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Velazco v. Department of Corrections

United States Court of Appeals, Eleventh Circuit

December 16, 2014

CARLOS VELAZCO, Petitioner-Appellant,
v.
DEPARTMENT OF CORRECTIONS, Secretary, Respondent-Appellee

Appeal from United States District Court for the Southern District of Florida. D. C. Docket No. 0:12-cv-60711-RNS.

For Carlos Velazco, Petitioner - Appellant: Loren D. Rhoton, Ryan James Sydejko, Loren Rhoton, PA, Tampa, FL.

Carlos Velazco, Petitioner - Appellant, Pro se, Wewahitchka, FL.

For DEPARTMENT OF CORRECTIONS, Secretary, Respondent - Appellee: Georgina Jimenez-Orosa, Attorney General's Office, West Palm Beach, FL; Pam Bondi, Attorney General's Office, Ft Lauderdale, FL.

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and WALTER,[*] District Judge.

OPINION

Page 685

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 evidentiary 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 Arancello's Restaurant in Hallandale,

Page 686

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 headlock 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 headlock. 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 ...


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