Burrow v. State Of Florida et al
Filing
30
OPINION AND ORDER dismissing in part and denying in part: 1 Petition for writ of habeas corpus. Grounds 1-4 are dismissed as procedurally barred; Ground 5 is denied; Grounds 6 and 7 are dismissed as procedurally barred and in the alternative denied on the merits. The Clerk shall enter judgment accordingly and close the case. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 3/19/2014. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARK STEVEN BURROW,
Petitioner,
vs.
Case No.
2:11-cv-60-FtM-29UAM
SECRETARY, DEPARTMENT OF CORRECTION,
Respondent.
___________________________________
OPINION AND ORDER
I.
Petitioner
Mark
Steven
Status
Burrow
(hereinafter
“Petitioner”)
initiated this action pro se by filing a Petition1 for Writ of
Habeas Corpus (Doc. #1) pursuant to 28 U.S.C. § 2254 challenging
his judgment and conviction entered in the Twentieth Judicial
Circuit Court, Collier County, Florida (case no. 01-2118CFA) on
February
10,
2011.2
Petitioner
was
charged
in
an
amended
Petitioner attaches exhibits to his Petition including certain
postconviction records and portions of the trial transcript. These
exhibits are unnecessarily duplicative of the Respondent’s
exhibits. The Rules Governing Section 2254 Cases in the United
States District Courts, directs that the Respondent is responsible
for filing the relevant transcripts of the trial and postconviction
proceedings. See Rule 5. Nevertheless, because the Petition does
not set forth many facts in support of the eight grounds for relief
and instead refers the Court to Petitioner’s attached exhibits, the
Court will reference Petitioner’s attached exhibits when addressing
his grounds for relief. Petitioner’s exhibits will be cited as
“Pet. Exh.____.”
1
The Court applies the “mailbox rule” and deems the Petition
“filed on the date it was delivered to prison authorities for
mailing.” Alexander v. Sec’y Dep’t of Corr., 523 F.3d 1291, 1294
2
(continued...)
information with the following two counts: (1) lewd or lascivious
exhibition in the presence of a child under sixteen; and, (2) lewd
or lascivious molestation of a child under sixteen. Petition at 1;
Response at 2.
After holding a Faretta3 hearing, the trial court
allowed Petitioner to proceed without counsel, but assigned him
“standby counsel.”
Response at 2.
The jury found Petitioner
guilty as charged.
In accordance with the jury’s verdict, the
trial court sentenced Petitioner to concurrent sentences of 15
years on count one; and, 20 years followed by ten-years probation
on count two.
Petition at 1; Response at 2.
designated a sexual predator.
Petitioner was also
Id.
Respondent filed a Response in opposition to the Petition
(Doc. #20, Response) and attached supporting exhibits (Doc. #24,
Exhs. 1-67), consisting of the postconviction pleadings and record
on direct appeal.
Petitioner filed a Reply (Doc. #21, Reply).
This matter is ripe for review.
II.
A.
Applicable § 2254 Law
Deferential Review Required By AEDPA
Petitioner filed his Petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub. L. No. 104-132, 110 Stat. 1214 (1996).
2
(...continued)
n.4 (11th Cir. 2008).
Faretta v. California, 422 U.S. 806 (1975).
3
-2-
Abdul-Kabir v.
Quarterman, 550 U.S. 233, 246 (2007);
Penry v. Johnson, 532 U.S.
782, 792 (2001). Consequently, post-AEDPA law governs this action.
Abdul-Kabir v. Quarterman, 550 U.S. 233, 246 (2007);
Penry v.
Johnson, 532 U.S. 782, 792 (2001); Davis v. Jones, 506 F.3d 1325,
1331, n.9 (11th Cir. 2007).
Under the deferential review standard, habeas relief may not
be granted with respect to a claim adjudicated on the merits in
state court unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
Ct. 1388, 1398 (2011).
Cullen v. Pinholster, ___ U.S. ___, 131 S.
“This is a difficult to meet, and highly
deferential standard for evaluating state-court rulings, which
demands that the state-court decisions be given the benefit of the
doubt.” Id. (internal quotations and citations omitted). See also
Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770, 786 (2011)
(pointing out that “if [§ 2254(d)’s] standard is difficult to meet,
that is because it was meant to be.”).
Both the Eleventh Circuit and the Supreme Court broadly
interpret
what
is
meant
by
an
“adjudication
on
the
merits.”
Childers v. Floyd, 642 F.3d 953, 967-68 (11th Cir. 2011).
a
state
court’s
summary
rejection
-3-
of
a
claim,
even
Thus,
without
explanation, qualifies as an adjudication on the merits that
warrants deference by a federal court.
Id.; see also Ferguson v.
Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).
Indeed, “unless
the state court clearly states that its decision was based solely
on a state procedural rule [the Court] will presume that the state
court
has
rendered
an
adjudication
on
the
merits
when
the
petitioner’s claim ‘is the same claim rejected’ by the court.”
Childers v. Floyd, 642 F.3d at 969 (quoting Early v. Packer, 537
U.S. 3, 8 (2002)).
“A legal principle is ‘clearly established’ within the meaning
of this provision only when it is embodied in a holding of [the
United States Supreme] Court.” Thaler v. Haynes, ___ U.S. ___, 130
S. Ct. 1171, 1173 (2010); see also Carey v. Musladin, 549 U.S. 70,
74
(2006)(citing
Williams
v.
Taylor,
529
U.S.
362,
412
(2000))(recognizing “[c]learly established federal law” consists of
the governing legal principles, rather than the dicta, set forth in
the decisions of the United States Supreme Court at the time the
state court issues its decision). “A state court decision involves
an unreasonable application of federal law when it identifies the
correct legal rule from Supreme Court case law but unreasonably
applies that rule to the facts of the petitioner's case, or when it
unreasonably extends, or unreasonably declines to extend, a legal
principle
from
Supreme
Court
case
law
to
a
new
context.”
Ponticelli v. Sec’y, Fla. Dep’t of Corr., 690 F.3d 1271, 1291 (11th
Cir.
2012)(internal
quotations
-4-
and
citations
omitted).
The
“unreasonable application” inquiry requires the Court to conduct
the two-step analysis set forth in Harrington v. Richter, 131 S.
Ct. 770.
First, the Court determines what arguments or theories
support the state court decision; and second, the Court must
determine whether “fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior”
Supreme Court decision.
Id. (citations omitted).
Whether a court
errs in determining facts “is even more deferential than under a
clearly erroneous standard of review.”
1195, 1201 (11th Cir. 2005).
Stephens v. Hall, 407 F.3d
The Court presumes the findings of
fact to be correct, and petitioner bears the burden of rebutting
the presumption by clear and convincing evidence.
28 U.S.C. §
2254(e)(1).
The Supreme Court has held that review “is limited to the
record that was before the state court that adjudicated the claim
on the merits.”
Cullen, 131 S. Ct. at 1398.
Thus, the Court is
limited to reviewing only the record that was before the state
court at the time it rendered its order.
B.
Id.
Federal Claim Must Be Exhausted in State Court
Ordinally, a state prisoner seeking federal habeas relief must
first “‘exhaus[t] the remedies available in the courts of the
State,’ 28 U.S.C. § 2254(b)(1)(A), thereby affording those courts
‘the first opportunity to address the correct alleged violations of
[the] prisoner’s federal rights.’”
Walker v. Martin, ____ U.S.
____, 131 S.Ct. 1120, 1127 (2011)(quoting Coleman v. Thompson, 501
-5-
U.S.
722,
731
(1991)).
This
imposes
a
“total
exhaustion”
requirement in which all of the federal issues must have first been
presented to the state courts.
(2005).
Rhines v. Weber, 544 U.S. 269, 274
“Exhaustion requires that state prisoners must give the
state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's established
appellate review process.
That is, to properly exhaust a claim,
the petitioner must fairly present every issue raised in his
federal petition to the state's highest court, either on direct
appeal or on collateral review.”
Mason v. Allen, 605 F.3d 1114,
1119 (11th Cir. 2010)(citing O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) and Castile v. Peoples, 489 U.S. 346, 351 (1989)).
To fairly present a claim, a petitioner must present the same
federal claim to the state court that he urges the federal court to
consider.
court
A mere citation to the federal constitution in a state
proceeding
is
insufficient
for
purposes
Anderson v. Harless, 459 U.S. 4, 7 (1983).
of
exhaustion.
A state law claim that
“is merely similar to the federal habeas claim is insufficient to
satisfy the fairly presented requirement.”
U.S. 364, 366 (1995)(per curiam).
Duncan v. Henry, 513
“‘[T]he exhaustion doctrine
requires a habeas applicant to do more than scatter some makeshift
needles in the haystack of the state court record.’”
McNair v.
Campbell, 416 F.3d 1291, 1302 (11th Cir. 2005) (quoting Kelley v.
Sec’y for the Dep’t of Corr., 377 F.3d 1317, 1343-44 (11th Cir.
2004)).
-6-
“The teeth of the exhaustion requirement comes from its
handmaiden, the procedural default doctrine.”
Smith v. Jones, 256
F.3d 1135, 1138 (11th Cir. 2001), cert. denied, 534 U.S. 1136
(2002).
Under
the
procedural
default
doctrine,
“[i]f
the
petitioner has failed to exhaust state remedies that are no longer
available, that failure is a procedural default which will bar
federal habeas relief . . . . .”
Smith, 256 F.3d at 1138.
A
procedural default for failing to exhaust state court remedies will
only be excused in two narrow circumstances.
First, a petitioner
may obtain federal habeas review of a procedurally defaulted claim
if he shows both “cause” for the default and actual “prejudice”
resulting from the asserted error.
House v. Bell, 547 U.S. 518,
536-37 (2006); Mize v. Hall, 532 F.3d 1184, 1190 (11th Cir. 2008).
In Martinez v. Ryan, __ U.S. __, 132 S. Ct. 1309, 1318 (2012), the
Supreme Court held that if “a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel
claim
in
a
collateral
proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim ...” when (1) “the state courts did
not appoint counsel in the initial-review collateral proceeding” or
(2) “appointed counsel in the initial-review collateral proceeding,
where the claim should have been raised, was ineffective” pursuant
to Strickland. Id. In such instances, the prisoner “must also
demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Id.
-7-
Second, under exceptional circumstances, a petitioner may obtain
federal habeas review of a procedurally defaulted claim, even
without a showing of cause and prejudice, if such a review is
necessary to correct a fundamental miscarriage of justice.
House,
547 U.S. at 536; Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
C.
Ineffective Assistance of Counsel
Ineffective assistance of counsel claims are reviewed under
the standards established by 28 U.S.C. § 2254(d). Newland v. Hall,
527 F.3d 1162, 1183 (11th Cir. 2008). Post-AEDPA, the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), remains
applicable to the claims of ineffective assistance of counsel
raised in this case.
Newland, 527 F.3d at 1184.
In Strickland,
the Supreme Court established a two-part test to determine whether
a convicted person is entitled to habeas relief on the grounds that
his or her counsel rendered ineffective assistance: (1) whether
counsel’s
objective
representation
standard
of
was
deficient,
i.e.,
reasonableness”
“fell
“under
below
an
prevailing
professional norms,” which requires a showing that “counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment”; and (2) whether
the deficient performance prejudiced the defendant, i.e., there was
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,
which “requires showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is
-8-
reliable.”
Strickland, 466 U.S. at 688; see also Bobby Van Hook,
558 U.S. 4, 8, 130 S. Ct. 13, 16 (2009); Cullen v. Pinholster, 131
S. Ct. at 1403 (2011).
States may “impose whatever specific rules . . . to ensure
that criminal defendants are well represented,” but “the Federal
Constitution imposes one general requirement: that counsel make
objectively reasonable choices.”
Bobby Van Hook, 130 S. Ct. at 17
(internal quotations and citations omitted).
It is petitioner who
bears the heavy burden to “prove, by a preponderance of the
evidence, that counsel’s performance was unreasonable.”
Campbell, 436 F.3d 1285, 1293 (11th Cir. 2006).
Jones v.
A court must
“judge the reasonableness of counsel’s conduct on the facts of the
particular case, viewed as of the time of counsel’s conduct,” Roe
v. Flores-Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466
U.S. at 690), applying a “highly deferential” level of judicial
scrutiny.
Id.
A court must adhere to a strong presumption that
“counsel’s conduct falls within the wide range of reasonable
professional
assistance.”
Strickland,
466
U.S.
at
689.
An
attorney is not ineffective for failing to raise or preserve a
meritless issue.
Ladd v. Jones, 864 F.2d 108, 109-10 (11th Cir.
1989); United States v. Winfield, 960 F.2d 970, 974 (11th Cir.
1992) (“a lawyer’s failure to preserve a meritless issue plainly
cannot prejudice a client”). “To state the obvious: the trial
lawyers, in every case, could have done something more or something
different.
So, omissions are inevitable.
-9-
But, the issue is not
what is possible or ‘what is prudent or appropriate, but only what
is constitutionally compelled.’”
Chandler v. United States, 218
F.3d 1305, 1313 (11th Cir. 2000)(quoting Burger v. Kemp, 483 U.S.
776, 794 (1987)).
III.
Findings of Fact and Conclusions of Law
This Court has carefully reviewed the record and, for the
reasons set forth below,
required in this Court.
concludes no evidentiary proceedings are
Schriro v. Landrigan, 550 U.S. 465, 127 S.
Ct. 1933, 1939-40 (2007). Petitioner does not proffer any evidence
that would require an evidentiary hearing, Chandler v. McDonough,
471 F.3d 1360 (11th Cir. 2006), and the Court finds that the
pertinent facts of the case are fully developed in the record
before the Court.
Schriro, 550 U.S. at 474; Turner v. Crosby, 339
F.3d 1247, 1275 (11th Cir. 2003), cert. denied, 541 U.S. 1034
(2004).
In
pertinent
part,
Petitioner’s
trial
is
summarized
as
follows:4
The defendant elected to represent himself during trial.
The trial court held a hearing on the matter and found
that the defendant knowingly and intelligently waived his
right to counsel, and appointed Greg Mangone, Esq., to
act as standby counsel. . . . . The state presented its
case-in-chief. [R.P.] testified to the following. [R.P.]
is eight years old. The defendant touched [R.P] on her
“private”, i.e. the place between a girl’s legs. The
defendant touched [R.P.] on her “private” over her
clothes. On another occasion, [R.P.] saw the defendant
To protect the identity of the victim and her family, the
Court will use the individual’s initials, rather than their full
names.
4
-10-
touching his “private” with his hand. “White stuff” came
out of the defendant’s “private” into a medicine cup.
The defendant put the cup in the freezer. On yet another
occasion, the defendant asked [R.P.] to touch his
“private” and she did so.
The state proffered the hearsay testimony of [S.P.],
[L.P.], and Victoria Wodjak.
The trial court held a
hearing on the admissibility of the hearsay testimony and
concluded that it would permit the testimony.
[S.P.] testified to the following. [S.P.] is ten years
old. [S.P.’s] sister, [R.P.], told him that there was
“white stuff” in the freezer and that it came from the
defendant’s “private.”
[L.P.] testified to the following. [L.P.] has two
children, [R.P.] and [S.P.]. The defendant was [L.P.’s]
boyfriend for about two years. The defendant lived with
[L.P.] and her two children. [L.P.] went to Publix after
work on July 26, 2001. [L.P.] took [S.P.] with her. The
defendant and [R.P.] stayed in the apartment.
When
[L.P.] returned home, the door to [R.P.]’s bedroom was
shut and she was very quiet. [L.P.] asked [R.P.] what was
wrong, but she did not respond. [L.P.] sensed that
something was not right.
When [L.P.] began to testify that [R.P.] told her about
“the last experience,” the defendant’s standby counsel
moved for a mistrial on the grounds that the testimony
implied multiple acts, i.e. more than two acts.
The
trial court offered to give a cautionary instruction, but
the defendant’s standby counsel denied the offer. The
trial court denied the motion for a mistrial.
[L.P.] continued with her testimony. [R.P.] told [L.P.]
that the defendant touched [R.P.] on her “private,” and
also that “white stuff” came from the defendant and that
he put it in a medicine cup and put it in the freezer.
Victoria Wodjak testified to the following. Wodjak works
for the Children Protection Team as a coordinator.
[R.P.] told Wodjak that the defendant touched her
“private” with his finger. [R.P.] also told Wodjak that
she saw the defendant touch his private with his hand and
that “white stuff” came out of it. [R.P.] further told
Wodjak that the defendant put the “white stuff” in a
medicine cup and put it in the freezer.
-11-
Edward Burlingame testified to the following. Burlingame
works for the Marco Island Police Department as an
officer.
Burlingame spoke with the defendant at the
police station.
Burlingame read the defendant his
Miranda rights and he waived them. The defendant told
Burlingame that while he was lying on his bed wearing
boxer shorts, [R.P.] came into his bedroom and jumped on
him. The defendant thought that [R.P.] was going “ride
the pony,” but she laid forward on him and started
humping him. The defendant also told Burlingame that on
another occasion, while he was coming in or going out of
his bedroom wearing boxer shorts, [R.P.] grabbed him by
the penis through the shorts.
The state rested its case.
The defendant’s standby
counsel moved for a judgment of acquittal on the ground
that the state did not prove: (1) that the defendant
committed te the offenses on or about July 26, 2011; (2)
that the defendant intentionally masturbated in front of
a child; and (3) that he intentionally touched a child in
a lewd and lascivious manner. The trial court denied the
motion.
The defendant presented his case-in-chief.
Andrew
Anzualda (ostensibly a police dispatcher) testified that
she prepared an incident report on July 31, 2001 in
response to a telephone call by the defendant that Potter
had threatened him.
The defendant’s standby counsel renewed the motion for
judgment of acquittal.
The trial court denied the
renewed motion.
Exh. 2 at 4-6.
A.
Ground One
Petitioner
Petition at 5.
labels
Ground
One
“prosecutorial
misconduct.”
Petitioner contends that the prosecutor improperly
amended the information to expand the time period during which the
offenses were
committed,
without
giving
Petitioner
sufficient
notice. Id. Consequently, Petitioner submits that he did not have
adequate time to prepare an alibi defense.
-12-
Id.
In Response, Respondent argues that to the extent Petitioner
predicates his claim on Florida law, such a contention is not
cognizable on federal habeas corpus review.
Response at 16.
Further, Respondent submits that if the claim could be construed as
raising a federal constitutional issue, the claim is procedurally
barred because Petitioner did not preserve the ground and then
raise the constitutional dimension of his ground on direct appeal.
Id. at 17.
Specifically, Respondent notes that to the extent any
error was raised concerning the amended information, appellate
counsel
did
not
alert
the
appellate
court
to
any
federal
constitutional issues and did not brief a constitutional claim
concerning
either
standby
counsel’s
objection
to
the
amended
information, or the trial court’s decision to overrule standby
counsel’s objection.
1.
Id.
Exhaustion and Procedural Default
It appears the initial information alleged that Petitioner
committed the offenses on July 26, 2001.
2 at 12.
Pet. Exh. D at 76; Exh.
The amended information changed the time period of the
offense from May 1, 2011 to July 26, 2001.
Id.
The record
confirms that appellate counsel made a passing reference to the
claim
arising
from
the
extended
date
range
in
the
amended
information in the Ander’s5 brief, but did not alert the appellate
court to any federal constitutional issue arising therefrom.
See
Exh. 2 at 12 (noting the trial court’s denial of defendant’s
Anders v. California, 386 U.S. 738 (1967).
5
-13-
standby counsel’s objection to the state’s motion to orally amend
the information to enlarge the time frame concerning the allegation
of the commission of the offense to between May 1 and July 26, 2001
as to count one (T 147-150)).
Accompanying the Ander’s brief was
the “certificate of compliance with Anders v. California, 386 U.S.
738 (1967)” which was provided to Petitioner, and notified him that
he “has an opportunity to raise any points that the [petitioner]
believes meritorious and which were not raised by the undersigned
attorney.”
Exh. 2 at 2.
The appellate court then issued an order
notifying Petitioner that appellate counsel filed an Anders brief
and provided him thirty days to file “an additional brief calling
the court’s attention to any matters he feels should be considered
in connection with this appeal.”
Exh. 3.
an additional brief in response.
Petitioner did not file
The appellate court per curiam
affirmed Petitioner’s conviction and judgment.
Petitioner
vaguely
and
generally
Exh. 9.
referenced
this
claim
concerning the trial judge’s decision to deny standby counsel’s
objection to the amended information, which extended the date range
for the offense, as a ground for relief in his initial motion for
postconviction relief filed pursuant to Florida Rule of Criminal
Procedure 3.850 (“Rule 3.850 motion”) and in his amended Rule 3.850
motion.6
See Exh. 40 at 6; Exh. 42 at 2.
In addressing this claim
In ground 2(e) of the initial Rule 3.850 motion, Petitioner
argued:
6
[t]he
trial
judge
showed
a
great
deal
of
(continued...)
-14-
in the amended Rule 3.850 motion, which was raised as a trial court
error claim, the postconviction court noted that the claim was not
cognizable in a rule 3.850 proceeding.
See Exh. 46 at 4.
Further,
the postconviction court noted that Petitioner did not raise the
claim on direct appeal and never moved to recuse the judge.
The appellate court affirmed the decision.
Exh.
Id.
50.
Initially, the Court notes that Petitioner does not raise a
federal constitutional issue in Ground One.
Petitioner does not
explain how the prosecutor’s amendment of the information to edit
the date range that the offense occurred resulted in a denial of
his federal constitutional rights.
The amended information still
charged Petitioner with violating the same Florida Statutes, but
enlarged the time period during which the incidents occurred. Even
if the Court could construe the claim as raising a Fourteenth
Amendment
Due
Process
claim,
the
Court
finds
Ground
One
is
unexhausted and procedurally defaulted.
A
federal
claim
arising
stemming
from
“prosecutorial
misconduct” for amending the information was not raised on direct
appeal.
Appellate counsel filed an Anders brief and Petitioner
never filed a supplemental brief despite receiving notice from both
6
(...continued)
prejudice in denying 19 different motions
before and during trial (see attached exhibits
C-1-2-3).
These motions, had they been
granted, would have changed the verdict to
“not guilty.”
Exh. 40 at 8; see also Exh. 42 at 4 (ground 3(d)).
-15-
appellate counsel and the appellate court.
In Florida, claims of
prosecutorial misconduct must be raised on direct appeal and the
failure to do so results in a procedural default.
See Exh. 46 at
4 (addressing other prosecutorial misconduct claims and finding
them improperly raised in the 3.850 proceeding); see also Spencer
v. State, 842 So. 2d 52, 60 (Fla. 2003) (finding claims that should
have been raised on direct appeal, but were not, were procedurally
barred).
motion
The claim Petitioner raised in his amended Rule 3.850
did
not
involve
prosecutorial
misconduct,
involved an alleged claim of trial court error.
but
rather
Consequently, the
Court finds Ground One is unexhausted and procedurally barred.
While Petitioner does not expressly attempt to allege cause,
prejudice, or a fundamental miscarriage of justice to overcome the
procedural default of Ground One, liberally construed the Petition
does raise a claim that appellate counsel rendered ineffective
assistance for failing to raise several claims on direct appeal.
See Petition at 18 (entitled “ineffective assistance of appellate
counsel” and stating “Grounds 2, 3, 4, 5, and 6 (were said by the
State) could have and should have been raised on direct appeal,
then why were they not?)
An ineffective assistance of counsel
claim can constitute cause if that claim is not itself procedurally
defaulted. Edwards v. Carpenter, 529 U.S. at 451-52. A petitioner
asserting “prejudice” must demonstrate that there is “at least a
reasonable probability that the result of the proceeding would have
been different.”
Henderson, 353 F.3d at 892.
-16-
Here, Petitioner filed a state habeas corpus petition alleging
ineffective assistance of appellate counsel.
Exh. 15.
Petitioner
did not, however, raise any specific claim that appellate counsel
rendered
ineffective
prosecutorial
assistance
misconduct
claim
for
stemming
failing
from
the
to
raise
a
prosecutor’s
amendment of the information to the enlarged time period.
Id.
Thus, this claim is also procedurally defaulted and insufficient to
overcome the procedural default of his prosecutorial misconduct
claim.
Thus, Ground One is dismissed as procedurally defaulted.
B.
Ground Two
Petitioner argues that the trial court committed an error by
overruling an objection to a state witness’ testimony. Petition at
8.
Specifically,
Petitioner
contends
that
Victoria
Wodjak
improperly vouched for the credibility of the child victim during
the prosecutor’s direct examination.
89).
Id. (citing Pet. Exh. E at
The exhibit Petitioner cites to in the Petition is one-page
copy of the trial transcript containing a portion of a witness’
testimony concerning the statement the child victim made to the
witness, presumably the witness is Victoria Wodjak.7
The Petition
The portion of the trial transcript that Petitioner references
and numbers as page 89 of his exhibits contains the following
testimony:
7
A. She was very age-appropriate
Q. What about intelligence?
A. She’s average intelligence to above-average.
Q. All right. Now when you interviewed her, did she
make any disclosures in terms of something happening
inappropriate with the Defendant, Mark Burrow?
(continued...)
-17-
does not specify which federal constitutional right was violated by
the witness’ alleged “improper vouching.”
Id.
In Response, Respondent clarifies that Ms. Wodjak was the
“Child Protection Team Coordinator.”
Response at 25.
Respondent
argues that to the extent Petitioner’s claim is based on an
evidentiary ruling under Florida law, this Court does not have
jurisdiction to address the claim.
Id.
Respondent maintains that
determinations about whether testimony is admissible under Florida
law are solely within the province of the Florida courts.
Id.
(citing Fernandez v. State, 730 S.2d 277 (Fla. 1999) (determination
of whether certain evidence is admissible is made in the context of
the relevancy test and trial judge must balance the import of the
evidence with respect to case of party offering it against danger
of unfair prejudice); Estelle v. McGuire, 502 U.S. 62, 72 (1991)
(“Nor do our habeas powers allow us to reverse [a petitioner’s]
conviction based on a belief that the trial judge incorrectly
7
(...continued)
Counsel: Objection for the record, Your Honor.
The Court: Yes. Overruled.
You can answer the
question.
A. Yes, she did.
Q. Did she tell you where she was touched?
A. Yes, she did.
Q. What did she say about that?
A. There was– I had to question her and had her answer
the questions, it was easier for her to provide answers
to questions then provide a full narrative, but she did
state that the Defendant touched her private.
Q. Okay. Did she say what had he touched her private
with?
-18-
interpreted the California Evidence Code in ruling that the prior
injury evidence
case.”)).
was
admissible
as
bad
acts
evidence
in
this
Respondent further argues that Ground Two, similar to
Ground One, is not properly exhausted and therefore procedurally
barred
because
constitutional
Petitioner
dimension
of
did
the
not
preserve
claim
and
the
then
federal
raise
the
constitutional dimension of the claim on direct appeal. Id. at 26.
1.
The
Exhaustion and Procedural Default
record
confirms
that
no
claim
concerning
“improper
vouching” by the victim protection team member was raised on direct
appeal. See Exh. 2.
Appellate counsel made a passing reference to
the fact that the trial court denied standby counsel’s objection to
the hearsay testimony from the child protection team member in the
Ander’s8 brief, but did not raise any issue concerning improper
vouching, and did not alert the appellate court to any federal
constitutional issues arising therefrom.
See Exh. 2 at 14 (noting
“[t]he defendant’s standby counsel objected to the proposed hearsay
testimony by the child protection team worker, Vicki Wodjak,
concerning the child victim’s statements to the worker (T 142).
The trial court held a hearing on the matter and concluded that it
would be inclined to permit the testimony.”).
Id.
Petitioner did
not file a supplemental brief raising any claims upon notice of the
filing of the Anders brief.
Anders v. California, 386 U.S. 738 (1967).
8
-19-
Petitioner’s amended Rule 3.850 motion raised a claim that the
trial judge was “prejudiced” against him and referenced that the
“trial judge overruled objection to State witness Victoria Wodjak,
vouching credibility for the child during direct examination by the
prosecutor with the jury present.
See Paul v. State, 790 So. 2d
508 (Fla. 5th DCA 2001); Tingle v. State, 536 So. 2d 202 (Fla.
1988); Quintero v. State, 30 Fla. L. Weekly D131 (Fla. 1st DCA
2004); and U.S. v. Azure, 801 F.2d 336 (8th Cir. 1986) holding
reversal 18 U.S.C.A. §§ 4, 1151, 1153, 2032; Fed. R. Evid. Rule
608(a), (a)(1), 28 U.S.C.A.).”
Exh. 42 at 3-4 (Ground Three
c)(errors in original). The postconviction court denied Petitioner
relief finding that the claim was not cognizable in a 3.850
proceeding.
Exh. 46 at 4.
The appellate court affirmed the
postconviction court’s decision.
Exh. 50.
At no point during Petitioner’s direct appeal or in his 3.850
proceedings did Petitioner argue that Ms. Wodjak improperly vouched
for the credibility of the victim.
To the extent the Court could
construe the instant claim as really a claim concerning the trial
court’s failure to sustain the objection of his standby counsel to
the witness’ testimony based on hearsay, the ground never alerted
the State courts to a federal constitutional issue.
The failure
raise the claim in terms of a federal constitutional violation in
the State courts has resulted in a procedural bar.
Thus, the Court
must determine whether Petitioner establishes cause, prejudice, or
-20-
a fundamental miscarriage of justice to overcome the procedural bar
of Ground Two.
Petitioner alleges that appellate counsel rendered ineffective
assistance for failing to raise this claim on direct appeal.9
supra at 16; see also Petition at 18.
See
An ineffective assistance of
counsel claim can constitute cause if that claim is not itself
procedurally defaulted. Edwards, 529 U.S. at 451-52. A petitioner
asserting “prejudice” must demonstrate that there is “at least a
reasonable probability that the result of the proceeding would have
been different.”
Henderson, 353 F.3d at 892.
Petitioner raised
his ineffective assistance of appellate counsel claim in a petition
for writ of habeas corpus filed before the State court.
4.
Exh. 15 at
The appellate court denied the petition without a written
opinion.
Exh. 16.
Thus, it appears Petitioner exhausted his
claim.
Nevertheless,
the
Court
finds
Petitioner’s
ineffective
assistance of appellate counsel claim has not established cause to
overcome the procedural default.
To succeed on his claim that
appellate counsel rendered ineffective assistance, Petitioner must
show that his attorney’s performance was deficient and that the
deficiency
was
prejudicial.
Strickland,
466
U.S.
at
687.
In Ground Eight of the instant Petition, Petitioner raises a
claim of ineffective assistance of appellate counsel. Because the
Court addresses the claim under each ground of the instant Petition
that appears procedurally defaulted stemming from the failure to
raise the ground on direct appeal, the Court does not include
separate section to specifically address Ground Eight.
9
-21-
Appellate counsel cannot be deemed ineffective for raising this
claim because it is meritless.
As evidenced by the excerpt
Petitioner refers to in support of his claim that the witness
vouched for the victim’s credibility, supra footnote 5, the record
reveals no improper vouching for the victim’s credibility.
Petitioner
has
not
shown
cause,
prejudice,
or
a
Thus,
fundamental
miscarriage of justice to overcome the procedural bar of Ground
Two. Consequently, Ground Two is dismissed as procedurally barred.
C. Ground Three
Petitioner argues that the prosecutor failed to disclose
evidence that the trial court permitted him to have in 2002.
Petition at 9.
Petitioner does not specifically describe what
evidence the prosecutor failed to disclose to Petitioner, but
references exhibit D attached to the Petition.
Exh. D at 59-75).
Id. (citing Pet.
Petitioner’s Exhibit D contains copies of
property receipts inventoried by the Marco Island Police Department
and portions of trial transcripts in which certain evidence is
discussed, including video and/or audiotapes of the CPT interviews
with the victim and her brother.
In Response, Respondent notes that Petitioner points to a
stipulation regarding the Child Protection Team materials, but
fails to specify which materials the prosecutor did not disclose,
and consequentially argues that the Court can dismiss Ground Three
as vague and conclusory.
Response at 28.
Respondent further
argues that the claim is not cognizable for federal review to the
-22-
extent it only raises issues involving Florida law.
Id. at 29.
Respondent then argues that Ground Three is not exhausted and is
procedurally barred because it was not raised on direct appeal.
And, to the extent Petitioner tried to raise a claim in his rule
3.850 motion, the postconviction court applied Florida’s procedural
default rule.
Id.
Finally, Respondent argues that even if the
Court reaches the merits of the Brady10 claim, Petitioner has not
satisfied any of the elements: (1) the prosecution suppressed
evidence; (2) that the evidence was favorable to the defense; and
(3) that the evidence was material.
Id. at 28 (citing 373 U.S. at
87-88). In his Reply, Petitioner does not clarify what evidence he
believes he did not receive from the prosecutor.
1.
See Reply.
Exhaustion and Procedural Default
The record confirms that no claim concerning the alleged
failure of the prosecutor to provide evidence to Petitioner was
raised on direct appeal.
See Exh. 2.
The Anders brief mentioned
that the court approved the parties’ stipulations with respect to
disclosure of the child protection team records, reports, and
videotapes.
that
the
Id. at 1-2.
prosecutor
The Anders brief did not contain a claim
withheld
evidence
from
Petitioner
and
Petitioner did not file a supplemental brief raising such a claim.
Under Florida law, a Brady claim had to be raised on direct appeal.
Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327 (11th Cir. 2009)
(recognizing procedural bar to Brady claims not raised on direct
10
Brady v. Maryland, 373 U.S. 83 (1963).
-23-
appeal in Florida); see also Rose v. State, 675 So.2d 567, n. 1
(Fla.
1996)
(movant’s
claims
including
a
Brady
claim
were
procedurally barred because it was not raised on direct appeal);
Spencer v. State, 842 So.2d at 60 (substantive prosecutorial
misconduct claim raised in a rule 3.850 motion were procedurally
barred because they were not raised on direct appeal).
In Petitioner’s amended rule 3.850 motion, he argued that the
prosecutor
withheld
and
“key
witnesses” identified as Courtney Williams and Dale Stephan.
Exh.
42 at 4 (ground five).
videotape
evidence,
audiotapes,
The postconviction court denied Petitioner
relief on his fifth ground finding as follows:
the Defendant argues that the prosecution failed to
disclose evidence.
Once more, this claim is not
cognizable in a rule 3.850 motion and is procedurally
barred because it should have been raised on direct
appeal. . . . .
Exh. 46 at 4.
The appellate court per curiam affirmed.
Exh. 50.
Consequently, the Court dismisses ground three as procedurally
defaulted.
Harris v. Reed, 489 U.S. 255, 262 (1989); Alderman v.
Zant, 22 F.3d 1541, 1550 (11th Cir. 1994).
In attempt to overcome the procedural default, Petitioner
alleges that appellate counsel rendered ineffective assistance for
failing to raise this claim on direct appeal.
also Petition at 18.
See supra 16; see
An ineffective assistance of counsel claim
can constitute cause if that claim is not itself procedurally
defaulted.
Edwards, 529 U.S. at 451-52.
A petitioner asserting
“prejudice” must demonstrate that there is “at least a reasonable
-24-
probability that the result of the proceeding would have been
different.”
Henderson, 353 F.3d at 892.
Petitioner raised his ineffective assistance of appellate
counsel claim in a petition for writ of habeas corpus filed before
the State court.
Exh. 15 at 3 (alleging Brady violation).
The
appellate court denied the petition without a written opinion.
Exh. 16.
Thus, it appears Petitioner exhausted his ineffective
assistance of appellate counsel claim.
Nevertheless, Petitioner
fails to demonstrate cause, prejudice, or a fundamental miscarriage
of justice to excuse his default.
To succeed on this claim,
Petitioner must show that his attorney’s performance was deficient
and that the deficiency was prejudicial.
687.
Strickland, 466 U.S. at
Appellate counsel did not render deficient performance by
failing to raise a Brady claim when Petitioner fails to specify
which evidence he did not review and no Brady claim is otherwise
apparent from the record.
The incomplete attachments Petitioner
references in his Petition show that defense counsel did receive
and
review
videotape.
transcripts
of
the
witnesses’
interviews
and
a
Pet. Exh. D at 69-70 (recognizing defense counsel saw
the only video in the prosecutor’s possession).
Thus, the Court
dismisses Ground Three as procedurally defaulted.
C. Ground Four
Petitioner asserts that the jury did not follow the jury
instructions
regarding
reasonable
-25-
doubt.
Petition
at
11.
Petitioner explains that the jury wrote a letter to the judge
asking for “more evidence.”
Id.
(citing Pet. Exh. E at 90).
The
exhibit Petitioner references is a letter written to the judge by
the jury foreperson asking for a copy of the Marco Island Police
Report dated August 3, 2011, that included Petitioner’s statement
after he was read his Miranda rights.
also
supra
at
12.
In
the
Pet. Exh. E at 90; see
alternative,
the
jury
asked
for
clarification of the police officer’s testimony that Petitioner
told the officer that the victim charged into Petitioner’s room.
Pet. Exh. E at 90.
In
Response,
Respondent
asserts
that
this
ground
is
unexhausted and procedurally barred because Petitioner did not
preserve his ground as a constitutional claim and then brief such
on direct appeal.
Response at 30.
Respondent further argues that
when Petitioner did raise this claim in his amended Rule 3.850
motion, the postconviction court found the claim procedurally
barred.
1.
Id.
Exhaustion and Procedural Default
The record confirms that no claim concerning the jury’s
alleged failure to follow the jury instructions was raised on
direct appeal.
See Exh. 2.
The Ander’s brief did not make a
remote reference to any claim concerning the jury not following its
instructions.
Id.
Despite being advised by appellate counsel and
-26-
the appellate court, Petitioner did not file a supplemental brief
to alert the appellate court about this claim.
Petitioner raised this claim in his amended rule 3.850 motion,
arguing that the jury did not follow the instruction on reasonable
doubt as evidenced by the letter the foreperson wrote to the judge
asking for a copy of Petitioner’s statement to an officer from the
Marco Island Police Department.
Exh. 42 at 5 (ground six).
The
postconviction court denied Petitioner relief on this claim finding
it procedurally defaulted because it should have been raised on
direct appeal.
Exh. 46 at 4-5.
The appellate court affirmed.
Exh. 50. Because the last state court rendering judgment found the
claim to be procedurally defaulted, the Court finds this claim
procedurally defaulted unless Petitioner can show cause, prejudice,
or a fundamental miscarriage of justice to overcome the procedural
bar.
Harris, 489 U.S. at 262.
Petitioner
claims
appellate
counsel
rendered
ineffective
assistance for failing to raise this claim on direct appeal.
15
at
13
(raising
jury
error).
The
appellate
court
Exh.
denied
Petitioner relief without a written opinion.
Exh. 16.
Thus, it
appears Petitioner has exhausted his claim.
To succeed on this
claim, Petitioner must show that his attorney’s performance was
deficient and that the deficiency was prejudicial. Strickland, 466
U.S. at 687.
The Court finds appellate counsel did not render
deficient performance by failing to raise Petitioner’s alleged jury
-27-
error claim.
The jury simply asked the trial judge if they could
re-review Petitioner’s statement to the officer at the Marco Island
Police Department.
As set forth supra, Petitioner waived his
Miranda rights and told the police officer in pertinent part that:
while he was lying on his bed wearing boxer shorts,
[R.P.] came into his bedroom and jumped on him.
The
defendant thought that [R.P.] was going “ride the pony,”
but she laid forward on him and started humping him. The
defendant also told Burlingame that on another occasion,
while he was coming in or going out of his bedroom
wearing boxer shorts, [R.P.] grabbed him by the penis
through the shorts.
Exh. 2
at
4-6;
supra
at
12.
The
jury’s
request
to
review
Petitioner’s statement does not show that the jury did not follow
the instruction regarding reasonable doubt.
the
jury
did
not
find
Petitioner’s
Instead, it appears
statement
to
the
police
trustworthy and gave greater weight to the testimony of the victim,
her brother, her mother, and the Child Protection Team member.
Consequently, the Court finds Petitioner has not demonstrated
cause, prejudice, or a fundamental miscarriage of justice to excuse
the procedural bar and Ground Four is dismissed as procedurally
defaulted.
D.
Ground Five
Petitioner argues that “standby counsel” rendered ineffective
assistance.
Petition at 12.
Petitioner explains that the trial
judge told standby counsel to help Petitioner take care of “a
number of tasks,” and he failed to do so.
at 59-75, Exh. E 92-97, 106-107).
-28-
Id. (citing Pet. Exh. D
In the exhibits Petitioner
references the stipulation for disclosure of child protection team
records,
reports,
and
videotapes;
the
order
adopting
the
stipulation; a copy of the docket history; the City of Marco Island
property receipt; and, various portions of the trial transcript
that are not complete.
See generally id.
In Response, Respondent argues that the ground is waived and
foreclosed by Petitioner’s knowing and voluntary election to waive
his right to counsel and proceed pro se under Faretta.
Response at
31 (citing Lofton v. California, 2011 WL 1260042, *3 (C.D. Cal.
2011)(unpublished)(“Petitioners cannot both have their Faretta cake
and eat it by choosing pro se status over appointed to retained
counsel
and
thereafter,
blaming
standby
counsel
for
supposed
missteps and omissions) (citing Wilson v. Parker, 515 F.3d 682, 697
(6th Cir. 2008) (to the extent standby counsel failed to act during
the trial, Petitioner “merely suffered the consequences of his
decision to proceed pro se.”)).
Respondent further argues that
Petitioner has not established that the State court’s decision is
contrary to or resulted in an unreasonable application of clearly
established Supreme Court precedent.
Id. at 32.
constitutional right to standby counsel.
United
States,
2011
WL
1832716,
There is no
Id. (citing Porter v.
*4
(M.D.
Fla.
2011)(unpublished)(citing Simpson v. Battaglia, 458 F.3d 585, 597
(7th
Cir.
2006);
McKaskle
v.
Wiggins,
465
U.S.
168
(1984)(recognizing that the primary concern in McKaskle is that
-29-
appointed standby counsel does too much, so as to abrogate the
Faretta right to self-representation, not that counsel does too
little)).
1.
Exhaustion and Procedural Default
Petitioner raised this claim in his amended Rule 3.850 motion.
Exh. 40 at 14 (arguing in ground seven that standby counsel
rendered ineffective assistance due to “a conflict of interest,”
inter alia).
The postconviction court denied Petitioner relief on
this claim finding as follows:
the Defendant argues his legal advisor was ineffective
and unhelpful during trial.
The record conclusively
refutes the Defendant’s claim.
The record clearly
indicates that the Defendant knowingly, intelligently and
freely waived his right to counsel and decided to proceed
to trial while representing himself. Attorney Mangone
served as the Defendant’s legal advisor, advising the
Defendant and making a host of legal motions throughout
the trial on the Defendant’[s] behalf, such as objection
to child hearsay (State’s Exhibit 4, pg. 142); argued to
exclude all child hearsay testimony from two different
State witnesses (State’s Exhibit 4, pg. 195-197); motion
for a mistrial (State’s Exhibit 4, pg. 222); motion for
Judgment of Acquittal (State’s Exhibit 4, pg. 281-283);
argued jury instruction (State’s Exhibit 4, pg. 283-305);
and argued a second motion for mistrial (State’s Exhibit
4, pg. 322).
The record conclusively shows that the
Defendant’s legal advisor consistently argued legal
issues before the Court on the Defendant’s behalf. Even
with the presumption that a “legal advisor” is held to
the same standards as an attorney, the Defendant has
failed to demonstrate either prong of the Strickland
test.
The Defendant has failed to demonstrate an
entitlement to relief and accordingly, Ground 7 is
denied.
-30-
Exh. 46 at 5.
The appellate court affirmed the postconviction
court’s decision. Exh. 50. Thus, the ground appears exhausted and
the Court will turn to address the merits.
2.
Merits
The
Court
performance
or
representation.
finds
Petitioner
prejudice
has
arising
neither
from
shown
standby
deficient
counsel’s
Indeed, after a defendant enforces his or her
constitutional right to proceed pro se under Faretta, there is no
constitutional
right
to
“standby
counsel.”
See
McKaskle
v.
Wiggins, 465 U.S. 168, 183 (noting in dicta that “Faretta does not
require a trial judge to permit ‘hybrid’ representation.”); United
States v. Webster, 84 F.2d 1056, 1063(8th Cir. 1996)(same); Simpson
v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006)(same); United
States v. Singleton, 107 F.3d 1091, 1100-03 (4th Cir. 1997)(same);
Clark v. Perez, 510 F.3d 382, 395 (2d Cir. 2008)(same).
In this
case, Petitioner knowingly and voluntarily requested to proceed pro
se with the assistance of standby counsel.
Exh. 44 at 15.
A
defendant who chooses to represent himself cannot then complain
that the quality of his own defense amounted to a denial of the
right to effective assistance of counsel.
Faretta, 422 U.S. at
834, n.2. Accordingly, Petitioner is denied relief on Ground Five.
E.
Grounds Six and Seven
In Grounds Six and Seven, Petitioner takes issue with the
sentencing scoresheet.
In Ground Six, Petitioner specifically
-31-
argues that there is no “prior Tennessee offense” and he was
improperly scored “a level 8.”
100-102,
which
appears
to
Petition at 14 (citing Exh. E at
be
the
State
court’s
sentencing
scoresheet). Petitioner makes reference to this argument in Ground
Seven, but also argues that he was improperly scored “2 points” for
victim injury because there was no physical injury.
Id. at 15.
Petitioner also submits that he should have been scored a level 9
“pbl offense,” but does not explain why.
Id.
And, Petitioner
argues that there “is an unlisted felony offense and should have
been scored at a level 4.”
Id.
In Response, Respondent notes that to the extent Petitioner
takes issue with a prior Tennessee conviction, he raised the claim
as a matter of State law in his motion to correct sentencing error
pursuant to Florida Rule of Criminal Procedure 3.800(a).
at 33.
Response
The postconviction court denied relief on the basis that
the claim was not properly raised in a Rule 3.800 motion, and the
appellate court per curiam affirmed.
When Petitioner raised the
ground in his amended Rule 3.850 motion, the postconviction court
denied Petitioner relief noting that Petitioner did not allege that
he did not commit the offense, only alleged that the prior offense
was not contained in the record.
Id.
Respondent argues that
although Petitioner raised this claim before the State court, he
never raised
violation.
the
claim
Id. at 34-35.
in
terms
of
a
federal
constitutional
Consequently, Respondent argues Ground
-32-
Six is procedurally barred.
Additionally, Respondent argues that
this Court may not review a State court’s alleged failure to adhere
to its own sentencing procedures.
v.
Sec’y,
Dep’t
of
Corr.,
Id. at 33-34 (citing Whitehead
2008
WL
423507
(M.D.
Fla.
2008)(unpublished)).
In response to Ground Seven, Respondent notes that Petitioner
raised this claim in a Rule 3.800 motion as a matter of state law
and did not raise any federal constitutional issues.
35.
Consequently,
procedurally
barred.
Respondent
argues
Id.
that
Respondent
Response at
Ground
further
Seven
argues
is
that
Petitioner raises a State law sentencing issue for which federal
habeas corpus relief does not lie.
1.
Id. at 36.
Exhaustion and Procedural Default
Initially, the Court notes that Petitioner does not specify
which rights under the United States Constitution were violated by
the alleged scoresheet error.
See Petition.
A review of the
record reveals that Petitioner raised the prior conviction issue
and the sentencing calculation issue on his scoresheet in his Rule
3.800
motion.
Exh.
25.
The
postconviction
court
denied
Petitioner’s motion finding in pertinent part as follows:
Defendant raises two claims relating to his scoresheet,
one asserting an error concerning the level of the
additional offense, lewd and lascivious exhibition; the
other arguing that the inclusion of a prior related
offense from Tennessee is illegal.
As to his
additional
first claim, Defendant alleges that
offense listed on his scoresheet
-33-
the
was
improperly scored as a level 5 offense, when it should
be a level 4. Defendant cites Fla. Stat. §§ 921.0013 and
921.0014 as the appropriate authority.
Defendant is
mistaken in his reliance on sections 921.0013 and
921.0014, as they only relate to criminal offenses
committed before October 1, 1998. For crimes committed
on or after October 1, 1998, sections 921.0022 and
92.0023 apply. Defendant’s crimes occurred in July of
2001.
Attached hereto is a copy of Defendant’s
Information.
Fla. Stat. § 921.0011 is the offense severity-ranking
chart of the Criminal Punishment Code.
Fla. Stat. §
921.0023 ranks those felonies not listed in § 921.0022.
The information charging Defendant with the exhibition
offense lists Fla. Stat. § 800.04(7)(b) as the governing
statute for the charge.
Defendant’s judgment and
sentence and scoresheet likewise list the offense as
falling under § 800.04(7)(b).
The State failed to adequately address the appropriate
score level in either its original Response, or its
Supplemental Response. Instead, the State simply stated
that Defendant’s “offense of Lewd and Lascivious
Exhibition was properly scored as a level 5 offense,”
without citing any supporting authority.
After careful perusal of § 921.0022, the Court notes that
Defendant is correct to the extent that subsection (b) of
§ 800.04(7) is not listed.
However, the statutory
sections providing penalties for lewd and lascivious
exhibition are actually §§ 800.04(7)(c)and (d). It is
important to note that in 2000, the legislature amended
§ 800.04(7). Prior to the amendment, subsection (b)
related to offenders 18 years or older, while subsection
(c) related to offenders less than 18.
After the
amendment, the subsections shifted, so that now, section
800.04(7)(b) merely defines the crime, without providing
any penalties, while subsections (c) and (d) provide for
the penalties. Subsection (c) applies to offenders 18
years old or older, and subsection (d) applies to
offenders under 18. Both the information, jury verdict
and scoresheet clearly list Defendant as being over 18 at
the time of the crime. Therefore, since § 800.04(7)(c)
applies to offenders 18 or older, it is apparent, from
the face of the record, that defendant’s offense under §
-34-
800.04(7)(b) instead of § 800.04(7)(c)
scrivener’s error and harmless.
is
simply
a
In any event, the Court notes that the difference between
a level four additional offense score and a level five
offense score is only 1.8 points. Defendant’s scoresheet
was calculated using the points assigned to a level 5
offense, resulting in the lowest permissible prison
sentence of 99.9 months. A scoresheet based on a level
4 offense would have resulted in the lowest permissible
sentence of 98.5 months. Defendant’s sentencing range
was from the lowest permissible score to 45 years.
Defendant was not sentenced to the bottom of his range.
Instead, Defendant was sentenced to a specific term: 140
months (20 years) in prison, followed by 120 months (10)
years of probation. In light of the fixed sentence he
received, and in light of the fact that any potential
discrepancy would result in a minor 1.4 month difference,
the Court finds no reasonable likelihood that the
sentence would have been any different.
As to the second claim, Defendant alleges in his motion
that a prior, out-of-state conviction was used in his
scoresheet, without evidence having been offered to the
court to prove that the elements of the prior crime were
compatible with those of the relevant Florida statutes.
As no additional information about this prior conviction
was entered in the record, the error does not appear on
the face of the record. Scoresheet errors based on the
calculation of Defendant’s prior record are not properly
raised on a motion to correct an illegal sentence
pursuant to Rule 3.800(a).
In short, Defendant’s
scoresheet is not, on its face, readily discernable as
incorrect. See Prieto v. State, 627 S.2d 20 (Fla. 2d DCA
1993); Huffman v. State, 611 So. 2d 2 (Fla. 2d DCA 1992).
Therefore, Defendant has failed to demonstrate an
entitlement to relief on this issue.
Exh. 34.
The appellate court per curiam affirmed.
Exh. 37.
In Petitioner’s amended rule 3.850 motion (in ground nine),
Petitioner argued that “count 2 is an illegal sentence.”
at 7.
Exh. 42
Petitioner argued that count two should have been scored a
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level 7 and was instead erroneously scored a level 9.
Id.
The
postconviction court denied Petitioner relief on the clam, finding
it successive due to Petitioner’s Rule 3.800 motion.
Exh. 46 at 6.
On appeal, the Second District Court of Appeal affirmed in part,
but remanded with respect to Petitioner’s scoresheet error claim
noting that the claim Petitioner raised in his Rule 3.850 motion
was different from the claim he raised in his Rule 3.800 motion.
Exh. 50.
On remand, the postconviction court found in relevant
part as follows:
In Ground 9 of the Defendant’s motion, it appears the
Defendant is alleging that he was actually convicted of
second degree felony rather than a first degree felony
for Count 2. The Defendant claims that he was convicted
of Fla. Stat. § 800.04(5)(c)2, a level 7 offense.
After a careful and extensive review of the record, the
Defendant is mistaken. The information, verdict form,
scoresheet, and transcript of the trial proceedings all
refute any conclusion other than the Defendant was
convicted of a violation of Fla. Stat. § 800.04(5)(b), a
first degree felony. The trial transcript reflects that
the Court orally pronounced the Defendant guilty of the
offense charged in the amended information on Count 2.
However, it appears that the Defendant’s written judgment
and sentence contains a scrivener’s error on page 2,
which reflects that the Defendant was convicted of a
violation of Fla. Stat. § 800.04(5)(c)(2), a first degree
felony. “Where there is a discrepancy between the written
sentence and the oral pronouncement of sentence, the
latter prevails.” Williams v. State, 744 So. 2d 1156
(Fla. 2d DCA 1999)(citing Brammer v. State, 554 So. 2d
671 (Fla. 2d DCA 1990).
Exh. 59 at 1-2.
The appellate court per curiam affirmed.
Exh. 63.
Although Grounds Six and Seven were raised before the State
courts, Petitioner never alerted the State courts to any federal
constitutional issue. Thus, Grounds Six and Seven are not properly
-36-
exhausted.
Duncan v. Henry, 513 U.S. 364 (1995)(quoting Picard v.
Conner, 404 U.S. 270, 275 (1971) (noting exhaustion of state
remedies requires that petitioners fairly present federal claims to
the state courts in order to allow state courts an opportunity to
pass upon and correct alleged violations of a prisoners’ federal
rights); Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (“A rigorously
enforced total exhaustion rule will encourage state prisoners to
seek full relief first from the state courts thus giving those
courts the first opportunity to review claims of constitutional
error.”).
Thus, Grounds Six and Seven are procedurally barred
because Petitioner would now be precluded from filing any claim
arising
under
the
United
States
Constitution
sentencing scoresheets in the Florida courts.
concerning
the
Whiddon v. Dugger,
894 F.2d 1266 (11th Cir. 1990) (recognizing and applying the twoyear bar of rule 3.850); Foster v. State, 614 So. 2d 455, 458 (Fla.
1992) (recognizing State’s successive petition doctrine).
2.
Merits
Even if the Court did reach the merits of Grounds Six and
Seven, these claims are not cognizable in this federal habeas
corpus proceeding because it concerns matters of state law only.
Federal habeas relief is available to correct only those injuries
resulting from a violation of the Constitution or laws or treaties
of the United States.
28 U.S.C. § 2254(a).
It is well-settled law
in this circuit that federal courts cannot review a state’s alleged
-37-
failure to adhere to its own sentencing procedures.
Brannan v.
Booth, 861 F.2d 1507 (11th Cir. 1988); Carrizales v. Wainwright,
699 F.2d 1053 (11th Cir. 1983).
Thus, Petitioner has no recourse
in this Court to challenge what he perceives to be an error in
sentencing scoresheet.
Accordingly, it is hereby
ORDERED:
1.
The Court dismisses in part and denies in part the
Petition for Writ of Habeas Corpus.
Grounds One, Two, Three, Four
are DISMISSED as procedurally barred. Ground Five is DENIED.
Grounds Six and Seven are DISMISSED as procedurally barred, and in
the alternative, are DENIED on the merits.
2.
The Clerk of Court shall enter judgment accordingly,
terminate any pending motions, and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability (COA) on the petition.
A prisoner
seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition.
28 U.S.C. §
2253(c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009).
“A [COA]
may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
To make such a showing, Petitioner “must demonstrate
-38-
that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004), or that “the issues presented
were
adequate
to
deserve
encouragement
to
proceed
further,”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(citations and
internal quotation marks omitted).
Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED in Fort Myers, Florida, on this
of March, 2014.
sa: alr
Copies: All Parties of Record
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19th
day
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