Hodge v. State of Florida et al
Filing
21
ORDER denying the Amended Petition and dismissing case with prejudice; with directions to the Clerk. Signed by Judge Timothy J. Corrigan on 11/26/2018. (JND)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KEVIN J. HODGE,
Petitioner,
v.
Case No. 3:15-cv-1425-J-32PDB
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
et. al.,
Respondents.
________________________________
ORDER
I.
Status
Petitioner, Kevin J. Hodge, an inmate of the Florida penal system, initiated this
action by filing a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by
a Person in State Custody (Doc. 1) on November 9, 2015.1 Hodge is proceeding on an
Amended Petition filed on May 6, 2016. See Doc. 9. Hodge challenges a state court
(Duval County, Florida) judgment of conviction for attempted carjacking for which he
is currently serving a fifteen-year sentence. Doc. 9 at 1. Respondents filed a Response
on March 8, 2017. See Doc. 19 (Resp.).2 Hodge declined to file a reply. See Doc. 20. This
case is ripe for review.
Giving Hodge the benefit of the mailbox rule, the Court finds that his pleadings
were filed on the respective dates Hodge handed them to prison authorities for mailing
to the Court. See Houston v. Lack, 487 U.S. 266, 276 (1988).
1
Attached to the Response are several exhibits. The Court cites to the exhibits
as “Resp. Ex.”
2
II.
Governing Legal Principals
A. Standard Under AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs a
state prisoner’s federal habeas corpus petition. See Ledford v. Warden, Ga. Diagnostic
& Classification Prison, 818 F.3d 600, 642 (11th Cir. 2016), cert. denied, 137 S. Ct.
1432 (2017). “‘The purpose of AEDPA is to ensure that federal habeas relief functions
as a guard against extreme malfunctions in the state criminal justice systems, and not
as a means of error correction.’” Id. (quoting Greene v. Fisher, 565 U.S. 34, 38 (2011)).
The first task of the federal habeas court is to identify the last state court
decision, if any, that adjudicated the petitioner’s claims on the merits. See Marshall v.
Sec’y Fla. Dep’t of Corr., 828 F.3d 1277, 1285 (11th Cir. 2016). The state court need
not issue an opinion explaining its rationale in order for the state court’s decision to
qualify as an adjudication on the merits. See Harrington v. Richter, 562 U.S. 86, 100
(2011). Where the state court’s adjudication on the merits is unaccompanied by an
explanation,
the federal court should “look through” the unexplained
decision to the last related state-court decision that does
provide a relevant rationale. It should then presume that
the unexplained decision adopted the same reasoning. But
the State may rebut the presumption by showing that the
unexplained affirmance relied or most likely did rely on
different grounds than the lower state court’s decision, such
as alternative grounds for affirmance that were briefed or
argued to the state supreme court or obvious in the record
it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
2
When a state court has adjudicated a petitioner’s claims on the merits, a federal
court cannot grant habeas relief unless the state court’s adjudication of the claim was
“contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” or “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)(1), (2). A state court’s factual findings are
“presumed to be correct” unless rebutted “by clear and convincing evidence.” Id. §
2254(e)(1).
AEDPA “imposes a highly deferential standard for
evaluating state court rulings” and “demands that statecourt decisions be given the benefit of the doubt.” Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks
omitted). “A state court’s determination that a claim lacks
merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks omitted). “It bears repeating that
even a strong case for relief does not mean the state court’s
contrary conclusion was unreasonable.” Id. [at 102] (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). The Supreme
Court has repeatedly instructed lower federal courts that an
unreasonable application of law requires more than mere
error or even clear error. See, e.g., Mitchell v. Esparza, 540
U.S. 12, 18 (2003); Lockyer, 538 U.S. at 75 (“The gloss of
clear error fails to give proper deference to state courts by
conflating error (even clear error) with unreasonableness.”);
Williams v. Taylor, 529 U.S. 362, 410 (2000) (“[A]n
unreasonable application of federal law is different from an
incorrect application of federal law.”).
Bishop v. Warden, GDCP, 726 F.3d 1243, 1253-54 (11th Cir. 2013) (internal citations
modified).
3
B. Exhaustion and Procedural Default
There are prerequisites to federal habeas review. Before bringing a § 2254
habeas action in federal court, a petitioner must exhaust all state court remedies that
are available for challenging his state conviction. See 28 U.S.C. § 2254(b)(1)(A). To
exhaust state remedies, 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. Castille v. Peoples, 489 U.S. 346, 351 (1989) (emphasis omitted). Thus, to
properly exhaust a claim, “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.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); see also Pope v. Rich, 358 F.3d 852, 854 (11th Cir. 2004) (noting “that Boerckel
applies to the state collateral review process as well as the direct appeal process.”).
In addressing exhaustion, the United States Supreme Court explained:
Before seeking a federal writ of habeas corpus, a state
prisoner must exhaust available state remedies, 28 U.S.C. §
2254(b)(1), thereby giving the State the “‘“opportunity to
pass upon and correct” alleged violations of its prisoners’
federal rights.’” Duncan v. Henry, 513 U.S. 364, 365, 115 S.
Ct. 887, 130 L.Ed.2d 865 (1995) (per curiam) (quoting Picard
v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L.Ed.2d 438
(1971)). To provide the State with the necessary
“opportunity,” the prisoner must “fairly present” his claim
in each appropriate state court (including a state supreme
court with powers of discretionary review), thereby alerting
that court to the federal nature of the claim. Duncan, supra,
at 365-366, 115 S. Ct. 887; O’Sullivan v. Boerckel, 526 U.S.
838, 845, 119 S. Ct. 1728, 144 L.Ed.2d 1 (1999).
Baldwin v. Reese, 541 U.S. 27, 29 (2004).
4
A state prisoner’s failure to properly exhaust available state remedies results
in a procedural default which raises a potential bar to federal habeas review. The
United States Supreme Court has explained the doctrine of procedural default as
follows:
Federal habeas courts reviewing the constitutionality of a
state prisoner’s conviction and sentence are guided by rules
designed to ensure that state-court judgments are accorded
the finality and respect necessary to preserve the integrity
of legal proceedings within our system of federalism. These
rules include the doctrine of procedural default, under
which a federal court will not review the merits of claims,
including constitutional claims, that a state court declined
to hear because the prisoner failed to abide by a state
procedural rule. See, e.g., Coleman,[3] supra, at 747–748,
111 S. Ct. 2546; Sykes,[4] supra, at 84–85, 97 S. Ct. 2497. A
state court’s invocation of a procedural rule to deny a
prisoner’s claims precludes federal review of the claims if,
among other requisites, the state procedural rule is a
nonfederal ground adequate to support the judgment and
the rule is firmly established and consistently followed. See,
e.g., Walker v. Martin, 562 U.S. --, --, 131 S. Ct. 1120, 1127–
1128, 179 L.Ed.2d 62 (2011); Beard v. Kindler, 558 U.S. --, -, 130 S. Ct. 612, 617–618, 175 L.Ed.2d 417 (2009). The
doctrine barring procedurally defaulted claims from being
heard is not without exceptions. A prisoner may obtain
federal review of a defaulted claim by showing cause for the
default and prejudice from a violation of federal law. See
Coleman, 501 U.S., at 750, 111 S. Ct. 2546.
Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). Thus, procedural defaults may be excused
under certain circumstances. Notwithstanding that a claim has been procedurally
defaulted, a federal court may still consider the claim if a state habeas petitioner can
3
Coleman v. Thompson, 501 U.S. 722 (1991).
4
Wainwright v. Sykes, 433 U.S. 72 (1977).
5
show either (1) cause for and actual prejudice from the default; or (2) a fundamental
miscarriage of justice. Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). In order for
a petitioner to establish cause and prejudice,
the procedural default “must result from some objective
factor external to the defense that prevented [him] from
raising the claim and which cannot be fairly attributable to
his own conduct.” McCoy v. Newsome, 953 F.2d 1252, 1258
(11th Cir. 1992) (quoting Carrier, 477 U.S. at 488, 106 S. Ct.
2639).[5] Under the prejudice prong, [a petitioner] must
show that “the errors at trial actually and substantially
disadvantaged his defense so that he was denied
fundamental fairness.” Id. at 1261 (quoting Carrier, 477
U.S. at 494, 106 S. Ct. 2639).
Wright v. Hopper, 169 F.3d 695, 706 (11th Cir. 1999).
In the absence of a showing of cause and prejudice, a petitioner may receive
consideration on the merits of a procedurally defaulted claim if the petitioner can
establish that a fundamental miscarriage of justice, the continued incarceration of one
who is actually innocent, otherwise would result. The Eleventh Circuit has explained:
[I]f a petitioner cannot show cause and prejudice, there
remains yet another avenue for him to receive consideration
on the merits of his procedurally defaulted claim. “[I]n an
extraordinary case, where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent, a federal habeas court may grant the writ even in
the absence of a showing of cause for the procedural
default.” Carrier, 477 U.S. at 496, 106 S. Ct. at 2649. “This
exception is exceedingly narrow in scope,” however, and
requires proof of actual innocence, not just legal innocence.
Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001).
5
Murray v. Carrier, 477 U.S. 478 (1986).
6
Ward, 592 F.3d at 1157. “To meet this standard, a petitioner must ‘show that it is more
likely than not that no reasonable juror would have convicted him’ of the underlying
offense.” Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quoting Schlup v.
Delo, 513 U.S. 298, 327 (1995)). Additionally, “‘[t]o be credible,’ a claim of actual
innocence must be based on reliable evidence not presented at trial.” Calderon v.
Thompson, 523 U.S. 538, 559 (1998) (quoting Schlup, 513 U.S. at 324). With the rarity
of such evidence, in most cases, allegations of actual innocence are ultimately
summarily rejected. Schlup, 513 U.S. at 324.
C. Ineffective Assistance of Counsel
“The Sixth Amendment guarantees criminal defendants effective assistance of
counsel. That right is denied when a defense counsel’s performance falls below an
objective standard of reasonableness and thereby prejudices the defense.” Yarborough
v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) (citing Wiggins v. Smith, 539 U.S. 510,
521 (2003), and Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
ineffective assistance, a person must show that: (1) counsel’s performance was outside
the wide range of reasonable, professional assistance; and (2) counsel’s deficient
performance prejudiced the challenger in that there is a reasonable probability that
the outcome of the proceeding would have been different absent counsel’s deficient
performance. Strickland, 466 U.S. at 687.
Notably, there is no “iron-clad rule requiring a court to tackle one prong of the
Strickland test before the other.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010).
Since both prongs of the two-part Strickland test must be satisfied to show a Sixth
7
Amendment violation, “a court need not address the performance prong if the
petitioner cannot meet the prejudice prong, and vice-versa.” Id. (citing Holladay v.
Haley, 209 F.3d 1243, 1248 (11th Cir. 2000)). As stated in Strickland: “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” 466 U.S. at 697.
“The question is not whether a federal court believes the state court’s
determination under the Strickland standard was incorrect but whether that
determination was unreasonable - a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (quotation marks omitted). If there is “any
reasonable argument that counsel satisfied Strickland’s deferential standard,” then a
federal court may not disturb a state-court decision denying the claim. Richter, 562
U.S. at 105. As such, “[s]urmounting Strickland’s high bar is never an easy task.”
Padilla v. Kentucky, 559 U.S. 356, 371 (2010). “Reviewing courts apply a ‘strong
presumption’ that counsel’s representation was ‘within the wide range of reasonable
professional assistance.’” Daniel v. Comm’r, Ala. Dep’t of Corr., 822 F.3d 1248, 1262
(11th Cir. 2016) (quoting Strickland, 466 U.S. at 689). “When this presumption is
combined with § 2254(d), the result is double deference to the state court ruling on
counsel’s performance.” Id. (citing Richter, 562 U.S. at 105); see also Evans v. Sec’y,
Dep’t of Corr., 703 F.3d 1316, 1333-35 (11th Cir. 2013) (en banc) (Jordan, J.,
concurring); Rutherford v. Crosby, 385 F.3d 1300, 1309 (11th Cir. 2004).
8
III.
Analysis
A. Ground One
Hodge contends that the evidence presented at trial was insufficient to satisfy
the second element of carjacking.6 Doc. 9 at 4-5. According to Hodge, the state failed
to present evidence that the attempted taking occurred with “force, violence, assault,
or putting in fear.” Id. at 4. Thus, Hodge contends that his conviction amounted to a
denial of due process. Id.
Hodge, through appellate counsel, raised this issue on direct appeal as a claim
of fundamental error. Resp. Ex. 4 at 7. Respondents, however, submit that Hodge
failed to present this claim as a federal constitutional claim to the state appellate
court, rendering it unexhausted and procedurally defaulted. See Resp. at 15.
Respondents further assert that this claim is otherwise without merit. Id. at 25-30.
The Court agrees with Respondents’ exhaustion argument. A review of Hodge’s
initial brief reveals that when briefing this issue, Hodge did not state or suggest that
it was a federal claim about due process or any other federal constitutional guarantee.
Resp. Ex. 4 at 7-13. Instead, Hodge argued, in terms of state law only, that the
evidence did not satisfy the elements of section 812.133, Florida Statutes; thus, he
claimed he was convicted of a crime that did not occur, resulting in fundamental error.
Resp. Ex. 4 at 7-13. Further, in briefing this issue, Hodge cited solely to state cases,
none of which were decided on federal grounds. Id.
Initially, Hodge erroneously states he was convicted of attempted
“kidnapping.” See Doc. 9 at 4.
6
9
While Florida courts assess sufficiency of the evidence using the standard
outlined in Jackson v. Virginia, 443 U.S. 307, 319 (1979), the basis of Hodge’s
argument was that there was no evidence that the victim was in reasonable fear, as
defined under Florida’s statute for carjacking. See Pearson v. Sec’y Dept. of Corr., 273
F. App’x 847, 849 (11th Cir. 2008) (finding the petitioner’s claim regarding the
sufficiency of the evidence supporting the fear element of his carjacking conviction did
not put the state court on notice of his federal habeas claim). Consequently, the First
District Court of Appeal was never notified of a federal constitutional claim during
Hodge’s direct appeal, and presumably, the First DCA exclusively applied state law in
affirming the conviction. See id.; see also Preston v. Sec’y Dept. of Corr., 785 F.3d 449,
461 (11th Cir. 2015) (“We can safely assume that when the Florida [appellate court]
considered [petitioner’s] appeal, it did so through the prism of this longstanding state
doctrine, rather than federal law.”). As such, Ground One is unexhausted and
procedurally defaulted. Hodge has failed to show either cause and prejudice from the
default, or that a fundamental miscarriage of justice will result if the claim is not
addressed on the merits. Therefore, he is not entitled to federal review of this claim.
Nevertheless, even if this claim was not procedurally barred, it would fail on
the merits. When reviewing an insufficiency of the evidence claim in a habeas petition,
a federal court must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319. The court
10
must assume that the jury resolved any evidentiary conflicts in favor of the
prosecution, and the court must defer to that resolution. Id.
Here, the jury found Hodge guilty of attempted carjacking as charged in the
Information. Resp. Ex. 1 at 8, 24. Carjacking is defined as “the taking of a motor
vehicle . . . from the person or custody of another, with intent to either permanently
or temporarily deprive the person or the owner of the motor vehicle, when in the course
of the taking there is the use of force, violence, assault or putting in fear.” § 812.133(1),
Fla. Stat. (2011). A person attempts to commit a carjacking when the individual “does
any act toward the commission of such [carjacking], but fails in the perpetration or is
intercepted or prevented in the execution thereof . . . .” § 777.04(1), Fla. Stat. (2011).
At trial, the victim testified that she was loading groceries into her vehicle when
she noticed a strange man behind her with his arms outstretched. Resp. Ex. 3 at 10809. She stated that she immediately backed away, explaining that the man’s presence
startled and frightened her because she did not know his intention. Id. at 109-10. She
testified that the man was holding a “flat, black object,” similar to a cell phone, in his
hand and that the man shook the object in her direction as he spoke. Id. She explained
that the man made multiple verbal demands that she give him her car keys. Id. at
110-11. The victim testified that every time the man made his demand, he aggressively
“jabbed” his handheld object in her direction. Id. After each “jab” and demand, the
victim took a step backwards. Id. The victim testified that she eventually yelled “No”
before running back into the store. Id. at 110-12. Both before trial and during trial,
11
the victim identified Hodge as the individual who committed the offense. Id. at 11113.
Officer Claude Douglas Freeman also testified that upon initial contact with
Hodge, and without officer-initiated questioning, Hodge spontaneously and
voluntarily said, “I know what this is about. It’s about that black lady and her car. I
didn’t want to hurt her, I just wanted her car.” Id. at 154. Taken in the light most
favorable to the state, the Court finds there was sufficient evidence to permit a rational
trier of fact to find Hodge guilty of attempted carjacking. Accordingly, Ground One is
denied.
b. Ground Two
Ground Two consists of seven sub-claims of ineffective assistance of trial
counsel. See Doc. 9 at 5-7. The Court addresses each sub-claim in turn.
i. Sub-Claim A
Hodge avers that trial counsel was ineffective for failing to file a motion to
suppress his involuntary pretrial statements made to Officer Freeman. Doc. 9 at 5.
According to Hodge, the statements were made in violation of his Miranda7 rights. Id.
Hodge raised this claim in his Florida Rule of Criminal Procedure 3.850 motion
for postconviction relief. Resp. Ex. 9 at 4-6. In addressing this issue, the trial court
noted that “Miranda is applicable where a suspect is taken into custody and
interrogated.” Resp. Ex. 9 at 19-20 (citing State v. Binion, 637 So. 2d 952, 952 (Fla.
7
Miranda v. Arizona, 384 U.S. 436 (1966).
12
4th DCA 1994) (citation omitted). The trial court ultimately denied the claim, finding
in pertinent part:
In the instant case, the Arrest and Booking Report shows
that Officer Freeman observed Defendant walking down the
street, and stopped Defendant because he matched the
description of the attempted carjacking suspect. Thus, the
face of said Report indicates that Defendant was not “incustody” for purposes of Miranda. Further, Defendant
spontaneously made the statement in question while he
freely spoke to Officer Freeman. Moreover, Officer Claude
Douglas Freeman testified during trial. He testified that,
following the victim’s 911 call containing her description of
the suspect, he came in contact with Defendant walking on
the road, who matched the description of the suspect. Officer
Freeman described his interaction with Defendant in detail:
he exchanged in a consensual greeting with Defendant, told
Defendant he wanted to speak with him, asked Defendant
for his identification, asked Defendant if he had any
weapons on his person and if he could search Defendant,
and, before Officer Freeman could search Defendant,
Defendant stated, “I know what this is about, It’s about that
black lady and her car. I didn’t want to hurt her, I just
wanted her car.” Officer Freeman identified Defendant incourt as the individual who made the aforementioned
statement to him. During cross-examination, Officer
Freeman classified the statement as a “spontaneous
statement” and, following the statement, he did not ask
Defendant any questions about it before he placed
Defendant in his police car.
This Court finds the testimony adduced at trial
demonstrates Defendant was not yet in-custody or being
interrogated at the time he made the statement at issue. As
such, the protections of Miranda were not triggered as
applied to Defendant’s exchange with Officer Freeman on
the street. Further based on Officer Freeman’s testimony,
this Court finds Defendant’s statement at issue was made
as a spontaneous remark, which was not made in response
to any question posed by the Officer. Therefore, because
Defendant volunteered the statement to Officer Freeman,
this Court finds Miranda does not apply to it. See Kelly [v.
State, 486 So. 2d 578, 584 (Fla. 1986)]. Accordingly, the
13
statement at issue would not have been properly suppressed
on grounds that Defendant’s Miranda rights were violated,
and counsel was not ineffective for failing to file a nonmeritorious motion to suppress it. See Branch v. State, 952
So. 2d 470, 476 (Fla. 2006) (finding counsel cannot be
ineffective for failing to file motion which would have been
properly denied). Based on the foregoing, therefore, Ground
One is denied.
Resp. Ex. 9 at 19-20 (record citations omitted). The First DCA per curiam affirmed the
trial court’s denial without a written opinion. Resp. Ex. 12.
To the extent that the First DCA affirmed the trial court’s denial on the merits,8
the Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record and the
applicable law, the Court concludes that the state court’s adjudication of the claim was
not contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings. Here, Hodge was not subject to express questioning or the functional
equivalent of questioning when he made his incriminating statement. As such,
Hodge’s Miranda rights were not violated. See United States v. Young, 377 F. App’x
965, 969 (11th Cir. 2010); Cannady v. Dugger, 931 F.2d 752, 754 (11th Cir. 1991)
(holding that “[v]oluntary and spontaneous comments by an accused . . . are admissible
In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
8
14
evidence if the comments were not made in response to government questioning.”).
Thus, his counsel was not ineffective for failing to raise this issue. This claim is denied.
ii. Sub-Claim B
Hodge contends that his trial counsel was ineffective for failing to impeach the
victim’s trial testimony with her prior inconsistent description of the assailant. Doc. 9
at 5. Hodge claims that his trial counsel attempted to impeach the victim, but when
the trial court sustained the state’s objection, trial counsel abandoned any attempt
and was, thus, ineffective. Id.
Hodge raised this claim in his Rule 3.850 motion. Resp. Ex. 9 at 6-7. The trial
court summarily denied the claim, noting that Hodge’s rendition of trial counsel’s
performance was a misstatement. Id. at 21. The trial court found that trial counsel
questioned the victim about her pretrial description of the perpetrator as being a
“young, white male, with blond hair, wearing khaki shorts a white t-shirt, and white
tennis shoes.” Id. at 21-22. Trial counsel further attempted to challenge the victim’s
credibility by questioning her about the duration of her interaction with the
perpetrator and that she identified Hodge as the perpetrator while he was seated in
the backseat of the police vehicle and without seeing the lower half of his body. Id. The
trial court noted that trial counsel also questioned Officer Russ Ashenfelder about the
victim’s pretrial identification of Hodge, and that trial counsel called Hodge’s brother,
Ryan Hodge, as a witness at trial. Id. at 22-23. Ryan Hodge testified that Hodge was
wearing black Nike shoes and dark colored shorts on the day of the crime. Id. at 23.
Considering the record evidence, the trial court made the following findings:
15
Based on the forgoing, this Court finds counsel’s
aforementioned questioning of the victim during crossexamination, as well as counsel’s questioning of Officer
Ashenfelder and Mr. Ryan Hodge, cast doubt upon the
victim’s identification of Defendant as the perpetrator.
Counsel presented evidence which conflicted with the
victim’s identification of Defendant. The victim’s testimony
shows she could not see the clothing Defendant was wearing
when she identified him, thus, discrediting her
identification. The victim’s credibility, i.e., the validity of
her description of the perpetrator wearing khaki shorts, as
well as her identification of Defendant, was placed into
doubt. Counsel’s questioning achieved the very same
objective as impeachment, that is demonstrating the victim
was not trustworthy. See Ellis [v. State, 622 So. 2d 991, 996
n.3 (Fla. 1993)]. Therefore, this court finds there exists no
reasonable probability that, had counsel questioned the
victim as Defendant now suggests, the outcome of his trial
would have been different, particularly in light of the
victim’s testimony that the color of Defendant’s shorts did
not factor into her identification of him as the perpetrator.
Defendant has failed to establish the requirements of
Strickland and Ground Two is denied.
Resp. Ex. 9 at 23 (record citations omitted). The First DCA per curiam affirmed the
trial court’s denial without a written opinion. Resp. Ex. 12.
To the extent that the First DCA affirmed the trial court’s denial on the merits,9
the Court will address the claim in accordance with the deferential standard for
federal court review of state court adjudications. After a review of the record and the
applicable law, the Court concludes that the state court’s adjudication of the claim was
not contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an unreasonable
In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
9
16
determination of the facts in light of the evidence presented in the state court
proceedings.
Nevertheless, even if the state court’s adjudication is not entitled to deference,
this claim is still without merit. At trial, trial counsel presented testimony from
Hodge’s brother that Hodge was wearing black tennis shoes and black shorts on the
day of the offense. Resp. Ex. 3 at 175-76. He further testified that Hodge had brown
hair on the day of the incident. Id. Hodge’s brother did not remember what color shirt
Hodge was wearing. Id. at 178. The victim, on the other hand, testified that she
remembered telling police that the suspect had on large khaki shorts, but did not
remember if she said that the shorts were beige colored khaki shorts. Id. at 118.
Specifically, the victim testified that the suspect’s shorts “could have been beige, they
could have been gray, they could have been green.” Id. at 131-34. She further testified
that she told police that the suspect had blond hair and was wearing white tennis
shoes with a white t-shirt. Id. at 117-18. Because the victim could not remember how
she initially described the color of Hodge’s shorts to police, the victim did not make an
inconsistent statement on which she could have been impeached. Further, there is no
evidence that the victim’s trial testimony regarding to color of the suspect’s tennis
shoes, shirt, and hair was inconsistent with her pretrial description. As such, the
Court finds that counsel was not ineffective for failing to impeach the victim with this
evidence. This claim is denied.
17
iii. Sub-Claim C
Hodge asserts that trial counsel was ineffective for failing to present
exculpatory evidence at trial. Doc. 9 at 5-6. According to Hodge, trial counsel failed to
present the clothing and shoes that Hodge was wearing at the time of his arrest, and
for failing to present the DVD recording of Hodge’s interrogation. Id. Hodge contends
that this evidence would have supported his brother’s trial testimony about what
Hodge was wearing the day of the crime, and would have questioned the victim’s
identification of Hodge as the perpetrator. Id.
Hodge raised this claim in his Rule 3.850 motion. Resp. Ex. 9 at 8-9. The trial
court summarily denied this claim, finding in pertinent part:
As discussed supra denying Ground Two, the record reveals
counsel did present the very evidence which Defendant now
contends counsel did not, through the testimony of his
brother, Mr. Ryan Hodge. Accordingly, for the reasons
denying Ground Two, and because counsel did take the
action which Defendant now alleges counsel did not,
Defendant has failed to establish counsel rendered deficient
performance as required by Strickland. Ground Three is
denied.
Resp. Ex. 9 at 24. The First DCA per curiam affirmed the trial court’s denial without
a written opinion. Resp. Ex. 12.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,10 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. After a review of the record and
In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
10
18
the applicable law, the Court concludes that the state court’s adjudication of the claim
was not contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings.
Even if the state court’s adjudication is not entitled to deference, this claim is
still without merit because Hodge cannot demonstrate prejudice. As iterated above,
the victim could not remember how she initially described the color of the suspect’s
shorts, so the admission of the shorts as an exhibit would merely bolster Hodge’s
brother’s testimony that the shorts were black. Further, Hodge’s spontaneous
incriminating statement to Officer Freeman is dispositive of this issue. Hodge
essentially confessed to committing the attempted carjacking. As such, considering
this sufficient evidence of guilt, Hodge cannot show that but for counsel’s alleged error,
the outcome of trial would have been different. As such, Hodge is not entitled to relief
on this claim.
iv. Sub-Claim D
Hodge avers that his trial counsel was ineffective for failing to object to an
improper and misleading jury instruction for attempted carjacking. Doc. 9 at 6. In
support of this contention, Hodge maintains that the instruction used deviated from
the standard jury instruction, and that attempted carjacking “is a lesser included
offense and not an actual crime . . . .” Id. According to Hodge, “since the jury
instructions were confusing to the state attorney and the trial court, then certainly
19
this would have been confusing to juror members who are not affiliated or familiar to
the law, which would be improper.” Id.
Hodge raised this issue in his Rule 3.850 motion in state court. Resp. Ex. 9 at
9-11. The trial court summarily denied the claim. Id. at 24-25. Specifically, the trial
court made the following findings.
Initially, the Court notes the Florida Supreme Court had
held that “‘trial counsel’s failure to object to standard jury
instructions that have not been invalidated by this Court
does not render counsel’s performance deficient.’” Rodriguez
v. State, 919 So. 2d 1252, 1272 (Fla. 2005) (quoting
Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000)).
Foremost, this Court’s research finds there exists no
standard criminal jury instruction in Florida for the crime
of Attempted Carjacking. Indeed, the transcription of the
charge conference during trial demonstrates the parties
thoughtfully deliberated in putting together the instruction
for Attempted Carjacking. The record indicates that, in
forming the instruction at issue, since there existed no
standard instruction for the offense, the parties combined
the standard jury instruction for attempt and the standard
jury instruction for carjacking. [S]ee Fla. Std. Crim. Jury
Instr. 5.1 15.2 (2008) (standard jury instruction for offense
of carjacking); Fla. Std. Crim. Instr. 5.1 (1989) (standard
instruction for attempt to commit a crime). That is, the
instruction which the jury received is compiled of two
standard jury instructions, neither which have been
invalidated by the Florida Supreme Court. [S]ee id.
Therefore, this Court finds counsel was not ineffective for
failing to object to two instructions which comported with
the respective Florida Supreme Court standard jury
instructions. See Rodriguez, 919 So. 2d at 1272.
Additionally, this Court finds Defendant has failed to
establish that the instructions, as given, were misleading
and contributed to the jury’s verdict. Indeed, he has set forth
purely speculative allegations, without any case law or
factual support, that because the trial judge expressed
hesitation with the instructions, counsel must have been
20
ineffective for agreeing to them. See Davis v. State, 736 So.
2d 1156, 1159 (Fla. 1999) (holding postconviction relief not
warranted on basis of “tenuous speculation”). Accordingly,
Defendant has failed to establish the requirements of
Strickland and Ground Four is denied.
Resp. Ex. 9 at 24-25 (record citations omitted). The First DCA per curiam affirmed the
trial court’s denial without a written opinion. Resp. Ex. 12.
To the extent that the First DCA affirmed the trial court’s denial on the
merits,11 the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications. After a review of the record and
the applicable law, the Court concludes that the state court’s adjudication of the claim
was not contrary to clearly established federal law, did not involve an unreasonable
application of clearly established federal law, and was not based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceedings.
Nevertheless, even if the state court’s adjudication is not entitled to deference,
this claim is without merit. “An error in instructing the jury cannot constitute a basis
for habeas relief unless the error so infected the entire trial that the resulting
conviction violates due process.” Jacobs v. Singletary, 952 F.2d 1282, 1290 (11th Cir.
1992) (quotation omitted). Here, the state charged Hodge with attempted carjacking
contrary to sections 812.133(2)(b), 777.04(1), Florida Statutes (2011). Resp. Ex. 1 at 8.
As the state court noted, Florida does not have a standard jury instruction for
In looking through the appellate court’s affirmance to the circuit court’s
“relevant rationale,” the Court presumed that the appellate court “adopted the same
reasoning.” Wilson, 138 S. Ct. at 1194.
11
21
attempted carjacking; however, Florida does have a standard jury instruction for
attempt and a standard instruction for carjacking. See Fla. Std. Crim. Jury Instr. 15.2
(2008) (standard jury instruction for offense of carjacking); Fla. Std. Crim. Instr. 5.1
(1989) (standard instruction for attempt to commit a crime). Florida’s standard jury
instruction for attempt provides in pertinent part:
In order to prove that the defendant attempted to commit
the crime of (crime attempted), the State must prove the
following beyond a reasonable doubt:
1. (Defendant) did some act toward committing the crime of
(crime attempted) that went beyond just thinking or
talking about it.
2. [He] [She] would have committed the crime except that
a. someone prevented [him] [her] from committing the crime
of (crime attempted).
[or]
b. [he] [she] failed.
The crime of (crime attempted) is defined as (insert
elements of crime attempted).
Fla. Std. Crim. Jury Instr. 5.1 (emphasis added).
In this case, during the charge conference, the parties agreed to combine the
standard instruction for attempt and the standard instruction for carjacking. Resp.
Ex. 3 at 168-69. In doing so, the parties followed Florida’s Standard Criminal Jury
Instruction 5.1 and listed the elements of carjacking after detailing the elements of
attempt. Resp. Ex. 1 at 27. Further, to reduce potential confusion, the trial court gave
the parties an opportunity to explain the combined instruction during their closing
22
arguments. Resp. Ex. 3 at 169. Indeed, after explaining the two elements of attempt,
the state noted that the jury would need to know the elements of carjacking to
determine if Hodge did some act toward commission of the carjacking. Id. at 182-83.
Thereafter, the jury found Hodge guilty of attempted carjacking. Resp. Ex. 1 at 24. As
mentioned above, the evidence presented at trial was sufficient to support the jury’s
verdict. As such, the Court finds that Hodge has failed to demonstrate that this alleged
error “infected the entire trial” so as to result in a due process violation. See Jacobs,
952 F.2d at 1290. Counsel’s performance was not deficient. Likewise, Hodge has failed
to satisfy the prejudice prong of Strickland. This claim is denied.
v. Sub-Claim E
Hodge maintains that the cumulative effect of trial counsel’s ineffectiveness, as
outlined in Sub-Claims A-D, deprived him of a fair trial. Doc. 9 at 6. Hodge raised this
claim in his Rule 3.850 motion. Resp. Ex. 9 at 12. In addressing this issue, the trial
court ruled as follows:
It is well-settled that a claim of cumulative error cannot
stand in cases where, following individual evaluation,
alleged errors are found to be without merit or procedurally
barred. Lukehart v. State, 70 So. 3d 503, 524 (Fla. 2011);
see Suggs v. State, 923 So. 2d 419, 442 (Fla. 2005) (holding
that when a defendant does not successfully prove any of his
individual claims and, consequently, counsel’s performance
is deemed sufficient, a claim of cumulative error must fail.);
Parker v. State, 904 So. 2d 370, 380 (Fla. 2005) (“Because
the alleged individual errors are without merit, the
contention of cumulative error is similarly without merit.”).
Here, Defendant has not demonstrated that counsel was
ineffective under either prong of Strickland for refraining
from taking any of the actions Defendant references supra.
This argument is, therefore, denied.
23
Resp. Ex. 9 at 25-26. The First DCA affirmed per curiam without a written opinion.
Resp. Ex. 12. To the extent the First DCA affirmed the circuit court’s denial on the
merits, the Court will address the claim in accordance with the deferential standard
for federal court review of state court adjudications.12 In doing so, and after review of
the record and the applicable law, the Court concludes that the state court’s
adjudication of the claim was not contrary to clearly established federal law, did not
involve an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceedings. Thus, Hodge is not entitled to relief on the basis of this
claim.
Nevertheless, in the event the state court’s adjudication is not entitled to
deference, this claim is without merit. “The cumulative error doctrine provides that
an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal
and harmless errors) can yield a denial of the constitutional right to a fair trial, which
calls for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005)
(internal quotation marks omitted). The Eleventh Circuit Court of Appeals address
“claims of cumulative error by first considering the validity of each claim individually,
and then examining any errors that [it] find[s] in the aggregate and in light of the trial
as a whole to determine whether the appellant was afforded a fundamentally fair
trial.” Morris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012). Because
This Court presumes that the appellate court “adopted the same reasoning”
as the post-conviction court. Wilson, 138 S. Ct. at 1192.
12
24
the Court has determined that none of Hodge’s individual claims of error or prejudice
have merit, Hodge’s cumulative error claim cannot stand. See United States v. Taylor,
417 F.3d 1176, 1182 (11th Cir. 2005) (“[There being] no error in any of the district
court’s rulings, the argument that cumulative trial error requires that this Court
reverse [the defendant’s] convictions is without merit.”). Thus, Hodge’s claim for relief
is denied.
vi. Sub-Claim F
Hodge asserts that the trial court’s oral pronouncement of his sentence conflicts
with his written judgement and sentence. Doc. 9 at 6. Specifically, Hodge contends
that the trial court failed to orally pronounce his Prison Releasee Reoffender
designation and sentence; thus, Hodge avers that the trial court is required to strike
the designation and sentence him to the lowest permissible sentence per his criminal
punishment scoresheet. Id.
Hodge raised this claim in his Rule 3.850 motion. Resp. Ex. 9 at 12-13. The trial
court initially found that the instant claim was not cognizable in a Rule 3.850 motion.
Id. at 26. However, the trial court nonetheless found the claim to be without merit. Id.
Specifically, the trial court reasoned:
Upon review of the relevant documents, this Court finds
there exists no conflict between Defendant’s written
judgment and sentence and the trial judge’s oral imposition
of sentence. The trial judge imposed the very same sentence
upon Defendant both orally and in writing. During the
sentencing hearing, the judge orally pronounced
Defendant’s fifteen-year minimum mandatory sentence
“under the law” and found that Defendant “is a repeat
offender” after accepting two previous judgments submitted
by the state in support of PRR sentencing. Therefore,
25
despite his instant contentions, Defendant was legally
sentenced as a PRR and his oral and written sentences do
not conflict. See Williams v. State, 129 So. 3d 453, 455 (Fla.
2d DCA 2014). He is not entitled to relief because his claim
is without merit. Ground Six is denied.
Resp. Ex. 9 at 26-11. Respondents assert that Hodge’s failure to brief this claim when
he appealed the trial court’s order denying his Rule 3.850 motion renders this issue
unexhausted. Resp. at 64-66; Resp. Ex. 10. Respondents further note that Hodge raises
this claim in a Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal
sentence that is currently pending in state court. Id. at 66. Respondents argue that
while this situation renders this Petition as a mixed petition, this claim is otherwise
not cognizable on federal habeas review because it is a pure question of state law. Id.
at 66-67.
Federal courts cannot review a state’s alleged failure to adhere to its own
sentencing procedures. See Branan v. Booth, 861 F.2d 1507 (11th Cir.1988); Carrizales
v. Wainwright, 699 F.2d 1053 (11th Cir.1983); Jones v. Estelle, 622 F.2d 124 (5th Cir.
1980); Willeford v. Estelle, 538 F.2d 1194 (5th Cir.1976). This applies even when such
a claim is couched in terms of equal protection and due process. See Branan, 861 F.2d
at 1508. Federal habeas review “is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 68 (1991) (citations omitted). “[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.” Id. at 67-68. As such,
federal courts may not review claims based exclusively on state law issues. Branan,
861 F.2d at 1508 (quotation omitted).
26
Even assuming Hodge’s failure to brief this issue during his postconviction
appeal renders this issue unexhausted, the Court agrees with Respondents that
Hodge’s claim is not cognizable on federal habeas review because it is based on
perceived errors of state law. See Watts v. Sec’y Dept. of Corr., No. 3:14-cv-558-J39MCR, 2017 WL 2021701, at *16-*17 (M.D. Fla. May 12, 2017); Grove v. Sec’y Dept.
of Corr., No. 8:08-cv-1673-T-17MAP, 2009 WL 179626, at *7 (M.D. Fla. Jan. 26, 2009).
When an oral sentence conflicts with the written sentence, the oral sentence controls.
See Hill v. United States ex rel. Wampler, 298 U.S. 460 (1936). “However, there is no
Supreme Court precedent deciding the specific circumstances under which a state
court may determine the written judgment is in harmony with the oral
pronouncement.” Grove, No. 8:08-CV-1673-T17MAP, 2009 WL 179626, at *8. Here,
the state court’s finding that Hodge’s written judgement and sentence does not conflict
with the sentencing court’s oral pronouncement is objectively reasonable. The
sentencing court’s intent to sentence Hodge as a PRR is evident from the sentencing
transcript. Resp. Ex. 9 at 86-87. Accordingly, Hodge is not entitled to habeas relief on
this claim.
vii. Sub-Claim G
Hodge maintains that the trial court erred in not allowing him to amend his
Rule 3.850 motion to allow him to sufficiently allege his claims for relief. Doc. 9 at 7.
Specifically, Hodge asserts that the trial court failed to allow him to amend ground
four of his Rule 3.850 motion, so he could properly allege that trial counsel failed to
object to an erroneous jury instruction on attempted carjacking. Id. Hodge alleges that
27
the trial court denied this issue because he did not have factual or legal support; thus,
the trial court should have allowed him to amend the claim. Id.
Respondents contend that Hodge failed to exhaust this claim because he never
raised it in state court. Resp. at 68-69. Respondents further maintain that even if this
claim was exhausted, it is not cognizable on federal habeas review. Id. at 69.
The Eleventh Circuit has repeatedly held that alleged defects in a collateral
proceeding do not state a basis for federal habeas relief.
Federal habeas relief is available to remedy defects in a
defendant’s conviction and sentence, but “an alleged defect
in a collateral proceeding does not state a basis for habeas
relief.” Quince v. Crosby, 360 F.3d 1259, 1262 (11th
Cir.2004); see also Carroll v. Sec’y, DOC, 574 F.3d 1354,
1365 (11th Cir.2009). There is a valid reason behind this
principle: “[A] challenge to a state collateral proceeding does
not undermine the legality of the detention or
imprisonment—i.e., the conviction itself—and thus habeas
relief is not an appropriate remedy.” Carroll, 574 F.3d at
1365. Furthermore, such challenges often involve issues of
state law, and “[a] state's interpretation of its own laws or
rules provides no basis for federal habeas corpus relief, since
no question of a constitutional nature is involved.”
McCullough v. Singletary, 967 F.2d 530, 535 (11th
Cir.1992).
Alston v. Dep’t of Corr., Fla., 610 F.3d 1318, 1325–26 (11th Cir. 2010). Hodge’s
challenge does not attack the validity of the fact or length of his confinement. His claim
concerns a state matter as Florida provides for postconviction procedures through its
state statutes. These collateral proceedings are a state created right. Thus, the state
court’s alleged failure to give Hodge leave to amend his claim concerns postconviction
procedures rather than the legality of Hodge’s detention. Accordingly, Hodge’s
28
challenge to the state postconviction proceedings does not provide a basis for federal
habeas relief.
Nevertheless, even if this claim was cognizable on federal habeas review, it is
still without merit. Here, while the trial court found that Hodge’s claim was
speculative and without legal or factual support, it primarily disposed of this issue on
the merits. Resp. Ex. 9 at 24-25. Notably, the trial court found that the instruction did
not run afoul of the standard criminal jury instructions, and thus, trial counsel was
not ineffective for failing to object. Id. at 25. The First DCA per curiam affirmed the
trial court’s finding without a written opinion. Resp. Ex. 12. Because the state court
found that Hodge’s claim lacked merit despite its insufficiency, Hodge cannot show
that the outcome of the postconviction proceedings would have been different had the
trial court allowed him to amend his Rule 3.850 motion. This claim is denied.
Therefore, it is now
ORDERED AND ADJUDGED:
1.
The Amended Petition (Doc. 9) is DENIED, and this action is
DISMISSED WITH PREJUDICE.
2.
The Clerk of Court shall enter judgment accordingly, terminate any
pending motions, and close this case.
3.
If Hodge appeals the denial of the Amended Petition, the Court denies a
certificate of appealability. Because this Court has determined that a certificate of
appealability is not warranted, the Clerk shall terminate from the pending motions
29
report any motion to proceed on appeal as a pauper that may be filed in this case. Such
termination shall serve as a denial of the motion.13
DONE AND ORDERED at Jacksonville, Florida, this 26th day of November,
2018.
TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C:
Kevin Hodge, #131962
Bryan G. Jordan, Esq.
The Court should issue a certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, Petitioner “must demonstrate 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) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Here, after consideration of the record as a whole, the Court will deny a certificate of
appealability.
13
30
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