNANDEZ, IVAN 47 05/03/2000 AMENDED DISCOVERY 44 04/24/2000 MOTION FOR CONTINUANCE FILED 04/24/2000 ORAL SET FOR 04/24/2000 AT 13:56 GRANTED DEFS 42 04/24/2000 REPORT RE: PLEA SET FOR 05/15/2000 AT 13:00 41 04/18/2000 TRIAL PROS. ASSIGNED: SWEENEY, SEAN 40 04/18/2000 TRIAL PROS. ASSIGNED: SWEENEY, SEAN 39 04/11/2000 AMENDED DISCOVERY 36 03/03/2000 DEFENSE ATTY PDEF/POCHUREK, LYNNE M 35 02/22/2000 MOTION FOR CONTINUANCE FILED 02/22/2000 ORAL SET FOR 02/22/2000 AT 16:10 GRANTED DEFS 34 02/22/2000 REPORT RE: PLEA SET FOR 04/24/2000 AT 13:00 30 01/24/2000 MEMO FROM STATE ATTORNEY / PUBLIC DEFENDER 29 12/30/1999 DEFENSE ATTY PDEF/PUBLIC DEFENDER APPOINTMENT, AS 28 12/29/1999 DISCOVERY RESP: STATE'S DEMAND FOR DISCOVERY DEMAND FOR AL 27 12/29/1999 TRIAL UNIT ASSIGNED: FELONY DIVISION 13 26 12/29/1999 TRIAL PROS. ASSIGNED: FAULKNER, JAMES 25 12/29/1999 REPORT RE: PLEA SET FOR 02/22/2000 AT 13:00 23 12/29/1999 INFORMATION FILED 22 12/28/1999 ARRAIGNMENT HEARING SCHEDULED FOR 12/29/1999 AT 09:00 21 12/27/1999 ARRAIGNMENT HEARING SCHEDULED FOR 12/28/1999 AT 09:00 19 12/16/1999 MOTION FOR ROR OR CUSTODY RELEASE FILED 12/16/1999 ORAL SET FOR 12/16/1999 AT 00:00 DENIED 18 12/16/1999 ARRAIGNMENT HEARING SCHEDULED FOR 12/27/1999 AT 09:00 17 12/14/1999 INTAKE UNIT ASSIGNED: FELONY DIVISION 13 15 12/14/1999 ARRAIGNMENT HEARING SCHEDULED FOR 12/16/1999 AT 09:00 14 12/02/1999 NOTICE OF DEFENDANT'S RIGHT TO COUNSEL 13 12/01/1999 ACKNOWLEDGEMENT OF APPOINTMENT OF PUBLIC DEFENDER 12 12/01/1999 INTAKE PROS. ASSIGNED: FAULKNER, JAMES 10 11/26/1999 PUBLIC DEFENDER APPLICATION FEE/AFFIDAVIT TO BE PAID IN FULL AMOUNT 40.00 9 11/26/1999 INSOLVAPPL 40.00 40.00 0.00 CRT FACILTY 150.00 150.00 0.00 LOC CRIM JUS 200.00 200.00 0.00 CRM COMP TR 50.00 50.00 0.00 STATE LETTF 3.00 3.00 0.00 COUNTY LETTF 2.00 2.00 0.00 JUV ASSESSM 3.00 3.00 0.00 TEEN COURT F 3.00 3.00 0.00 TOTAL: 451.00 451.00 0.00 LAST ASSESSED: 10/10/2002 LAST PAYMENT: 06/02/2009 8 11/24/1999 ORDER ADJUDGING DEFENDANT INDIGENT AND APPOINTING PUB. DEFN 7 11/24/1999 FINANCIAL AFFIDAVIT TO DETERMINE PUBLIC DEFENDER ELIGIBILITY 5 11/24/1999 INTAKE UNIT ASSIGNED: REVIEW WEINSTEIN 4 11/24/1999 FIRST APPEARANCE/BOND HEARING — A.M. 3 11/24/1999 ATTORNEY TYPE APPOINTED AT BOND HEARING PUBLIC DEFENDER 1 11/23/1999 ARRAIGNMENT HEARING SCHEDULED FOR 12/14/1999 AT 09:00