Combs v. Sec'y, Dep't of Corr., CASE NO. 8:16-cv-502-T-23JSS

• Decision Date: 07 October 2019
• Docket Number: CASE NO. 8:16-cv-502-T-23JSS
• Parties: SEAN COMBS, Applicant, v. SECRETARY, Department of Corrections, Respondent.
• Court: U.S. District Court — Middle District of Florida

SEAN COMBS, Applicant, v. SECRETARY, Department of Corrections, Respondent.

CASE NO. 8:16-cv-502-T-23JSS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

October 7, 2019

ORDER

Combs applies under 28 U.S.C. § 2254 for the writ of habeas corpus (Doc. 1) and challenges his convictions for both sexual battery and burglary with an assault or battery, for which convictions Combs is imprisoned for consecutive, ten-year sentences. Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 17) The respondent admits the application's timeliness (Doc. 17 at 2) and correctly argues that some grounds are unexhausted and procedurally barred from federal review.

I. BACKGROUND¹

Combs and the victim shared a turbulent — sometimes violent — intermittent relationship for nearly a year before they had intimate relations on June 10, 2008.The post-conviction court described the events before the incident as follows (Respondent's Exhibit 18 at 14):

In the present case, the evidence of the Defendant's actions in June 2008 (frightening and chasing the victim, being chased off by the neighbor, lurking around or attempting to break into her apartment), the victim's reports to law enforcement, the issuance of a trespass warning by law enforcement, and the Defendant's threatening and harassing text messages to the victim in the days leading up to the crime were relevant to prove the material facts of the Defendant's intent to commit the crimes and the absence of the victim's consent for him to enter her property.

The victim alleged that the incident was a burglary and a rape; Combs's defense was that the incident was consensual.

Combs was charged with burglary with an assault or battery and sexual battery with use of force likely to cause serious injury. A jury found Combs guilty of both the charged burglary and the lesser included sexual battery without use of force. The state circuit court sentenced Combs to imprisonment for consecutive terms of ten years for both counts followed by probation for five years. The state district court summarily affirmed the convictions and sentences. Combs v. State, 61 So. 3d 1122 (Fla. 2DCA 2011). Combs unsuccessfully challenged his convictions and sentences in two motions under Rule 3.850, Florida Rules of Criminal Procedure, for post-conviction relief and the subsequent appeal from each motion. Combs was afforded an extensive evidentiary hearing on the motion for post-conviction relief,which the state court denied with a detailed order.² The respondent argues that some grounds for relief in the present application are procedurally barred from federal review because Combs never presented the claim to the state courts, because Combs failed to assert the ground on appeal from the denial of the first Rule 3.850 motion, or because the ground was asserted in the untimely second Rule 3.850 motion.

II. EXHAUSTION AND PROCEDURAL DEFAULT

The respondent argues that Grounds 3, 11-13, 15, and 17 are procedurally barred from federal review, primarily because Combs failed to fully exhaust his available state court remedies. An applicant must present each claim to a state court before raising the claim in federal court. "[E]xhaustion of state remedies requires that petitioners 'fairly presen[t]' federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord Rose v. Lundy, 455 U.S. 509, 518-19 (1982) ("A rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.").

Ground 3

Combs alleges both that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), and that trial counsel rendered ineffective assistance by neither conducting a sufficient investigation nor understanding the right to confront his accuser as explained in Davis v. Alaska, 415 U.S. 308 (1974). Combs did not assert his Brady/Giglio claim until his second Rule 3.850 motion for post-conviction relief. (Respondent's Exhibit 24 at 21-27) The post-conviction court ruled that the asserted claim did not qualify as "newly discovered evidence" and rejected the claim as "both untimely and successive." (Respondent's Exhibit 25 at 4) Combs's untimely presentation of the substantive Brady/Giglio claim to the state courts fails to meet the exhaustion requirement. "[W]here the claim has been presented for the first and only time in a procedural context in which its merits will not be considered [absent a special circumstance, r]aising the claim in such a fashion does not, for the relevant purpose, constitute 'fair presentation.'" Castille v. Peoples, 489 U.S. 346, 351 (1989).

The respondent correctly argues that Combs never presented to the state court the claim of ineffective assistance of counsel based on an alleged violation under Brady/Giglio and Davis. (Doc. 17 at 10-12) In reply (Doc. 28 at 6-7), Combs argues that the claim was addressed during the evidentiary hearing on the first Rule 3.850 motion as a part of the claim of ineffective assistance of counsel alleged in Ground 2. Accepting his contention that he previously presented the underlying facts as part ofGround 2, Combs did not, however, assert a claim based on a violation under Brady/Giglio and Davis. Consequently, Combs exhausted neither the substantive claim nor the ineffective assistance of counsel claim in Ground 3. See Brown v. Estelle, 701 F.2d 494, 495 (5th Cir. 1983) ("The exhaustion requirement is not satisfied if a petitioner presents new legal theories or entirely new factual claims in support of the writ before the federal court.").

Grounds 11-13

Combs alleges that trial counsel rendered ineffective assistance (1) by not moving for a mistrial based on a juror sleeping during the trial (Ground 11), (2) by neither rehabilitating nor striking a biased juror (Ground 12), and (3) by not noticing the expiration of the statutory time for a speedy trial (Ground 13). Combs asserted each claim in his first Rule 3.850 motion. (Respondent's Exhibit 11) The post-conviction court (1) summarily denied Ground 11 because the allegedly sleeping juror was an alternate and was dismissed without participating in the jury's deliberations (Respondent's Exhibit 12 at 6); (2) summarily denied Ground 12 as refuted by the record because the venireman never expressed bias toward the judge (the venireman had treated the judge as a physical therapist) and because that judge conducted only the jury selection and not the trial (Respondent's Exhibit 12 at 8-9); and (3) denied Ground 13 as refuted by the record because the trial started on the last day of the statutory fifteen-day "recapture period" (Respondent's Exhibit 15 at 1-2).

Combs appealed the denial of post-conviction relief but he failed to "fairly present" these three claims to the state court by not briefing each claim in his opening brief. In the table of contents for his opening brief Combs listed as a claim that the trial court erred "by summarily denying grounds 1, 7, and 11 . . . without an evidentiary hearing," (Respondent's Exhibit 19 at i), which are the three claims asserted in Grounds 11-13 of the federal application. Other than being listed in the table of contents, Combs presented to the state court no further discussion or argument in support of these claims. Under state law simply listing a claim fails to present the claim for appellate review, as Heath v. State, 3 So. 3d 1017, 1029 n. 8 (Fla. 2009), explains: "Heath has waived his cumulative-error claim because his brief includes no argument whatsoever and instead consists of a one-sentence heading in his brief." Accord Smith v. State, 151 So. 3d 1177, 1182, n.3 (Fla. 2DCA 2014) ("[W]e hold that Smith's assertion of ineffective assistance under this claim — and any other claim where ineffectiveness is solely referenced in the heading — is waived.") (citing Heath). Combs failed to properly exhaust his state court remedies for Grounds 11-13.

Moreover, even if he had "fairly presented" his claim to the state courts, the claim fails to assert the violation of a federally protected right. Combs argues that the state post-conviction court violated state law when it denied his Rule 3.850 motion without granting him an evidentiary hearing and without attaching portions of the record that conclusively refute his entitlement to relief. (Doc. 19 at i) A defect in astate collateral proceeding provides no basis for habeas relief. See Carroll v. Sec'y, Dep't of Cor., 574 F.3d 1354, 1365 (11th Cir. 2009) (holding that a habeas applicant's claim — the state court violated his due process rights when it summarily denied his post-conviction claim without an evidentiary hearing — did not state a claim on which a federal court may grant habeas relief); Anderson v. Sec'y for Dep't of Corr., 462 F.3d 1319, 1330 (11th Cir. 2006) ("We have held the state court's failure to hold an evidentiary hearing on a petitioner's 3.850 motion is not a basis for federal habeas relief."); Quince v. Crosby, 360 F.3d 1259, 1262 (11th Cir. 2004) ("[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.). A challenge to a state collateral proceeding does not undermine the legality of the detention or imprisonment — that is, the conviction itself — and thus habeas relief is not an appropriate remedy. See Carroll, 574 F.3d at 1365; Quince, 360 F.3d at 1261-62. Furthermore, a state's interpretation of its own laws or rules provides no basis for federal habeas corpus relief because no question of a constitutional nature is involved. See Carroll, 574 F.3d at 1365.

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