Opinion
Case No. 02-21980-CIV-UNGARO-BENAGES.
May 2, 2005
Henry Munoz-Paramo, Pro se, South Bay, Florida.
ORDER DENYING RELIEF
THIS CAUSE is before the Court upon remand from the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit has directed the Court to consider whether habeas Petitioner Henry Munoz-Paramo's claim, raised for the first time in objection to Magistrate Judge Patrick White's report recommending the petition be denied, that the court lacked jurisdiction over his criminal prosecution relates back to one or more of the nine grounds for relief he presented in his original habeas petition. See Henry Munoz-Pararno v. State of Florida, No. 03-14106, (11th Cir. 2005) [DE # 34]. As the Eleventh Circuit explained, Petitioner's claim appears to have been raised for first time in objections filed on July 11, 2003, well after expiration of the limitations period set by 28 U.S.C. § 2244(d)(1)(A), and is therefore time-barred unless this claim relates back to a claim raised in the original habeas petition. Id. at 3-4. After careful consideration, the Court finds that the new claim does not relate back and, accordingly, concludes that this claim is time-barred.
THIS COURT has made a de novo review of the entire file and record herein, and is otherwise fully advised in the premises.
By way of background, on March 12, 1997, the Circuit Court for Miami-Dade County, Florida, sentenced Petitioner to twenty-five years in prison for trafficking in illegal drugs and importation of a controlled substance following Petitioner's conviction by a jury. See Resp. to Order to show Cause, Exs. A, B. The Florida Third District Court of Appeals affirmed Petitioner's sentence and convictions. See Munoz-Paramo v. State, 706 So. 2d 413 (Fla. 3d D.C.A. 1998). On June 1, 1998, Petitioner moved to vacate his convictions pursuant to Fla. R. Crim. P. 3.850. The trial court denied relief and the District Court of Appeal affirmed this denial. See Munoz-Paramo v. State, 814 So. 2d 1052 (Fla. 3d D.C.A. 2002). On June 21, 2002, the Supreme Court of Florida dismissed his petition for review. See Munoz-Paramo v. State, 821 So. 2d 298 (Fla. 2002).
On July 1, 2002, Petitioner filed a federal petition for habeas corpus relief raising nine claims. The matter was referred to United States Magistrate Judge Patrick A. White. Magistrate Judge White issued a report on June 12, 2003 recommending that the Court deny the petition. [DE #13] On July 11, Petitioner filed objections to this report, in which he raised a claim entitled "Lack of Jurisdiction." There, Petitioner argued that the trial court lacked jurisdiction because the venire from which the empaneled jury was selected had not been placed under oath prior to the commencement of voir dire. See Pet'r Objections, at 16-17 [DE #17]. On July 25, 2003, the Court, after considering Petitioner's objections, entered an order adopting the Magistrate Judge's recommendations and denied relief. Petitioner appealed the Court's Order and the Eleventh Circuit remanded for consideration of the narrow issue of whether Petitioner's lack of jurisdiction argument relates back to Petitioner's original habeas petition under Federal Rule of Civil Procedure 15(c) and should therefore be considered on its merits.
Respectfully the Court notes that the Eleventh Circuit's opinion appears to have adopted Petitioner's erroneous assertion that the Court's order denying him relief was entered on June 25, 2003, and before the Court received Petitioner's Objections to the Magistrate Judge Report. In fact, the record shows that the Court granted Petitioner's Motion for Enlargement of Time [DE #16] and denied Petitioner relief on July 25, 2003, fourteen (14) days after Petitioner filed his Objections and forty-three days (43) after the Magistrate Judge filed his report and Recommendation. See Order Affirming Report and Recommendation. [DE #18].
Legal Standard
The United States Supreme Court has ruled that Rule 15 of the Federal Rules of Civil Procedure applies to habeas proceedings. See Harris v. Nelson, 394 U.S. 286, 294, n. 5 (1969); Withrow v. Williams, 507 U.S. 680, 696, and n. 7 (1993); Banks v. Dretke, 540 U.S. 668, 705 (2004). Rule 15(c) provides that "an amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c)(2). However, in the Advisory Committee Note to the 1991 amendments to Rule 15, the advisory committee states that "the rule has been revised to prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense." Thus, "if the original pleading gives fair notice of the general fact situation out of which the claim or defense arises, an amendment . . . will relate back even though the statute of limitations has run in the interim . . . An amendment which states an entirely new claim for relief based on different facts will not relate back." Forzley v. AVCO, 826 F.2d 974, 981 (11th Cir. 1987) (citing 3 J. Moore, Moore's Federal Practice § 15.15[3] at 15-147 to 149 (2d ed. 1985)).
However, Rule 11 of the Rules Governing § 2254 Cases provides that the Federal Rules of Civil Procedure "may be applied, when appropriate" in habeas proceedings, but only "to the extent that they are not inconsistent with these rules." Rule 11, 28 U.S.C. fol. § 2254. Given that the habeas rules trump the civil ones to the extent of any inconsistency, "it certainly follows that statutory provisions governing habeas proceedings also trump general civil rule provisions that are inconsistent, and that is especially true of subsequently enacted statutory provisions such as those in the AEDPA." Gonzalez v. Sec'y for the Dep't of Corr., 366 F.3d 1253, 1269-1270 (11th Cir., 2004) The civil rules themselves explicitly recognize as much by providing that they are applicable to habeas corpus proceedings only "to the extent that the practice in such proceedings is not set forth in statutes of the United States" or in the habeas rules. Fed.R.Civ.P. 81(a)(2).
Additionally, Petitioner's habeas petition is regulated by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132 §§ 101-107, 110 Stat. 1214, 1217-26 (codified as amended in 28 U.S.C. §§ 2244, 2253-2255, 2261-2266 (2000)). Pursuant to AEDPA, a writ of habeas corpus will not issue unless the state court's adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d) (2001). Under the "contrary to" clause, a court may grant a writ of habeas corpus "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." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a court may issue a writ of habeas corpus "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. at 413. "Clearly established Federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. The state court decision need not cite Supreme Court cases, or even evince an awareness of Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, (2002) (per curiam). Moreover, the findings of fact made by a state court are presumed correct, and the petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). The presumption of correctness also applies to factual findings made by a state appellate court based on the state trial record. Brumley v. Wingard, 269 F.3d 629, 637 (6th Cir. 2001). Also, under long-standing law, claims which have been procedurally defaulted generally are not subject to review. In particular, in all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750, (1991).
Analysis
In light of these principles the Court will analyze Petitioner's arguments. Petitioner's new claim is that the state circuit court lacked jurisdiction to try his case because the venire from which the empaled jury was selected had not been placed under oath prior to the commencement of voir dire, in violation of the Florida Rules of Criminal Procedure. See Pet'r Objections, at 16-17 [DE # 17] Petitioner concedes that his new claim is time-barred but argues that the Court should analyze its merits and grant relief because, pursuant to Fed R Civ P 15(c)(2), the claim relates back to Ground Two of his original Petition, in which he stated, verbatim, that
[Petitioner] was denied a trial before an impartial jury of his peers, where he could not effectively participate injury selection, due tho his attorney's actions and the court's actions, in violation of the Fifth, Sixth, and Fourteenth Amendments of the United States Constitutions?
Petition under 28 U.S.C. § 2254, at 5 [DE #1]
A. Lack of Proper Notice
Petitioner's argument fails for several reasons. First, Petitioner does not meet the Forzley requirement of notice in that Ground Two of his original Petition did not inform Respondent of the claim that Petitioner raises in his objections. Beyond his conclusory and self-serving statement, Petitioner fails to explain how Ground Two could have given notice to respondent of the claim or argument. In Ground Two, Petitioner questioned the fairness of his jury trial but did not argue that the court lacked jurisdiction, nor did he point to alleged violations of Florida Rules of Criminal Procedure, as he does in his new claim.
Petitioner was convicted and sentenced in 1997, his case was reviewed on direct appeal and collateral attack by the courts of Florida but Petitioner's objections do not point to any proceeding in which he raised the argument that he now presents in his new claim. Petitioner does not argue that he raised the alleged error in his Rule 3.850 collateral attack. The undersigned has carefully reviewed the record of this case and it appears that Petitioner only alleged lack of court jurisdiction and violation of the procedural rules in his Objections. Therefore, Petitioner has never given notice of the facts underlying his new claim to Respondent. As such, the Court finds that Petitioner's raises "an entirely new claim for relief based on different facts [that] will not relate back." Forzley, 826 F. 2d at 981.
Second, the Court will examine Petitioner's new claim in light of the operation of Fed.R. Civ Pro 15 (c) in the context of habeas proceedings.
B. Rule 15(c) in the habeas context
As a preliminary matter, the undersigned finds that Petitioner's case is legally indistinguishable from Davenport v. United States, 217 F.3d 1341 (11th Cir. 2000). There, the court applied Rule 15(c) to reject an amended petition. After the enactment of the AEDPA, John Davenport petitioned the district court pursuant to § 2255 and within the one year grace period. The petition alleged that (1) the substance for which he was convicted did not meet the definition of crack cocaine; (2) his sentence was erroneous because it was based on a weight that included moisture in the cocaine; (3) the government knowingly allowed a key witness to perjure himself and (4) his counsel was ineffective. Id. at 1342-43. After expiration of the AEDPA deadline, Davenport filed an amended petition, this time adding a new claim and alleging that his counsel was ineffective for (1) allowing sentencing for possession of more cocaine than was appropriate; (2) not requesting a complete lab report; and (3) failing to inform him of the possibility of a plea agreement. M. at 1343.
The Davenport court held that the Federal Rules of Civil Procedure in the habeas context require that "in order to relate back, the untimely claim must have arisen from the `same set of facts' as the timely filed claim, not from separate conduct or a separate occurrence in `both time and type'." Id. at 1344. Following this reasoning, the Eleventh Circuit concluded that Davenport's new claim did not relate back to the original petition and denied it as a time-barred. Id. at 1346.
In the case at bar, Petitioner wants to add to his petition a claim of constitutional violation, that he was tried by a court that lacked proper jurisdiction, but in his original petition he did not mention the conduct he now argues was in error. Furthermore, the set of facts underlying Petitioner's new claim does not arise from Ground Two but from separate conduct and occurrence in both time and type. Ground Two of the original complaint argued that constitutional errors arose from the following acts or conduct: (1) he was denied an impartial jury of his peers; (2) where he could not effectively participate in jury selection; (3) due to his attorney's actions and the court's actions. See Petition under 28 U.S.C. § 2254, at 5 [DE #1] Ground Two, thus, dealt with the alleged bias of the jurors and the violation of Petitioner's right to participate in the voir dire. There is no mention in Ground Two, nor anywhere else in his original § 2254 petition, to the alleged lack of trial court jurisdiction. Thus, Petitioner's new claim does not arise out of the same set of facts as his original claims, but arose from separate conduct and occurrences in both time and type. C. Failure to exhaust in state courts
The oath in controversy here is the preliminary oath prospective jurors are required to take to ensure that they will give truthful answers to questions regarding their qualifications. See Fla.R.Crim.P. 3.300(a). Petitioner does not contend that the judge neglected to administer the trial oath to the jurors once they had been selected to serve in his case. See Fla.R.Crim.P. 3.360. "In many Florida courts, the preliminary oath is administered to the venire in a jury assembly room, before the jurors are questioned about their legal qualifications and before they are divided into smaller groups for questioning in individual cases." Lott v. State, 826 So. 2d 457, 458 (Fla. 4th DCA, 2002); see also Martin v. State, 2005 Fla. App. LEXIS 3219, at 3 (Fla. 5th DCA, 2005) ("In light of the practice of taking prospective jurors' oaths outside the courtroom, it is pure speculation on [petitioner]'s part to allege that they were never sworn.").
That Davenport filed a § 2255 habeas and in the case at bar Petitioner a § 2254 is a difference of no material consequences because both sections of AEDPA share the same underlying philosophy: to ensure greater finality of state and federal court judgments in criminal cases. The Supreme Court and the Eleventh circuit have made these points repeatedly. See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) ("Statutes such as AEDPA have placed more, rather than fewer, restrictions on the power of federal courts to grant writs of habeas corpus to state prisoners."); Tyler v. Cain, 533 U.S. 656, 661 (2001) ("AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications."); Williams v. Taylor, 529 U.S. 420, 436 (2000) ("AEDPA's purpose [is] to further the principles of comity, finality, and federalism"); Calderon v. Thompson, 523 U.S. 538, 558 (1998) ("AEDPA's central concern [is] that the merits of concluded criminal proceedings not be revisited in the absence of a strong showing of actual innocence."); Johnson v. United States, 340 F.3d 1219, 1224 (11th Cir. 2003) (" It is generally accepted that one of the principal functions of AEDPA was to ensure a greater degree of finality for convictions."); Jones v. United States, 304 F.3d 1035, 1039 (11th Cir. 2002) ("[a] fundamental purpose for the AEDPA was to establish finality in post-conviction proceedings.").
Assuming arguendo that Petitioner could show that his new claim relates back to Ground Two or that he otherwise raised it in his § 2254 petition, the Court could not entertain it. Section 2254(b)(1) mandates that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." § 2254(b)(1). Additionally, the Supreme Court has held that when a "petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, federal habeas courts also must deem the claim procedurally defaulted." Coleman, 501 U.S. at, 735 n. 1. Accordingly, the Court turns now to the question of whether Petitioner's new claim would be procedurally barred in the Florida courts.
Fla.R.Crim.P. 3.850(b). provides a limitation period to collaterally attack a conviction or a sentence and it is undisputed, for the purposes of the case at bar, that the two-year limitation period ended in 1999. In 1998, and within the period, Petitioner filed his Rule 3.850 motion. Ground One of his State 3.850 motion argued error in that: (1) the voir dire written questionnaires were not translated; (2) his attorney advised him against attending sidebar when prospective jurors were questioned individually; (3) his counsel did not inform him why he decided to strike certain prospective jurors; and as a result of these errors, (4) the jury selected was not impartial. See Resp't Resp. to Order to Show Cause, App. 3, Ex. F, p. 5-7. [DE #9] The State court rejected these claims. See Munoz-Paranro v. State, 814 So. 2d 1052 (Fla. 3d D.C.A. 2002). In his Rule 3.850 proceedings, Petitioner never raised the alleged lack of jurisdiction nor the set of facts that he presents in his new claim. As, Petitioner has unquestionably failed to meet the deadline and the new claim would be procedurally barred if it were returned to state court now, the Court cannot entertain it because "federal courts may not address claims that have not been presented in state court if the state court would have found the claims to be procedurally defaulted." Tower v. Phillips, 7 F.3d 206, 210-211 (11th Cir., 1993).
In sum, the undersigned is required to enforce the limitations period and the state exhaustion requirement imposed by the AEDPA, both of which bar adjudication of the claim identified by the Eleventh Circuit on remand. Accordingly, it is hereby
ORDERED AND ADJUDGED that Petitioner's request to relate back his new claim is DENIED. It is also
ORDERED AND ADJUDGED that Petitioner's Petition pursuant to § 2254 is DENIED.
DONE AND ORDERED.