Opinion
Case No. 00-3059-CIV-KING
May 9, 2002
Milton Hirsch, Esq., Miami, FL, Counsel for Petitioner
Michael J. Neimand, Esq., Ft. Lauderdale, FL, Counsel for Respondent
FINAL ORDER DENYING PETITION FOR HABEAS CORPUS
THIS CAUSE is before the Court upon Humberto Hernandez's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.
The Petition, filed August 22, 2000, was referred to Honorable Ted E. Bandstra on October 2, 2000. A response was filed on March 2, 2001. The Magistrate filed a Report and Recommendation on January 31, 2002. This unusual lengthy delay was caused by, (a) Petitioner's request to toll consideration of the Petition for three months and (b) this federal court's lack of jurisdiction over Petitioner until he was transferred into state custody following completion of an unrelated federal sentence. Petitioner subsequently completed his federal sentence and was transferred into state custody, thereby establishing this Court's jurisdiction over this Petition, on or about November 30, 2001.
Objections to the Magistrate's Report and Recommendation were filed by Respondent on February 13, 2002. A Response to the Objections was filed on February 20, 2002. Oral argument was held before the undersigned judge on February 26, 2002, and April 10, 2002.
Petitioner asserts two claims, denial of due process and denial of Sixth Amendment right to effective assistance of counsel based upon a secret sexual affair between his wife and his lawyer. Petitioner also brings a third claim of denial of effective assistance of counsel based upon his counsel's trial strategy.
I. Background
The Petitioner, Humberto Hernandez, is a former city commissioner of the City of Miami. He was charged and tried on three counts of violating Florida Statutes prohibiting voting fraud. He was acquitted on all counts except a single misdemeanor charge of accessory after the fact. Two months after the trial was over, the Miami Herald published a story that Petitioner's Wife, Esther Hernandez, had a sexual relationship with Petitioner's trial attorney, Jose Quinon. Quinon subsequently confirmed, during disciplinary proceedings before the Florida Bar, that he had a sexual relationship with Esther Hernandez beginning during jury selection and continuing throughout trial.
All violations centered around charges of voting fraud, a misdemeanor charge of accessory after the fact, in violation of Section 773.03, Florida Statutes (1997); a felony count of fabricating physical evidence, in violation of Section 918.13(1)(b), Florida Statutes (1997) and a misdemeanor count of conspiracy to fabricate evidence, in violation of Section 918.13(1)(b) and Section 777.04, Florida Statutes (1997).
Following his conviction, Petitioner appealed to the Third District Court of Appeal of Florida ("Third DCA") on several grounds, none of which involved the sexual relationship between his wife and his attorney. Petitioner's direct appeal was subsequently denied by the Florida appellate court on all grounds.
Meanwhile, in addition to his direct appeal, Petitioner moved for post-conviction relief with the Florida trial court pursuant to Florida Rule of Criminal Procedure 3.850. As grounds for his motion, Petitioner argued (1) that the appearance of impropriety caused by his attorney's sexual affair with Petitioner's wife during trial violated his right to due process; and (2) that he was denied the right to effective assistance of counsel due to his attorney's actual conflict of interest resulting from the adulterous affair.
The trial court found that there was a conflict but denied post-conviction relief because it concluded that the petitioner did not allege any performance by Quinon in his trial representation of Petitioner, that harmed Hernandez. The trial court did not hold an evidentiary hearing, but it did grant Petitioner leave to amend the Rule 3.850 motion for post-conviction relief to allege specific prejudice or adverse impact. See Trial Court Order, 1/22/89.
Rather than amend the motion to allege any act (or failure to act) by Quinon that had an adverse impact on Petitioner's rights during trial, Petitioner appealed the trial court's ruling denying post-conviction relief. A panel of the Third DCA initially found for the Petitioner and reversed the trial court. The panel concluded that there was actual conflict and that such conflict was, in itself, prejudicial to Petitioner. On a rehearing, en banc, the Third DCA found that Petitioner "conceded his inability to demonstrate that the affair had affected counsel's performance in any way" and that post-conviction relief was sought "solely on the ground that his defense counsel had maintained a sexual relationship with his wife during the trial." Hernandez v. State of Florida, 750 So.2d 50, 55 (Fla. 3d DCA 1999). The Third DCA vacated the panel opinion and affirmed the trial court.
A motion to certify the issues to the Florida Supreme Court was denied, exhausting all state remedies. Hernandez then filed his current petition in federal court. The Magistrate Judge considered the matter, without oral argument, on the briefs and record as filed. The Magistrate Judge recommended that the Petition be granted on the grounds that the decision of the Third DCA was contrary to clearly established federal law and resulted in the denial of Petitioner's Sixth Amendment right to effective counsel.
It should be noted that the Magistrate's report mistakenly relies, in part, upon Part II of Justice Steven's opinion in Williams v. Taylor, 529 U.S. 362 (2000). Part II of Justice Steven's opinion was not joined by a majority of the justices of the Supreme Court and is therefore not the opinion of the Supreme Court. Further, Justice O'Connor's opinion in Williams is the opinion of the Supreme Court (as to Part II), and it contradicts some of the Magistrate's legal reasoning.
For example, the Magistrate finds that "errors that undermine confidence in the fundamental fairness of the state adjudication certainly justify the issuance of the federal writ." Report and Recommendation ("RR") at 6 (quoting Williams, 529 U.S. at 375). The Magistrate interprets this using the subjective standard of a "reasonable jurist" relied upon by Justice Stevens. RR at 6. The opinion of the Court, as stated by Justice O'Connor, is that the inquiry is to be of an objective nature. See Williams, 529 U.S. at 409. Justice O'Connor also emphasizes that "federal habeas courts should, of course, give great weight to the considered conclusions of a coequal state judiciary." Id. at 403 (internal quotes omitted).
Section 636(b)(1) of the Federal Magistrate's Act requires this Court to make a de novo determination of those parts of the Magistrate Judge's Report and Recommendation to which objection is made. 28 U.S.C. § 636 (b)(1); United States v. Raddatz, 447 U.S. 667, 673 (1980); Jeffrey S. v. State Bd. of Educ.,
896 F.2d 507, 512-13 (11th Cir. 1990).
Upon review, this Court declines to follow the Magistrate's Report and Recommendation. The Third District Court of Appeal of Florida correctly interpreted applicable decisions of the United States Supreme Court defining the federal law pertaining to the Sixth Amendment and due process of law.
II. The Writ of Habeas Corpus
A petition for habeas corpus is a request for the Court to "produce the body" or release the petitioner from state or federal custody. The Writ of Habeas Corpus was so important to the Founders of our Republic that it was guaranteed in the United States Constitution. U.S. Const., art. I, § 9, cl.2. Originally only guaranteed for federal prisoners, the Habeas Corpus Act of 1867 extended the jurisdiction of federal courts to include habeas petitions from state prisoners. See Ex Parte McCardle, 73 U.S. 318, 325-26 (1868).
The rules governing an application for habeas corpus have evolved over time. In 1996, Congress placed new restrictions on the laws governing habeas relief with the enactment of the Antiterrorism and Effective Death Penalty Act. See Williams v. Taylor, 529 U.S. 362, 399 (2000). These restrictions are particularly relevant to the case at bar. In its modern incarnation, a writ of habeas corpus for a state prisoner is controlled by 28 U.S.C. § 2254. This provision states that such writ shall not be granted unless the state adjudication of the claim: (1) resulted in a decision that was contrary to clearly established Federal law, as determined by the Supreme Court of the United States; or (2) involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. 28 U.S.C. § 2254 (d)(1) (emphasis added). Each of these clauses is to be given independent meaning. Williams, 529 U.S. at 405 (2000).
There are two ways a state court decision may be "contrary to" federal law. First, it is contrary to federal law if the state court reaches a conclusion opposite to the Supreme Court on a question of law. Id. Second, a state decision is contrary to federal law, "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court]." Id. Only the first of these interpretations is applicable here, as there is no Supreme Court precedent involving this set of facts.
In addition to examination under the "contrary to" provision, this Court must independently examine the State decision under the second, "unreasonable application" clause. To do this, the Court should ask, "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. The Supreme Court has made very clear that a federal habeas court is not to grant a petition merely because it decides that a state court made an erroneous or incorrect decision. "[T]he most important point is that an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410 (emphasis in original).
Beyond an examination of whether the state court decision was contrary to or an unreasonable application of federal law, this Court will not substitute its own views on the best or correct interpretation of federal law. Consequently, the inquiry of this Court is limited to the reasonableness of the state's interpretation of federal law, regardless of whether the state's interpretation is viewed by this Court to be right or wrong. See, e.g., Copertino v. Moore, 01-10226, slip op. at (11th Cir. 2001) (holding that the state decision would not be overturned as unreasonable or contrary to federal law despite finding that the prosecutor in the case had engaged in "despicable acts". Id. at 7).
III. Conflict of Interest
Petitioner alleges related claims of ineffective assistance of counsel and denial of due process. Because both of these claims are based upon the premise that petitioner's counsel represented conflicting interests, these claims are governed by the standard articulated by the Supreme Court in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Cuyler establishes a test to evaluate whether an attorney is constitutionally ineffective due to a conflict of interest. Petitioner must demonstrate that his defense attorney had an actual conflict of interest that adversely affected the attorney's performance. See Cuyler, 446 U.S. at 348-49.
There are some instances in which an attorney represents interests in which conflict is inherent and unavoidable. The most obvious example is counsel representing multiple defendants whose interests are adverse to one another so that no matter what decision counsel makes, it will prejudice one defendant or the other. In such a scenario, it is impossible for both defendants to get the best representation possible; no matter how good the lawyer, effective results for one defendant will always hurt the other defendant. When there is such inherent, unavoidable conflict present, the petitioner need not make any further showing of prejudice. Culyer, 446 U.S. at 349. When conflict is inherent, it is actual conflict.
The case at hand is not one of inherent conflict. Although this Court will not engage in random speculation, it is possible to imagine scenarios, however remote, in which a lawyer zealously and effectively represented the client while engaging in an affair with a client's spouse. Because such scenarios are possible, the conflict is not inherent. If conflict is not inherent, petitioner must show that "a conflict of interest actually affected the adequacy of his representation." Culyer, 446 U.S. at 348-49. If the conflict is not inherent, no matter how great the potential conflict, absent a manifestation of adverse performance, there is no actual conflict.
Petitioner has been given opportunities at every stage of this case to present evidence of adverse performance that would allow him to establish actual conflict. Rather, petitioner has conceded before the Florida Courts and this Court that he cannot show that the affair affected counsel's performance in any way. See Hernandez, 750 So.2d at 55; see also Tr. Hrg. of April 10, 2002, pp. 37.
In its order denying the motion for a new trial, the Florida Circuit Court clearly contemplated holding an evidentiary hearing after petitioner amended the motion to allege specific prejudice or adverse impact. See Trial Court Order, 1/22/99. Petitioner chose to appeal rather than amend. Both the Magistrate and this Court also gave petitioner a chance to request an evidentiary hearing.
Petitioner asks this Court to rule that he should go free, as a matter of law, because his lawyer and his wife were engaged in an affair during his trial. Superficially, this seems a reasonable request. However, what petitioner asks is tantamount to this Court ruling that petitioner should go free even if he received representation unparalleled since Daniel Webster argued against the Devil.
In reviewing the trial transcripts and record, it is apparent that petitioner did receive excellent representation. He has not pointed to a single instance in this record where his lawyer failed, in any respect, to defend him effectively, efficiently and successfully in both this case and a separate federal case.
"Not only has the defendant specifically acknowledged that there is no thus — required evidence of a lapse in the conduct of the defense, the circumstances, including that the trial below resulted in a guilty verdict only as to a simple misdemeanor charge but an acquittal as to the only felony and another misdemeanor of which he was accused and Hernandez' unqualified endorsement of the results achieved by the same lawyer in a concurrent Federal prosecution, affirmatively show directly to the contrary." En banc opinion Hernandez v. State, 750 S.D.2d 50.
Petitioner candidly admits that he cannot specify a single act, either taken or not taken, by counsel in his defense that is ineffective as a matter of law. Petitioner was given the opportunity by the state trial judge to cure this deficiency in his original 3.850 pleading with leave to amend and specify how his attorney's trial performance was deficient. He declined to do so. The trial record, without a single alleged act of deficient defense, or an evidentiary hearing with sworn testimony where Petitioner proved any allegation of attorney deficiency, proceeded to the state court of appeal.
"MR. HIRSCH: Before the Third District, I conceded, as I concede today, that if I am called upon to meet the Strickland standard of deficient performance, I can't suggest that overall the performance rendered by Mr. Quinon is so defective so as to constitute the —
THE COURT: Does Strickland require overall?
MR. HIRSCH: Yes. I am not aiming at the Strickland target. I am aiming at Cuyler v. Sullivan. As we recently saw in Mickens v. Taylor, Cuyler v. Sullivan requires the showing of actual conflict, and B; the showing not of prejudice but of the adverse impact." Tr. Hrg. of April 10, 2002, pp. 37-38.
There Petitioner belatedly raised two suggested "possibilities" of defensive matters that trial counsel Quinon did not raise for his client; (1) a motion to dismiss indictment, (2) the failure to call Hernandez' wife to rebut witness Yarmna de los Rios' testimony, that he argued "could" have been motivated by trial counsel's sexual affair with his wife.
Although neither of these issues were presented to the state circuit judge (trial judge) by, pleading or proof, and are therefore not a matter of record on state appeal, the record does contain a reference to an admission by Attorney Quinon in his Florida Supreme Court disciplinary proceedings of a sexual affair commencing on the date of jury selection in Petitioner's case Aug. 18, 1998. This is at a point in time after any such motions could have been filed.
Petitioner places great emphasis on the decision of Quinon not to call Esther Hernandez after listing her as defense witness, as an example of conflict. The Magistrate also relies on this decision to establish an actual conflict of interest between Quinon and Hernandez biasing his recommendation thereon. A careful review of the record shows that Quinon announced that he would call Esther Hernandez to rebut testimony of Yarmna de los Rios concerning a conversation between Ms. de los Rios and Esther Hernandez. Esther Hernandez was to be called only to deny the conversation. See Trial Tr. at 323. When Ms. de los Rios testified, the trial judge specifically disallowed any testimony concerning the alleged conversation. See id. at 926-97. Since there was nothing to refute, there was no reason to call Esther Hernandez as a rebuttal witness.
See RR at 15. "Here, the Florida appellate court, in its en banc decision, noted that Petitioner presented no evidence of any "lapse in the conduct" of his attorney and later offered his "unqualified endorsement" of the results obtained by Quinon in his state court proceedings.
A review of the record leads this Court to an opposite conclusion and a finding of adverse impact under the three-part test set forth above. As already noted, Petitioner argues Quinon's decision not to call Esther Hernandez as a defense witness at trial after representing to the trial court that she would be called to contradict the testimony of an important prosecution witness. Quinon later decided to not call Esther Hernandez as a witness to rebut that testimony."
See RR at 16. "Thus, the undersigned finds that Quinon's decision to not call Esther Hernandez at trial, in and of itself, was a reasonable and plausible defense strategy not employed at trial that was reasonably linked to his conflict of interest occasioned by the affair.
Having found an actual conflict of interest which adversely impacted Quinon's performance at trial in this manner, the Court must presume prejudice resulting therefrom. See Cuyler, 446 U.S. at 349-51 (". . . a defendant who shows that a conflict of interest actually affected the adequacy of representation need not demonstrate prejudice in order to obtain relief')."
The only apparent reason why Petitioner, when the trial judge gave him the opportunity to amend his pleadings and prove these suggested Sixth Amendment violations declined to do so, is his erroneous interpretation of the case law to mean that "conflict" can be separated from "performance" in Sixth Amendment ineffective assistance violations. The Supreme Court has rejected this interpretation in Mickens v. Taylor, 122 S.Ct. 1237:
"We have used "actual conflict of interest" elsewhere to mean what was required to be shown in Sullivan. See United States v. Cronic, 466, U.S. 648, 662, n. 31, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ("[W]e have presumed prejudice when counsel labors under an actual conflict of interest. . . . See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)"). And we have used "conflict of interest" to mean a division of loyalties that affected counsel's performance. In Holloway, 435 U.S., at 482, 98 S.Ct. 1173, we described our earlier opinion in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), as follows: "The record disclosed that Stewart failed to cross-examine a Government witness whose testimony linked Glasser with the conspiracy and failed to object to the admission of arguably inadmissible evidence. This failure was viewed by the Court as a result of Stewart's desire to protect Kretske's interests, and was thus `indicative of Stewart's struggle to serve two masters . . . .' [315 U.S.], at 75, 62 S.Ct. 457. After identifying this conflict of interests, the Court declined to inquire whether the prejudice flowing from it was harmless and instead ordered Glasser's conviction reversed." (Emphasis added.) Thus, the Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An "actual conflict," for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance."
Petitioner argues for a per se rule, namely; once a convicted defendant establishes moral and ethical bad conduct by his attorney (illicit sexual conduct with defendant's wife), defendant is then automatically entitled to demand reversal of the criminal conviction, irrespective of any proof the attorney's defense was ineffective.
In other words, once the "conflict" is shown, defendant has no further burden to allege and prove specific instances of poor lawyering, (ineffective assistance) selfishly motivated by counsel's divided loyalty. Justice Scalia dealt with this interpretation of existing Supreme Court precedents in Mickens and held:
Atty. Quinon agreed it occurred in Fla. S.Ct. grievance hearing.
"Petitioner argues that the remand instruction in Wood established an "unambiguous rule" that where the trial judge neglects a duty to inquire into a potential conflict, the defendant, to obtain reversal of the judgment, need only show that his lawyer was subject to a conflict of interest, and need not show that the conflict adversely affected counsel's performance. Brief for Petitioner 21. [FN3] He relies upon the language in the remand instruction directing the trial court to grant a new revocation instruction directing the trial court to grant a new revocation hearing if it determines that "an actual conflict of interest existed," Wood, 450 U.S., at 273, 101 S.Ct. 1097, without requiring a further determination that the conflict adversely affected counsel's performance. As used in the remand instruction, however, we think "an actual conflict of interest" meant precisely a conflict that affected counsel's performance — as opposed to a mere theoretical division of loyalties. It was shorthand for the statement in Sullivan that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." 446 U.S., at 349-350, 100 S.Ct. 1708 (emphasis added)."
* * * *
"Justice Souter labors to suggest that the Wood remand order is part of "a coherent scheme," post, at 1256, in which automatic reversal is required when the trial judge fails to inquire into a potential conflict that was apparent before the proceeding was "held or completed," but a defendant must demonstrate adverse effect when the judge fails to inquire into a conflict that was not apparent before the end of the proceeding, post, at 1260. The problem with this carefully concealed "coherent scheme" (no case has ever mentioned it) is that in Wood itself the court did not decree automatic reversal, even though it found that "the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the court a duty to inquire further." 450 U.S., at 272, 101 S.Ct. 1097 (second emphasis added)." Mickens, 122 S.Ct. at 1242
This Court will not rule that, as a matter of law, any affair between defense counsel and a client's spouse creates an actual conflict of interest. A fact of the American legal system is that lawyers are continually called upon to represent clients whose interests the attorney may disagree with or even loathe. This does not mean that such attorneys deliberately sabotage their clients' cases. Similarly, although Quinon engaged in reprehensible ethical conduct, it does not inherently mean he failed in representing his client to the fullest in court.
IV. The Florida Appellate Decision
The Court now turns to the decision of the Third DCA to see if it is contrary to or an unreasonable application of the law, as determined by the Supreme Court (and summarized above). The Third DCA found that the affair between Quinon and his client's wife was a "possible" or "potential" conflict of interest not an actual conflict of interest. See Hernandez, 750 So.2d at 55. Such a finding is not contrary to or an unreasonable application of federal law.
The Third DCA went on to find that there was no evidence that any "asserted conflict had an adverse effect upon the lawyer's performance." See Hernandez, 750 So.2d at 55 (citing Cuyler, at 335 (1980)). The application of the standards of Cuyler is not contrary to or an unreasonable application of federal law. Indeed, an actual conflict is "a conflict of interest that adversely affects counsel's performance." Mickens, 122 S.Ct. at 1243 n. 5. Failing the Cuyler test, defendant would need to show that not only was counsel's performance deficient but that the alleged deficient performance actually prejudiced the defense. See Strickland, 466 U.S. at 687. The defendant fails to make this showing.
V. Ineffective Assistance of Counsel
Finally, petitioner makes a claim for the first time that he was denied effective assistance of counsel when his trial lawyer failed to direct any motion practice to the information under which Hernandez was charged. This claim is governed by Strickland, which requires showing that (1) counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment; (2) the deficient performance prejudiced the defendant. See id. at 687. The Court does not find that petitioner meets the burden of either prong of the Strickland test.
This claim is not tied to the affair between petitioner's counsel and his wife. Even were petitioner to attempt to link the two, the relevant motions would have had to have been filed shortly after Defendant's indictment, some months before the trial (and the affair) commenced.
VI. Conclusion
Taken either individually or as a whole, the actions of the Florida State courts do not constitute (1) a decision that was contrary to clearly established Federal law, as determined by the Supreme Court of the United States; or (2) involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. Accordingly, after a careful review of the record and the Court being otherwise fully advised, it is
ORDERED and ADJUDGED that Humberto Hernandez's Petition for a Writ of Habeas be, and the same is hereby, DENIED and DISMISSED with prejudice.
DONE and ORDERED in chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida, this 9th day of May, 2002.