Rodriguez v. Secretary, Department of Corrections et al
Filing
40
ORDER denying 1 Petition for Writ of Habeas Corpus. The CLERK is directed to enter judgment against Rodriguez and in Respondents' favor and to CLOSE this case. Signed by Judge Kathryn Kimball Mizelle on 3/24/2023. (JT)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JUAN IVAN RODRIGUEZ,
Petitioner,
v.
Case No. 8:16-cv-2992-KKM-SPF
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________________
ORDER
Juan Ivan Rodriguez filed a timely 1 petition for habeas relief under 28 U.S.C. § 2254
challenging his state convictions for manslaughter while driving under the influence and
reckless driving. (Docs. 1 and 2.) Having considered the petition (id.), the response in
opposition (Doc. 21), and the reply (Doc. 25), the Court denies the petition. Furthermore,
a certificate of appealability is not warranted.
A state prisoner has one year from the date his judgment becomes final to file a § 2254 petition. See 28
U.S.C.§ 2244(d)(1). This one-year limitation is tolled during the pendency of a properly filed state motion
seeking collateral relief. See 28 U.S.C.§ 2244(d)(2). Rodriguez’s convictions and sentences were affirmed
on October 25, 2006. (Doc. 24-1 at 85.) His judgment became final 90 days later, on January 24, 2007,
when the time to petition the Supreme Court of the United States for writ of certiorari expired. See Bond
v. Moore, 309 F.3d 770, 774 (11th Cir. 2002). After 63 days of untolled time passed, on March 29, 2007,
Rodriguez filed a motion for postconviction relief. (Doc. 24-1 at 89–95.) The one-year limitation remained
tolled until the mandate issued on postconviction appeal on January 28, 2016. (Doc. 24-1 at 372.)
Rodriguez had until November 28, 2016, to file a timely federal habeas petition. Less than one year of
untolled time had expired when Rodriguez filed his § 2254 petition on October 24, 2016. The petition is
therefore timely.
1
I. BACKGROUND
A. Procedural History
A state court jury convicted Rodriguez of five counts of manslaughter while driving
under the influence and five counts of reckless driving. (Doc. 24-1 at 6–8.) The trial court
sentenced Rodriguez to five consecutive terms of life in prison for the manslaughter
convictions. (Doc. 24-1 at 13–16.) 2 The state appellate court per curiam affirmed
Rodriguez’s convictions and sentences. (Doc. 24-1 at 85.)
Rodriguez filed a motion for postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Doc. 24-1 at 89–95.) The state postconviction court summarily denied
the motion. (Doc. 24-1 at 160–62.) The state appellate court affirmed-in-part and
reversed-in-part the order denying the motion and remanded for further review. (Doc.
24-1 at 166–67.)
On remand, the state postconviction court dismissed the motion as facially deficient
with leave to file an amended motion. (Doc. 24-1 at 171–73.) Rodriguez filed an amended
motion, (Doc. 24-1 at 175–85), which the state postconviction court struck-in-part, (Doc.
24-1 at 187–89). The state postconviction court granted an evidentiary hearing on two
claims in the amended motion, (Doc. 24-1 at 191–92), and denied Rodriguez’s motion to
At sentencing, the trial court determined that the five misdemeanor counts for reckless driving merged
into one count. (Doc. 24-4 at 79.) See Hosford v. State, 682 So. 2d 218 (Fla. 5th DCA 1996). The trial
court declined to impose a sentence on the merged count. (Doc. 24-4 at 79.)
2
2
further amend the motion with additional claims, (Doc. 24-1 at 333). At the evidentiary
hearing, Rodriguez did not present evidence to prove his claims, (Doc. 24-4 at 97), the
state postconviction court denied the amended motion for postconviction relief, (Doc.
24-1 at 335), and the state appellate court affirmed, (Doc. 24-1 at 370). Rodriguez’s federal
petition followed.
B. Factual Background and Trial Testimony 3
On the evening of February 14, 2005, Rodriguez drove south on Highway 17
toward Avenue D in Winter Haven, Florida, in a black Acura. (Doc. 24-2 at 409–14.)
Michael White also drove south on Highway 17 toward Avenue D in a red Dodge Neon.
(Doc. 24-2 at 411–14.) Raul Perez drove north on Highway 17 in a white Oldsmobile and
prepared to turn left. (Doc. 24-2 at 414–16.) Witnesses saw Rodriguez’s Acura and White’s
Neon racing down the street, traveling at high speeds and swerving around cars. (Docs.
24-2 at 342–43, 373–74, 446–49, 559–60, 570–72, 589–90, 608–12 and 24-3 at 194–96.)
An accident reconstruction expert testified on behalf of the prosecution and opined
that a crash occurred as follows. Rodriguez in the Acura and White in the Neon exceeded
the speed limit when they entered the intersection at Avenue D, and Perez in the
Oldsmobile turned left and collided into White’s Neon. (Doc. 24-3 at 15–25, 83–89.)
Perez caused the Neon to suddenly slow down, which led Rodriguez, who was behind the
3
The factual background is derived from the trial transcript.
3
Neon, to rear-end and propel the Neon into transformer box. (Doc. 24-3 at 15–25, 83–
89.)
A medical examiner testified that White and four passengers in the Neon died from
blunt force trauma before the car burst into flames. (Doc. 24-2 at 548–52.) Perez in the
Oldsmobile and a passenger in Rodriguez’s Acura suffered serious injuries. (Doc. 24-2 at
529–32.)
That evening, Rodriguez and his friends drank beer and played billiards for two or
three hours. (Doc. 24-2 at 362–65.) A toxicologist opined that Rodriguez’s blood alcohol
content was 0.09 or 0.10 at the time of the crash. (Doc. 24-3 at 216, 221.) White and his
friends drank alcohol and smoked marijuana at a motel. (Doc. 24-2 at 566–68, 577, 597,
607–08.) White’s blood alcohol content was 0.12 at the time of his death, and a blood test
showed that he had consumed a therapeutic amount of Xanax. (Doc. 24-2 at 549.) Perez
had a blood alcohol content of 0.12 or 0.13 at the time of the crash. (Doc. 24-3 at 61–62,
224–25.)
The prosecutor charged both Rodriguez and Perez with the homicides, and both
defendants were jointly tried. A witness who was driving on Highway 17 observed
Rodriguez’s Acura collide into the Neon only after the Neon collided into the Oldsmobile.
(Doc. 24-2 at 343–49.) Rodriguez’s friend, who was stopped at a traffic light two blocks
from the crash, observed the Oldsmobile turn left in front of Rodriguez’s Acura and the
4
Neon. (Doc. 24-2 at 377–79.) A truck driver, who was approaching the intersection,
observed Rodriguez’s Acura rear-end the Neon when the Neon slowed down to turn right,
propelling the Neon into the Oldsmobile. (Doc. 24-2 at 413–22.) An accident
reconstruction expert who testified on behalf of Perez opined that Rodriguez rear-ended
White’s Neon first and caused the Neon to collide into Perez’s Oldsmobile. (Doc. 24-3 at
329–51, 359–60, 366.)
In a recorded interview, Rodriguez told a detective that the Neon side-swiped his
Acura while racing past him and then cut him off by swerving into his lane. (Doc. 24-3 at
112–17.) In a second recorded interview, Rodriguez told a detective that the driver in the
Neon twice drove next to him, revved the engine, and sped off. (Doc. 24-3 at 139–42.) He
claimed that he and the Neon were about to cross the street, the Neon cut across into his
lane, and the Neon went under his front bumper. (Doc. 24-3 at 141–67.) He claimed that
the Neon “crunched up” before he hit the Neon. (Doc. 24-3 at 149–52.) He admitted that
he drank two beers that evening and exceeded the speed limit but denied that he raced the
Neon. (Doc. 24-3 at 144–47.)
Rodriguez testified in his own defense. Rodriguez testified that he and his friends
drank beer and played billiards that evening at a sports bar. (Doc. 24-3 at 266–67.)
Rodriguez claimed that he drank two and a half mugs of beer during the three hours that
the group spent at the bar. (Doc. 24-3 at 267, 293.) The group planned to go to a dance
5
club. (Doc. 24-3 at 268.) While Rodriguez was driving on Highway 17, a driver in a red
Neon twice drove next to him, revved the engine, and sped off. (Doc. 24-3 at 274.)
Rodriguez continued to drive in the lane closest to the sidewalk, the driver of the red Neon
drove in the lane closest to the median about a car-length ahead of Rodriguez, and
something pulled in front of the red Neon, which caused the driver of the red Neon to
break hard and come into the lane where Rodriguez was traveling. (Doc. 24-3 at 275.)
After observing the red Neon “folding up” and veering into his lane, Rodriguez slammed
on his breaks, started sliding, and observed his bumper lodge beneath the red Neon. (Doc.
24-3 at 275–77.) Rodriguez’s car shifted right and slammed into a sign at a McDonald’s
restaurant. (Doc. 24-3 at 277.)
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs this
proceeding. Carroll v. Sec’y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief
under the AEDPA can be granted only 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). “The power of
the federal courts to grant a writ of habeas corpus setting aside a state prisoner’s conviction
on a claim that his conviction was obtained in violation of the United States Constitution
is strictly circumscribed.” Green v. Sec’y, Dep’t of Corr., 28 F.4th 1089, 1093 (11th Cir.
2022).
6
Section 2254(d) provides that federal habeas relief cannot be granted on a claim
adjudicated on the merits in state court unless the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
For purposes of § 2254(d)(1), the phrase “clearly established Federal law”
encompasses the holdings only of the United States Supreme Court “as of the time of the
relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). This section
“defines two categories of cases in which a state prisoner may obtain federal habeas relief
with respect to a claim adjudicated on the merits in state court.” Id. at 404. First, a decision
is “contrary to” clearly established federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Id. at 413.
Second, a decision involves an “unreasonable application” of clearly established
federal law “if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the
prisoner’s case.” Id. The AEDPA was meant “to prevent federal habeas ‘retrials’ and to
7
ensure that state-court convictions are given effect to the extent possible under law.” Bell
v. Cone, 535 U.S. 685, 693 (2002). Accordingly, “[t]he focus . . . is on whether the state
court’s application of clearly established federal law is objectively unreasonable, and . . . an
unreasonable application is different from an incorrect one.” Id. at 694. As a result, to
obtain relief under the AEDPA, “a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (stating that “[t]he state court’s application of
clearly established federal law must be objectively unreasonable” for a federal habeas
petitioner to prevail and that the state court’s “clear error” is insufficient).
When the last state court to decide a federal claim explains its decision in a reasoned
opinion, a federal habeas court reviews the specific reasons as stated in the opinion and
defers to those reasons if they are reasonable. Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018). But the habeas court is “not limited by the particular justifications the state court
provided for its reasons, and [it] may consider additional rationales that support the state
court’s determination.” Jennings v. Secretary, Fla. Dep’t of Corr., 55 F.4th 1277, 1292
(11th Cir. 2022). When the relevant state-court decision is not accompanied with reasons
for the decision—such as a summary affirmance without discussion—the federal court
8
“should ‘look through’ the unexplained decision to the last related state-court decision that
does provide a relevant rationale [and] presume that the unexplained decision adopted the
same reasoning.” Wilson, 138 S. Ct. at 1192. 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 . . . .” Id.
For purposes of § 2254(d)(2), “it is not enough to show that ‘reasonable minds
reviewing the record might disagree about the finding in question.’” Brown v. Davenport,
142 S. Ct. 1510, 1525 (2022) (quotations omitted). “An unreasonable determination of the
facts occurs when the direction of the evidence, viewed cumulatively, was too powerful to
conclude anything but the petitioner’s factual claim.” Teasley v. Warden, Macon State
Prison, 978 F.3d 1349, 1355 (11th Cir. 2020) (internal quotation marks and alterations
omitted). A state court’s findings of fact are presumed correct, and a petitioner can rebut
the presumption of correctness afforded to a state court’s factual findings only by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
Even where a petitioner succeeds in rebutting the presumption, he must show that
the state court’s decision is “based on” the incorrect factual determination. Pye v. Warden,
Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th Cir. 2022). This is because a state court
decision may still be reasonable “even if some of the state court’s individual factual findings
were erroneous—so long as the decision, taken as a whole, doesn’t constitute an
9
‘unreasonable determination of the facts’ and isn’t ‘based on’ any such determination.” Id.
(quoting Hayes v. Sec’y, Fla. Dep’t of Corr., 10 F.4th 1203, 1224–25 (11th Cir. 2021)
(Newsom, J., concurring)).
In addition to satisfying the deferential standard of federal court review of a state
court adjudication, a federal habeas petitioner must present his claims by raising them in
state court before bringing them in a federal petition. See 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.”). A petitioner satisfies this requirement if he fairly presents the claim
in each appropriate state court and alerts that court to the federal nature of the claim. Ward
v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010).
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.” Smith v. Jones, 256 F.3d 1135, 1138 (11th
Cir. 2001). A petitioner shows cause for a procedural default when he demonstrates “that
some objective factor external to the defense impeded the effort to raise the claim properly
in the state court.” Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). A petitioner
demonstrates prejudice by showing that “there is at least a reasonable probability that the
10
result of the proceeding would have been different” absent the constitutional violation.
Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). “A ‘fundamental miscarriage
of justice’ occurs in an extraordinary case, where a constitutional violation has resulted in
the conviction of someone who is actually innocent.” Id.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Rodriguez brings claims for ineffective assistance of counsel under the Sixth
Amendment. Under the well-known, two-part standard articulated in Strickland v.
Washington, 466 U.S. 668 (1984), to succeed, he must show both deficient performance
by his counsel and prejudice resulting from those errors. Id. at 687.
The first part “requires showing that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
The lynchpin of this analysis is whether counsel’s conduct “was reasonable considering all
the circumstances.” Id. at 688. A petitioner establishes deficient performance if “the
identified acts or omissions [of counsel] were outside the wide range of professionally
competent assistance.” Id. at 690. A court “must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. “[C]ounsel is strongly presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable professional judgment.” Id.
11
The second part requires showing that the deficient performance prejudiced the
defense. Id. at 687. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Id. at 691. To demonstrate prejudice, a petitioner must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
“The question [on federal habeas review of an ineffective assistance claim] ‘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) (quoting Schriro v.
Landrigan, 550 U.S. 465, 473 (2007)). Consequently, federal petitioners rarely prevail on
claims of ineffective assistance of counsel because “[t]he standards created by Strickland
and § 2254(d) are both highly deferential, and when the two apply in tandem, review is
doubly so.” Richter, 562 U.S. at 105 (quotation and citations omitted).
IV. ANALYSIS
A. Ground One
Rodriguez asserts that counsel was ineffective for not retaining Rick Copley, an
expert witness, who would testify that Perez caused the crash and Rodriguez did not
12
contribute to the cause of the crash. (Doc. 1 at 5–8.) The Respondent asserts that the claim
is unexhausted and procedurally defaulted. (Doc. 21 at 12–14.)
Rodriguez presented the claim in a motion for postconviction relief, (Doc. 24-1 at
90–92); the state postconviction court denied the claim as facially insufficient, conclusory,
and meritless, (Doc. 24-1 at 161); and the state appellate court reversed after determining
that the records attached to the order denying the claim did not refute the claim, (Doc.
24-1 at 166–67). On remand, the state postconviction court dismissed the claim as facially
insufficient with leave to amend. (Doc. 24-1 at 171–73.) Rodriguez presented the claim in
an amended motion for postconviction relief, (Doc. 24-1 at 177–81), and the state
postconviction court granted an evidentiary hearing on the claim, (Doc. 24-1 at 191–92).
Before the evidentiary hearing, Rodriguez moved to further amend the motion for
postconviction relief to add new claims, (Doc. 24-1 at 194–98), and the state
postconviction court denied the motion, (Doc. 24-1 at 333). At the evidentiary hearing,
postconviction counsel advised that Rodriguez was not presenting testimony or evidence
to prove his claim. (Doc. 24-4 at 96–98.) The state postconviction court denied the claim,
(Doc. 24-1 at 335), and Rodriguez appealed, (Doc. 24-1 at 338). On appeal, Rodriguez
asserted that the state postconviction court erred by denying his motion to further amend
his motion for postconviction relief to add new claims. (Doc. 24-1 at 350–55.) He did not
13
present on appeal the ineffective assistance of counsel claim that he raises in Ground One
of his federal petition.
Rodriguez failed to “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.” Boerckel, 526 U.S. at 845. If he returns to state court to present the claim,
the state postconviction court will deny the claim as untimely and successive. Fla. R. Crim.
P. 3.850(b), (h). Consequently, the claim is procedurally defaulted in federal court.
Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998).
Rodriguez asserts that cause and prejudice under Martinez v. Ryan, 566 U.S. 1
(2012), excuse the procedural default. (Doc. 25 at 8–10.) But Martinez does not apply to a
claim defaulted on state postconviction appeal. See Lambrix v. Sec’y, Fla. Dep’t Corrs., 756
F.3d 1246, 1260 (11th Cir. 2014) (“Importantly, the Martinez rule is expressly limited to
attorney errors in initial-review collateral proceedings: ‘[T]he holding in [Martinez] does
not concern attorney errors in other kinds of proceedings, including appeals from initialreview collateral proceedings, second or successive collateral proceedings, and petitions for
discretionary review in a State’s appellate courts.’” (quoting Martinez, 566 U.S. at 16)).
Ground One warrants no relief.
14
B. Ground Two
Rodriguez asserts that counsel was ineffective for not filing a motion for a change
of venue because of pre-trial publicity. (Doc. 1 at 9–10.) The Respondent asserts that the
claim is unexhausted because Rodriguez failed to present the federal nature of his claim to
the state postconviction court. (Doc. 21 at 17–18.) In his state postconviction motion,
Rodriguez raised the claim but did not cite Strickland or the Sixth Amendment. (Doc. 241 at 92.) Because Strickland applies to an ineffective assistance of counsel claim presented
in a Florida court, Rodriguez fairly presented the federal claim. Jackson v. State, 347 So.
3d 292, 299 (Fla. 2022).
The state postconviction court denied the claim because the crash occurred in 2003
and the trial occurred in 2005. (Doc. 24-1 at 99.) Also, the state postconviction court
determined that, during voir dire, the prosecutor individually questioned each potential
juror about exposure to publicity. (Doc. 24-1 at 99.) The state postconviction court
concluded that a motion to change the venue would not have succeeded because, although
eighteen of the thirty-nine potential jurors knew about the case, only one juror stated that
she could not decide the case impartially because her nephew knew the victims, and the
remaining seventeen jurors stated that they could decide the case objectively. (Doc. 24-1 at
99.)
15
The state postconviction court did not unreasonably deny the claim. Whether a
motion to change the venue would have succeeded is an issue of state law, and the state
court’s determination of state law receives deference in federal court. Herring v. Sec’y,
Dep’t Corrs., 397 F.3d 1338, 1354–55 (11th Cir. 2005). The state postconviction court
accurately described the answers of the potential jurors to the prosecutor’s questions during
voir dire about exposure to publicity. (Doc. 24-2 at 19–74, 134–75, 218–52, 270–89.) The
trial court dismissed the potential jurors who expressed bias because of exposure to
publicity. (Docs. 24-2 at 69–71, 128, 218–20, 231, 252, 287, 289 and 24-3 at 530–31.)
“‘[I]f prospective jurors can assure the court during voir dire that they are impartial
despite their extrinsic knowledge, they are qualified to serve on the jury, and a change of
venue is not necessary.’” Gonzalez v. State, 253 So. 3d 526, 529 (Fla. 2018) (quoting
Rolling v. State, 695 So. 2d 278, 287 (Fla. 1997)). If a defendant asserts that trial counsel
was ineffective for not moving for a change of venue, the defendant “‘must, at a minimum,
bring forth evidence demonstrating that the trial court would have, or at least should have,
granted a motion for change of venue if [defense] counsel had presented such a motion to
the court.’” Gonzalez, 253 So. 3d at 529 (quoting Carter v. State, 175 So. 3d 761, 776 (Fla.
2015)). Because each juror who sat on the jury and learned about the crash from pre-trial
publicity confirmed that he could impartially decide the case, and Rodriguez failed to
16
present evidence supporting a change of venue, the state postconviction court did not
unreasonably deny the claim. Ground Two warrants no relief.
C. Ground Three
Rodriguez asserts that counsel was ineffective for not soliciting a plea offer from the
prosecutor. (Doc. 1 at 11–12.) He contends that “it is unknown if the [prosecutor] would
have accepted a plea agreement to a term of fifteen or twenty years because counsel never
asked the [prosecutor] for an offer.” (Doc. 2 at 29.) The Respondent asserts that the claim
is procedurally defaulted because Rodriguez failed to present the federal nature of his claim
to the state postconviction court. (Doc. 21 at 24–25.) In his state postconviction motion,
Rodriguez raised the claim but failed to cite Strickland or the Sixth Amendment. (Doc.
24-1 at 92.) Because Strickland applies to an ineffective assistance of counsel claim
presented in a Florida court, Rodriguez fairly presented the federal claim. Jackson, 347 So.
3d at 299.
The state postconviction court denied the claim because Rodriguez merely
speculated that the prosecutor would have extended an offer. (Doc. 24-1 at 161–62.)
Because Rodriguez failed to support the claim with some evidence to demonstrate that the
prosecutor would have extended an offer, the state postconviction court did not
unreasonably deny the claim. Osley v. United States, 751 F.3d 1214, 1225 (11th Cir. 2014)
(“To the extent Osley avers that the prosecutor would have then offered a new deal
17
amenable to him, and the district court would have accepted it, this claim is wholly
speculative.” (citing Missouri v. Frye, 566 U.S. 134, 147–49 (2012)). Ground Three
warrants no relief.
D. Ground Four
Rodriguez asserts that counsel was ineffective for not opposing the prosecutor’s
motion to consolidate his trial with Perez’s trial. (Doc. 1 at 13–15.) The Respondent asserts
that the claim is unexhausted and procedurally defaulted. (Doc. 21 at 29–30.)
Rodriguez presented the claim in a motion for postconviction relief, (Doc. 24-1 at
93); the state postconviction court denied the claim as facially insufficient and meritless,
(Doc. 24-1 at 162); and the state appellate court reversed after determining that the records
attached to the order denying the claim did not conclusively refute the claim, (Doc. 24-1
at 166–67). On remand, the state postconviction court dismissed the claim as facially
insufficient with leave to amend. (Doc. 24-1 at 171–73.) Rodriguez presented the claim in
an amended motion for postconviction relief, (Doc. 24-1 at 181–82), and the state
postconviction court granted an evidentiary hearing on the claim, (Doc. 24-1 at 191–92).
Before the evidentiary hearing, Rodriguez moved to further amend the motion for
postconviction relief to add new claims, (Doc. 24-1 at 194–98), and the state
postconviction court denied the motion, (Doc. 24-1 at 333). At the evidentiary hearing,
postconviction counsel advised that Rodriguez was not presenting testimony or evidence
18
to prove his claim. (Doc. 24-4 at 96–98.) The state postconviction court denied the claim,
(Doc. 24-1 at 335), and Rodriguez appealed, (Doc. 24-1 at 338). On appeal, Rodriguez
asserted that the state postconviction court erred by denying his motion to further amend
his motion for postconviction relief to add new claims. (Doc. 24-1 at 350–55.) He did not
present on appeal the ineffective assistance of counsel claim that he raises in Ground Four
of his federal petition.
Rodriguez failed to “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.” Boerckel, 526 U.S. at 845. If he returns to state court to present the claim,
the state postconviction court will deny the claim as untimely and successive. Fla. R. Crim.
P. 3.850(b), (h). Consequently, the claim is procedurally defaulted in federal court.
Snowden, 135 F.3d at 736.
Rodriguez asserts that cause and prejudice under Martinez excuse the procedural
default. (Doc. 25 at 15–18.) As stated earlier though, Martinez does not apply to a claim
defaulted on state postconviction appeal. Lambrix, 756 F.3d at 1260 (citing Martinez, 566
U.S. at 16)). Ground Four warrants no relief.
E. Ground Five
Rodriguez asserts that counsel was ineffective for not moving to recuse the
sentencing judge for demonstrating bias, prejudice, and personal animus toward Rodriguez
19
and for not requesting a new sentencing before a different judge. (Doc. 1 at 16–17.) The
Respondent asserts that the claim is unexhausted and procedurally defaulted. (Doc. 21 at
33–37.)
Rodriguez first presented the claim in an amended motion for postconviction relief,
(Doc. 24-1 at 182–83), after the state appellate court reversed the order denying his initial
motion for postconviction relief, (Doc. 24-1 at 166–67.) The state postconviction court
“struck” the claim because an earlier order granting Rodriguez leave to file the amended
motion did not grant Rodriguez leave to present the new claim, the claim was facially
insufficient, and the claim was refuted by the record. (Doc. 24-1 at 188.) The state
postconviction court granted an evidentiary hearing for two unrelated claims. (Doc. 24-1
at 191–92.)
Before the evidentiary hearing, Rodriguez moved to further amend the motion for
postconviction relief to add new claims, (Doc. 24-1 at 194–98), and the state
postconviction court denied the motion, (Doc. 24-1 at 333). At the evidentiary hearing,
postconviction counsel advised that Rodriguez was not presenting testimony or evidence
to support his other claims. (Doc. 24-4 at 96–98.) The state postconviction court denied
the amended motion for postconviction relief, (Doc. 24-1 at 335), and Rodriguez appealed,
(Doc. 24-1 at 338). On appeal, Rodriguez asserted that the state postconviction court erred
by denying his motion to further amend his motion for postconviction relief to add the
20
new claims, (Doc. 24-1 at 350–55). He did not present on appeal the ineffective assistance
of counsel claim that he raises in Ground Five of his federal petition.
Rodriguez failed to “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.” Boerckel, 526 U.S. at 845. If he returns to state court to present the claim,
the state postconviction court will deny the claim as untimely and successive. Fla. R. Crim.
P. 3.850(b), (h). Consequently, the claim is procedurally defaulted in federal court.
Snowden, 135 F.3d at 736. Rodriguez does not assert that cause and prejudice excuse the
procedural default. (Docs. 1 at 16–17, 2 at 31, and 25 at 19.) Ground Five warrants no
relief.
F. Ground Six
Rodriguez asserts that counsel was ineffective for not moving to suppress evidence
obtained from his blood drawn by a paramedic in an ambulance at the scene of the crash.
(Doc. 1 at 18–20.) The Respondent asserts that the claim is procedurally defaulted because
the state postconviction court dismissed the claim on an independent and adequate state
ground. (Doc. 21 at 38–43.)
Rodriguez presented the claim in his motion to further amend the motion for
postconviction relief. (Doc. 24-1 at 194–97.) The state postconviction court denied the
motion to amend because the claim was untimely. (Doc. 24-1 at 333.) Rodriguez appealed,
21
(Doc. 24-1 at 338), and asserted that the state postconviction court erred by denying his
motion to amend, (Doc. 24-1 at 350–55). The state appellate court per curiam affirmed
without a written opinion. (Doc. 24-1 at 370.) This Court presumes that the state appellate
court also determined that the claim was untimely. Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991) (“[W]here . . . the last reasoned opinion on the claim explicitly imposes a procedural
default, we will presume that a later decision rejecting the claim did not silently disregard
that bar and consider the merits.”). Because the time limit imposed on a motion for
postconviction relief is an independent and adequate state ground that bars federal review
of a claim, the claim is procedurally defaulted in federal court. Whiddon v. Dugger, 894
F.2d 1266, 1267 (11th Cir. 1990).
Rodriguez asserts that cause and prejudice under Martinez excuse the procedural
default. (Doc. 25 at 19–22.) Rodriguez must demonstrate that his retained postconviction
counsel was ineffective for not timely presenting the claim (cause) and that the claim has
“some merit” (prejudice). Martinez, 566 U.S. at 14. Because Rodriguez fails to meet his
heavy burden under § 2254(e)(2), the Court “may not conduct an evidentiary hearing or
otherwise consider evidence beyond the state-court record based on ineffective assistance
of state postconviction counsel.” Shinn v. Ramirez, 142 S. Ct. 1718, 1734 (2022).
Rodriguez must demonstrate deficient performance and prejudice under Strickland based
on that limited record. Id.; Strickland, 466 U.S. at 687.
22
Rodriguez contends that a motion to suppress would have succeeded because police
did not comply with § 316.1933(1)(a), Fla. Stat. (2003), and obtain a sample of his blood
only after determining that a police officer had probable cause to believe that Rodriguez
drove a vehicle under the influence of alcohol and caused the death or serious bodily injury
of a person. (Doc. 2 at 31–34.) He contends that Officer Daniel Miller, who directed the
paramedic to obtain the blood sample, did not testify that he either smelled alcohol when
he spoke with Rodriguez or observed behavior that led him to reasonably believe that
Rodriguez was under the influence of alcohol. (Docs. 1 at 18–19 and 2 at 32.) He also
contends that the evidence at trial did not prove that he consented to the blood sample.
(Doc. 1 at 18.)
Rodriguez conflates the burden under Martinez with the burden under
§ 316.1933 for a motion to suppress. Under Martinez, Rodriguez must demonstrate cause
and prejudice. Martinez, 566 U.S. at 14. He must demonstrate—based on the limited state
court record—that the motion to suppress would have succeeded. See Shinn, 142 S. Ct. at
1734. He cannot satisfy that burden by asserting that the absence of testimony or evidence
at trial proves that the officer lacked probable cause or consent. The trial court never held
a hearing to determine whether police lacked probable cause or consent.
Worse yet for proving prejudice here is that evidence at trial affirmatively proved
consent by Rodriguez. At trial, Officer Miller testified, “Under our policies, in a crash
23
involving serious bodily injury or death, we automatically request a blood draw.” (Doc. 242 at 499.) He further testified that he requested a blood sample from Rodriguez, (Doc. 242 at 499), and Rodriguez did not act defensively or ask why the detective wanted the
sample. (Doc. 24-2 at 507.) Rodriguez testified that he consented to the blood sample:
Um, it’s hard to say, this was like two years ago. I don’t know
what [the officers] did first, but I do know that they did ask if
they could take my blood. And I told them that’s fine; I had no
problem with that. They did ask me. They were asking me
questions about the accident and how it happened and where I
was coming from.
(Doc. 24-3 at 282.)
Because the state court record demonstrates that Rodriguez consented to the blood
sample, a motion to suppress under § 316.1933 would not have succeeded. See State v.
Murray, 51 So. 3d 593, 594–96 (Fla. 5th DCA 2011) (holding that the implied consent
law under § 316.1933(1)(a) does not apply if a defendant consents to the blood sample)
(citing Schmerber v. California, 384 U.S. 757, 771 (1966)). Consequently, Rodriguez fails
to demonstrate that the Strickland claim has “some merit,” and cause and prejudice under
Martinez do not excuse the procedural default. Ground Six warrants no relief.
G. Ground Seven
Rodriguez asserts that counsel was ineffective for not retaining H. Chip Walls, a
forensic toxicologist, who would testify that Rodriguez’s blood alcohol content at the time
24
of the crash was below 0.08. (Doc. 1 at 21–22.) The Respondent asserts that the claim is
procedurally barred because the state postconviction court dismissed the claim on an
independent and adequate state ground. (Doc. 21 at 43–44.)
Rodriguez presented the claim in his motion to further amend the motion for
postconviction relief. (Doc. 24-1 at 197–98.) The state postconviction court denied the
motion to amend because the claim was untimely. (Doc. 24-1 at 333.) Rodriguez appealed,
(Doc. 24-1 at 338), and asserted that the state postconviction court erred by denying his
motion to amend, (Doc. 24-1 at 350–55). The state appellate court per curiam affirmed
without a written opinion. (Doc. 24-1 at 370.) This Court presumes that the state appellate
court also determined that the claim was untimely. Ylst, 501 U.S. at 803. Because the time
limit imposed on a motion for postconviction relief is an independent and adequate state
ground that bars federal review of a claim, the claim is procedurally defaulted in federal
court. Whiddon, 894 F.2d at 1267.
Rodriguez asserts that cause and prejudice under Martinez excuse the procedural
default. (Doc. 25 at 22–27.) Rodriguez must demonstrate that his retained postconviction
counsel was ineffective for not timely presenting the claim (cause) and that the claim has
“some merit” (prejudice). Martinez, 566 U.S. at 14. Because Rodriguez fails to meet his
heavy burden under § 2254(e)(2), the Court “may not conduct an evidentiary hearing or
otherwise consider evidence beyond the state-court record based on ineffective assistance
25
of state postconviction counsel.” Shinn, 142 S. Ct. at 1734. Rodriguez must demonstrate
deficient performance and prejudice under Strickland based on that limited state court
record. Strickland, 466 U.S. at 687.
“[Strickland’s prejudice] burden is particularly ‘heavy where the petitioner alleges
ineffective assistance in failing to call a witness because often allegations of what a witness
would have testified to are largely speculative.’” McKiver v. Sec’y, Fla. Dep’t Corrs., 991
F.3d 1357, 1365 (11th Cir. 2021) (quoting Sullivan v. DeLoach, 459 F.3d 1097, 1109
(11th Cir. 2006)). “[F]or that reason, [the Eleventh Circuit has] held that a petitioner’s
own assertions about whether and how a witness would have testified are usually not
enough to establish prejudice from the failure to interview or call that witness.” Id.
Rodriguez failed to present to the state postconviction court an affidavit or
testimony by a forensic toxicologist to demonstrate that the expert would testify in the
manner that he contends. Rodriguez did not attach an affidavit or a transcript to his motion
to amend, (Doc. 24-1 at 194–98), and did not proffer testimony by an expert witness at
the hearing on the motion, (Doc. 24-4 at 83–92).
Because the limited state court record does not demonstrate that the Strickland
claim has “some merit,” cause and prejudice under Martinez do not excuse the procedural
default. Ground Seven warrants no relief.
26
H. Ground Eight
Rodriguez asserts that the state trial court violated his Sixth Amendment right to a
jury trial by imposing a sentence that exceeded the statutory maximum based on facts not
determined by the jury. (Doc. 1 at 23–24.)
The Respondent asserts that the claim is unexhausted because Rodriguez failed to
present the claim to the trial court at sentencing. (Doc. 21 at 44–45.) Rodriguez presented
the claim in his brief on direct appeal. (Doc. 24-1 at 55–57.) Because the State of Florida
failed to assert that the claim was unpreserved for review on appeal, (Doc. 24-1 at 78–80),
and because the state appellate court did not clearly and expressly state that its summary
affirmance rested on a state procedural bar, (Doc. 24-1 at 85), this Court presumes that
the state appellate court reviewed the merits of the claim. Harris v. Reed, 489 U.S. 255,
263 (1989) (“[A] procedural default does not bar consideration of a federal claim on either
direct or habeas review unless the last state court rendering a judgment in the case ‘clearly
and expressly’ states that its judgment rests on a state procedural bar.”); Harmon v. Barton,
894 F.2d 1268, 1274 (11th Cir. 1990) (“In light of Harris, application of [ ] imprecise
criteria to a state court per curiam affirmance is no longer adequate. Before this court can
deny the petition on the grounds of state procedural default, there must have been a clear
and express statement by the state trial court that its judgment was based upon procedural
default.”).
27
Rodriguez must demonstrate no reasonable basis for the state appellate court’s
summary denial of relief. (Doc. 24-1 at 85.) Richter, 562 U.S. at 98 (“Where a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be
met by showing there was no reasonable basis for the state court to deny relief.”).
“Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The jury
found Rodriguez guilty of five counts of manslaughter while driving under the influence.
(Doc. 24-1 at 6–8.) Manslaughter while driving under the influence is a second-degree
felony, punishable by fifteen years of prison. §§ 316.193(3)(c)(3)(a) and 775.082(3)(c), Fla.
Stat. (2003). The trial court imposed a life sentence for each conviction. (Doc. 24-1 at 13.)
The Sixth Amendment required that the jury find facts that permitted a lawful imposition
of a life sentence, instead of the original statutory maximum of fifteen years. Because of
how the trial court instructed the jury and the necessary factual findings contained therein,
no Apprendi violation occurred here. And to the extent that one did, it was harmless.
Under Florida’s Criminal Punishment Code, “[t]he permissible range for sentencing
shall be the lowest permissible sentence up to and including the statutory maximum, as
defined in § 775.082, for the primary offense and any additional offenses before the court
for sentencing.” § 921.0024(2), Fla. Stat. (2003). “The lowest permissible sentence is the
28
minimum sentence that may be imposed by the trial court, absent a valid reason for
departure.” Id. To determine the “lowest permissible sentence,” the trial court assesses
points for each conviction, for injury suffered by a victim, and for the defendant’s criminal
history, to calculate a “total sentence points.” § 921.0024(1)(a), Fla. Stat. (2003). “‘Victim
injury’ is scored for physical injury or death suffered by a person as a direct result of any
offense pending before the court for sentencing.” Fla. R. Crim. P. 3.704(d)(9). See
§ 921.0021(7)(a), Fla. Stat. (2003). “Victim injury must be scored for each victim physically
injured and for each offense resulting in physical injury whether there are one or more
victims.” Fla. R. Crim. P. 3.704(d)(9). The Criminal Punishment Code permits a trial
court to impose a life sentence if the “total sentence points” exceeds 363. See § 921.0024(2),
Fla. Stat. (2003) (“If the total sentence points are greater than or equal to 363, the court
may sentence the offender to life imprisonment.”).
At Rodriguez’s sentencing, the court calculated a “total sentence points” of 824.8
and a “lowest permissible sentence” of 595.5 months in prison, or 49.8 years. (Doc. 24-4
at 73.) The “total sentence points” included seventy-four points for one of the manslaughter
convictions (the “primary offense”), thirty-seven points for each of the remaining four
convictions (“additional offenses”), and 120 points for each death that occurred during the
29
five offenses (“victim injury”), for a total of 822 points. § 921.0024(1)(a), Fla. Stat. (2003). 4
Because the “total sentence points” in Rodriguez’s case exceeded 363, the statute authorized
the life sentences. See Brown v. State, 806 So. 2d 576, 577–78 (Fla. 2d DCA 2002).
But because the 600 points for the deaths of the five victims increased the “total
sentence points” above 363 and increased the statutory maximum from fifteen years to life,
§ 921.0024(1)(a), Fla. Stat. (2003), Apprendi required that the jury to determine facts to
support that increase in the statutory maximum sentence. See Gisi v. State, 848 So. 2d
1278, 1282 (Fla. 2d DCA 2003) (“Where the addition of victim injury points is a factor
which causes a sentence to be increased beyond the statutory maximum, the facts of victim
injury must be submitted to a jury pursuant to Apprendi.”).
On the verdict form, the jury found Rodriguez guilty of each of the five
manslaughter offenses. (Doc. 24-1 at 6–8.) The verdict form did not contain a special
interrogatory. (Doc. 24-1 at 6–8.) However, the trial court instructed the jury on
manslaughter in a way that required the jury find that Rodriguez “caused or contributed to
the cause of the deaths”:
To prove the crime of DUI manslaughter, the State must prove
the following elements beyond a reasonable doubt. First, the
defendant drove a vehicle. Second, while driving the vehicle,
the defendant was under the influence of alcoholic beverages
Although the record is unclear, the 2.8 point disparity likely arises from prior convictions for minor
offenses. § 921.0024(1)(a), Fla. Stat. (2003). Apprendi does not apply to a prior conviction that increases
the maximum sentence. 530 U.S. at 490.
4
30
to the extent that his normal faculties were impaired or [he]
had a blood alcohol level of 0.08 or more of alcohol grams per
100-milliliters of blood, or a breath alcohol level of 0.08 or
more of alcohol per 120-liters of breath. And, as a result, the
defendant caused or contributed to the cause of the deaths of
Katelynn Bieber, Stephen Casey, Steven Geiger, Cancus
Scheck, or Michael White.
...
If you find from the evidence that the defendant had a blood
or breath alcohol level of 0.05 or less, you shall presume the
defendant was not guilty of being under the influence of
alcohol beverages to the extent that his normal faculties were
impaired. If you find from the evidence that the defendant had
a blood or breath alcohol level in excess of 0.05 but less than
0.08, you may consider that evidence with other competent
evidence in determining whether the defendant was under the
influence of alcoholic beverages to the extent that his normal
faculties were impaired. Or, if you find from the evidence that
the defendant had a blood or breath alcohol level of 0.08 or
more, that evidence would be sufficient by itself to establish
that the defendant was under the influence of alcohol to the
extent that his normal faculties were impaired. However, such
evidence may be contradicted or rebutted by other evidence
demonstrating that the defendant was not under the influence
to the extent that his normal faculties were impaired. These
presumptions may be considered along with any other evidence
presented in deciding whether the defendant was under the
influence of alcoholic beverages to the extent that his normal
faculties were impaired.
31
(Doc. 24-3 at 510–13.)
Because the trial court instructed the jury to determine whether “the defendant
caused or contributed to the cause of the deaths of [the victims],” (Doc.
24-3 at 511), the jury necessarily determined that the victim’s deaths occurred “as a direct
result of the [offenses].” 5 § 921.0021(7)(a) (2003). See Sims v. State, 998 So. 2d 494, 505
(Fla. 2008) (“This ‘direct result’ language clearly imparts and includes a causation
requirement, which must exist between the death of the victim and the charged offense
. . . . Sims was not charged with vehicular homicide or any other offense in which the crime
actually involved the impact that caused the death. A conviction under that different
circumstance would have satisfied the causation requirement for the imposition of victiminjury points.”); Magaw v. State, 537 So. 2d 564, 567 (Fla. 1989) (“[T]he [manslaughter
while driving under the influence] statute does not say that the operator of the vehicle must
be the sole cause of the fatal accident. Moreover, the state is not required to prove that the
operator’s drinking caused the accident. The statute requires only that the operation of the
vehicle should have caused the accident. Therefore, any deviation or lack of care on the
The addition of victim injury points for a conviction for manslaughter while driving under the influence
is not “double scoring” under the Criminal Punishment Code. Scholz v. State, 734 So. 2d 526, 527 (Fla.
4th DCA 1999) (“Appellant contends that the addition of victim injury points constitutes ‘double scoring’
because death of a victim is an element of DUI manslaughter. We disagree and affirm appellant’s sentence.”)
(citing Wendt v. State, 711 So. 2d 1166 (Fla. 2d DCA 1998); Martinez v. State, 692 So. 2d 199 (Fla. 3d
DCA 1997)).
5
32
part of a driver under the influence to which the fatal accident can be attributed will
suffice.”).
Rodriguez contends that the jury did not find (1) whether he caused the death of
the victims or whether he contributed to the death of the victims, (2) whether he was
impaired or whether his blood alcohol content exceeded 0.08 at the time of the accident,
and (3) whether victim injury points applied because the deaths were the direct result of
the crimes. (Doc. 1 at 24.) However, as explained above, the jury necessarily determined
that Rodriguez either caused the death or contributed to the death and that either
Rodriguez’s normal faculties were impaired or his blood alcohol level or breath alcohol level
exceeded the legal limit. (Doc. 24-3 at 510.) Those findings supported the convictions for
manslaughter while driving under the influence. § 316.193(1), (3), Fla. Stat. (2003).
Magaw, 537 So. 2d at 567.
Because the jury found Rodriguez guilty of the offenses and necessarily determined
that the victims’ deaths directly resulted from the offenses, the jury’s verdict supported the
imposition of the victim injury points. Sims, 998 So. 2d at 505. Because the victim injury
points increased the maximum sentence for the offenses from fifteen years to life, the trial
court did not violate Apprendi by imposing the life sentences, and the state appellate court
did not unreasonably deny the claim. See Blakely v. Washington, 542 U.S. 296, 303 (2004)
(“Our precedents make clear, however, that the ‘statutory maximum’ for Apprendi purposes
33
is the maximum sentence a judge may impose solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” (italics in original)).
Lastly, unrebutted evidence, including Rodriguez’s statements to police and
testimony at trial, proved that Rodriguez drove under the influence of alcohol and exceeded
the speed limit, (Doc. 24-3 at 144–47, 216, 221), slammed on his breaks when the red
Neon suddenly stopped, (Doc. 24-3 at 275), and rear-ended the red Neon, (Doc. 24-3 at
149–52, 275–77). Rodriguez’s car crashed into a McDonald’s sign, (Doc. 24-3 at 277), and
the red Neon crashed into a transformer box and burst into flames, (Docs. 24-2 at 628 and
24-3 at 19). The medical examiner testified that the victims died from internal injuries
caused by the crash. (Doc. 24-2 at 548–52.)
Even if the absence of a specific finding by the jury on the verdict form violated
Apprendi, a rational jury would have determined that the deaths of the victims were a
“direct result” of the manslaughter offenses, and a violation of the Sixth Amendment was
harmless. § 921.0021(7)(a), Fla. Stat. (2003); Sims, 998 So. 2d at 505. Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993) (holding that a non-structural constitutional error
is harmless on habeas review if the error did not have a “substantial and injurious effect or
influence in determining the jury’s verdict” (citation omitted)); Washington v. Recuenco,
548 U.S. 212, 222 (2006) (“Failure to submit a sentencing factor to the jury, like failure to
submit an element to the jury, is not structural error.”); Plasencia v. Sec’y, Fla. Dep’t Corrs.,
34
606 F. App’x 511, 515 (11th Cir. 2015) (applying the Brecht harmless error standard to a
Blakely claim raised on federal habeas). Accordingly, Ground Eight warrants no relief.
I. Ground Nine
Rodriguez asserts that the state trial court violated his federal right against double
jeopardy by consecutively imposing the life sentences for the five convictions. (Doc. 1 at
25.) He contends that the trial court unlawfully stacked the victim injury points for the
deaths of the five victims and unlawfully stacked the life sentences for the five convictions
because the offenses and the deaths occurred during the same criminal episode. (Doc. 1 at
25.)
The Respondent asserts that the claim is unexhausted because Rodriguez failed to
fairly present the federal nature of his claim to the state appellate court. (Doc. 21 at
50–52.) Rodriguez presented the double jeopardy claim in his brief on direct appeal and
cited Hale v. State, 630 So. 2d 521 (Fla. 1993). (Doc. 24-1 at 57–58.) Because Hale, 630
So. 2d at 523, reviewed whether a state sentencing statute violated double jeopardy,
Rodriguez fairly presented the federal nature of his claim to the state appellate court. The
state appellate court’s per curiam affirmance is an adjudication on the merits, and
Rodriguez must demonstrate no reasonable basis for the summary denial of relief. (Doc.
24-1 at 85); Richter, 562 U.S. at 98.
35
“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983).
Section 921.0021(7)(a), Fla. Stat. (2003), defines “victim injury” as “the physical injury or
death suffered by a person as a direct result of the primary offense, or any additional offense,
for which an offender is convicted and which is pending before the court for sentencing at
the time of the primary offense.” Section 921.0024(1)(a), Fla. Stat. (2003), requires the
“total sentence points” to include points for the primary offense, additional offenses, and
victim injury. Consequently, the Criminal Punishment Code authorized the stacking of
victim injury points for deaths arising from all five of Rodriguez’s manslaughter
convictions.
Also, Bautista v. State, 863 So. 2d 1180, 1187 (Fla. 2003), held that “[a]ny
reasonable consideration of the language of the statute, the history of its enactment, the
uniform statutory treatment of manslaughter offenses, and the case law in existence makes
it clear that the legislative intent is that each death caused in a DUI crash is to be charged
and punished as a separate offense.” A state court’s interpretation of a state statute receives
deference in federal court. Hunter, 459 U.S. at 368 (“We are bound to accept the Missouri
court’s construction of that State’s statutes.”).
36
Because the Florida legislature intended to permit a separate charge and separate
punishment for each death arising from a conviction for manslaughter while driving under
the influence offense and intended to permit stacking of victim injury points for each death
arising from those separate offenses, Rodriguez’s consecutive life sentences do not violate
double jeopardy, and the state appellate court did not unreasonably deny the claim. United
States v. Weathers, 186 F.3d 948, 952 (D.C. Cir. 1999) (“Where two violations of the
same statute rather than two violations of different statutes are charged, courts determine
whether a single offense is involved not by applying the Blockburger test, but rather by
asking what act the legislature intended as the ‘unit of prosecution’ under the statute.”
(citing Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978)). Ground Nine warrants no
relief.
J. Ground Ten
Rodriguez asserts that the state trial court violated his Eighth Amendment right
against cruel and unusual punishment by imposing the five consecutive life sentences. (Doc.
1 at 26.)
The Respondent asserts that the claim is unexhausted because Rodriguez failed to
present the claim to the trial court at sentencing. (Doc. 21 at 58–59.) Rodriguez presented
the federal claim in his brief on direct appeal. (Doc. 24-1 at 58–59.) Because the State of
37
Florida failed to assert that the claim was unpreserved for review on appeal, (Doc. 24-1 at
80–82), this Court presumes that the state appellate court reviewed the merits of the claim.
Bennett, 863 F.2d at 807. The state appellate court’s per curiam affirmance is an
adjudication on the merits, and Rodriguez must demonstrate no reasonable basis for the
summary denial of relief. (Doc. 24-1 at 85.) Richter, 562 U.S. at 98.
“The Eighth Amendment, which forbids cruel and unusual punishments, contains
a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing v.
California, 538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957,
996–97 (1991)). “‘[F]ederal courts should be reluctant to review legislatively mandated
terms of imprisonment, and [ ] successful challenges to the proportionality of particular
sentences should be exceedingly rare.’” Ewing, 538 U.S. at 22 (quoting Hutto v. Davis, 454
U.S. 370, 374 (1982)). “[A] reviewing court must make a threshold determination that the
sentence imposed is grossly disproportionate to the offense committed and, if it is grossly
disproportionate, the court must then consider the sentences imposed on others convicted
in the same jurisdiction and the sentences imposed for commission of the same crime in
other jurisdictions.” United States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005)
(quoting United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005)). See also Solem v.
Helm, 463 U.S. 277, 292 (1983). “‘‘In general, a sentence within the limits imposed by
statute is neither excessive nor cruel and unusual under the Eighth Amendment.’”
38
Moriarty, 429 F.3d at 1024 (quoting United States v. Delacruz-Soto, 414 F.3d 1158, 1168
(10th Cir. 2005)).
Rodriguez does not cite clearly established law, determined by the United States
Supreme Court, that the state appellate court either ruled contrary to or unreasonably
applied. Andrade, 538 U.S. at 72 (“Through this thicket of Eighth Amendment
jurisprudence, one governing legal principle emerges as ‘clearly established’ under
§ 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of
years.”). As explained above, § 921.0024(2), Fla. Stat. (2003), authorized the life sentences
for the convictions because “the total sentence points [were] greater than or equal to 363.”
The statute further permitted the trial court to impose sentences for the primary offense
and additional offenses consecutively. § 921.0024(2), Fla. Stat. (2003) (“The sentencing
court may impose such sentences [for the primary offense and any additional offenses]
concurrently or consecutively.”). 6 The Florida legislature authorized consecutive life
sentences for a defendant who commits crimes with aggravating circumstances, such as the
loss of life of more than one person.
Because evidence proved that Rodriguez recklessly raced the driver in the Neon on
a densely populated city street while under the influence of alcohol and contributed to the
See also § 921.16(1), Fla. Stat. (2003) (“A defendant convicted of two or more offenses charged in the
same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits shall
serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences
be served consecutively.”).
6
39
cause of the death of five young people and because the consecutive life sentences do not
exceed the maximum authorized by the statutes, the state court did not unreasonably
conclude that the sentences were neither excessive nor cruel. See Moriarty, 429 F.3d at
1024; Rogers v. United States, 304 F.2d 520, 521 (5th Cir. 1962) (“‘Punishment is not
cruel and unusual, unless it is so greatly disproportionate to the offence committed as to be
completely arbitrary and shocking to the sense of justice.’” (citing Weems v. United States,
217 U.S. 349 (1910)). Ground Ten warrants no relief.
V. CERTIFICATE OF APPEALABILITY
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). Instead, a district court or
court of appeals must first issue a certificate of appealability (COA). Id. To obtain a COA,
a petitioner must show that “jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 326 (2003); 28 U.S.C. § 2253(c)(2). Rodriguez has not made that showing. And
because Rodriguez is not entitled to a COA, he is also not entitled to appeal in forma
pauperis.
40
It is therefore ORDERED that Rodriguez’s Petition for Writ of Habeas Corpus
(Doc. 1) is DENIED. The CLERK is directed to enter judgment against Rodriguez and
in Respondent’s favor and to CLOSE this case.
ORDERED in Tampa, Florida on March 24, 2023.
41
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?