Burgess v. Dixon

• Decision Date: 15 November 2022
• Docket Number: 20-61946-CIV-ALTMAN
• Parties: AL L. BURGESS, Petitioner, v. RICKY D. DIXON, SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.[1]
• Court: U.S. District Court — Southern District of Florida

AL L. BURGESS, Petitioner, v. RICKY D. DIXON, SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.^[1]

No. 20-61946-CIV-ALTMAN

United States District Court, S.D. Florida

November 15, 2022

ORDER

ROY K ALTMAN UNITED STATES DISTRICT JUDGE

Our Petitioner, Al L. Burgess, is a Florida prisoner who's filed a habeas petition under 28 U.S.C. § 2254 challenging the constitutionality of his state-court conviction and sentence. See Petition [ECF No. 1]. The state courts have uniformly rejected Burgess's post-conviction motions. Because those courts reasonably applied federal law-and reasonably determined the facts-we now DENY the Petition in full.

The Facts

On February 24, 1997, the State of Florida charged Burgess by Information with three crimes: armed kidnapping (Count 1) armed sexual battery (Count 2); and aggravated battery while armed with a deadly weapon (Count 3). See Information [ECF No. 10-1] at 11-13. Burgess proceeded to trial, where a jury found him guilty of all three counts. See Judgment [ECF No. 10-1] at 15-16. For these crimes, a state judge sentenced Burgess as a “habitual violent felony offender” (“HVFO”) to three mandatory-minimum life terms. See Sentencing Orders [ECF No. 10-1] at 18-26.

After sentencing, Burgess (through counsel) filed a motion to correct his sentence under FLA. R. CRIM. P. 3.800(b). See 3.800(b) Motion [ECF No. 10-1] at 30-35. There, Burgess advanced three arguments: (1) that the sentencing court failed to “orally impose minimum mandatory terms of imprisonment”; (2) that his life sentence on Count 3 was illegal because it exceeded the maximum statutory penalty of “30 years in prison”; and (3) that “the written judgment of conviction should reflect that the defendant was convicted of kidnapping,” not armed kidnapping. Id. at 32-33. The State conceded Burgess's first two arguments but, with respect to the third, argued that he was properly convicted on Count 1 of “armed kidnapping.” Response to 3.800(b) Motion [ECF No. 10-1] at 40 (“[T]he State of Florida does not oppose the GRANTING of relief . . . such that any minimum mandatory sentences are stricken, and the sentence on [Count 3] (aggravated battery with a deadly weapon) is reduced to 30 years incarceration. All other relief . . . as to Burgess's conviction of armed kidnapping under [Count 1] should be DENIED[.]”). With this concession in hand, the state trial court issued an amended sentence, nunc pro tunc to July 16, 1999, which imposed two concurrent life sentences (without a mandatory minimum) on Counts 1 and 2 and a thirty-year sentence on Count 3, to be served consecutively to the sentences for Counts 1 and 2. See Amended Sentencing Orders [ECF No. 10-1] at 42-47.

On June 20, 2007,^[2] Burgess returned to state court and filed a “Motion to Correct Illegal Sentence” under FLA. R. CRIM. P. 3.800(a). See 3.800(a) Motion [ECF No. 10-1] at 272-76. In that motion, Burgess argued that his conviction as a “habitual violent felony offender” was illegal under Florida law, and he asked to be resentenced under Florida's “sentencing guideline scoresheet.” Id. at 272. In its response^[3] to Burgess's 3.800(a) Motion, the State agreed that Burgess's “HVFO designation was ‘illegal[.]'” 3.800(a) Response [ECF No. 10-1] at 278. As the State explained, “[a]lthough a 1996 version of [FLA. STAT. § 775.084(1)(b)] authorized a HVFO designation for life felonies, adoption of the legislation providing this authorization has been held unconstitutional.” Ibid. (citing Ford v. State, 868 So.2d 631, 631 (Fla. 2d DCA 2004)). At the same time, the State disagreed that Burgess was legally entitled to a resentencing hearing because, in the State's view, he could have lawfully received the same sentence-with or without the HVFO designation. See id. at 279 (“[H]e does not provide any factual basis to establish that the life sentences imposed were actually ‘illegal' or a ‘kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.'” (quoting Calixte v. State, 162 So.3d 283, 284 (Fla. 4th DCA 2015))). The state postconviction court adopted the State's 3.800(a) Response, removed Burgess's HVFO designation, and denied Burgess's request for a resentencing. See Order Granting in Part and Denying in Part 3.800(a) Motion [ECF No. 10-1] at 281.

Burgess appealed this ruling to the Fourth DCA. See 3.800(a) Notice of Appeal [ECF No. 101] at 286. On January 6, 2016, the Fourth DCA agreed with Burgess that the lower court “was required to reconsider Appellant's sentences under the sentencing laws in effect at the time of his offenses.” Burgess v. State, 182 So.3d 841, 842 (Fla. 4th DCA 2016). The appellate court thus remanded the case for a resentencing, noting that “the trial court is free to impose departure sentences if valid grounds for departure are proven.” Ibid.; see also Order Vacating Prior Sentences [ECF No. 10-2] at 91 (“The Court does hereby VACATE the Defendant's prior sentences on all three counts in this case.”).

Burgess's resentencing took place over two days-on September 6 and 12, 2016. See generally Resentencing Hr'g Tr. [ECF No. 11-1] at 1-85. In anticipation of that hearing, the State contended that Burgess “is subject to the provisions of [FLA. STAT. § 921.0016(3)(r)] and a proper candidate for imposition of an aggravated departure sentence.” State's Motion to Aggravate Sentence [ECF No. 10-2] at 98. Burgess, represented by counsel, insisted that an aggravated sentence wasn't necessary. See Resentencing Hr'g Tr. [ECF No. 11-1] at 64-65 (“The score sheet I think he scores 20 years. The only way you can give higher than that is find he's upward departure....Judge, honestly we should look at the last 20 years of what is going on. We put that package of mitigation to show you he's been doing DOC. He's not sitting idly. He's not involved in physical altercations. He's trying to better himself.”). Ultimately, though, the sentencing judge agreed with the State and found that an upward departure was warranted. See Order on Resentencing [ECF No. 10-2] at 101-02 (“The State argued the maximum penalty is warranted by the repeated commission of egregious conduct as established by the records admitted during this proceeding. This Court concludes likewise.”). As a result, the resentencing court reimposed life sentences on Counts 1 and 2, but reduced Burgess's sentence on Count 3 to fifteen years. See Second Amended Sentencing Orders [ECF No. 10-2] at 105-13.

Burgess, now pro se again, appealed his renewed sentence to the Fourth DCA. See Resentencing Notice of Appeal [ECF No. 10-2] at 120. In that appeal, he raised five arguments: (1) that the trial court erred in denying a “motion to correct sentencing error” when it found that “the jurisdictional time frame had expired to rule upon said motion”; (2) that “the trial court failed to give the oral pronouncement for the reason of the departure sentences”; (3) that the trial court improperly considered Burgess's previous convictions for “indecent assault and kidnapping” to “support the maximum guidelines sentence range and the departure sentences”; (4) that the trial court improperly relied on other convictions, “which [were not] committed prior to the conviction of the primary offense”; and (5) that the trial court improperly designated Burgess as a “capital sexual predator[.]” Resentencing Initial Brief [ECF No. 10-2] at 149-51.

On July 25, 2018, the Fourth DCA affirmed the sentencing court in almost every respect- but it remanded the case for the trial judge to correct a scrivener's error in the sentencing order. See Burgess v. State, 252 So.3d 767, 767 (Fla. 4th DCA 2018) (“Appellant raises five issues on appeal. We find them all to be without merit. However, we remand for the trial court to correct a scrivener's error in the basis for designating appellant a sexual predator. The written order mistakenly based the designation on a conviction for sexual battery upon a child under section 794.011(2)(a). In fact, appellant was convicted of armed sexual battery on a person over twelve but under eighteen under section 794.011(4)(a).”). The Fourth DCA's mandate issued on September 28, 2018. See Resentencing Mandate [ECF No. 10-2] at 210.

On June 12, 2019, Burgess filed a third motion for postconviction relief under FLA. R. CRIM. P. 3.850,^[4] challenging some alleged errors in his resentencing. See Third Postconviction Motion [ECF No. 10-2] at 253-63. In this Third Postconviction Motion, Burgess advanced the following three claims: (1) that his resentencing counsel “rendered ineffective assistance for failing to object to the resentencing court's imposition of a departure sentence when no legitimate reason was available to support the departure,” id. at 256; (2) that his resentencing counsel “rendered ineffective assistance by failing to object to the resentencing court's failure to orally articulate reasons for imposing a departure sentence,” id. at 259; and (3) that “the trial court's written order does not comply with its oral pronouncement,” id. at 261. The state postconviction court denied the Third Postconviction Motion in a written order. See Order Denying Third Postconviction Motion [ECF No. 10-2] at 273-77. Burgess appealed the denial of his Third Postconviction Motion to the Fourth DCA, see Third Postconviction Motion Notice of Appeal [ECF No. 10-2] at 279, which affirmed the trial court's decision in an unwritten opinion, see Burgess v. State, 292 So.3d 748, 748 (Fla. 4th DCA 2020). The Fourth DCA's mandate issued on May 1, 2020. See Third Postconviction Motion Mandate [ECF No. 10-3] at 8.

Burgess filed this federal Petition on September 17, 2020. See Petition at 30. In its Response, the Respondent initially maintained that the...