Pacheco v. Dugger

• Decision Date: 02 August 1988
• Docket Number: No. 87-5610,87-5610
• Citation: 850 F.2d 1493
• Parties: Luis A. PACHECO, Petitioner-Appellant, v. Richard DUGGER, Respondent-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1493

850 F.2d 1493

Luis A. PACHECO, Petitioner-Appellant, v. Richard DUGGER, Respondent-Appellee.

No. 87-5610

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Aug. 2, 1988.

Luis A. Pacheco, Olustee, Fla., pro se.

Robert Butterworth, Atty. Gen., State of Fla., Tallahassee, Fla., Richard A. Polin, Asst. Atty. Gen., Dept. of Legal Affairs, Miami, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, HILL and CLARK, Circuit Judges.

PER CURIAM:

The appellant, Luis Pacheco, is a Florida prisoner convicted and sentenced on charges of burglary and sexual battery. He filed this petition in the district court under 28 U.S.C. Sec. 2254 challenging his sentencing under the Florida sentencing guidelines and claiming that he was denied effective assistance of appellate counsel. The district court denied the petition, and Pacheco appeals. On appeal Pacheco makes three arguments. First, he claims that the sentencing guidelines promulgated by the Supreme Court of Florida under which he was sentenced were established through an improper delegation of legislative authority. Second, he argues that he was sentenced under the guidelines as amended by the Florida legislature after the date of the crime in violation of the ex post facto clause of the United States Constitution. And third, he claims that he was denied effective assistance of appellate counsel due to his counsel's failure to raise certain issues in his direct appeal. We affirm the judgment of the district court.

The appellant's first claim is that the sentencing guidelines under which he was sentenced were improperly promulgated by the Supreme Court of Florida. In 1983, the Florida legislature enacted legislation authorizing the Supreme court of Florida to establish a system of sentencing guidelines. Pursuant to this authorization, the Supreme Court developed guidelines which took effect on October 1, 1983. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla.1983). The appellant was charged with offenses committed on January 19, 1984, and he was sentenced under the guidelines as established by the Supreme Court of Florida.

Apparently aware of the limited scope of inquiry under section 2254, the appellant attempts to cast his first claim as a matter of federal constitutional law. It is clear, however, that the issue of whether the Supreme Court of Florida improperly exercised the legislative authority of the Florida legislature is strictly a matter of state law. The provisions of the federal constitution which delineate the powers of the three branches of the federal government have no application to the balance of powers in Florida's system of government, which is established in the state constitution. The district court properly rejected this claim as a ground for relief under section 2254. ¹

The appellant's second argument on appeal is that his sentence was unlawful because it was imposed in violation of the ex post facto clause of the federal constitution. The sentencing guidelines established by the Supreme Court of Florida in 1983 were amended by the Florida legislature in 1984, and the legislation establishing the amended guidelines became effective July 1, 1984. The crimes the appellant was charged with occurred on January 19, 1984. He argues that he was sentenced under the guidelines which were enacted by the legislature effective July 1, 1984, and that this sentencing violates the ex post facto clause. It is clear, however, that he was sentenced pursuant to the guidelines which became effective on October 1, 1983, several months prior to the date of the offense charged. This does not violate the ex post facto prohibition. The appellant attempts to argue that he must have been sentenced under the guidelines enacted by the legislature because the guidelines established by the Supreme court were an invalid legislative act by the court. This amounts to no more than a restatement of his initial separation of powers argument, which, as noted above, is a matter of state law. The appellant's ex post facto claim is without merit.

The final claim raised in this appeal is ineffective assistance of appellate counsel. The appellant claims that his appellate counsel was ineffective due to his failure to raise the following three issues on direct appeal: (1) erroneous jury instructions and verdict form; (2) violation of the ex post facto clause of the United States Constitution; and (3) violation of the separation of powers provisions of the United States...