Rockett v. Sec'y, CASE NO. 8:08-cv-1417-T-23EAJ

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtSTEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE
PartiesTIMOTHY ROCKETT, Petitioner, v. SECRETARY, Department of Corrections, Respondent.
Docket NumberCASE NO. 8:08-cv-1417-T-23EAJ
Decision Date01 August 2014

TIMOTHY ROCKETT, Petitioner,
v.
SECRETARY, Department of Corrections, Respondent.

CASE NO. 8:08-cv-1417-T-23EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

August 1, 2014


ORDER

Timothy Rockett petitions for the writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and challenges the validity of his state convictions for armed burglary of a dwelling, involuntary sexual battery, aggravated battery with a deadly weapon, resisting arrest with violence, battery on a law enforcement officer, and violating a domestic violence injunction. Rockett alleges two grounds of trial court error, fifteen grounds of ineffective assistance of trial counsel, two grounds of ineffective assistance of appellate counsel, a double jeopardy violation, and a sentencing error. Numerous exhibits ("Respondent's Exhibit ___") support the response. (Doc. 33)

FACTS 1

The victim and Rockett lived in the victim's apartment. When the romance ended, the victim demanded that Rockett move. Rockett moved, but he later returned

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to the apartment and forced the victim into sexual intercourse.2 After this attack, the victim changed the lock on her apartment door and obtained a domestic violence injunction against Rockett. Undeterred, Rockett again returned to the victim's apartment and attempted to unlock the door with his key. Realizing the key no longer worked, Rockett forcefully entered the apartment by breaking the door frame. Rockett held a knife to the victim's neck and threatened to kill her. During a struggle, the victim received a knife wound to her buttock. Rockett forced the victim to perform oral sex on him.

While Rockett was temporarily distracted, the victim telephoned her friend, Von Dowling. Realizing the victim was in danger, Dowling telephoned her mother, who in turn telephoned 9-1-1. The police arrived and entered the apartment. Because Rockett defied the officers' orders and threatened that the police would "have to kill [him]," Deputy Don Lewis pepper sprayed Rockett. Rockett continued to defy the officers' commands and lunged at Deputy Lewis. The two struggled. Deputy Charles Pinkney helped Deputy Lewis subdue Rockett. In the effort to gain control of Rockett, Deputy Lewis struck Rockett in the head with his gun.3 The officers soon subdued and arrested

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Rockett. Medical personnel transported Rockett to a hospital for treatment of a cut on his head.

A jury convicted Rockett on all charges, and he serves life imprisonment.

I. COGNIZABILITY, EXHAUSTION, AND PROCEDURAL BAR

Rockett presented in his Rule 3.850 motion fifteen grounds of ineffective assistance of trial counsel. (Respondent's Exhibit 12) The state post-conviction court summarily denied ten of the grounds and granted Rockett an evidentiary hearing on four grounds.4 The state post-conviction court ultimately rejected the remaining four grounds after the evidentiary hearing. (Respondent's Exhibit 16) Rockett appealed the denial of the grounds rejected after the evidentiary hearing but not the grounds summarily denied. The respondent argues that nine of the grounds of ineffective assistance of trial counsel Rockett presents in his federal petition (each of which was summarily denied by the state post-conviction court) are procedurally defaulted and not subject to federal review because Rockett failed to include those grounds in the appeal of the denial of his Rule 3.850 motion.

After the respondent filed the supplemental response in this case, Cunningham v. State, ___ So. 3d ___, 2012 WL 413812 (Fla. 2d DCA, Feb. 10, 2012), explained that in

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the Second District between December 2000 and September 2010 appellate review of the denial of a Rule 3.850 motion (1) required briefing only for a ground that was denied after an evidentiary hearing and (2) included, even without briefing, a review of a summarily denied ground. Rockett filed his appeal of the denial of his Rule 3.850 motion in the Second District in November 2007 during the time the Second District reviewed claims summarily denied in the trial court but not briefed in the appellate court. As a result, Rockett's failure to brief the summarily denied grounds of ineffective assistance of trial counsel (presented in the federal petition as grounds seven, eleven, twelve, thirteen, fourteen, fifteen, seventeen, eighteen, and nineteen) caused no procedural default because the state appellate court automatically reviewed each ground under the practice confirmed in Cunningham. Consequently, those grounds are reviewable in the present petition.

Grounds Five, Six, and Sixteen

In ground five Rockett contends that his trial counsel rendered ineffective assistance by not moving to disqualify the allegedly biased trial judge. In ground six Rockett contends that his trial counsel rendered ineffective assistance by not moving for the appointment of a latent fingerprint expert. In ground sixteen Rockett contends that his trial counsel rendered ineffective assistance by not objecting to improper comments by the prosecutor during both opening statement and closing argument. The state post-conviction court granted Rockett an evidentiary hearing on each of these grounds but ultimately denied relief. (Respondent's Exhibit 16) Rockett did not challenge the

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rejection of these three grounds in the appeal of the denial of his Rule 3.850 motion. The respondent argues that these grounds are procedurally defaulted and not subject to federal review.

The procedure described in Cunningham required Rockett to brief these grounds to obtain appellate review. Fla. R. App. P. 9.141(b)(3)(C);5 Cunningham, 2012 WL 413812 at *1 ("In the above-described period [between December 2000 and October 2010], this court interpreted [the Florida Rules of Appellate Procedure] to provide relief under . . . rule 9.141(b)(3) for grounds denied after an evidentiary hearing. The effect of this interpretation was to require briefing under rule 9.141(b)(3)(C) only for grounds that were denied after an evidentiary hearing."). The state rule requiring submission of an appellate brief bars Rockett from filing a second appeal challenging the denial of the three grounds of ineffective assistance of trial counsel. Fla. R. App. P. 9.141(b)(3)(C). Rockett's failure to assert on post-conviction appeal the claims presented in grounds five, six, and sixteen of his federal petition results in the default of these grounds.

Under the procedural default doctrine, "[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To establish cause for a procedural default, a petitioner "must demonstrate

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that some objective factor external to the defense impeded the effort to raise the claim properly in state court." Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999). Murray v. Carrier, 477 U.S. 478 (1986). To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the possibility of prejudice but that they worked to his actual and substantial disadvantage and infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S. 152 (1982). In other words, he must show at least a reasonable probability of a different outcome. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003); Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).

A petitioner may obtain federal habeas review of a procedurally defaulted claim without a showing of cause or prejudice if review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96. A fundamental miscarriage of justice occurs in an extraordinary case in which a constitutional violation probably has resulted in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327 (1995); Henderson, 353 F.3d at 892. This exception requires a petitioner's actual innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). To meet this standard, a petitioner must show a reasonable likelihood of acquittal absent the constitutional error. Schlup, 513 U.S. at 327.

Rockett fails to demonstrate cause and prejudice excusing his default. Carpenter, 529 U.S. at 451; Carrier, 477 U.S. at 495-96. He neither alleges nor shows that the

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fundamental miscarriage of justice exception applies. Henderson, 353 F.3d at 892. Because Rockett fails to proffer specific facts showing an exception to procedural default, grounds five, six, and sixteen of the federal petition are procedurally barred from federal review.

Ground Twenty-One

Rockett contends that the state improperly scored his armed burglary conviction as a first-degree felony and, as a result, imposed an illegal sentence. A ground alleging an error under a state sentencing procedure presents no basis for federal habeas corpus relief because the claim presents no federal...

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