Torrey v. Secretary, Department of Corrections et al
Filing
12
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 1 is DENIED. The Clerk is directed to enter judgment in favor of Respondents and against the Petitioner, terminate any pending motions, and close this file. Petitioner is not entitled to a certificate of appealability and is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 7/28/2015. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PAUL E. TORREY, II
Petitioner,
v.
Case No: 8:13-cv-2403-36AEP
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________________/
ORDER
Petitioner, an inmate in the Florida penal system proceeding pro se, brings this
petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. #1). The Court has
considered the petition and Respondent’s response (Dkt. #7). Upon review, the Court
concludes that the petition is without merit in part and procedurally barred in part, and
should therefore be denied.
BACKGROUND
Petitioner Paul E. Torrey, II (“Torrey”) was charged in state court with Driving
While Under the Influence – Manslaughter (Count I), Driving While Under the Influence –
Serious Bodily Injury (Count II) and Violation of Driver’s License Restriction (Count III).
Before proceeding to trial, Torrey filed a motion to dismiss the charges on the basis that
the investigating officers intentionally did not collect or lost evidence that may have
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supported his theories of defense: (a) Torrey was not the driver, but the passenger, of the
van, and, alternatively, (b) even if Torrey were the driver, the accident was caused by the
victim’s failure to operate his motorcycle with its headlight on. After holding a hearing on
the issue and making a factual finding that the officers did not act in bad faith in the
collection, preservation, or testing of evidence, the trial court denied Torrey’s motion.
At trial, Torrey moved for a judgment of acquittal, arguing that the prosecution had
only introduced circumstantial evidence to prove Torrey was driving the van and had failed
to exclude Torrey’s reasonable hypothesis of innocence that he was the van’s passenger.
The trial court denied the motion as to Counts I and II, but granted it as to Count III.
Ultimately, a jury found Torrey guilty of Counts I and II. The trial court sentenced Torrey
to fifteen years in prison on Count I and to three years in prison on Count II, consecutive
to the sentence on Count I.
Torrey appealed, raising a single issue: whether the trial court erred in denying his
motions to dismiss and for judgment of acquittal (as it related to Counts I and II). On
October 14, 2011, the Florida Second District Court of Appeal per curiam affirmed
Torrey’s convictions and sentences. See Torrey v. Florida, 73 So. 3d 770 (Fla. 2d DCA
2011) (table).
Subsequently, Torrey filed a motion for postconviction relief under Florida Rule of
Criminal Procedure 3.850, in which he made the following allegations:
1. reversible error occurred when the prosecutor expressed feelings and belief
concerning Torrey’s guilt; and
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2. the trial court committed fundamental error when it instructed the jury to make the
statutory presumption of impairment.
The state postconviction court concluded that Torrey’s claims were procedurally barred
and summarily denied his motion. Torrey appealed, and on August 21, 2013, the state
appellate court per curiam affirmed. See Torrey v. Florida, 144 So. 3d 547 (Fla. 2d DCA
2013) (table). The mandate issued on September 20, 2013.
Torrey timely filed the instant petition for habeas corpus relief, raising the following
grounds:
1. Torrey’s constitutional due process rights were violated when the trial court denied
his motions to dismiss and for judgment of acquittal because law enforcement had
improperly collected evidence from the crime scene;
2. Torrey’s Fifth and Fourteenth Amendment rights were violated when the
prosecution expressed feelings and belief of Torrey’s guilt during closing
arguments; and
3. Torrey’s Sixth and Fourteenth Amendment due process rights were violated where
the lower court instructed the jury to make the statutory presumption of impairment.
GUIDING PRINCIPLES
I. Federal Question
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Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), a district court may entertain a petition for writ of habeas
corpus filed by a person in state custody “only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” The Supreme Court
has cautioned that § 2254 does not make federal courts “forums in which to relitigate state
trials.” Barefoot v. Estelle, 463 U.S. 880, 887 (1983) (superseded by statute on other
grounds). Rather, “[f]ederal courts may intervene in the state judicial process only to
correct wrongs of a constitutional dimension.” Velazquez v. Sec’y, Dep’t of Corr., No. 8:10cv-2253-T-33EAJ, 2011 WL 3794693, at *1 (M.D. Fla. Aug. 26, 2011) (citing Wainwright
v. Goode, 464 U.S. 78 (1983)). “Even when a petition which actually involves state law
issues is ‘couched in terms of equal protection and due process,’ this limitation on federal
habeas corpus review is of equal force.” Id. (quoting Willeford v. Estelle, 538 F.2d 1194,
1196-98 (5th Cir. 1976)).
II. Exhaustion of Remedies
“A petitioner cannot bring a federal habeas claim without first exhausting state
remedies.” Holland v. Florida, 560 U.S. 631, 648 (2010); see also 28 U.S.C.
§ 2254(b)(1)(A). “In other words, the state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to a federal court in a
habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C.
§ 2254(c). Because state courts are obliged to enforce federal law, “[c]omity . . . dictates
that when a prisoner alleges that his continued confinement for a state court conviction
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violates federal law, the state courts should have the first opportunity to review this claim
and provide any necessary relief.” Id. at 844.
“In Florida, exhaustion is ordinarily accomplished on direct appeal. If not, it may
be accomplished by the filing of a [Florida Rule of Criminal Procedure] 3.850 motion, and
an appeal from its denial.” Williams v. McNeil, No. 08-80831-Civ., 2010 WL 2634403, at
*4 (S.D. Fla. June 9, 2010). Though exhaustion of state remedies requires that a petitioner
invoke appellate review, it does not require extraordinary procedures. Boerckel, 526 U.S.
at 844; 28 U.S.C. § 2254. A habeas petitioner seeking review of a Florida conviction is not
required to seek discretionary review by the Florida Supreme Court to establish that he
satisfied the exhaustion requirement. See Tucker v. Dep’t of Corr., 301 F.3d 1281, 128384 (11th Cir. 2002).
III. AEDPA Bar to Relitigation
Where a state court has already adjudicated the issues raised in the petition on the
merits, § 2254(d) bars relitigation, subject only to the exceptions outlined
in § 2254(d)(1) and (d)(2). Harrington v. Richter, 562 U.S. 86, 98 (2011). A federal court
may only grant relief if (1) the state decision 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) the state decision was “based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” § 2254(d); see
also Richter, 562 U.S. at 98. “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
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benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (internal quotation
marks and citations omitted).
DISCUSSION
I. Ground One
In his first ground for relief, Torrey contends that his constitutional due process
rights were violated when the trial court denied his motions to dismiss and for judgment of
acquittal. He intimates that these errors constitute due process violations because law
enforcement destroyed or failed to preserve potentially exculpatory evidence.
In particular, Torrey argues that law enforcement should have collected the clothing
of the other person in the vehicle with him at the time of the accident and preserved both
vehicles involved in the collision. The blood splatter on the clothing, Torrey contends,
would have established that he was in the passenger seat: he asserts that his blood landed
on the other individual’s right arm, and if he had been in the driver’s seat, it necessarily
would have landed on the left. A blood splatter analysis of the vehicle’s interior would have
supported the same conclusion, he argues. Finally, Torrey maintains that if the motorcycle
driven by the victim had been properly preserved, the headlight could have been tested to
see whether it was on or off at the time of the crash.1
1
Torrey concedes that the day after the accident, one of the investigating officers examined the headlight and
could not determine whether it was on or off at the time of the accident. But Torrey argues that the officer is not an
expert in headlight analysis, and he should have sent the headlight to the Florida Department of Law Enforcement for
an expert determination on the matter. He believes law enforcement acted improperly by leaving the motorcycle
unsecured in a tow yard because the critical pieces of evidence were stolen before a thorough examination was able
to be conducted.
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A. Exhaustion of State Remedies
The Court’s review of this claim is circumscribed by the claims of constitutional
error Torrey alleged when he raised this issue on direct appeal. On appeal, Torrey
contended that the trial court should have granted his motions because the manner in which
evidence was collected in the case violated his due process rights.
Though Torrey did not explicitly assert his belief that his federal (as opposed to
state) due process rights were violated, it is clear from the cases he cited that his claim
contemplated federal constitutional error. See Baldwin v. Reese, 541 U.S. 27, 32 (2004)
(noting that a petitioner sufficiently raises a federal claim in state court “by citing in
conjunction with the claim . . . a case deciding such a claim on federal grounds”). See also
Rochin v. California, 342 U.S. 165, 173 (1952); Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123 (1951) Malinski v. New York, 324 U.S. 401, 416-17 (1945); Snyder
v. Massachusetts, 291 U.S. 97, 105 (1933) (all dealing with federal due process issues and
cited by Torrey on direct appeal to bolster his due process claim). Because Torrey raised
this claim of constitutional error on direct appeal, the Court concludes that Torrey has
exhausted his state remedies on Ground One.
B. Bar to Relitigation
When Torrey raised this claim on direct appeal, the appellate court affirmed it
without comment. See Torrey, 73 So. 3d 770. This affirmance constitutes an adjudication
on the merits for purposes of the AEDPA’s bar to relitigation. See Richter, 562 U.S. at 9899 (“[D]etermining whether a state court’s decision resulted from an unreasonable legal or
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factual conclusion does not require that there be an explanation from the state court
explaining the state court’s reasoning.”). Accordingly, the Court will evaluate Torrey’s
claim on its merits to the extent § 2254(d) allows.
Torrey opines that there was “a complete dereliction of duty on the part of the state
to collect and preserve the evidence in the case,” which impeded his due process rights and
denied him a fair trial. The Due Process Clause of the Fourteenth Amendment protects a
defendant’s right “to request and obtain from the prosecution evidence that is either
material to the guilt of the defendant or relevant to the punishment to be imposed.”
California v. Trombetta, 467 U.S. 479, 485 (1984). However, “unless a criminal defendant
can show bad faith on the part of the police, failure to preserve potentially useful evidence
does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51,
57-58 (1988).
In his petition, Torrey explicitly states that this is not a Youngblood claim of
evidence lost or destroyed by the police. He relies on Trombetta to illustrate the differences
between his case and Youngblood. Notably, the Youngblood court evaluated the petitioner’s
due process claim in light of the conclusion reached in Trombetta. See Youngblood, 488
U.S. at 56-58. Though Torrey attempts to carve out a due process right separate than the
one identified in Youngblood, the difference between the due process rights that attach
when law enforcement loses evidence before collection or after collection is a distinction
without a difference. See e.g. Quang Khac Tran v. Thaler, No. 3:12-cv-0406-N-BH, 2013
WL 1787863, at *11 (N.D. Tex. April 4, 2013) (applying Youngblood to petitioner’s due
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process claim based on police failure to collect certain evidence at the crime scene),
adopted by 2013 WL 1797916 (N.D. Tex. April 29, 2013).
Importantly, the state court made a finding of fact that law enforcement did not act
in bad faith in the collection, preservation, or testing of evidence. This finding is cloaked
with a presumption of truth and Torrey has not pointed to any evidence to rebut this
presumption. See 15 U.S.C. § 2254(e) (“[A] determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of rebutting
the presumption of correctness by clear and convincing evidence.”). Operating from the
presumption that law enforcement did not act in bad faith, the Court concludes that the
appellate court’s denial of Torrey’s due process claim comports with the rule pronounced
in Youngblood.
Further, the state court’s conclusion was a reasonable determination of the facts in
light of the evidence presented. At no point in his state court proceedings did Torrey
demonstrate that the collection and analysis of the specified evidence would have been
more than potentially useful. And due process rights are not implicated where the state fails
to preserve “evidentiary material of which no more can be said than that it could have been
subjected to tests, the results of which might have exonerated the defendant.” Youngblood,
488 U.S. at 57. Indeed, Torrey’s due process argument centers on his speculation that if
this evidence had been tested, it may have proved he was not behind the driver’s wheel or
that the accident was caused by the victim’s failure to turn on his headlight. In the absence
of anything more concrete, it was reasonable for the state court to conclude that Torrey’s
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due process rights were not violated as a result of law enforcement’s failure to preserve the
evidence at issue.
Torrey has failed to meet his burden under §2254(d), and Ground One must be
denied.
II. Grounds Two and Three
In Ground Two, Torrey contends that his Fifth and Fourteenth Amendment rights
were violated when the prosecution expressed feelings and belief of Torrey’s guilt during
closing arguments. And in Ground Three, he argues that his Sixth and Fourteenth
Amendment rights were violated when the trial court instructed the jury to make the
statutory presumption of his impairment while driving. The Court need not reach the merits
of Grounds Two and Three because Torrey has procedurally defaulted on each of these
claims.
A. Exhaustion of Remedies
Torrey raised each of these claims for the first time in a motion for postconviction
relief under Florida Rule of Criminal Procedure 3.850. His motion was completely devoid
of any allegation of federal constitutional error or citation to a federal source of law
establishing his entitlement to relief. In the instant petition, Torrey, for the first time alleges
that these errors deprived him of his federal constitutional rights. Considering that Torrey
did not give the state court an opportunity to act on his constitutional claims before
presenting them in his habeas petition, the Court concludes that these claims are
unexhausted. See Duncan v. Harry, 513 U.S. 364, 365 (1995) (finding petitioner’s claim
to be unexhausted because he “did not apprise the state court of his claim that the
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evidentiary ruling of which he complained was not only a violation of state law, but denied
him the due process of law guaranteed by the Fourteenth Amendment”).
Typically, where a petitioner files a “mixed petition” in which some claims are
exhausted and others are unexhausted, the petition “should be dismissed without prejudice
to allow the petitioner to either exhaust state remedies, bring a new petition presenting only
the exhausted claims, or amend the petition to remove any unexhausted claims.” Isaac v.
Augusta SMP Warden, 470 F. App’x 816, 818 (11th Cir. 2012). But such an exercise is
futile where the petitioner’s unexhausted claims are barred from further review in state
court. See Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998) (advising that “when
it is obvious that the unexhausted claims would be procedurally barred in state court due
to a state-law procedural default,” the district court “should forego the needless ‘judicial
ping-pong’ and just treat those claims now barred by state law as no basis for federal habeas
relief.”).
This is the exact scenario present here. Torrey cannot take a second direct appeal
from his convictions and sentences, and he is barred from raising his substantive due
process claims in a postconviction motion. See Fla. R. Crim. P. 3.850(c) (“This rule does
not authorize relief based on grounds that could have or should have been raised at trial
and, if properly preserved, on direct appeal of the judgment and sentence.”); Reaves v.
State, 826 So. 2d 932, 936 n. 3 (Fla. 2002) (“We deny the following claims as they either
were raised or should have been raised on direct appeal and accordingly are procedurally
barred: (2) allegedly improper prosecutorial comments; . . . (7) improper penalty phase jury
instructions.”). Because Torrey has procedurally defaulted on the issues raised in Grounds
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Two and Three, and return to state court to exhaust these claims would be futile, the claims
should be dismissed with prejudice.
B. Adequate and Independent State Ground Doctrine
Further, the Court is precluded from disturbing the state postconviction court’s
holding that Torrey procedurally defaulted on the issues raises in Grounds Two and Three.
“A federal habeas court will not review a claim rejected by a state court ‘if the judgment
of the state court rests on a state law ground that is independent of the federal question and
adequate to support the judgment.” Beard v. Kindler, 558 U.S. 53, 55 (2009) (internal
quotation marks and citation omitted). “The state-law ground may be . . . a procedural
barrier to adjudication of the claim on the merits.” Walker v. Martin, 131 S. Ct. 1120, 1127
(2011). This doctrine furthers the objective of the exhaustion requirement because without
it
habeas petitioners would be able to avoid the exhaustion requirement by
defaulting their federal claims in state court. Accordingly, absent showings
of “cause” and “prejudice,” habeas relief will be unavailable when (1) a state
court [has] declined to address a prisoner's federal claims because the
prisoner had failed to meet a state procedural requirement, and (2) “he state
judgment rests on independent and adequate state procedural grounds.
Id. (internal quotation marks and citations omitted).
When the state postconviction court denied Torrey’s claims, it did so on the basis
that his claims were not cognizable in a motion for postconviction relief because they could
have and should have been raised on direct appeal. See Reaves v. Florida, 826 So. 2d at
936 n.3. The Eleventh Circuit has long recognized that this procedural rule is one entitled
to deference under the adequate and independent state ground doctrine. See Sullivan v.
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Wainwright, 695 F.2d 1306, 1310 (11th Cir. 1983) (holding that because the Florida
postconviction court declined to consider a constitutional claim not raised on direct appeal,
the claim was procedurally barred from habeas review absent a showing of “cause and
prejudice”), cert. denied, 464 U.S. 922 (1983); see also Marek v. Singletary, 62 F.3d 1295
(11th Cir. 1995) (recognizing Florida’s procedural bar on postconviction claims that should
have been raised on direct appeal as a basis for the habeas court to decline review of the
claim).
In the instant petition, Torrey attempts to establish cause for having procedurally
defaulted on this claim in state court. In particular, he asserts that he was precluded from
raising the claims on direct appeal because trial counsel did not properly preserve the issues
for appellate review. Torrey’s argument is unavailing. The Court recognizes that
ineffective assistance of counsel may constitute cause for a procedural default. See Murray
v. Carrier, 477 U.S. 478, 489 (1986). However, the exhaustion doctrine “requires that a
claim of ineffective assistance be presented to the state courts as an independent claim
before it may be used to establish cause for a procedural default.” Id. Because Torrey did
not raise claims of ineffective assistance of counsel for failure to object to the prosecutor’s
comments and the specified jury instruction in state court, he cannot now use counsel’s
failure to preserve those issues for appellate review as cause to excuse his procedural
default. See id. (holding that procedural default as the result of ineffective assistance of
counsel does not constitute cause if the ineffective assistance claim was not first raised in
state court).
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It would also be futile for the Court to dismiss Torrey’s claims for him to return to
state court and present “cause” to excuse his defaults. Any cause allegation, in the form of
an ineffective assistance of counsel claim or otherwise, is now procedurally barred by Rule
3.850’s time limit. See Fla. R. Crim. P. 3.850(b) (imposing a two-year statute of
limitations); Whiddon v. Dugger, 894 F.2d 1266 (11th Cir. 1990) (recognizing and
applying Rule 3.850’s two-year time limit).
The “cause and prejudice” test is a conjunctive one, both prongs of which must be
satisfied to excuse a procedural default. See Palmes v. Wainright, 725 F.2d 1511, 1525-26
(11th Cir. 1984) (citing Engle v. Isaac, 456 U.S. 107, 129 (1982)). “Having failed to show
‘cause’, [Torrey] necessarily fails the conjunctive.” Id. at 1526.
In sum, (1) Torrey procedurally defaulted on his claim by failing to exhaust his state
remedies, (2) he has not and cannot establish cause for this procedural default, and (3) the
state court’s denial of the instant claims stands on adequate and independent state grounds
that preclude the Court’s review. There is no basis for habeas corpus relief and Grounds
Two and Three must be denied.
CONCLUSION
For the reasons set forth above, Petitioner Paul E. Torrey, II’s claims are
procedurally barred or without merit and will be denied.
It is therefore ORDERED AND ADJUDGED that:
1.
The Petition for Writ of Habeas Corpus (Dkt. #1) is DENIED.
2.
The Clerk is directed to enter judgment in favor of Respondents and against
the Petitioner, terminate any pending motions, and close this file.
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CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUERIS DENIED
IT IS FURTHER ORDERED that Torrey is not entitled to a certificate of
appealability (“COA”). 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).
Rather, a district court must first issue a COA. Id. “A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id. at §
2253(c)(2). To make such a showing, Torrey “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)). Torrey has not made the requisite showing in these
circumstances.
Finally, because Torrey is not entitled to a COA, he is not entitled to appeal in forma
pauperis.
DONE AND ORDERED this 28th day of July, 2015, at Tampa, Florida.
Copies furnished to:
Counsel/Parties of Record
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