Hart v. Sec'y, Case No. 8:16-cv-770-T-36AAS

• Decision Date: 30 January 2019
• Docket Number: Case No. 8:16-cv-770-T-36AAS
• Parties: LORETHA HART, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

LORETHA HART, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:16-cv-770-T-36AAS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

January 30, 2019

ORDER

Loretha Hart timely filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) challenging her Pinellas County convictions. Respondent filed a response (Dkt. 21) and Hart filed a reply (Dkt. 27). Upon consideration, Hart's petition will be DENIED.

Procedural History

The State charged Hart with armed robbery and conspiracy to commit armed robbery. (Dkt. 25, Ex. 1, pp. 9-10). Hart entered open guilty pleas to both charges. (Id., pp. 89-90). She was sentenced to concurrent terms of 25 years in prison, with 10 years suspended and to be served on probation. (Dkt. 25, Ex. 3, pp. 253-54). The state appellate court per curiam affirmed the convictions and sentences. (Dkt. 25, Ex. 7). The state appellate court also per curiam affirmed the denial of Hart's motion for postconviction relief, filed under Florida Rule of Criminal Procedure 3.850. (Dkt. 25, Exs. 9, 11).

Standard Of Review

The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). 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) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

A decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

The AEDPA was meant "to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("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 forfairminded disagreement.").

The state appellate court affirmed the convictions and sentences and the denial of postconviction relief without discussion. 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. 2002). 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."). When a state appellate court issues a silent affirmance, "the federal court should 'look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

Ineffective Assistance Of Counsel

Claims of ineffective assistance of counsel are analyzed under the test established in Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a showing of deficient performance by counsel and resulting prejudice. Id. at 687. To show deficient performance, a petitioner must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. A court must consider whether, "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. Because Hart entered a plea, her counsel owed her a "lesser duty" than he would have had she gone to trial. Wofford v. Wainwright, 748 F.2d 1505, 1508 (11th Cir. 1984). Counsel was onlyrequired to provide Hart "with an understanding of the law in relation to the facts" to enable her to make an informed choice between pleading and going to trial. Id.

Hart must demonstrate that counsel's alleged error 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 demonstrate "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. Because Hart entered a plea, the prejudice inquiry focuses on whether counsel's alleged deficient performance "affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Obtaining relief on a claim of ineffective assistance of counsel is difficult on federal habeas review 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 Burt v. Titlow, 571 U.S. 12, 15 (2013) (this doubly deferential standard of review "gives both the state court and the defense attorney the benefit of the doubt.").

Discussion

Ground One

Hart claims that the trial court violated her due process rights by holding her "protestation of innocence" and "lack of remorse" against her at sentencing. (Dkt. 1, p. 5). Hart does not clearly raise a federal claim in Ground One. A claim that does not allege a federal constitutional violationis not cognizable in a federal habeas proceeding. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.1988) ("[A] habeas petition grounded on issues of state law provides no basis for habeas relief."). Even liberally construing Ground One as alleging a federal due process violation, however, it is barred from review. A federal habeas petitioner must exhaust her claims by presenting them in state court before raising them in her habeas petition. 28 U.S.C. § 2254(b)(1)(A); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) ("[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.").

Hart did not satisfy the exhaustion requirement because she did not present the federal nature of the claim on direct appeal. (Dkt. 25, Ex. 5). See Pearson v. Sec'y, Dep't of Corr., 273 Fed. App'x 847, 849-50 (11th Cir. 2008) ("The exhaustion doctrine requires the petitioner to 'fairly present' his federal claims to the state courts in a manner to alert them that the ruling under review violated a federal constitutional right."); Zeigler v. Crosby, 345 F.3d 1300, 1307 (11th Cir. 2003) ("To present a federal constitutional claim properly in state court, 'the petitioner must make the state court aware that the claims asserted present federal constitutional issues.'" (quoting Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998))).¹

State procedural rules do not provide for successive direct appeals. See Fla. R. App. P. 9.140(b)(3) (a notice of appeal must be filed within 30 days of the rendition of a written sentencing order). Because Hart is prohibited from returning to state court to present the federal due process argument, her claim is procedurally defaulted. See Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001) ("If the petitioner has failed to exhaust state remedies that are no longer available, that failureis a procedural default which will bar federal habeas relief."). The claim is barred from review unless Hart establishes the applicability of either the cause and prejudice or fundamental miscarriage of justice exception. See id.

Hart does not establish that an exception applies to overcome the default. In her reply, Hart states that "[a] 'fundamental miscarriage of justice' was in fact established once the Petitioner's right to due process was violated." (Dkt. 27, p. 1). To the extent Hart contends that the fundamental miscarriage of justice exception applies, her argument fails. A fundamental miscarriage of justice occurs in an extraordinary case where a constitutional violation has probably resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995). This exception requires a petitioner's "actu...