CHARLENE EDWARDS HONEYWELL, District Judge.
Petitioner, a Florida prisoner, initiated this action for habeas corpus relief pursuant to 28 U.S.C. Section 2254 (Dkt. 1). Upon consideration of the petition, the Court ordered Respondent to show cause why the relief sought in the petition should not be granted (Dkt. 4). Thereafter, Respondent filed a response to the petition for writ of habeas corpus in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Dkt. 5). Petitioner filed a reply to the response (Dkt. 9).
Petitioner alleges two claims in his petition:
Petitioner was charged by Information with DUI manslaughter (Count One), manslaughter by culpable negligence (Count Two), and DUI with property damage or personal injury (Count Three) (Respondent's Ex. 1). Each charge arose from a single incident on September 25, 2008, during which Petitioner drove a motorcycle while intoxicated and crashed the motorcycle, which killed his passenger Angela Fattarusso and destroyed a fence (Id.; Respondent's Ex. 2, Vol. I, pp. 61-62, Vol. IV, p. 420). During the jury trial, after the State rested its case, the State agreed to a judgment of acquittal on Count Three (Respondent's Ex. 2, Vol. IV, pp. 420-21). During the sentencing hearing, the trial court dismissed Count Two, entered an acquittal on Count Three, entered judgment on Count One, and sentenced Petitioner on Count One to 124.5 months in prison, to be followed by two years probation (Respondent's Ex. 4, pp. 5-6, 61; Ex. 5). The conviction and sentence were affirmed on appeal (Respondent's Ex. 8).
Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure, asserting one ground of ineffective assistance of trial counsel and two grounds of trial court error (Respondent's Ex. 9). The motion was summarily denied (Respondent's Ex. 10), and the denial was affirmed on appeal (Respondent's Ex. 12).
Petitioner thereafter filed his federal habeas petition in this Court (Dkt. 1).
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880, 889-90 (11th Cir. 2003). The AEDPA "establishes a more deferential standard of review of state habeas judgments," Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to "prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002); see also Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (recognizing that the federal habeas court's evaluation of state-court rulings is highly deferential and that state-court decisions must be given the benefit of the doubt).
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). The phrase "clearly established Federal law," encompasses only the holdings 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).
"[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the `contrary to' and `unreasonable application' clauses articulate independent considerations a federal court must consider." Maharaj v. Secretary for Dep't. of Corr., 432 F.3d 1292, 1308 (11th Cir. 2005). The meaning of the clauses was discussed by the Eleventh Circuit Court of Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is appropriate only if that application was "objectively unreasonable." Id.
Finally, under § 2254(d)(2), a federal court may grant a writ of habeas corpus if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A determination of a factual issue made by a state court, however, shall be presumed correct, and the habeas petitioner shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. See Parker, 244 F.3d at 835-36; 28 U.S.C. § 2254(e)(1).
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established a two-part test for determining whether a convicted person is entitled to relief on the ground that his counsel rendered ineffective assistance: (1) whether counsel's performance was deficient and "fell below an objective standard of reasonableness"; and (2) whether the deficient performance prejudiced the defense.
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance of counsel:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted). Under those rules and presumptions, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Rogers v. Zant, 13 F.3d 384, 386 (11th Cir. 1994).
Petitioner contends that his convictions for both DUI manslaughter and manslaughter by culpable negligence violate the constitutional prohibition against double jeopardy, since the crimes were committed in a single criminal episode and involved the same victim. He argues that although the state trial court entered judgment only on the DUI manslaughter conviction and dismissed the manslaughter by culpable negligence conviction, "[m]erging and dismissing one of [the] charges after the oral pronouncement of guilt doesn't cure the double jeopardy violation, since that constitutional protection extends to convictions as well as punishment." (Dkt. 1, p. 6).
In state court, Petitioner raised this claim in Ground One of his Rule 3.850 motion (Respondent's Ex. 9, pp. 2-3). In denying the claim, the state post-conviction court stated:
(Respondent's Ex. 10, pp. 2-3).
The state court's denial of the claim was not contrary to clearly established federal law or based on an unreasonable determination of the facts. "The Double Jeopardy Clause of the Fifth Amendment provides that no person shall `be subject for the same offence to be twice put in jeopardy of life or limb.'" Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 306 (1984). The Double Jeopardy Clause embodies three separate guarantees: "It protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Justices, 466 U.S. at 307-08 (citation and footnote omitted).
Petitioner did not receive multiple convictions or punishments for the same offense, since the state trial court entered judgment only on the DUI manslaughter conviction, sentenced Petitioner only on that conviction, and dismissed the manslaughter by culpable negligence conviction (Respondent's Ex. 5). Accordingly, there was no double jeopardy violation. Ground One therefore does not warrant relief.
Petitioner contends that trial counsel was ineffective in failing to object "when a crime, the elements of which defendant had been acquitted on, was presented to the jury for consideration." He argues that the judgment of acquittal on count three (driving under the influence with property damage or personal injury) negated the necessary elements needed to convict him of count one (DUI manslaughter), and counsel should have objected to count one being presented to the jury.
In state court, Petitioner raised this claim in Ground Three of his Rule 3.850 motion (Respondent's Ex. 9, p. 4). In denying the claim, the state post-conviction court stated:
(Respondent's Ex. 10, pp. 5-7) (emphasis in original).
The state court's denial of this claim was not an unreasonable application of clearly established federal law or based on an unreasonable determination of the facts. Petitioner argues that his conviction on the DUI manslaughter count after being acquitted of the DUI property damage or personal injury count violates his double jeopardy rights. He is incorrect.
After the State rested its case, the trial court acquitted Petitioner on Count Three (DUI with property damage or personal injury) because the State conceded to a judgment of acquittal on that count, since it presented no evidence that Petitioner caused property damage to a fence (Respondent's Ex. 2, Vol. IV, pp. 420-21). Despite the acquittal, the State was permitted to try Petitioner on Count One (DUI manslaughter) because it was not the same offense as Count Three for double jeopardy purposes, since each offense contains an element not contained in the other. United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299 (1932)). "[T]wo offenses are the same unless each requires proof of an additional fact which the other does not." Beverly v. Jones, 854 F.2d 412, 414 (11th Cir. 1988), cert. denied, 490 U.S. 1082 (1989).
The crime of DUI manslaughter required proof of the death of another, an element not required for proof of DUI with property damage or personal injury. See Stewart v. State, 146 So.3d 524, 525 (Fla. 1st DCA 2014) ("[T]he elements of DUI manslaughter are: (1) the defendant drove, (2) while intoxicated (more than .08 BAC), and (3) `as a result of operating the vehicle, (defendant) caused or contributed to the cause of the death of [the victim].'") (quoting Fla. Std. Jury Instr. 7.8) (emphasis in original). The crime of DUI with property damage or personal injury, in Petitioner's case, required proof of property damage, an element not required for proof of DUI manslaughter. Therefore, double jeopardy was not implicated. Accordingly, defense counsel was not ineffective in failing to raise a double jeopardy argument.
Petitioner has failed to establish that the state courts' adjudication of this claim was based upon an unreasonable determination of the facts, or that it was an unreasonable application of clearly established federal law. Accordingly, he is not entitled to federal habeas relief on Ground Two.
Any claims not specifically addressed in this Order have been determined to be without merit.
It is therefore
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is
2. The
3. This Court should grant an application for a Certificate of Appealability only if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make this showing.
