JAMES D. WHITTEMORE, District Judge.
Petitioner Clayton Rogers, an inmate in the Florida Department of Corrections proceeding pro se, initiated this action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1). Respondent filed a response (Dkt. 10), in which it contends that the petition is untimely and alternatively argues that the petition is without merit. Petitioner did not file a reply. Upon review, the petition must be denied.
Petitioner was convicted of two counts of trafficking in hydrocodone. (Dkt. 12, Ex. 3.) He was sentenced to concurrent mandatory terms of 25 years in prison. (Dkt. 12, Ex. 4.) The state appellate court per curiam affirmed on direct appeal. (Dkt. 12, Ex. 7.) Petitioner filed a state habeas petition alleging ineffective assistance of appellate counsel. (Dkt. 12, Ex. 8.) The state appellate court denied the petition and Petitioner's motion for rehearing. (Dkt. 12, Exs. 9, 10.)
Petitioner filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which the state court denied. (Dkt. 12, Exs. 11, 12.) His motion for rehearing was also denied. (Dkt. 12, Ex. 13.) Upon granting Petitioner a belated collateral appeal, the state appellate court per curiam affirmed the order denying postconviction relief. (Dkt. 12, Exs. 19, 20, 21.) Petitioner's motion for rehearing was denied. (Dkt. 12, Ex. 20.)
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides a one-year period of limitation for filing a § 2254 federal habeas petition. This period runs from the later of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). The limitation period is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. . ." 28 U.S.C. § 2244(d)(2).
Petitioner's convictions were affirmed by the state appellate court on September 8, 2010. They became final 90 days later, on December 7, 2010, upon the expiration of the time to file a petition for writ of certiorari. Clay v. United States, 537 U.S. 522, 527 (2003); Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002). After the one-year AEDPA limitation period began running the next day, 276 days of un-tolled time passed before Petitioner filed his state habeas petition on September 9, 2011. The limitation period was tolled until the state appellate court denied rehearing on November 4, 2011.
The limitation period began to run again the next day. Another 32 days of un-tolled time, for a total of 308 days, passed before Petitioner filed his Rule 3.850 motion on December 6, 2011. The state court denied relief, and subsequently denied Petitioner's motion for rehearing on February 10, 2012. Petitioner did not properly file a timely notice of appeal. To have tolling effect, an application must be "properly filed." An application is properly filed "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000) (footnote omitted).
In seeking a belated appeal, Petitioner explained that he filed the notice of appeal in the wrong court on February 12, 2012. (Dkt. 12, Ex. 17, p. 2.) He also pointed out that Florida Rule of Appellate Procedure 9.040(b)(1) provides that "[i]f a proceeding is commenced in an inappropriate court, that court shall transfer the cause to an appropriate court." (Id., p. 3.) However, a document that is not filed with the court having jurisdiction is not "properly filed" to toll the AEDPA limitation period, even if the receiving court has a duty to transfer the document to the court with jurisdiction. See Sibley v. Culliver, 377 F.3d 1196, 1203 (11th Cir. 2004) ("[T]he application was not filed properly since it was delivered to the wrong court, regardless of whether the Alabama Supreme Court had a duty to correct Sibley's error.") (emphasis in original).
Therefore, Petitioner's AEDPA limitation period began running again on March 12, 2012, after the expiration of his 30-day time period to file a proper notice of appeal upon the denial of his postconviction motion for rehearing. Fifty-seven days remained in the limitation period, meaning that it expired on May 7, 2012. However, the federal habeas petition was not filed until September 8, 2013. The record reflects no other tolling applications filed in state court prior to May 7, 2012.
Habeas relief can only be granted 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). Section 2254(d), which sets forth a highly deferential standard for federal court review of a state court adjudication, states:
In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:
"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685, 694 (2002). "As a condition for obtaining habeas corpus from a federal court, 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). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that [the federal court is] to decide."). 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, 529 U.S. at 412.
The purpose of federal review is not to re-try the case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Cone, 535 U.S. at 693. In other words, "AEDPA prevents defendants-and federal courts-from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, 559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) ("This is a `difficult to meet,' . . . and `highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt' . . .") (citations omitted).
In decisions without written opinions, the state appellate court affirmed Petitioner's judgments and sentences, denied his state habeas petition, and affirmed the rejection of postconviction relief. These decisions warrant deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom. Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). Review of the state court decision is limited to the record that was before the state court. Pinholster, 563 U.S. at 180-81.
Petitioner bears the burden of overcoming by clear and convincing evidence a state court factual determination. "[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
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.
Counsel's strategic choices "made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91. A petitioner cannot meet his burden merely by showing that counsel's choices were unsuccessful:
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992). Accord Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000) ("To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or `what is prudent or appropriate, but only what is constitutionally compelled.'") (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)).
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." Richter, 562 U.S. at 105 (citations omitted). See also Pinholster, 563 U.S. at 202 (a petitioner must overcome the "`doubly deferential' standard of Strickland and AEDPA.").
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.").
Petitioner claims that his motion for judgment of acquittal should have been granted on the basis of subjective entrapment, which he raised as a defense in this case. In support of his claim, Petitioner relies on his direct appeal brief. There, he presented this issue as a state law question. Florida recognizes the defense of subjective entrapment, set forth in § 777.201, Fla. Stat. A subjective entrapment defense may be available to a defendant who establishes by a preponderance of the evidence that he was induced by a government agent to commit an offense, and establishes a lack of predisposition to commit the offense. State v. Henderson, 955 So.2d 1193, 1194 (Fla. 4th DCA 2007).
At trial, Detective Brian Bender testified that a confidential informant ("CI") stated he knew someone named Clayton Rogers who could sell drugs. (Dkt. 12, Ex. 2, Vol. I, p. 140.) Bender testified that, after arranging transactions through the CI, Bender bought hydrocodone from Petitioner on two occasions. (Dkt. 12, Ex. 2, Vol. I, pp. 138-47, 164-68; Vol. II, p. 249.) Petitioner testified that during the first transaction, he sold hydrocodone pills to the CI only after the CI contacted him multiple times and said he needed the pills for his sick father. (Dkt. 12, Ex. 2, Vol. II, pp. 229-32, 236-39.) Petitioner testified that he got the drugs from another person whom he did not know. (Id., pp. 236-37.) He testified that this was the first and only transaction. (Id., p. 233.) Petitioner testified that he did not know the price of hydrocodone and that he would not have engaged in the transaction if not for the CI. (Id., pp. 234-35.) He denied participating in the second transaction. He stated that he merely introduced the CI to the supplier of the hydrocodone. (Id., pp. 233, 239, 242.)
Bender testified that he was not personally aware of whether Petitioner was the subject of an investigation or previously sold drugs, and located no other "narcotics information" on him. (Dkt. 12, Ex. 2, Vol. I, pp. 175, 198.) However, the State argued that the evidence showed Petitioner was predisposed to traffic in hydrocodone because he was twice able to quickly produce hydrocodone when CI called him for drugs; he sold the hydrocodone for its street value, and during the second transaction determined the amount of pills based on what Bender indicated he could pay; and he stated to the CI and Bender that he had told them he would get them "quantity," meaning he was capable of producing large amounts of the drug.
Petitioner's attempt to challenge the trial court's ruling based on the subjective entrapment defense as set forth in Florida law presents a state law issue for which federal habeas jurisdiction does not lie. Federal habeas relief is only available if a state prisoner is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). "[F]ederal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension." Wainwright v. Goode, 464 U.S. 78, 83 (1983). Accordingly, a claim that only presents a question of state law is not cognizable in a federal habeas petition. Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988).
On appeal, Petitioner cited one opinion of the United States Supreme Court, Sherman v. United States, 356 U.S. 369 (1958). (Dkt. 12, Ex. 5, pp. 16-17.) Even liberally construing his habeas petition and appellate brief to have raised a federal question by citing Sherman, however, Petitioner is not entitled to relief because his claim still fails to state a federal constitutional deprivation. United States v. Russell, 411 U.S. 423 (1973) explains that entrapment was recognized as a defense in Sorrells v. United States, 287 U.S. 435 (1932) and reaffirmed in Sherman. The defense focuses on the defendant's predisposition to commit the crime. Russell, 411 U.S. at 433. But the entrapment defense addressed in these cases is not constitutional in nature.
The Supreme Court rejected Russell's argument to "broaden the nonconstitutional defense of entrapment" addressed set forth in Sorrells and reaffirmed in Sherman. Id. at 432-33. The Russell opinion explained that because "the defense is not of a constitutional dimension," its definition would be properly addressed by Congress. Id. at 433. Russell also denied a request to reconsider the entrapment theory as one of constitutional dimension in instances when law enforcement's involvement can be said to violate fundamental principles of due process. Id. at 430-32. Accordingly, Petitioner's subjective entrapment claim does not raise any federal constitutional violation. See also Sairras v. Fla. Dep't of Corr., 496 Fed. App'x 28, 35 (11th Cir. 2012) ("It is well-settled that the defense of entrapment is not of constitutional dimension.") (citing Russell, 411 U.S. at 433). Ground One warrants no relief.
In Ground Two, Petitioner alleges that appellate counsel was ineffective. Claims of ineffective assistance of appellate counsel are analyzed under the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 (2000); Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To establish a claim, Petitioner must show that appellate counsel's performance was objectively unreasonable, and that there is a reasonable probability that, but for this performance, Petitioner would have prevailed on his appeal. Robbins, 528 U.S. at 285-86.
Petitioner claims that appellate counsel was ineffective for failing to argue on direct appeal that the trial court should have sua sponte dismissed the charging document due to objective entrapment or subjective entrapment. In addition to the defense of subjective entrapment, Florida recognizes objective entrapment as a bar to prosecution. The "`[o]bjective entrapment analysis focuses on the conduct of law enforcement' and `operates as a bar to prosecution in those instances where the government's conduct `so offends decency or a sense of justice' that it amounts to a denial of due process.'" Henderson, 955 So.2d at 1194 (quoting Davis v. State, 937 So.2d 300, 302 (Fla. 4th DCA 2006)).
In support, Petitioner refers to his state habeas petition. But there, he cites no authority providing that the court could have sua sponte dismissed the charges on the basis of either objective or subjective entrapment. Moreover, he provides no specific factual allegations or argument explaining how either theory of entrapment applied to his case. Additionally, Petitioner does not establish that the issue of the court's failure to sua sponte dismiss the charges was ever raised and preserved for appeal, or that it constituted fundamental error that could have been raised for the first time in appellate proceedings. See F.B. v. State, 852 So.2d 226, 229 (Fla. 2003) ("In general, to raise a claimed error on appeal, a litigant must object at trial when the alleged error occurs. . . . The sole exception to the contemporaneous objection rule applies where the error is fundamental.").
Accordingly, Petitioner fails to show that appellate counsel was deficient for not raising this issue, or that there is a reasonable probability he would have prevailed on appeal had counsel brought the claim. Because Petitioner does not establish that the state appellate court's rejection of relief was contrary to or an unreasonable application of clearly established federal law, he is not entitled to relief on Ground Two.
Petitioner claims that appellate counsel was ineffective for failing to argue that the trial court erred in denying his motion for judgment of acquittal based upon objective entrapment under Florida law. In support of this claim, Petitioner refers to the argument presented in his state habeas petition. There, he recognizes that Florida's objective entrapment analysis centers on government conduct, but presents no facts or argument to support the contention that such conduct occurred in his case. As he does not establish any basis for the applicability of an objective entrapment bar to prosecution in Ground Three, Petitioner does not show that appellate counsel was ineffective for not raising this claim on appeal. Nor does Petitioner show that there is a reasonable probability he would have succeeded on appeal had counsel raised the claim. Therefore, he does not establish that the state appellate court's decision was contrary to or an unreasonable application of clearly established federal law. Accordingly, Ground Three warrants no relief.
Petitioner argues that appellate counsel was ineffective for not challenging the constitutionality of the statute under which he was convicted. In support, he cites Shelton v. Sec'y, Dep't of Corr., 802 F.Supp.2d 1289 (M.D. Fla. 2011). Shelton held § 893.13, Fla. Stat., as amended by § 893.101, Fla. Stat.,
Petitioner's claim is without merit. He concedes he was convicted of trafficking under § 893.135, Fla. Stat., a different statute. And as Petitioner acknowledges, Shelton was not issued until after the disposition of his case. Petitioner's judgments and sentences were affirmed on direct appeal in 2010, but the Shelton decision upon which he relies was entered in 2011. Furthermore, this decision was later reversed, see Shelton v. Sec'y, Dep't of Corr., 691 F.3d 1348 (11th Cir. 2012), and the Florida Supreme Court held that § 893.13, Fla. Stat. is constitutional in State v. Adkins, 96 So.3d 412 (Fla. 2012).
Petitioner fails to establish a basis for appellate counsel to have argued that the statute under which he was convicted was unconstitutional, even assuming that a facial challenge to the constitutionality of § 893.135, Fla. Stat., could have been raised for the first time on appeal. Nor does he show a reasonable probability that his appeal would have been successful had counsel done so. Petitioner does not meet either prong of Strickland. Therefore, he does not demonstrate that the state court's decision was an unreasonable application of or contrary to clearly established federal law. Petitioner is not entitled to any relief on Ground Four.
Petitioner alleges, without raising ineffective assistance of counsel, that his convictions and sentences are invalid because the statute under which he was convicted is unconstitutional. He relies heavily on Shelton, 802 F.Supp.2d 1289. Petitioner's claim is liberally construed as raising a federal issue. The state court denied this claim when Petitioner raised it in his postconviction motion:
(Dkt. 12, Ex. 12, p. 2.) The state court determined that Shelton was inapplicable to Petitioner's trafficking convictions under § 893.135, Fla. Stat.,
Petitioner argues that counsel was ineffective because he did not file a motion to dismiss the charges or seek a downward departure sentence due to sentence manipulation. Petitioner claims that sentence manipulation occurred under Florida law because Detective Bender directed the CI to ask Petitioner for "a trafficking amount" of hydrocodone. Petitioner asserts that counsel became aware of this when he deposed Bender. He raised both of these allegations in ground two of his postconviction motion. The state court rejected this ground:
(Dkt. 12, Ex. 12, pp. 3-4.)
Petitioner raised the issue of sentence manipulation as one of state law. Based on the definition of sentence manipulation set forth in Steadman, a Florida decision, the state court determined that Petitioner failed to establish that sentence manipulation occurred in his case and that a motion to dismiss would have had no likelihood of success. A federal habeas court must defer to a state court's interpretation and application of state law. See Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done. . . . 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)). Accordingly, Petitioner does not establish that counsel was ineffective for not asserting that the case should be dismissed due to sentence manipulation. See Will v. Sec'y, Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008) ("Although an ineffective-assistance-of-counsel claim is a federal constitutional claim, which we consider in light of the clearly established rules of Strickland, when `the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law.'") (citing Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)).
Nor does Petitioner show that counsel was ineffective for failing to request a downward departure sentence. The 25-year sentences Petitioner received were mandatory under Florida law. See § 893.135 (1)(c) 1.c., Fla. Stat. (2006) (providing that an offender guilty of trafficking in 28 grams or more, but less than 30 kilograms, of hydrocodone "shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years.").
Petitioner does not establish that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim. Grounds Six and Seven warrant no relief.
Petitioner claims that counsel should have argued objective entrapment in the motion for judgment of acquittal. The state court rejected this claim when Petitioner raised it in his postconviction motion:
(Dkt. 12, Ex. 12, pp. 4-5.)
As the state court noted, counsel made two motions for judgment of acquittal in which he argued that Petitioner was entrapped. (Dkt. 12, Ex. 2, Vol. II, pp. 214-15, 272-73.) In neither motion did counsel expressly raise objective entrapment. But the record supports the postconviction court's conclusion that the trial court considered and rejected an objective entrapment theory with respect to both motions. In rejecting the first motion, the court stated:
(Id., p. 216.) When Petitioner again moved for a judgment of acquittal, the court concluded:
(Id., pp. 277-78.)
The trial court clearly interpreted counsel's arguments as invoking objective entrapment. Furthermore, the trial court recognized a distinction between the two theories, determined that the evidence presented did not show objective entrapment, and concluded that subjective entrapment was appropriate for Petitioner to argue before the jury as a defense to the State's charges. Therefore, the record supports the state court's conclusion that the trial court rejected objective entrapment in response to counsel's motions.
To the extent Petitioner's claim can be construed as arguing counsel should have more specifically alleged that objective entrapment occurred because Detective Bender asked the CI to obtain an amount of hydrocodone that would result in a trafficking charge, Petitioner presents no argument or authority that this amounted the type of police conduct that would support the application of a bar to prosecution.
It is therefore
It is further
