Paul v. Secretary, Department of Corrections, et al.
Filing
37
ORDER that Paul's petition is denied. The Clerk is directed to enter judgment against Paul and to close this case. COA and IFP on appeal denied. Signed by Judge Virginia M. Hernandez Covington on 6/15/2017. (MLH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JUDY COLLEEN PAUL,
Petitioner,
v.
Case No. 8:15-cv-1397-T-33AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________/
ORDER
Judy Colleen Paul, a Florida prisoner, filed through counsel a second amended
petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 14) and memorandum in
support (Doc. 16). She challenges her conviction entered by the Circuit Court for the
Twelfth Judicial Circuit, in and for Manatee County. Respondent filed a response (Doc. 33)
and Paul filed a reply (Doc. 34). Upon consideration, the petition is denied.
PROCEDURAL HISTORY
Paul was convicted after a jury trial of one count of scheme to defraud. (Doc. 22,
Ex. 1d, p. 822.)1 She was sentenced to three years in prison, followed by ten years of
probation. (Id., p. 887.) The state appellate court per curiam affirmed her conviction and
sentence. (Doc. 22, Ex. 4.)
STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this
1
The state trial court dismissed Paul’s conviction for grand theft. (Doc. 22, Ex. 1d, pp. 821, 880.)
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proceeding. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert.
denied, 531 U.S. 840 (2000). Habeas relief can only be granted if a petitioner is in custody
“in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). A petitioner must demonstrate that the state court’s adjudication of her federal
claim resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established federal law, or 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)(1)-(2).
DISCUSSION
Grounds One, Five, and Six2
In Ground One, Paul asserts that the State’s evidence was insufficient to show that
she committed an offense on July 3, 2006, the date alleged in the charging information.
In Ground Six, she claims that the trial court erred in denying her motion for judgment of
acquittal. In Ground Five, she argues that the “Sand Kay Condominium,” listed as the
“victim” in the information, was a “non-existent entity.” (Doc. 16, p. 18.)
Paul has failed to raise a federal claim in her habeas petition or her memorandum
with respect to any of these grounds. As addressed, habeas relief can only be granted if
a petitioner is in custody “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). See also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t
is not the province of a federal habeas court to reexamine state-court determinations on
state-law questions. In conducting habeas review, a federal court is limited to deciding
2
Paul lists four claims in her federal habeas petition. She addresses four additional claims in her
memorandum of law. The Court has labeled these claims as Grounds Five through Eight for clarity.
Page 2 of 10
whether a conviction violated the Constitution, laws, or treaties of the United States.”);
Wainwright v. Goode, 464 U.S. 78, 83 (1983) (“[F]ederal courts may intervene in the state
judicial process only to correct wrongs of a constitutional dimension.”). Accordingly, a claim
that does not allege a federal constitutional violation is not cognizable in a federal habeas
proceeding. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.1988) (affirming the
dismissal of a state law claim as not cognizable in a federal habeas action and stating that
“a habeas petition grounded on issues of state law provides no basis for habeas relief.”).
Even liberally interpreting these grounds as raising federal claims, however, they
would be procedurally defaulted. A federal habeas petitioner must exhaust her claims for
relief by raising them in state court before presenting them in her petition.
28 U.S.C.
§ 2254(b)(1)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he 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.”). The requirement of exhausting state
remedies as a prerequisite to federal review is satisfied if the petitioner “fairly presents” her
claim in each appropriate state court and alerts that court to the federal nature of the claim.
28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 275-76 (1971). See also Pearson
v. Sec’y, Dep’t of Corr., 273 Fed. App’x 847, 849-50 (11th Cir. 2008) (“The exhaustion
doctrine requires the petitioner to ‘fairly present’ his federal claims to the state courts in a
manner to alert them that the ruling under review violated a federal constitutional right.”)
(citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)).
Paul asserted on direct appeal that the trial court erred in denying her motion for
judgment of acquittal because the State did not prove that she committed any offense on
July 3, 2006, against a victim “whose legal identity was never legally established by the
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State.” (Doc. 22, Ex. 2, pp. 21-24.) But Paul did not raise a federal claim, identify any
federal constitutional provisions, or mention the federal standard for sufficiency of the
evidence claims applied in Jackson v. Virginia, 443 U.S. 307 (1979).3 (Id.) Instead, she
cited Florida law in asserting that “[t]he proof must not only be consistent with guilt, but also
inconsistent with a reasonable hypothesis of innocence,” and that “[a] conviction cannot
stand unless the proof is inconsistent with any reasonable hypothesis of innocence.” (Id.,
pp. 22, 23.) Thus, she clearly relied on Florida’s special standard for circumstantial
evidence cases, which provides that “[w]here the only proof of guilt is circumstantial, no
matter how strongly the evidence may suggest guilt, a conviction cannot be sustained
unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Preston
v. Sec’y, Fla. Dep’t of Corr., 785 F.3d 449, 460 (11th Cir. 2015) (quoting Thorp v. State,
777 So.2d 385, 389 (Fla. 2000)). Because her claim concerned Florida’s distinguishable
and “unique” standard of review for circumstantial evidence cases and did not involve
federal law, Paul failed to fairly present a federal claim to the state appellate court. See id.
at 461-62.
Paul’s failure to present the federal nature of the claims to the state court leaves the
exhaustion requirement unsatisfied. She cannot return to state court to file a successive
appeal. See Claughton v. Claughton, 393 So.2d 1061, 1062 (Fla. 1980) (“The general law
and our procedural rules at both the trial and appellate levels are designed for one final
judgment and one appeal.”); Fla. R. App. P. 9.140(b)(3) (a defendant must appeal a final
3
The Jackson standard provides that a petitioner challenging the sufficiency of the evidence is entitled
to relief “if it is found that upon the record evidence adduced at the trial no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.” 443 U.S. at 324.
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judgment within 30 days following rendition of a written order imposing sentence).
Therefore, any federal claims are procedurally defaulted. See Smith v. Jones, 256 F.3d
1135, 1138 (11th Cir. 2001) (the doctrine of procedural default provides that “[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, unless either the cause and
prejudice or the fundamental miscarriage of justice exception is established.”).
To establish cause for a procedural default, a petitioner “must demonstrate that
some objective factor external to the defense impeded the effort to raise the claim properly
in state court.” Wright v. Hopper, 169 F. 3d 695, 703 (11th Cir. 1999). To show prejudice,
a petitioner must demonstrate not only that the errors at her trial created the possibility of
prejudice but that they worked to her actual and substantial disadvantage and infected the
entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152,
170 (1982). A fundamental miscarriage of justice occurs in an extraordinary case where
a constitutional violation has probably resulted in the conviction of someone who is actually
innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). Paul has not alleged or demonstrated
the application of either exception to overcome the default. Accordingly, Grounds One,
Five, and Six are barred from review.
Ground Three
Paul asserts that “incompetent testimony was allowed.” (Doc. 14, p. 9.) She claims
that “[t]here was no testimony from any competent, experienced financial crimes
investigator” and that the State’s witnesses had no experience in bookkeeping or financial
matters. (Id.) As Paul has not alleged any federal constitutional violation, however, her
claim is not cognizable in this federal habeas proceeding. See Branan, 861 F.2d at 1508.
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Furthermore, even liberally construing her claim as alleging a federal violation, it
would be unexhausted because Paul did not clearly argue on direct appeal that the trial
court erred in allowing incompetent testimony. (Doc. 22, Ex. 2.) In asserting that the trial
court erred in denying her motion for judgment of acquittal, Paul alleged that State
witnesses gave testimony indicating they lacked knowledge about some of the evidence
or allegations. (Id., pp. 23-24.) Even assuming this portion of the appellate brief could be
read as alleging that the testimony of these witnesses was “incompetent” for the reasons
presented in the federal habeas petition, Paul’s claim is unexhausted because she did not
raise the federal nature of her allegation, as discussed with respect to Grounds One, Five,
and Six, supra. And as she is prohibited from presenting the federal claim in a second
direct appeal, her claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Paul does
not assert or show that an exception applies to overcome the default. Consequently,
Ground Three is barred from review.
Ground Two
Paul argues that the trial court erred in admitting unauthenticated summary
evidence, contrary to § 90.956, Fla. Stat. This claim involves the application of state law,
and Paul does not allege any federal constitutional violation. Accordingly, her claim is not
cognizable in this federal habeas proceeding. See Branan, 861 F.2d at 1508. Even if her
argument was liberally interpreted as raising a federal claim, it would be unexhausted
because she failed to present the federal dimension of the claim on direct appeal. (Doc.
22, Ex. 2, pp. 18-21.) Because Paul cannot now present the federal claim to the state court
in a successive appeal, the claim is procedurally defaulted. See Smith, 256 F.3d at 1138.
Paul has not argued or established that the cause and prejudice or fundamental
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miscarriage of justice exception applies to overcome the default. Accordingly, Ground Two
is barred from review.
Ground Seven
Paul claims that the trial court’s restitution order “violated due process and was
unauthorized by law.” (Doc. 16, p. 24.) She has only cited state law to support her
allegation, and raises no federal claim. Accordingly, Paul’s claim is not cognizable. See
Branan, 861 F.2d at 1508. Paul’s allegation of a “due process” violation does not alter this
conclusion. See id. (“This limitation on federal habeas review is of equal force when a
petition, which actually involves state law issues, is ‘couched in terms of equal protection
and due process.’”) (quoting Willeford v. Estelle, 538 F.2d 1194, 1198 (5th Cir. 1976)).
Moreover, any federal claim that could be deduced from Paul’s argument is unexhausted
because Paul did not raise a federal claim on direct appeal when she challenged the trial
court’s imposition of restitution. (Doc. 22, Ex. 2, pp. 24-25.) Paul’s claim is procedurally
defaulted due to her inability to return to state court and present the claim in a successive
direct appeal. See Smith, 256 F.3d at 1138. She does not allege or demonstrate that
either the cause and prejudice or fundamental miscarriage of justice exception applies to
overcome the default. Accordingly, Ground Seven is barred from review.
Ground Four
The Second District Court of Appeal affirmed Paul’s conviction and sentence in a
per curiam affirmance without a written opinion. Therefore, the Florida Supreme Court did
not have discretionary jurisdiction to review the District Court of Appeal’s decision. “Article
V, section 3(b), of the Florida Constitution governs the jurisdiction of the Florida Supreme
Court. As [the Florida Supreme Court has] explained, this jurisdiction ‘extends only to the
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narrow class of cases enumerated’ in that constitutional provision.” Wells v. State, 132
So.3d 1110, 1112 (Fla. 2014) (quoting Gandy v. State, 846 So.2d 1141, 1143 (Fla. 2003)).
And the Florida Supreme Court has “[held] that ‘[it] does not have discretionary review
jurisdiction . . . to review per curiam denials of relief, issued without opinion or explanation,
whether they be in opinion form or by way of unpublished order.’” Id. at 1113 (quoting
Stallworth v. Moore, 827 So.2d 974, 978 (Fla. 2002)).
Paul claims that her inability to obtain review in the Florida Supreme Court “is itself
a denial of federal due process rights” because the “truncated procedure deprives the
accused of knowing whether arguments were fairly considered.” (Doc. 14, p. 11.) Paul’s
claim involves a challenge to the operation of the state judicial system and the provision
of the Florida Constitution governing the Florida Supreme Court’s jurisdiction. It raises no
federal constitutional challenge to the validity of her conviction. Therefore, Paul’s claim is
not cognizable in this proceeding. See 28 U.S.C. § 2254(a). See also McGuire, 502 U.S.
at 68 (“In conducting habeas review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of the United States.”); Quince v.
Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004) (“[W]here a petitioner’s claim goes to
issues unrelated to the cause of petitioner’s detention, that claim does not state a basis for
habeas relief . . . . habeas relief is available to address defects in a criminal defendant’s
conviction and sentence.”) (citations omitted).4 Ground Four warrants no relief.
Ground Eight
4
Notwithstanding cognizability, Paul has not demonstrated that the United States Constitution
prevents Florida from establishing its own system of appellate review or requires that the Florida Supreme
Court’s discretionary jurisdiction extend to a case resolved through a per curiam affirmance. See, e.g., Griffin
v. Illinois, 351 U.S. 12, 18 (1956). (“[A] State is not required by the Federal Constitution to provide appellate
courts or a right to appellate review at all.”).
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Paul argues that the cumulative effect of “[t]he numerous, overlapping improprieties
including the admission of improper evidence, the allowance of summary evidence, the
failure to establish any crime on the offense date of July 3, 2006 and the deprivation of
effective appellate review demand relief.” (Doc. 16, p. 26.) This claim does not raise any
clear federal constitutional violation and, consequently, is not cognizable in Paul’s federal
habeas action. See Branan, 861 F.2d at 1508.
Even if Paul’s argument could be interpreted as presenting federal claim because
it involves her appellate review claim, which alleged a federal due process violation, such
a claim is unexhausted. When Paul presented her cumulative error claim on direct appeal,
she did not mention any federal constitutional violation. (Doc. 22, Ex. 2, p. 26.) Nor did
she address the state’s appellate review process. (Id.) Therefore, the claim as presented
in the federal habeas petition is also unexhausted because Paul did not present the same
supporting allegations to the state appellate court. See Anderson v. Harless, 459 U.S. 4,
6 (1982) (“It is not enough . . . that a somewhat similar state-law claim was made. . . . The
habeas petitioner must have ‘fairly presented’ to the state courts the ‘substance’ of his
federal habeas corpus claim.”) (quotations omitted).
As Paul cannot return to state court to present the federal claim in a successive
direct appeal, her claim is procedurally defaulted. See Smith, 256 F.3d at 1138. Paul does
not allege or demonstrate cause and prejudice or a fundamental miscarriage of justice to
overcome the default. Consequently, Ground Eight is barred from review.
It is therefore
ORDERED that Paul’s second amended petition for writ of habeas corpus (Doc. 14)
is DENIED. The Clerk is directed to enter judgment against Paul and to close this case.
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CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
It is ORDERED that Paul 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 her 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, Paul “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)). She has not made the requisite showing in these circumstances. Finally, because
Paul is not entitled to a COA, she is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on June 15, 2017.
Counsel of Record
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