ORDER

CHARLENE EDWARDS HONEYWELL, District Judge.

Petitioner, a Florida prisoner, initiated this action by filing a petition for the writ of habeas corpus pursuant to 28 U.S.C. Section 2254 (Dkt. 1). The petition was stricken with leave to amend (Dkt. 15). Petitioner's amended petition (Dkt. 17) likewise was stricken (Dkt. 32). He thereafter filed a second amended petition (Dkt. 40), which Respondent opposes (Dkt. 46). Upon consideration, the petition will be denied.

The second amended petition alleges two claims:1

I. RELEVANT PROCEDURAL HISTORY

Petitioner pleaded no contest to leaving the scene of a crash with death (Count 1), driving while license cancelled, suspended or revoked and causing serious bodily injury or death (Count 2), leaving scene of a crash (Count 3), no motor vehicle insurance (Count 4), attaching tag not assigned (Count 5), and failure of defendant on bail to appear (Count 6) (Dkt. 47-2, docket p. 144). He was sentenced to 15 years in prison on Count 1, 121.35 months in prison on Counts 2 and 6, concurrent to each other and Count 1, and time-served on Counts 3, 4, and 5 (Dkt. 47-3, docket pp. 250-54).

His convictions and sentences were affirmed on appeal. Block v. State, 60 So.3d 1059 (Fla. 2d DCA 2011).

Petitioner filed a post-conviction motion under Rule 3.850, Florida Rules of Criminal Procedure, in which he raised, among other things, his Double Jeopardy and improperly assessed victim injury points claims (Dkt. 47-3, docket pp. 429-32). The state post-conviction court directed the State to respond to the Double Jeopardy claim, and denied the victim injury points claim (Dkt. 47-4, docket pp. 4-6). After the State responded (Id., docket pp. 67-68), the state post-conviction court denied the Double Jeopardy claim without an evidentiary hearing (Id., docket pp. 70-72). The denial of Petitioner's Rule 3.850 motion was affirmed on appeal (Id., docket p. 118).

II. GOVERNING LEGAL PRINCIPLES

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).

Standard of Review Under the AEDPA

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).

Ineffective Assistance of Counsel Standard

Claims of ineffective assistance of counsel are analyzed under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to demonstrate both deficient performance by counsel and resulting prejudice. Demonstrating deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. Deficient performance is established if, "in light of all the circumstances, the identified acts or omissions [of counsel] were outside the wide range of professionally competent assistance." Id. at 690. However, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. Additionally, "a court deciding an actual ineffectiveness claim 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.

Petitioner must demonstrate that counsel's alleged errors prejudiced the defense because "[a]n 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 691-92. To show 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.

Sustaining a claim of ineffective assistance of counsel on federal habeas review is very difficult 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." Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). See also Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.") (citation omitted).

If a claim of ineffective assistance of counsel can be resolved through one of the Strickland test's two prongs, the other prong need not be considered. 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998) ("When applying Strickland, we are free to dispose of ineffectiveness claims on either of its two grounds.").

III. ANALYSIS

Ground One

Petitioner contends that his convictions for both leaving the scene of a crash with bodily injury or death under Section 316.027(1)(b), Florida Statutes, and leaving the scene of a crash under Section 316.061(1), Florida Statutes, violate the constitutional prohibition against double jeopardy because the crime of leaving the scene of a crash is a lesser included offense of leaving the scene of a crash with bodily injury or death (Dkt. 40, docket p. 4). He asserts that the "proper remedy" is to vacate the "lesser offense conviction" (leaving the scene of a crash) (Id.). He further opines that had the leaving the scene of a crash conviction been vacated, "it would . . . have reduced his scoresheet total." (Id.). Finally, Petitioner contends that the state post-conviction court erred and violated his rights under the Florida Constitution in denying this claim without an evidentiary hearing, and without attaching any portion of the record to the order denying the claim (Id., docket pp. 4-5).

In denying this claim, the state post-conviction court stated:

(Dkt. 47-4, docket pp. 70-72).

The Double Jeopardy Clause of the United States Constitution provides that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." The Double Jeopardy Clause protects defendants in three situations: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; or (3) multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 380-381 (1989). Petitioner contends that he was punished twice for the same offense because the crime of leaving the scene of a crash is a lesser included offense of leaving the scene of a crash with bodily injury or death.

In evaluating a double jeopardy claim, Blockburger provides that:

284 U.S. at 304. "If each offense requires proof of a fact that the other does not, the Blockburger test is satisfied despite any overlap in the proof necessary to establish the crimes." United States v. Moore, 43 F.3d 568, 571 (11th Cir. 1994) (citing Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975)).

At the time of Petitioner's offense conduct, 316.027(1)(b) provided, in pertinent part, that:

Fla. Stat. § 316.027(1)(b) (2007).

Section 316.061(1) provided, in pertinent part, that:

Fla. Stat. § 316.061(1) (2007).

Each offense requires proof of an element that the other does not.2 Furthermore, leaving the scene of a crash involving death is not a lesser included offense of leaving the scene of a crash involving only damage to property, and leaving the scene of a crash involving only damage to property is not a lesser included offense of leaving the scene of a crash involving death. See Florida Standard Jury Instructions in Criminal Cases, Fourth Edition, Part Two: Instruction on Crimes, Chapter 28.4 Leaving the Scene of Crash Involving Death or Injury; Chapter 28.4(a) Leaving the Scene of Crash Involving Only Damage to an Attended Vehicle or Attended Property (2006). Thus, Petitioner has not demonstrated that either of these convictions resulted from his twice being placed in jeopardy.

The state decision resulted in a reasonable application of Blockburger and a reasonable determination of the facts in light of the evidence. Petitioner therefore does not show the state decision was contrary to or an unreasonable application of federal law as established by the Supreme Court or an unreasonable determination of the facts in light of the evidence.

Finally, Petitioner contends that the state post-conviction court erred and denied his rights under the Florida Constitution by denying his Rule 3.850 motion without an evidentiary hearing or attaching portions of the record to the order denying the motion. This claim relates to a perceived error in the state post-conviction proceedings.

"[W]hile habeas relief is available to address defects in a criminal defendant's conviction and sentence, an alleged defect in a collateral proceeding does not state a basis for habeas relief." Quince v. Crosby, 360 F.3d 1259, 1261-62 (11th Cir. 2004) (citing Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1987)); Carroll v. Sec'y Dep't of Corr., 574 F.3d 1354 (11th Cir. 2009). Petitioner's claim is unrelated to the cause of his detention, and thus habeas relief is not available to address this claim. See Carroll, 574 F. 3d at 1354; Spradley, 825 F.2d at 1568. Therefore, this claim is denied. See, e. g., Beier v. Butler, 2009 WL 189940, at *8-9 (M.D. Fla. Jan. 23, 2009) (denying claims asserting errors in the manner in which the state court conducted the post-conviction proceedings because the claims were unrelated to the cause of detention and consequently, did not state a basis for federal habeas relief).

Accordingly, Ground One does not warrant habeas corpus relief.

Ground Two

Petitioner contends that the 120 victim injury points included on his Sentencing Scoresheet for the death of the victim were improperly assessed for the offense of leaving the scene of a crash. He asserts that "[t]his is a clear violation of Florida law and should be corrected immediately!" (Dkt. 40, docket p. 5) (emphasis in original). Respondent argues that this claim is not cognizable on federal habeas review (Dkt. 46, p. 24). The Court agrees.

Petitioner does not present a federal claim as to this argument. He identifies no specific constitutional violation and presents argument solely involving state sentencing law. Federal habeas relief can only be granted on the basis that an inmate's custody pursuant to a state court judgment violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Accordingly, claims like Petitioner's that rest on issues of state law are not cognizable in a federal habeas petition. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.1988) ("It is clear from [28 U.S.C. § 2254(a)] that a habeas petition grounded on issues of state law provides no basis for habeas relief."). Moreover, "[i]n the area of state sentencing guidelines in particular, we consistently have held that federal courts can not review a state's alleged failure to adhere to its own sentencing procedures." Id. See also, Osbourne v. McNeil, 2010 WL 3942001, at *5 (S.D. Fla. Sept. 9, 2010), report and recommendation adopted, 2010 WL 3941938 (S.D. Fla. Oct. 7, 2010) ("The application of [Florida's] Criminal Punishment Code and sentencing scoresheets is a question of state law."). Petitioner's state law claim that the sentencing court improperly included 120 victim injury points raises no basis for federal habeas relief. Petitioner is therefore not entitled to relief on Ground One.

To the extent that Petitioner's claim may be liberally construed as alleging that trial counsel rendered ineffective assistance by failing to object to the addition of these victim injury points, the claim likewise warrants no relief. In denying this claim, the state post-conviction court stated:

(Dkt. 47-4, docket pp. 4-6) (emphasis in original) (footnote omitted).

The state post-conviction court determined that the imposition of the victim injury points was proper under Florida law. Although Petitioner's allegation of ineffective assistance raises a federal constitutional claim, this court must defer to the state court's determination of the underlying state law question. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1355 (11th Cir. 2005) ("It is a `fundamental principle that state courts are the final arbiters of state law, and federal habeas courts should not second-guess them on such matters.'") (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997)). The state court therefore has answered the question of what would have happened had counsel objected to imposition of the 120 victim injury points—the objection would have been overruled. See Callahan v. Campbell, 427 F.3d 897, 932 (11th Cir. 2005) (Alabama Court of Criminal Appeals had already answered the question of what would have happened had counsel objected to the introduction of petitioner's statements based on state decisions; the objection would have been overruled; therefore, counsel was not ineffective for failing to make that objection). As the state court found, counsel is not ineffective for not raising a meritless claim. See Bolender v. Singletary, 16 F.3d 1547, 1573 (11th Cir. 1994) ("[I]t is axiomatic that the failure to raise nonmeritorious issues does not constitute ineffective assistance."). Accordingly, Petitioner fails to show that counsel performed deficiently in not objecting to the imposition of the 120 victim injury points.

Petitioner does not establish that the state court's decision resulted in an unreasonable application of Strickland or was based on an unreasonable determination of fact. He therefore is not entitled to relief on Ground Two.

Any of Petitioner's allegations not specifically addressed herein have been determined to be without merit.

It is therefore ORDERED AND ADJUDGED that:

1. The Second Amended Petition for Writ of Habeas Corpus (Dkt. 40) is DENIED. The Clerk shall enter judgment accordingly and close this case.

2. A Certificate of Appealability (COA) is DENIED in this case, since Petitioner cannot make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). And because Petitioner is not entitled to a COA, he is not entitled to proceed on appeal in forma pauperis.

DONE AND ORDERED.