Diggs v. Sec'y
| Decision Date | 22 April 2011 |
| Docket Number | Case No. 8:10-cv-1235-T-33EAJ |
| Parties | RODNEY DIGGS, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This cause is before the Court on Petitioner Rodney Diggs' 28 U.S.C. § 2254 petition for writ of habeas corpus. Diggs challenges his conviction and sentence entered by the Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. A review of the record demonstrates that, for the following reasons, the petition must be denied.
After a jury trial, Diggs was found guilty as charged of three counts of sexual battery on a child under twelve (counts one through three); sexual battery on a child (familial authority)(counts four through six); and lewd or lascivious molestation of a child (counts seven and eight). The state trial court sentenced Diggs to life in prison on the sexual battery counts and to 15-year prison terms on the remaining counts. The sentences ran concurrently.
Diggs appealed, and following briefing, on November 1, 2002, the state district court of appeal per curiam affirmed the convictions and sentences. Diggs v. State, 834 So. 2d 166 (Fla. 2d DCA 2002)[table]. Diggs did not seek rehearing, nor did he pursue certiorari review in the Supreme Court.
Diggs filed a pro se Rule 3.850 motion for postconviction relief which was delivered to prison officials for mailing on October 16, 2003. (Resp. Ex. 8). Four claims were summarily denied. (Resp. Ex. 9). After securing a response from the state (Resp. Ex. 10), the postconviction court denied the remaining ground without an evidentiary hearing. (Resp. Ex. 11). Diggs appealed, and on January 26, 2007, the state district court of appeal affirmed the denial of relief, stating:
We affirm the trial court's summary denial of Mr. Diggs' motion for postconviction relief. See Fla. R.Crim. P. 3.850. He could have raised both of his claims on direct appeal. See Johnson v. State, 593 So.2d 206, 208 (Fla. 1992).
Diggs v. State, 946 So.2d 1265, 1266 (Fla. 2d DCA 2007). The mandate issued February 15, 2007.
Diggs filed a pro se petition for writ of habeas corpus which was delivered to prison officials for mailing on March 30, 2007. (Resp. Ex. 17). On March 26, 2009, the state trial court granted the petition in part, vacating one lewd molestation conviction (count eight). (Resp. Ex. 19). Diggs appealed, and on April 16, 2010, the state district court of appeal per curiam affirmed the state trial court's decision. Diggs v. State, 36 So. 3d 94 (Fla. 2d DCA 2010)[table]. The mandate issued May 27, 2010.
Subsequently, Diggs timely filed the present pro se 28 U.S.C. § 2254 petition (Doc. 1).
Diggs' petition is governed by the provisions of 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Woodford v. Garceau, 538 U.S. 202 (2003); Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Under AEDPA, this Court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law--including constitutional issues--must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involve an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362 (2000). Indeed, it is not enough that the federal courts believe that the state court was wrong; it must be demonstrated that the state court decision was "objectively unreasonable." Id. Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).
Review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This language requires an examination of the state court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time. i.e., the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388, 1398-1401 (2011).
To prevail on a claim of ineffective assistance of trial or appellate counsel, a Petitioner must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Strickland's two-part test requires a Petitioner to demonstrate that counsel's performance was deficient and "there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. However, if a claim fails to satisfy the prejudice component, the court need not make a ruling on the performance component.
The AEPDA's deferential standards are not the only hurdles Diggs faces. Pursuant to the procedural default doctrine, a state prisoner seeking federal habeas corpus relief who fails to raise his federal constitutional claim in state court, or who attempts to raise it in a manner not permitted by state procedural rules, is barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default, Wainwright v. Sykes, 433 U.S. 72, 87 (1977), or the kind of fundamental miscarriage of justice occasioned by a constitutional violation that resulted in the conviction of a defendant who was "actually innocent," as contemplated in Murray v. Carrier, 477 U.S. 478, 496 (1986). The "cause" excusing the procedural default must result from some objective factor external to the defense that prevented the prisoner from raising the claim and which cannot be fairly attributable to his own conduct. 477 U.S. at 488.
The fundamental miscarriage of justice exception concerns a petitioner's "actual" innocence rather than his "legal" innocence. Johnson v. Alabama, 256 F. 3d 1156, 1171 (2001) (citing Calderon v.Thompson, 523 U.S. 538, 559 (1998)); Murray v. Carrier, 477 U.S. 478, 49596 (1986) (). To meet this standard, a petitioner must "show that it is more likely than not that no reasonable juror would have convicted him" of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327 (1995). In addition," '[t]o be credible, ' a claim of actual innocence must be based on [new] reliable evidence not presented at trial." Schlup, 513 U.S. at 324
Diggs challenges the sufficiency of the state's evidence as to each of the charges for which he was found guilty. This ground is unexhausted and procedurally barred because Diggs did not preserve and then raise the federal constitutional dimension of his ground on direct appeal. His failure to do so resulted in a procedural default under state law. See Fla.R.Crim.P. 3.850(c); Jackson v. State, 640 So. 2d 1173, 1174 (Fla. 2d DCA 1994) (). This circuit has long recognized this aspect of Florida law. See Sullivan v. Wainwright, 695 F.2d 1306, 1310 (11th Cir.)(claims that could have been or should have been preserved at trial and then raised on direct appeal and were not are procedurally barred), cert. denied, 464 U.S. 922 (1983).
The state trial court expressly applied Florida's rules in denying Diggs' collateral challenge to the state's evidence in his 2007 state habeas petition. The state district court of appeal per curiam affirmed the denial of relief. That denial rests on independent and adequate state grounds to bar federal review of ground one. A state appellate court's per curiam affirmance of a decision that is based on a procedural bar is deemed to affirm the procedural bar. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Harmon v. Barton, 894 F.2d 1268, 1273 (11th Cir. 1990).
Diggs has not shown cause to excuse his default. Any allegation of cause is now procedurally barred by the two-year limitation of Rule 3.850, see Whiddon v. Dugger, 894 F.2d 1266 (11th Cir.)(recognizing and applying two-year bar of rule 3.850), cert. denied, 498 U.S. 834 (1990), and the state's successive petition doctrine. See also, Bolender v. Singletary, 60 F.3d 727, 729 (11th Cir. 1995)(applying procedural bar based on state's successive petition doctrine). Not showing cause, Diggs cannot avoid his default, as the cause and prejudice components are in the conjunctive and both must be established to escape the preclusive effect of his procedural default. Engle v. Isaac, 456 U.S. 107 (1982). Nor does Diggs meet the fundamental miscarriage of justice exception. He has no new and reliable evidence of actual innocence as contemplated by Schlup.
Ground one is procedurally barred and does not warrant habeas corpus relief.
Diggs contends his sexual battery convictions on counts one through three stemmed from one event. According to Diggs, his convictions on these counts "ran afoul" of the proscription against double jeopardy. This ground is exhausted to the extent he raised it as a constitutional claim in his state habeas petition, the denial of which he appealed.
The Double Jeopardy Clause protects a defendant from multiple punishments for the same offense. Missouri v. Hunter, 459 U.S. 359, 365-66 (1983); North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). "Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature... intended that each violation be a...
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