Valentine v. Secretary, Department of Corrections et al (Hillsborough County)
ORDER granting 13 --motion to dismiss; dismissing grounds I, III, IV, VII, VIII, IX, and XIV; response due 8/10/2015 to remaining grounds; reply due the latter of 9/28/2015 or within thirty days of the response; respondent's final paper due twenty days from Valentine's reply. Signed by Judge Steven D. Merryday on 6/12/2015. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SECRETARY, Department of Corrections,
CASE NO. 8:13-cv-30-T-23TBM
( Death Case )
Valentine applies for the writ of habeas corpus under 28 U.S.C. § 2254 and
challenges the validity of his state conviction for murder, for which he was sentenced
to death. An earlier order (Doc. 11) directs the respondent to first address any
ground that he contends is not entitled to a review on the merits. In response, the
respondent moves to dismiss grounds I, III, IV, VII, VIII, IX, and XIV. (Doc. 13)
Valentine opposes the motion and the respondent replies. (Doc. 15 and 17)
Valentine was convicted of first-degree murder, attempted first-degree murder,
two counts of kidnapping, grand theft, and burglary, for which he was sentenced to
death. Valentine v. State, 616 So. 2d 971, 972 (Fla. 1993) (“Valentine I”), reverses the
convictions and provides a concise description of the murder:
Livia Romero married Terance Valentine while she was a
teenager in Costa Rica and the couple emigrated to the United
States in 1975, settled in New Orleans, and adopted a child.
After seeking to divorce Valentine in 1986, Romero married
Ferdinand Porche and the family moved to Tampa, where they
began receiving telephoned threats from Valentine. On
September 9, 1988, Valentine armed himself, forced his way
into the family’s home, wounded Porche, drove both Romero
and Porche to a remote area and shot them. Romero survived
and immediately told police Valentine was her assailant.
When retried, Valentine was again convicted on all counts and sentenced to
death. The convictions and sentences were affirmed. Valentine v. State, 688 So. 2d
313 (Fla.), cert. denied, 522 U.S. 830 (1997) (“Valentine II”). Valentine unsuccessfully
challenged his convictions and sentences in a motion for post-conviction relief.
Valentine v. State, 98 So. 3d 44 (Fla. 2012) (“Valentine III”).
Exhaustion and Federal Question:
The respondent argues that Valentine failed to present four1 grounds to the
state courts, specifically:
The trial judge erred by ruling that the Husband-Wife
privilege of section 90.504, Florida Evidence Code, was
inapplicable with respect to the counts where Ferdinand
Porche was the victim.
The trial judge erred by denying Petitioner’s motion to
strike the footprint exhibits because the expert’s opinion
was so speculative that it could not reasonably link the
prints to Petitioner.
In his reply the respondent withdraws his argument that Valentine failed to present ground
XIV to the state courts.
VIII. The sentencing judge erred by finding that the cold,
calculated and premeditated aggravating circumstance
The sentencing judge failed to find several mitigating
circumstances which petitioner had established by a
reasonable quantum of evidence.
A petitioner must present each claim to a state court before raising the claim in
federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly
presen[t]’ federal claims to the state courts in order to give the State the ‘opportunity
to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v.
Henry, 513 U.S. 364, 365 (1995), quoting Picard v. Connor, 404 U.S. 270, 275 (1971).
Accord Rose v. Lundy, 455 U.S. 509, 518S19 (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 all claims of
constitutional error.”); Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) (“[T]he
applicant must have fairly apprised the highest court of his state with the appropriate
jurisdiction of the federal rights which allegedly were violated.”).
The respondent correctly argues that grounds I, III, VIII, and IX are
unexhausted because, although presented to the state courts, Valentine presented
each ground only as a violation of state law and failed to assert each ground as a
federal constitutional claim. Duncan v. Henry, 513 U.S. 364, 365S66 (1995), teaches
that briefing an issue as a matter of state law is insufficient to exhaust a federal claim
on the same grounds:
If state courts are to be given the opportunity to correct alleged
violations of prisoners’ federal rights, they must surely be
alerted to the fact that the prisoners are asserting claims under
the United States Constitution. If a habeas petitioner wishes to
claim that an evidentiary ruling at a state court trial denied him
the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal court, but in
See also Baldwin v. Reese, 541 U.S. 27, 32 (2004) (“We consequently hold that
ordinarily a state prisoner does not ‘fairly present’ a claim to a state court if that court
must read beyond a petition or a brief (or a similar document) that does not alert it to
the presence of a federal claim in order to find material, such as a lower court opinion
in the case, that does so.”). As a consequence, “[i]t is not enough that all the facts
necessary to support the federal claim were before the state courts, or that a
somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6
(1982). See also Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004)
(“The exhaustion doctrine requires a habeas applicant to do more than scatter some
makeshift needles in the haystack of the state court record.”) (citations omitted).
Because Valentine presented the grounds as a violation of only state law, Grounds I,
III, VIII, and IX are unexhausted.
The failure to properly exhaust each available state court remedy causes a
procedural default of the unexhausted claim. O’Sullivan v. Boerckel, 526 U.S. 838, 847
(1999) (“Boerckel’s failure to present three of his federal habeas claims to the Illinois
Supreme Court in a timely fashion has resulted in a procedural default of those
claims.”); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (“[W]hen it is
obvious that the unexhausted claims would be procedurally barred in state court due
to a state-law procedural default, we can forego the needless ‘judicial ping-pong’ and
just treat those claims now barred by state law as no basis for federal habeas relief.”);
Kennedy v. Herring, 54 F.3d 678, 684 (1995) (“If a claim was never presented to the
state courts, the federal court considering the petition may determine whether the
petitioner has defaulted under state procedural rules.”), appeal after remand, Kennedy v.
Hopper, 156 F.3d 1143 (11th Cir.), cert. denied sub nom Kennedy v. Haley, 526 U.S. 1075
A claim barred by a procedural default in state court remains barred in federal
court, absent a demonstration of “actual cause and prejudice” or “manifest injustice.”
Murray v. Carrier, 477 U.S. 478, 492 (1986); Engle v. Isacc, 456 U.S. 107 129 (1981);
Wainwright v. Sykes, 422 U.S. 72 (1977); Tower v. Phillips, 7 F.3d 206, 210 (11th Cir.
1993). Valentine asserts a basis for neither “cause and prejudice” nor a “fundamental
miscarriage of justice.” As a consequence, grounds I, III, VIII, and IX are
procedurally barred from federal review.
The respondent also argues that grounds I, III, and XIV,2 as asserted in the
federal application, allege a violation of only state law and not constitutional law.
Ground XIV alleges that, “[c]umulatively, the combination of procedural and
substantive errors deprived Petitioner of a fundamentally fair trial guaranteed under the
Fourth, Fifth, Sixth, Eighth, and Fourteenth amendments to the United States Constitution
and the corresponding provisions of the Florida Constitution.”
Federal habeas corpus review of an alleged violation of state law is limited by statute.
“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). As a general principle, an alleged violation of state law fails to assert a
Questions of state law rarely raise issues of federal
constitutional significance, because “[a] state’s interpretation of
its own laws provides no basis for federal habeas corpus relief,
since no question of a constitutional nature is involved.”
Carrizales v. Wainwright, 699 F.2d 1053, 1053-54 (11th Cir.
1983) (citations omitted). We review questions of state law in
federal habeas proceedings only to determine whether the
alleged errors were so critical or important to the outcome of
the trial to render “the entire trial fundamentally unfair.” Id. at
1054 (defective jury charge raises issue of constitutional
dimension “only if it renders the entire trial fundamentally
unfair”); see also Futch v. Dugger, 874 F.2d at 1487 (improperly
admitted evidence “must be inflammatory or gruesome, and so
critical that its introduction denied petitioner a fundamentally
fair trial”). “[T]he established standard of fundamental fairness
[when reviewing state evidentiary rulings] is that habeas relief
will be granted only if the state trial error was
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