CABRAL

v.

SECRETARY, DEPARTMENT OF CORRECTIONS (PINELLAS COUNTY)

Before the Court is Petitioner Kenneth Richard Cabral’s pro se petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr. Cabral is serving twelve and a half years in state prison for DUI manslaughter. After careful consideration of the petition (Dkt. 1), the response (Dkt. 7), and the appendix of the state court records (Dkt.8-1),1 the petition is denied. Background and Procedural History On the evening of January 16, 2016, Mr. Cabral was driving his 2004 Dodge Durango SUV the wrong way on a divided road when his SUV struck a motorcycle driven by John Sorenson. Dkt. 8-1 at Exh.⁷ at 4 (order denying rule 3.850), Exh.

0.156 and 0.150. Id. In December 2016, Mr. Cabral pleaded guilty pursuant to a written plea agreement to DUI manslaughter and was sentenced to twelve and a half years in state prison with a four-year minimum mandatory, to be followed by two years and six months of probation. Id. at Exh.² (plea agreement), Exh. 3 (judgment and sentence). His timely filed motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 was summarily denied. Id. at Exhs.⁴, 5, 6, 7, 9. He

Petitioner appealed the denial of his rule 3.850, and the state appellate court per curiam affirmed without opinion. Id. at Exhs. 10, 13; Cabral v. State, No. 2D18-2318, 2019 WL 1294129 (Fla. 2d DCA Mar. 20, 2019). Raising the same first five grounds of ineffective assistance of counsel as asserted in his rule 3.850 motion, Petitioner timely filed the instant petition for habeas relief. There are no issues concerning state exhaustion. Ineffective Assistance of Counsel

Ineffective assistance of counsel is established by a showing of both¹) counsel’s deficient performance and²) prejudice resulting from the deficient performance. Strickland v. Washington. 466 U.S. 668, 687–88 (1984). Deficient performance relative to a plea of guilty is measured by the lesser duty owed by counsel to a client who does not go to trial. Wofford v. Wainwright, 748 F. 2d 1505, 1508 (11th Cir. 1984). To establish Strickland prejudice, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. 3 A sixth ground alleged cumulative error in view of the first five grounds. Dkt. 8-1 at Exhs.⁴, 6. Lockhart, 474 U.S. 52, 58–59 (1985); Agan v. Singletary, 12 F. 3d 1012 (11th Cir. 1994).

In the habeas context, this Court’s review is “doubly deferential” as governed by both Strickland’s “high bar” and 28 U.S.C. § 2254(d), as amended by the AEDPA.⁴ Harrington v. Richter, 562 U.S. 86, 105 (2011).5 “[T]he question is not whether counsel’s actions were reasonable [but] whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at 105. The state court’s adjudication of the claims on the merits may be subject to habeas relief only where the decision was either¹) “contrary to, or involved an unreasonable application of,” clearly established federal law or²) based on an unreasonable determination of the facts. 28 U.S.C. §2554(d). Because the state postconviction court in Mr. Cabral’s case recognized and applied Strickland, the

“contrary to” test cannot be met. The two remaining considerations are whether the postconviction court made an “unreasonable application” of Strickland6or an “unreasonable determination” of the facts. Given the presumption of correctness of the state court’s determination of facts, see 28 U.S.C. 2254(e)(1), and the due deference to

Dkt. 1 at 6. Specifically, he claims he did not know he would receive either a fouryear minimum mandatory or a probationary term upon release. He did not know he could dispute the terms of the plea agreement during the plea colloquy. Id. The state postconviction court found the record conclusively refuted this claim. Dkt. 8-1 at Exh.⁷ at 3. Before taking the plea, the court recessed Petitioner’s case so that he could be advised by counsel. Id. at Exh.⁷ at 3, Exh. 16 at 4. Petitioner was advised, signed the plea agreement, and his case was called.

During the plea colloquy the state court advised him of the terms of the plea including the four-year minimum and the probationary term to follow the prison sentence. Id. at Exh.⁷ at 3, Exh. 16 at 6–8. Petitioner testified counsel had gone over the plea form in its entirety with him. Id. at Exh.⁷ at 3, Exh. 16 at 11.

Petitioner affirmed he understood the terms of the plea agreement the read and

Id. at Exh.⁷ at 4–5 (record citations omitted). In addition to this testimony, Mr. Cabral agreed to the sentence he received. Id. at Exh.⁷ at 5, Exh. 16 at 9–16. Finally, the court found he would have faced a fifteen-year sentence with a fouryear mandatory had he proceeded to trial. Id. at Exh.⁷ at 5. No Strickland prejudice was shown. Id.

In addition to the plea agreement and transcript, Mr. Cabral admits in his petition he was “confronted” with the terms of the plea deal prior to the entry of the plea (Dkt. 1 at 6), and after toiling over the offer, he took the plea “to save embarrassment and pain for himself, his family and the family of the man who lost his life as a result of this unfortunate accident.” Dkt. 1 at 10. These statements contradict his alleged lack of knowledge regarding the terms of the plea. The postconviction court did not unreasonably apply Strickland or unreasonably determine the facts. Ground Two: Petitioner claims counsel failed to seek a downward departure or inform him he could have received a lesser sentence based on mitigating factors. Dkt. 1 at 8.

Had he known such a motion could be filed, he would not have pled. Id. The state postconviction court observed the statutory mitigating factors---1) the crime was committed in an unsophisticated manner,²) the crime was an isolated incident, and 3) the defendant showed remorse--- are typically present in all DUI manslaughters. Dkt. 8-1, Exh.⁷ at 6. In so noting, the postconviction court reasoned that Mr. Cabral’s case was not unique and, consequently, did not “miss[] a genuine opportunity at receiving a downward departure sentence.” Id. Because counsel raised the idea of a downward departure sentence on the record before the plea colloquy began, the postconviction court found counsel’s performance was not deficient. Dkt. 8-1 at Exh.⁷ at 6, Exh. 16 at 5. Nor was Petitioner found to be prejudiced because he received a prison term two and a half years under the statutory maximum. Dkt. 8-1 at Exh.⁷ at 6. The postconviction court did not unreasonably apply Strickland or unreasonably determine the facts. Ground Three: Petitioner claims counsel was ineffective by failing to inform him his highly prejudicial (“impudent”) statement made while inebriated to the police could have been suppressed and not be used against him at trial. Dkt. 1 at 10. Although not identified in the petition, his statement as asserted before the postconviction court was “Good. He deserved it.” upon learning Mr. Sorenson had died. Dkt. 8-1 at

Exh. 6 at 8. Petitioner alleged he was too intoxicated to have made that statement voluntarily. The postconviction court found counsel cannot be faulted for failing to pursue a meritless motion. Dkt. 8-1 at Exh.⁷ at 7. Because the statement was relevant to show Mr. Cabral was under the influence, no legal ground for suppression existed. Id.; see United States v. Morgan, No. 5:15-cv-52-MW/CJK,

2017 WL 5799230, at *4 (N.D. Fla. Oct. 25, 2017) (holding counsel not ineffective for failing to pursue meritless issue). Based on the compelling evidence as set forth in the order denying postconviction relief, no prejudice was shown. Dkt. 8-1 at Exh.⁷ at 4–5, 7. The postconviction court did not unreasonably apply Strickland or unreasonably determine the facts. Ground Four: Petitioner contends counsel failed to provide “all the mitigating evidence to him.” Dkt. 1 at 12. He claims he needed¹) the results of the deceased’s driver’s blood alcohol level and²) an expert crash reconstructionist to prove the damaged SUV showed damage on the driver’s side, which would disprove a head-on collision. This claim was considered by the postconviction court as counsel’s failure to investigate. In denying this ground, the postconviction court found reasonable counsel would not be led to investigate further:

In addition to the overwhelming evidence showing that the Defendant struck and killed the victim while the Defendant was driving the wrong way, the Court notes that the evidence proposed by the Defendant would have actually been incriminating, not exculpatory. It is a generally accepted fact that fenders are located on the front and back of vehicles. Damages to a front fender would tend to support the State’s case showing that there was a head-on collision as a result of Defendant driving the wrong way, and would not necessarily support the Defendant’s contention that the victim “T-boned” him.

Dkt. 8-1 at Exh.⁷ at 8. The court deemed speculative the suggestion that a toxicologist could show the victim caused the accident. Id. Having determined counsel’s performance was not deficient, the court also found no prejudice because Petitioner affirmed under oath at the plea hearing he was giving up the right to call witnesses. Dkt. 8-1 at Exh.⁷ at 9, Exh. 16 at 9–16. The postconviction court did not unreasonably apply Strickland or unreasonably determine the facts. Ground Five: Petitioner alleges counsel failed to locate an eyewitness “John” with favorable information, specifically Petitioner was not traveling the wrong way on the divided highway. Dkt. 1 at 14. Not only did counsel fail to locate the witness, who was an alleged friend of Petitioner’s aunt, but Petitioner alleges counsel instructed him not to try to locate the witness.

The postconviction court found that “given the evidence against the Defendant, it appears to this court that a reasonable counsel would have viewed investigating ‘John’ as a witness to be a fruitless endeavor.” Dkt. 8-1 at Exh.⁷ at 10. The court reiterated the overwhelming evidence against Petitioner and found no prejudice based on the thorough plea colloquy. Id. Mr. Cabral failed to show the state court’s decision was an unreasonable application of Strickland or an unreasonable determination of the facts. The petition for the writ of habeas corpus (Dkt. 1) 1s denied. The Clerk shall enter judgment against Petitioner and close the case. Certificate of Appealability and Leave to Appeal in Forma Pauperis Petitioner is not entitled to a certificate of appealability (“COA”) because he cannot make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Having been denied a COA, Petitioner is not entitled to proceed on appeal in forma pauperis. DONE AND ORDERED at Tampa, Florida, on October 9, 2020. mb, —

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO: Petitioner, pro se Counsel of Record