JAMES S. MOODY, Jr., District Judge.
This Cause is before the Court upon James Jordan, Jr.'s amended petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in case number 8:12-cv-1134-T-30EAJ (hereinafter Case 1) and case number 8:12-cv-1282-T-27AEP (hereinafter Case 2). (Case 1, Dkt 10; Case 2, Dkt. 7). These cases will be consolidated. The state filed a consolidated response. (Case 1, Dkt. 20; Case 2, Dkt. 13). Upon consideration, the Court concludes that both petitions should be denied.
In Case 1, Petitioner pled no contest to possession of cocaine, pursuant to a negotiated plea agreement, on December 5, 2007. (Case 1 Dkt. 22, Ex. 2; Case 2, Dkt. 15, Ex. 2).
Petitioner admitted the probation violation and pled guilty to robbery, pursuant to a negotiated plea agreement, on May 8, 2008. (Dkt. 22, Ex. 7). At sentencing, the state trial court explained the implications of Petitioner's guilty plea, and Petitioner confirmed that he entered his plea voluntarily.
(Dkt. 22, Ex. 6, at 7-14). The state sentenced him to concurrent terms of imprisonment of five (5) years for possession of cocaine and ten (10) years for robbery as a habitual offender. (Dkt. 22, Ex. 10).
Petitioner appealed both convictions, and his appellate counsel in both cases filed Anders briefs, arguing that there were no meritorious arguments for reversible error. (Dkt. 22, Exs. 19-21, 25-26); see 87 S.Ct. 1396. The state appellate court in both cases provided Petitioner with an opportunity to file pro se briefs highlighting reversible error, (Dkt. 22, Exs. 22, 27), and in both cases Petitioner instead filed notices of voluntary dismissal. (Dkt. 22, Exs. 23, 29). The state appellate court dismissed Petitioner's robbery appeal on April 8, 2009, and Petitioner's cocaine-possession appeal on May 26, 2009. (Dkt. 22, Exs. 24, 30).
Petitioner filed a series of motions for post-conviction relief in both cases, and the state court dismissed or denied all of his motions. The state court also denied Petitioner's state habeas petitions.
In the instant habeas petitions, Petitioner requests relief on six separate grounds. (Case 1, Dkt. 10, at 8-14; Case 2, Dkt. 7, at 6-11). Respondent, in its consolidated response, separated Petitioner's ineffective assistance claim in Case 2, ground 1, into two separate claims. This Court will address the following seven claims:
The Respondent agrees that the Petition is timely.
Petitioner is procedurally-barred from asserting Claims 1-4 because each claim raises an issue of trial court error which has not been raised in state court on direct appeal. "An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State . . . ." The failure of a federal habeas petitioner to adhere to state procedural rules governing the timely presentation of claims will bar federal review of those claims in a subsequent federal habeas corpus proceeding. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Sims v. Singletary, 155 F.3d 1297, 1311 (11th Cir. 1998). The federal habeas court must defer to the state court's interpretation of its procedural rules, and must enforce those rules as well as enforcing the procedural rulings of state courts. See Lindsey v. Smith, 820 F.2d 1137 (11th 1989). As the state court explained, Petitioner was procedurally-barred from raising issues of trial court error because he failed to raise them on direct appeal. (Dkt. 22, Ex. 53). Because Petitioner is procedurally-barred from raising Claims 1-4, they must be denied. However, the Court will discuss these claims to explain why they would have failed even if not procedurally-barred.
Petitioner claims that the trial court erred because the state failed to produce evidence of his cocaine possession, Claim 1, and robbery, Claim 2. Petitioner's admissions of guilt preclude him from asserting these claims. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also Cooper v. Holman, 356 F.2d 82, 84 (5th Cir. 1966)
Petitioner entered his guilty plea "freely and voluntarily," (Case 1, Dkt. 22, Ex. 6, at 10); therefore, his plea operated as an admission of all facts charged against him, regardless of any alleged defects in the state's evidentiary basis for its charges.
Petitioner's federal habeas petition is the first time he has clothed Claims 3 and 4 as violations of due process. Where a petitioner has not "fairly presented" a federal constitutional claim to the state court, he has failed to exhaust his state court remedies. Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d. 438 (1971).
Although Petitioner previously presented the facts of each underlying claim in his motions for post-conviction relief, he has not asserted a violation of his due process rights in state court proceedings. The Supreme Court has rejected the theory that by presenting the facts on which an alleged constitutional violation is based a petitioner implicitly raises the claim. Anderson v. Harless, 459 U.S. at 6. The petitioner must make the state court aware that the claims asserted present federal constitutional issues. Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.), cert. denied, 525 U.S. 963, 119 S.Ct. 405, 142 L.Ed.2d 329 (1998). Therefore, Petitioner is barred from clothing Claims 3 and 4 as violations of due process in his federal habeas petition.
In addition to being procedurally-barred, Petitioner's third claim, that the trial court erred by sentencing him as a habitual felony offender for his cocaine-possession conviction, (Case 1, Dkt. 10 at 13), is factually incorrect and meritless. The trial court did not sentence him as a habitual felony offender for his cocaine-possession conviction. (Case 1, Dkt. 22, Ex. 9). It sentenced him as a habitual felony offender only for his robbery conviction. (Case 1, Dkt. 22, Ex. 10).
Petitioner's fourth claim alleges that the trial court erred by sentencing him as a habitual felony offender for his robbery conviction. Petitioner argues that his two Ohio convictions were more than five years prior to his robbery sentencing. He misunderstands that his most recent felony was his cocaine-possession felony, for which he was on probation at the time he committed the robbery offense. In an order dispensing with Petitioner's motions for post-conviction relief, the state court ruled that the issue should have been raised on direct appeal. The court went on to explain why Petitioner's claim lacked merit:
(Case 1, Dkt. 22, Ex. 38, at 4).
Even if Petitioner's claim were not procedurally-barred, this Court does not review a state court's application of its own sentencing laws. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988) ("It is clear from the foregoing statute [§ 2254] that a habeas petition grounded on issues of state law provides no basis for habeas relief. In 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." (citing Jones v. Estelle, 622 F.2d 124, 126 (5th Cir.), cert. denied, 449 U.S. 996, 101 S.Ct. 537 (1980); Nicholas v. Estelle, 556 F.2d 1330, 1331 (5
In Claims 5-7, Petitioner alleges ineffective assistance of counsel. "[T]he cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between." Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386 (11
Petitioner claims counsel was ineffective for failing to challenge evidence of prior convictions presented at sentencing. Even though he tries to couch this as an ineffective-assistance-of-counsel claim, at bottom it's really a challenge to the state's application of its sentencing laws, an issue Petitioner should have raised on direct appeal.
Even if this Court were to entertain it on the merits as an ineffective-assistance-of-counsel claim, it would conclude that there's no deficient performance. As the state court explained, Petitioner's ineffective-assistance claim is based on his misunderstanding of Florida sentencing laws. Section 775.084 of the Florida Statutes states that a defendant qualifies as a habitual felony offender if:
Fla. Stat. § 775.084(1)(a). Petitioner argues that his Ohio convictions fall outside the required five-year period, but fails to realize that his cocaine-possession conviction falls within the required five-year period. Only "the defendant's last prior felony" must fall within the required five-year period. Petitioner does not argue that his Ohio convictions should not be considered a "qualified offense" under the statute. Because the challenge that Petitioner alleges his attorney failed to make lacks merit, Petitioner has failed to prove that his attorney's performance was deficient.
Petitioner claims counsel was ineffective based on inadequate trail preparations, Claim 6, and failure to challenge the sufficiency of the state's evidence, Claim 7. At sentencing, petitioner testified that he was satisfied with his attorney, that he entered the guilty plea voluntarily, and that he understood the rights he waived by pleading guilty. (Case 1, Dkt. 22, Ex. 6). "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Petitioner's guilty plea precludes him from asserting Claims 6 and 7, which both assert deprivations that occurred prior to the entry of his guilty plea. At sentencing, Petitioner "underst[oo]d that [his attorney] w[ou]l[d] not be calling in defense witnesses if there [we]re any," and "w[ou]l[d] not be asserting defenses if any exist[ed]." (Case 1, Dkt. 22, Ex. 6, at 7). He also understood the "waiver of [his] rights" that would result from his admission of guilt. (Case 1, Dkt. 22, Ex. 6, at 10). Therefore, Petitioner's admissions of guilt bar him from asserting claims of ineffective assistance of counsel for inadequate pretrial preparations and failure to challenge the state's evidence of his convictions.
ACCORDINGLY, the Court ORDERS:
1. That Petitioner's amended petitions for writ of habeas corpus in case numbers 8:12-cv-1134-T-30EAJ and 8:12-cv-1282-T-30AEP are hereby consolidated, and the consolidated Petition is
2. The
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
