Bates v. Secretary, Department of Corrections et al

Filing 24

ORDER: Bates's petition 1 is DENIED. The CLERK is directed to enter judgment against Bates and to CLOSE this case. A certificate of appealability and leave to appeal in forma pauperis are DENIED. Signed by Judge Virginia M. Hernandez Covington on 4/7/2023. (MWC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TORRENCE BATES,
Petitioner,
v.

Case No. 8:17-cv-1695-VMC-MRM

SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER
This matter is before the Court on remand from the United States Court of
Appeals for the Eleventh Circuit. On August 31, 2017, this Court dismissed as
untimely Torrence Bates’s petition for habeas corpus relief under 28 U.S.C. § 2254.
(Docs. 6, 7.) Bates appealed. The Eleventh Circuit reversed, holding that Bates “timely
filed his petition in federal court” based on circuit precedent issued while the appeal
was pending. Bates v. Sec’y, Dep’t of Corr., 964 F.3d 1326, 1328 (11th Cir. 2020).
On remand, the Court directed Respondent to file a response to the petition and
to “show cause why the relief sought should not be granted.” (Doc. 17.) Respondent
filed a response. (Doc. 19.) Although the Court permitted Bates to submit a reply, he
has not done so.

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The petition raises a single ground for relief—that Bates’s Miranda 1 rights were
violated during his interview with law enforcement. (Doc. 1, p. 13.) Because this claim
is unexhausted and procedurally defaulted, the Court DENIES the petition.
I.

Background
In December 2011, Bates was charged with second-degree murder. 2 (Doc. 20-

2, Ex. 1, p. 1.) The victim, Jose Godineaux, was shot and killed inside his apartment.
At trial, the prosecution argued that Bates walked into the apartment with a gun in his
hand, forced his way into the bedroom, and “immediately start[ed] shooting at”
Godineaux. (Id., Trial Tr., p. 473.) The jury ultimately convicted Bates of the lesserincluded offense of manslaughter with a firearm, and the trial court sentenced him to
thirty years in prison. (Id., Ex. 1, pp. 34, 86-90.)
At trial, the court considered the admissibility of Bates’ post-Miranda statements
to law enforcement. Bates’s counsel informed the court that Bates had asked her to
“look into” the “circumstances surrounding his ultimate jailhouse statement that he
gave to law enforcement.” (Id., Trial Tr., p. 140.) According to counsel, Bates had told
her he felt “coerced” when he signed the Miranda waiver. (Id., pp. 140-41.) Counsel
indicated that she had listened to a recording of the interview and found “nothing that

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Miranda v. Arizona, 384 U.S. 436 (1966).

Bates had previously been convicted of the same offense, but the conviction was vacated on appeal
because of an erroneous jury instruction on “manslaughter by act.” Bates v. State, 100 So. 3d 69, 69
(Fla. 2d DCA 2011).

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would support a motion to suppress [the] confession.” (Id., p. 141.) The court then
asked Bates a series of questions about the interview.
Following this colloquy, the court indicated its desire to avoid “a [Rule 3.]850
issue.” (Id., p. 151.) Accordingly, the court stated that, before allowing the jury to hear
the contents of the interview, it would “determine based on the tape whether or not
there is some level of coercion or a violation of a constitutional right.” (Id.) The court
listened to the recording and issued the following ruling:
THE COURT: Mr. Bates, you’ve raised the issue of the voluntariness of
your statement. And I think it’s a fair comment after I’ve listened to the
tape, I think probably six or seven times I’ve actually listened to it, and
I’ve struggled to find a place in the tape itself where I would be able to
agree with you that you said it was involuntary.
The police read to you the Miranda rights. I’m sorry. Let me restate that.
The police told you they wanted to read to you your Miranda rights, at
which point you did initially state it specifically, I need a lawyer. I want
to get a lawyer. The officer then responded by saying, all right, then I
don’t need to read you your rights. I don’t need to talk to you. I don’t
need to ask you any questions. I don’t need to say anything to you. If
that’s the way it is, that’s the way it is. But I’ll be back, you probably
realize that.
After about four seconds, and there’s silence at that point, then after
about four seconds you reinitiate your communication and you say, I
don’t know even know y’all came to talk to me [sic]. The detective then
interrupts whatever else it is you’re going to say after that and he says,
well, you shut down so quick, what are we doing. You don’t even know
what we’re here to talk about. And you want a lawyer. At which point
there is some discussion.
Then the detective says to you, it’s up to you. If you want to talk to us,
you know, you’ve got to waive your Miranda rights.
There are some more irrelevant discussions, but it is again told that it’s
up to you. And then they explain to you that they read to you, you sign
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the form. Then they explain to you that any time you don’t want to talk
to us anymore, you can shut down.
There’s a pause. The pause this time around is about 16 seconds. There’s
nothing but silence. At what point [sic] you then say, quote, what y’all
want to talk to me about. I want you to read me my rights.
So you reinitiate the communication again. The Miranda is read to you,
at which point you say, well, I wish that I had a lawyer. The detective
responds, you can have a lawyer if you want to, that’s up to you. If you
want to talk to a lawyer, I’m not going to ask you any questions. Then
you respond, but I want to know why y’all here.
So again, they indicate to you that they want to—they are prepared to
honor your request to give you counsel and not ask you any questions.
And you again indicate that you really want to know why they’re there
to talk to you.
So then [the] detective changed the topic and he says, I’ll tell you what,
let’s talk about DNA. They talk a little bit about DNA and what the DNA
is about and the DNA comparison. And you say, y’all read me my rights.
I want to know what y’all want to talk about.
The deputy says DNA comparison, to which you respond, that’s all?
Then the deputy says, well, there are more things that I want to talk
about. There’s some discussion about your bandage. They don’t
specifically ask you any questions about the bandage or how you got an
injury, which means they’re not interrogating you.
Then the detective mentions doing it the, quote, safe way, end of quote.
Answer as many questions as you’re comfortable with answering, is what
they talk about, and stop whenever you want to stop or[,] otherwise, we
can just leave.
Then you end up ultimately signing the consent for the swab and
eventually you end up talking to them.
So as I’ve read—listened to the tape, under the totality of the
circumstances I do not hear coercion. I do not hear any threats of any
kind. I don’t hear any kind of trickery.
I think in the end what I end up hearing is you are very concerned about
why it is they’re there to talk to you. They are not, at least, initially
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forthcoming as to exactly why they want to talk to you, but they also
don’t try to lie to you or mislead you.
They don’t say, well, we want to talk about one thing and then ultimately
want to talk about another. They just don’t tell you. And you’re very
interested in knowing what that is and you keep prodding to try and know
what that is, even to the point of when they are prepared to honor your
right to counsel reinitiating communications so that we start this whole
process all over again.
I'm unable to say at this time that you were in any way coerced under the
totality of the circumstances into giving a statement, that you were lied
to or mislead [sic], and that the statement was involuntary. So at this point
the officer will be allowed to testify.
(Id., pp. 341-45.)
Bates appealed his conviction. With the assistance of counsel, he submitted an
initial brief that raised a single issue: whether the trial court erroneously instructed the
jury on “justifiable use of deadly force for a manslaughter conviction.” (Id., Ex. 2, pp.
11-18.) Bates did not argue on appeal that his Miranda rights were violated during his
interview with law enforcement. The state appellate court per curiam affirmed Bates’s
conviction. (Id., Ex. 4.)
Bates then sought postconviction relief under Florida Rule of Criminal
Procedure 3.850. (Id., Ex. 6, pp. 1-56, 74-129, 135-43, 160-82, 310-21.) He raised
several grounds for relief, including an ineffective-assistance-of-counsel claim based
on his trial attorney’s alleged failure to “bring to the court[’]s attention the violation of
[his] Miranda rights.” (Id., p. 140.) Bates did not, however, raise the underlying
Miranda claim in his postconviction motions. The state court ultimately rejected

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Bates’s claims, and the state appellate court per curiam affirmed the denial of relief. (Id.,
pp. 145-51, 186-94, 323-25, 494-97; Id., Ex. 9.)
II.

Standard of Review
A federal habeas petitioner must exhaust his claims in state court before

presenting them in his federal habeas 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 exhaustion requirement is satisfied if the petitioner fairly
presents his claim in each appropriate state court and alerts that court to the federal
nature of the claim. Picard v. Connor, 404 U.S. 270, 275-76 (1971).
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 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); Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003). 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). A petitioner demonstrates

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prejudice by showing that “there is at least a reasonable probability that the result of
the proceeding would have been different” absent the constitutional violation.
Henderson, 353 F.3d at 892.
III.

Discussion
As noted above, Bates raises a single ground for relief in his petition—that his

“rights under Miranda were violated during [his] interrogation.” (Doc. 1, p. 13.) Bates
claims that “law enforcement never gave [him] an opportunity to access his rights,”
that the interrogating officers “gave lip service and said the right thing for the record,”
and that “through delay and ignoring well[-]established law[,] [they] broke his
resistance and will power to maintain his request for an attorney.” (Doc. 1-1, p. 1.)
Thus, according to Bates, the trial court “erred when it ruled that [his] rights and
subsequent confession were not violated (admissible) when applying Miranda . . . to
the facts of the case.” (Id., p. 9.)
Respondent is correct that Bates failed to exhaust this claim. To satisfy the
exhaustion requirement, a petitioner “must give the state courts one full opportunity
to resolve any constitutional issues by invoking one complete round of the State’s
established appellate review process,” either on direct appeal or on collateral review.
Boerckel, 526 U.S. at 845. At trial, Bates challenged the admissibility of his postMiranda statements. On direct appeal, however, Bates did not argue that law
enforcement violated his Miranda rights. Nor did he raise the Miranda claim in his state
postconviction motions. Bates’s failure to present his Miranda argument on direct

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appeal or on collateral review renders the claim unexhausted. See, e.g., Crayton v. Sec’y,
Dep’t of Corr., No. 17-15290-C, 2019 WL 2374452, at *4 (11th Cir. May 15, 2019)
(holding that Miranda claim was “not properly exhausted” because petitioner “did not
raise th[e] claim in his direct appeal or in his state postconviction motions”).
To be sure, Bates argued in his state postconviction motions that trial counsel
was ineffective for failing to “bring to the court[’]s attention the violation of [his]
Miranda rights.” (Doc. 20-2, Ex. 6, p. 140.) For purposes of exhaustion, however, a
substantive claim is “separate and distinct” from an ineffective-assistance-of-counsel
claim based on the substantive claim. LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237,
1260 n.24 (11th Cir. 2005); see also Phillips v. Sec’y, Dep’t of Corr., No. 8:21-cv-960-WFJSPF, 2022 WL 2829631, at *3 (M.D. Fla. July 20, 2022) (“[Petitioner’s] assertion of
an ineffective assistance of trial counsel claim for failing to move to suppress because
officers exceeded the scope of consent and searched the home without a warrant was
not sufficient to exhaust his substantive Fourth Amendment violation claim.”).
Accordingly, Bates’s claim that trial counsel was ineffective for failing to seek
suppression of his post-Miranda statements was insufficient to exhaust the underlying
Miranda claim. See Sherman v. Inch, No. 5:17-cv-204-MCR-MJF, 2020 WL 4721295,
at *14 (N.D. Fla. Jan. 24, 2020) (finding that, for exhaustion purposes, petitioner’s
“substantive challenge to the jury instructions [was] not the same as an ineffective

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assistance of trial counsel claim based on counsel’s failure to object to the
instructions”), adopted by 2020 WL 4700765 (N.D. Fla. Aug. 13, 2020). 3
Bates cannot return to state court to present his unexhausted claim in a second,
untimely direct appeal. See Fla. R. App. P. 9.140(b)(3) (stating that a notice of appeal
must be filed within thirty days of the rendition of a sentence). Nor can he raise it in
another postconviction motion. See Fla. R. Crim. P. 3.850(b) (imposing two-year
window of time to file motion for postconviction relief). As a result, the Miranda claim
is procedurally defaulted. See Smith, 256 F.3d at 1138 (“If 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.”). Because Bates has not
shown that an exception applies to overcome the default, the sole ground in the
petition is barred from federal habeas review. 4
See also Bailey v. Nagle, 172 F.3d 1299, 1304 (11th Cir. 1999) (“An ineffective-assistance claim is
analytically distinct from the substantive claim underlying it. Therefore, whether or not [petitioner]
exhausted his ineffective-assistance claim regarding the voluntariness of his predicate convictions, his
current substantive claim was not presented to the Alabama courts.”); Davie v. Mitchell, 547 F.3d 297,
312 (6th Cir. 2008) (“[B]ringing an ineffective assistance claim in state court based on counsel’s failure
to raise an underlying claim does not preserve the underlying claim for federal habeas review because
the two claims are analytically distinct.”).

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Bates makes no attempt to overcome the default of his Miranda claim. But even if Bates had argued
that appellate counsel’s ineffective assistance was the cause of his failure to raise the Miranda claim on
direct appeal, that would not excuse the default. “A showing of ineffective assistance of appellate
counsel in failing to raise a claim on direct appeal can constitute ‘cause’ so long as the ineffective
assistance occur[red] during a stage when a petitioner had a constitutional right to counsel, and the
ineffective-assistance claim itself is both exhausted and not procedurally defaulted.” Sealey v. Warden, Ga.
Diagnostic Prison, 954 F.3d 1338, 1365 (11th Cir. 2020) (emphasis added). Bates never argued in state
court that his appellate counsel was ineffective for failing to raise the Miranda claim on direct appeal.
Accordingly, any such ineffective-assistance claim “is procedurally defaulted and cannot be
considered as cause for the default of his trial court error claim.” Dowling v. Sec’y for Dep’t of Corr., 275
F. App’x 846, 847 (11th Cir. 2008).
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It is therefore ORDERED that Bates’s petition (Doc. 1) is DENIED. The
CLERK is directed to enter judgment against Bates and to CLOSE this case.
Certificate of Appealability
and Leave to Appeal In Forma Pauperis Denied
It is further ORDERED that Bates 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 COA
must first issue. 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 obtain a COA,
Bates must show that reasonable jurists would find debatable both (1) the merits of the
underlying claim and (2) the procedural issues he seeks to raise. See 28 U.S.C.
§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Bates has not made the
requisite showing. Finally, because Bates is not entitled to a COA, he is not entitled to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on April 7, 2023.

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