David J. Tatara v. Secretary, Department of Corrections

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 17, 2021
• Docket: 20-10379
• Status: Unpublished

Opinion

USCA11 Case: 20-10379 Date Filed: 03/17/2021 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10379 Non-Argument Calendar ________________________

D.C. Docket No. 5:17-cv-00039-WFJ-PRL

DAVID J. TATARA,

Petitioner-Appellant,

versus

SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(March 17, 2021)

Before WILLIAM PRYOR, Chief Judge, JORDAN and GRANT, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10379 Date Filed: 03/17/2021 Page: 2 of 10

David Tatara, a Florida prisoner, appeals the denial of his petition for a writ

of habeas corpus. 28 U.S.C. § 2254. Tatara argued that the Double Jeopardy

Clause of the Fifth Amendment barred the trial court from submitting to a jury the

charge of second-degree murder as a lesser-included offense after determining that

Florida could not prove the predicate felony of aggravated child abuse for first-

degree murder. Because the “state courts are the final arbiters of state law”

concerning lesser-included offenses, Callahan v. Campbell, 427 F.3d 897, 932

(11th Cir. 2005), and the continuation of Tatara’s prosecution was not contrary to

nor involved an unreasonable application of clearly established federal law, we

affirm.

Tatara’s conviction stemmed from the death of fifteen-month-old B.R. A

grand jury in Florida indicted Tatara on two counts of child abuse, Fla. Stat.

§ 827.03(3)(b), one count of aggravated child abuse for “maliciously punishing”

B.R. by “willfully committ[ing] child abuse upon him by inflicting severe trauma

to his head” and “causing him to suffer great bodily harm,” id. § 827.03(2)(b), (e),

and one count of first-degree murder for killing B.R. “while engaged in . . . [the]

felony . . . of aggravated child abuse . . . by inflicting blunt force trauma to his

head,” id. § 782.04(1)(a)2. The trial court severed Tatara’s two counts of child

abuse for a separate trial, and the state later nol prossed the two charges.

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During Tatara’s trial, Dr. Barbara Wolf, the state medical examiner, testified

that B.R. was a victim of homicide caused by blunt force trauma to his head. Dr.

Wolf observed an abrasion on the back of B.R’s head, a laceration on the tip of his

tongue, and that he was missing one of his front teeth. Dr. Wolf discovered that

B.R. had a fracture near the bottom of his skull in an area of the occipital bone that

was not susceptible to fracture. And her autopsy revealed that B.R. had a subgaleal

hemorrhage, his brain had swelled to the point of bulging and caused his skull

sutures to widen, he had a small subdural hematoma and a subarachnoid

hemorrhage, he had bled on both sides of his optic nerve, and he had retinal

hemorrhages. Under cross-examination, Dr. Wolf acknowledged that she could not

determine whether B.R. suffered more than one blow to the head because “when

injuries are localized in one area, there’s no way . . . [to] tell if someone, for

example, was hit in the same area once or multiple times.”

After the state rested, Tatara moved for a judgment of acquittal. Tatara

argued that the evidence of a single blow to B.R.’s head was insufficient to convict

him of aggravated child abuse and that he could not be convicted of the underlying

felony and first-degree murder under the merger doctrine. See Brooks v. State, 918

So. 2d 181 (Fla. 2005), receded from in Sturdivant v. State, 94 So. 3d 434, 436

(Fla. 2012) (“hold[ing] that the merger doctrine does not preclude a felony-murder

conviction predicated upon a single act of aggravated child abuse that caused the

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child’s death”). The trial court reserved ruling on Tatara’s motion. But during a

conference on jury instructions, the trial court stated that it was “inclined to grant

the JOA” on first-degree murder.

Tatara renewed his motion for an acquittal at the conclusion of the evidence.

The trial court “granted the Motion for Acquittal on the first-degree felony

murder” and ruled that the jury could “consider second-degree murder and child

abuse.” Next, the trial court determined that the abuse merged into the homicide

and that it would submit the case to the jury on “second-degree murder and any

lessers of second degree.” The parties agreed to modify the jury instructions, and

the trial court stated that he would instruct the jury that they would “not be

considering first-degree murder or aggravated child abuse,” to “disregard the

charges read from the indictment” about those two offenses, and to consider only

“second-degree murder and the lessers of second-degree murder.”

The state prepared a “dummy” information that charged Tatara with second-

degree murder for “unlawfully, by an act imminently dangerous to another, and

evincing a depraved mind, regardless of human life, although without any

premeditated design, kill[ing] [B.R.] . . . by inflicting blunt force trauma to his

head, in violation of Sec. 782.04(2), Fla. Stat.” Tatara objected to the “dummy”

information and argued that he had not been arraigned on second-degree murder

and that jeopardy had already attached. The trial court overruled the objection with

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the explanation that some of the jury instructions “[did not] make sense” without

giving the jury a charging document.

The jury convicted Tatara of second-degree murder. Later, the trial court

sentenced Tatara to imprisonment for life and entered a judgment of not guilty on

the charge of aggravated child abuse. Tatara appealed, and the state court affirmed

his conviction summarily. Tatara v. State, 119 So. 3d 1265 (Fla. Dist. Ct. App.

2013).

Tatara filed a motion for postconviction relief, which the state court denied.

See Fla. R. Crim. P. 3.850. The state court rejected Tatara’s argument that the trial

court violated the prohibition against double jeopardy by continuing his

prosecution after it granted his motion for a judgment of acquittal. The state court

ruled that the trial court acquitted Tatara only of first-degree murder, that second-

degree murder was a permissive, as opposed to a necessary, lesser-included offense

on which the state could continue its prosecution, and that the trial court did not

acquit Tatara of aggravated child abuse because it had merged into the offense of

second-degree murder. The state court also rejected Tatara’s argument that using

the “dummy” indictment violated his double-jeopardy rights because the

indictment was used solely as an aid for the jury, not as a new or amended

charging document, and it accurately stated the charge against Tatara after the trial

court acquitted him of first-degree murder. The state appellate court affirmed

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summarily the denial of postconviction relief. Tatara v. State, 200 So. 3d 74 (Fla.

Dist. Ct. App. 2016).

Tatara filed a federal petition for a writ of habeas corpus in the district court.

See 28 U.S.C. § 2254. He argued that the state court ruled contrary to and

unreasonably applied Evans v. Michigan, 568 U.S. 313 (2013), by determining that

his acquittal for first-degree murder did not bar his continued prosecution. The

district court denied Tatara’s argument on the merits and then denied his

application for a certificate of appealability.

We issued a certificate of appealability to address “whether [Tatara’s]

second-degree murder conviction violated the Double Jeopardy Clause.” We

review de novo the rejection of Tatara’s argument in his petition for a writ of

habeas corpus. See Pittman v. Sec’y, Fla. Dep’t of Corr., 871 F.3d 1231, 1243

(11th Cir. 2017). Our review is circumscribed by the Antiterrorism and Effective

Death Penalty Act of 1996, which “establishes a highly deferential standard for

reviewing state court judgments.” Parker v. Sec’y for the Dep’t of Corr., 331 F.3d

764, 768 (11th Cir. 2003). Under the Act, a federal court may not grant a state

prisoner a writ of habeas corpus “with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of the claim resulted

in a decision that was contrary to, or involved an unreasonable application of,

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clearly established federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d).

The Fifth Amendment provides that no person shall be “subject for the same

offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. The

Double Jeopardy Clause protects a defendant against a second prosecution for the

same offense after acquittal, a second prosecution for the same offense after

conviction, and multiple punishments for the same offense in one proceeding.

Jones v. Thomas, 491 U.S. 376, 381 (1989). Tatara’s argument concerns the first of

the three protections.

Tatara argues that his continued prosecution after the trial court declared an

“acquittal” on the charge of first-degree murder violated his double-jeopardy rights

and that the decision of the state courts was contrary to and an unreasonable

application of clearly established precedents that bar retrial after an acquittal. For

the decision to fall within the “contrary to” clause of section 2254(d), the state

courts had to reach “a conclusion opposite to that reached by the Supreme Court on

a question of law” or to “decide[] a case differently than the Supreme Court has on

a set of materially indistinguishable facts.” Pittman, 871 F.3d at 1244 (quoting

Williams v. Taylor, 529 U.S. 362, 413 (2000)) (alterations adopted). To constitute

an “unreasonable application” of clearly established federal law, the state courts

must have “identifie[d] the correct governing legal principle from the Supreme

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Court’s decisions but unreasonably applie[d] that principle to the facts.” Id. at 1246

(quoting Williams, 529 U.S. at 413) (alteration adopted).

The state courts did not reach a conclusion contrary to clearly established

federal law. The decisions cited by Tatara, Evans, 568 U.S. 313, Smith v.

Massachusetts, 543 U.S. 462 (2005), and United States v. Martin Linen Supply

Co., 430 U.S. 564 (1977), involve a second prosecution for or a resumed

prosecution of an offense for which a defendant had been acquitted. Tatara

underwent a single trial in which the state convicted him of a lesser-included

charge of second-degree murder after the trial court acquitted him of first-degree

murder.

The Double Jeopardy Clause does not bar a defendant from being convicted

of a lesser-included offense in a single prosecution. See Ohio v. Johnson, 467 U.S.

493, 501 (1984) (“declin[ing] to hold” that “a determination of guilt and

punishment on one count of a multicount indictment immediately raises a double

jeopardy bar to continued prosecution on any remaining counts that are greater or

lesser included offenses of the charge just concluded”). Tatara’s trial did not have

to terminate upon being acquitted of first-degree murder because the trial court did

not “rul[e] that the prosecution’s proof [was] insufficient to establish criminal

liability for an offense.” Evans, 568 U.S. at 318. The trial court acquitted Tatara of

first-degree murder because the state could only prove that he inflicted a single

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blow to B.R.’s head and then determined that the state could continue its

prosecution based on the lesser-included offense of second-degree murder.

That determination was consistent with Florida law, which allows a jury to

consider lesser-included offenses not charged in an indictment. Florida Rule of

Criminal Procedure 3.490 provides that, “[i]f the indictment or information charges

an offense divided into degrees, the jury may find the defendant guilty of the

offense charged or any lesser degree supported by the evidence.” And in Florida,

the felony murder statute divides the offense into degrees and identifies aggravated

child abuse as a predicate offense for felony murder. See Fla. Stat. § 782.04(1)(a);

Sturdivant, 94 So. 3d at 440 (holding that a felony murder conviction can be based

on aggravated child abuse consisting of a single violent act). That the state

prepared the “dummy” information to describe the lesser-included offense did not

affect a change in the criminal proceeding. Florida Rule of Criminal Procedure

3.400(a)(1) gives the trial court discretion to provide the jury “a copy of the

charges against the defendant” during deliberations, and submission of the

“dummy” indictment to the jury aided it in resolving whether Tatara was guilty of

second-degree murder. It was not unreasonable for the state courts to conclude that

the continuation of Tatara’s trial based on the lesser-included offense of second-

degree murder did not violate his double-jeopardy rights.

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Tatara argues that the state courts erred by classifying second-degree murder

as a permissive lesser-included offense of first-degree murder, by misapplying the

doctrine of merger, and by amending his indictment in violation of state law, but

we must defer to the rulings of the state courts on those issues. “It is a fundamental

principle that state courts are the final arbiters of state law, and federal habeas

courts should not second-guess them on such matters.” Callahan, 427 F.3d at 932

(quoting Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1354–55 (11th Cir.

2005)) (alterations adopted). A writ of habeas corpus may issue only to address a

violation of the laws, treaties, or Constitution of the United States, not an error of

state law. 28 U.S.C. § 2254(d); Pulley v. Harris, 465 U.S. 37, 41 (1984).

We AFFIRM the denial of Tatara’s petition for a writ of habeas corpus.