Rogers v. Sec'y, Dep't of Corr.
| Decision Date | 01 October 2020 |
| Docket Number | No. 19-12870,19-12870 |
| Parties | JOE EDWIN ROGERS, JR., Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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Non-Argument Calendar
D.C. Docket No. 8:17-cv-02680-VMC-SPF
Appeal from the United States District Court for the Middle District of Florida
Before WILSON, BRANCH, and ANDERSON, Circuit Judges.
Joe Rogers, Jr., a Florida prisoner serving a 75-year total sentence for his convictions on 125 counts of possession of child pornography, appeals the denial of his 28 U.S.C. § 2254 petition. We granted Rogers a certificate of appealability ("COA") as to whether the district court erred in determining that Rogers's ineffective-assistance-of-appellate-counsel claim, based on his counsel's failure to challenge the jury's alleged non-unanimous verdict on direct appeal, was procedurally defaulted and barred from federal habeas review. Rogers argues that the district court was speculating when it determined that the Florida Fifth District Court of Appeal's ("DCA") unexplained dismissal of his Fla. R. App. P. 9.141 petition, which contained the claim in question, was based on the untimeliness of the petition under Florida law. He maintains that he is entitled to a presumption that the state court rejected his petition on the merits, which would mean that his claim was not procedurally defaulted and is subject to federal habeas review. After review, we affirm.
In 2009, the State of Florida charged Rogers by Information with 125 counts of possession of child pornography in violation of Fla. Stat. § 827.071(5). None of the counts specified the particular image on which they were based. At his jury trial, among other evidence, the State presented a CD that contained approximately 178 images of alleged child pornography. At the close of the case, the jury wasprovided with 125 separate verdict forms—one for each count—and instructed that Neither the jury instructions nor the verdict forms indicated which file or image represented which count. The jury found Rogers guilty as charged on all 125 counts and he was sentenced to a total of 75 years' imprisonment. Rogers appealed, challenging the sufficiency of the evidence, an evidentiary ruling, and the constitutionality of his sentence, and the Fifth DCA affirmed. See Rogers v. State, 96 So. 3d 922 (Fla. 5th Dist. Ct. App. 2012).
Rogers timely, but unsuccessfully, pursued state postconviction relief, pursuant to Fla. R. Crim. P. 3.850, on grounds unrelated to this appeal. See Rogers v. State, 229 So. 3d 357 (Fla. 5th Dist. Ct. App. 2016); Rogers v. State, 162 So. 3d 334 (Fla. 5th Dist. Ct. App. 2014) (mem.). Meanwhile, on June 15, 2016, Rogers filed a state habeas petition in the Fifth DCA, pursuant to Fla. R. App. P. 9.141(d),1 alleging that his appellate counsel was ineffective for failing to argue on appealthat it was impossible to determine if the jury returned a unanimous verdict where the State presented 178 images in support of the 125 counts. Rogers asserted that the petition was timely because it was filed within four years of his judgment and sentence becoming final and his retained appellate counsel affirmatively misled him with regard to "the expected results of the appeal." Less than two weeks later, on June 27, 2016, without requiring any response from the State, the Fifth DCA issued an order stating that "the Petition for Ineffective Assistance of Counsel, filed June 15, 2016, is dismissed." Thereafter, Rogers filed a motion for rehearing, or, in the alternative, a request for written opinion. Rogers asserted that the Fifth DCA may have considered his petition untimely under Rule 9.141(d)(5)'s generally applicable two-year limitations period and reiterated that the petition was timely under the four-year exception because he had alleged that his appellate counsel affirmatively misled him about the results of the direct appeal. Alternatively, he requested that the Fifth DCA issue a written opinion explaining the basis for dismissal if the petition was not dismissed based on timeliness. The Fifth DCA denied the motion for rehearing without explanation.
Subsequently, in 2017, Rogers filed the underlying 28 U.S.C. § 2254 federal habeas petition, asserting among other claims, that his appellate counsel was ineffective for failing to raise the issue of a non-unanimous verdict on direct appeal. In response, the State argued that Rogers failed to exhaust this claim instate court, and he was procedurally barred from doing so now. In reply, Rogers argued that he exhausted the claim when he filed his Rule 9.141 petition, which was dismissed, and that even if the claim was not exhausted, he could establish cause and prejudice to overcome any default. The district court ultimately agreed with Rogers that he had exhausted the claim by presenting it in his state habeas petition, and directed the State to respond as to whether the claim was otherwise procedurally defaulted and barred from federal habeas review. The district court noted that the Fifth DCA's order dismissing Rogers's petition indicated that the dismissal may have been based on a procedural rule and that if the claim was dismissed based on an independent and adequate state ground then it would be barred from federal habeas review. The district court also directed the State to respond to the merits of the underlying claim.
In its supplemental response, the State asserted that Rogers's Rule 9.141(d) habeas petition was untimely, that the petition did not meet the requirements of the four-year filing exception based on the petitioner being affirmatively misled as to the results of the direct appeal (not the "expected results" as Rogers claimed), and that the Fifth DCA's dismissal of the petition was an adequate and independent procedural ruling grounded in state law that barred federal habeas review. In support of this contention, the State pointed out that the Fifth DCA expressly noted the filing date of the petition in the order and dismissed rather than denied thepetition. The State maintained that those factors were evidence that the Fifth DCA rejected Rogers's argument that he was entitled to the four-year exception to the two-year statute of limitations. The State also noted that Rogers subsequently filed a motion for rehearing requesting the Fifth DCA to reconsider the timeliness of his petition, which was denied.
Upon review, the district court denied Rogers's § 2254 petition. As to his ineffective-assistance-of-appellate-counsel claim, the district court noted that a state court's summary adjudication is presumed generally to be an adjudication on the merits and entitled to deference, but that this presumption may be overcome if there is a reason to believe that another explanation for the state court's decision was more likely. The district court then concluded the adjudication on the merits presumption was overcome in Rogers's case and that it was more likely that the Fifth DCA deemed Rogers's habeas petition as untimely under Florida law based on the following factors: (1) Florida law required that habeas petitions be filed within two years of the judgment and sentence becoming final and Rogers filed his petition outside that two-year window; (2) Rogers did not qualify for the four-year exception to the statute of limitations based on appellate counsel having misled him as to "the expected results" of his appeal; (3) the petition was dismissed, not denied, and Florida jurisprudence indicated that a dismissal demonstrates that the court did not reach the merits of the petition; (4) the dismissal order referenced thefiling date of the petition, signaling that the date was important to the decision; (5) the petition was dismissed less than two weeks after it was filed without the Fifth DCA requesting a response from the State—another indicator that the Fifth DCA did not reach the merits of the petition; and (6) Rogers filed a motion for rehearing requesting the Fifth DCA reconsider the timeliness of his petition, which was denied. Accordingly, the district court concluded that Rogers's claim was resolved based on an independent and adequate state law ground—it was untimely under Rule 9.141(d)(5)—which resulted in the procedural default of the claim and precluded federal habeas review. And because Rogers failed to establish either (1) cause and prejudice to overcome the default or (2) the miscarriage of justice exception, the claim was barred from federal habeas review. After the district court denied Rogers a COA, he sought a COA from this Court and we granted one on the issue set forth above. This appeal followed.
We review the district court's denial of a § 2254 petition de novo, and its "findings of fact for clear error." Pruitt v. Jones, 348 F.3d 1355, 1356 (11th Cir. 2003). Whether a particular claim is procedurally defaulted is a mixed question of fact and law, which we review de novo. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001).
Rogers argues that the district court erred in deeming his ineffective-assistance-of-appellate-counsel claim procedurally defaulted because when a federal court is faced with an unexplained state-court decision it is presumed that the adjudication was on the merits. Although Rogers acknowledges that this presumption may be overcome if there is reason to think some other explanation for the decision is "more likely," he maintains that such circumstances were not present in his case, that the district court's conclusion to the contrary was based on pure speculation, and h...
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