Velazco v. Department of Corrections, Secretary

774 F.3d 684, 2014 U.S. App. LEXIS 23561, 2014 WL 7102328
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 16, 2014
Docket13-12525
StatusPublished
Cited by3 cases

This text of 774 F.3d 684 (Velazco v. Department of Corrections, Secretary) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Velazco v. Department of Corrections, Secretary, 774 F.3d 684, 2014 U.S. App. LEXIS 23561, 2014 WL 7102328 (11th Cir. 2014).

Opinion

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether a district court erred when it denied a Florida prisoner’s petition for a writ of habeas corpus without holding an eviden-tiary hearing. After a Florida court convicted Carlos Velazco of attempted second degree murder, Velazco unsuccessfully argued in a state postconviction proceeding that his trial counsel had been ineffective in offering the testimony of two witnesses. When Velazco filed a federal petition and requested an evidentiary hearing, he argued that the Florida court had unreasonably applied clearly established federal law when it denied his claim of ineffective assistance of counsel. The district court refused to hold an evidentiary hearing and denied Velazco’s petition. We granted a certificate of appealability on the question whether the district court abused its discretion when it denied Velazco’s petition without holding an evidentiary hearing. We affirm.

I. BACKGROUND

On September 4, 2005, Carlos Velazco visited Araneello’s Restaurant in Hallan- *686 dale, Florida, to celebrate his mother’s birthday. After he arrived, Velazco encountered Anthony DiCarlo, the owner of the restaurant, Chris Boyle, the bartender, Anthony Tafarella, who was helping out at the restaurant in the hope of obtaining a job, and Carmen Mesa, a waitress. A security camera system at the restaurant recorded their interactions.

When Velazco complained to Mesa, his waitress, that his drink was too sweet, Tafarella came over to Velazco’s table to suggest another drink he might prefer. About one-and-a-half hours later, Velazco complained to Mesa that she had not given him correct change. Velazco then pushed Mesa three times. Tafarella intervened and grabbed Velazco’s arm. Velazco then tried to punch DiCarlo, who was standing nearby. Tafarella then placed Velazco in a headloek to restrain him. When Tafarella escorted Velazco to an exit, DiCarlo and Boyle followed and were standing behind Tafarella when he released Velazco from the headloek. But Tafarella continued to hold Velazco’s arm.

Velazco then produced a knife from his pocket and repeatedly stabbed Tafarella. DiCarlo and Boyle intervened and began beating Velazco. Tafarella suffered nine stab wounds and permanent nerve damage. Velazco suffered black eyes and a broken nose.

An information charged Velazco with attempted second degree murder with a weapon or a firearm. At his jury trial, Velazco argued that he acted in self-defense. The prosecution called the officers who had investigated the incident, as well as Tafarella and Boyle, to testify. The prosecution also introduced the video recordings of the incident as evidence.

Defense counsel called four witnesses to testify, two of whom were Nancy Vieta, Velazco’s mother, and Lizbeth Pulgar, a friend of Nancy Vieta. Pulgar testified that Velazco acted “normal” on the night of the incident and never provoked anyone. She testified that Tafarella was “very aggressive” when he came over to their table. She testified that she never' saw Ve-lazco stab anyone. Vieta testified that she saw the men leave the restaurant while hitting Velazco. Vieta also testified that she never saw Velazco with a knife nor saw him stab anyone.

Although Pulgar and Vieta denied having given statements to the police, a police officer, called as a rebuttal witness for the state, testified that he took statements from both witnesses. The officer testified that Pulgar and Vieta denied having seen the incident. On cross-examination, the prosecution also elicited internal inconsistencies in both Pulgar’s and Vieta’s testimony.

The jury convicted Velazco of attempted second degree murder, and the trial judge sentenced him to 27 years in prison followed by three years of probation. The Florida Fourth District Court of Appeal affirmed without opinion. Velazco v. State, 992 So.2d 270 (Fla.Dist.Ct.App.2008).

In a motion for postconviction relief in a Florida court, Fla. R. Crim. P. 3.850, Velazco alleged that his counsel had been ineffective because they failed to investigate the accounts of Pulgar and Vieta before calling them to testify. The trial court denied the motion. The Florida Fourth District Court of Appeal affirmed without opinion. Velazco v. State, 83 So.3d 739 (Fla.Dist.Ct.App.2012).

Velazco filed a federal petition for a writ of habeas corpus. He challenged the ruling that he had failed to establish ineffective assistance of counsel regarding the offering of Vieta’s and Pulgar’s testimony. He also requested an evidentiary hearing. The district court denied Velazco’s request for a hearing and his petition. This Court *687 granted a certifícate of appealability to determine whether the district court abused its discretion by denying Velazco’s request for an evidentiary hearing to prove his claim of ineffective assistance of counsel.

II. STANDARD OF REVIEW

When we review a denial of a state prisoner’s petition, we review questions of law de novo, Grossman v. McDonough, 466 F.3d 1325, 1335 (11th Cir.2006), but the Antiterrorism and Effective Death Penalty Act of 1996 establishes a “general framework of substantial deference [that] governs our review of every issue that the state courts have decided.” Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136, 1141 (11th Cir.2005). We will not disturb the decision of the state court unless that decision “was contrary to, or 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), or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. § 2254(d)(2).

III. DISCUSSION

The certificate of appealability erroneously .assumes that we review for abuse of discretion the denial of Velazco’s request for an evidentiary hearing. To be sure, when a federal prisoner files a motion to vacate his sentence, 28 U.S.C. § 2255, we review the denial of an evidentiary hearing for “abuse of discretion.” Aron v. United States, 291 F.3d 708, 714 n. 5 (11th Cir.2002). But when a state prisoner files a petition for a writ of habeas corpus, 28 U.S.C. § 2254, we follow a “clear, emphatic rule” that, “if a state court has adjudicated the claim on the merits, then a petitioner must satisfy § 2254(d)(1) based only on the record before that state court.” Pope v. Sec’y, Fla. Dep’t of Corr., 752 F.3d 1254, 1263 (11th Cir.2014) (citing Cullen v.

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Bluebook (online)
774 F.3d 684, 2014 U.S. App. LEXIS 23561, 2014 WL 7102328, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velazco-v-department-of-corrections-secretary-ca11-2014.