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Borghi v. Florida Attorney General

United States District Court, M.D. Florida, Fort Myers Division

June 19, 2017

James Stephen Borghi, Petitioner,
v.
Florida Attorney General, and Secretary, DOC, Respondents.

          MEMORANDUM AND ORDER

          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. For the following reasons, the Petition is denied.

         BACKGROUND

         On May 1, 2003, Petitioner James Stephen Borghi pled no contest to vehicular homicide and a Florida state court sentenced him to 30 months' imprisonment followed by 10 years' probation. (App'x (Docket No. 12) Ex. A3.) Less than three weeks after his release on probation, police arrested Borghi in Miami-Dade County for discharging a firearm from a vehicle while intoxicated. (Id. Ex. A4.) While that case was pending, the State charged Borghi with a probation violation due to his new criminal charges. (Id. Ex. C9 ¶ 1.) The state court eventually dismissed the probation-violation charge because the State failed to produce a witness. (Id.) After a jury convicted Borghi of possession of a firearm by a convicted felon in Miami-Dade County, the State charged Borghi with another probation violation because of his new conviction. (Id. Ex. A4.) Borghi admitted to the probation violation and the state court sentenced him to thirteen years in prison, to be served consecutively to his sentence on the Miami-Dade County conviction. (Id. Ex. A8.) Borghi appealed the probation-violation sentence and the Florida Second District Court of Appeal affirmed. (Id. Exs. B1-5.)

         Borghi then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. (Id. Exs. C1-7.) The postconviction court held an evidentiary hearing on Borghi's claim that his counsel was ineffective for failing to request a concurrent sentence and advising him to reject the State's eleven-year plea offer before proceeding to trial on his criminal charges in Miami-Dade County. (Id. Exs. C8, C9 ¶ 3.) The postconviction court denied Borghi's motion. (Id. Ex. C9.) Borghi requested a rehearing, which the postconviction court denied. (Id. Ex. C10-11.) Borghi appealed and the Florida Second District Court of Appeal affirmed. (Id. Exs. C12-16.)

         On March 27, 2015, Borghi filed this Petition. Although not a model of clarity, Borghi's Petition appears to make two arguments: (1) the postconviction court violated his due process rights by conducting the evidentiary hearing on his ineffective assistance of counsel claim without hearing testimony from Borghi's counsel; and (2) Borghi's counsel was constitutionally ineffective for advising him to reject a plea offer when the State initially charged him with a probation violation. (Pet. (Docket No. 1) at 4-7.) In his reply brief, however, Borghi asserts that, “While it is true that [] Borghi's VOP counsel failed to show up to testify at two scheduled evidentiary hearings, the State is incorrect in that [Borghi] is asserting this as his claim for relief.” (Pet'r's Reply (Docket No. 15) at 1.) Instead, Borghi only wishes to proceed on his ineffective-assistance-of-counsel claim, but also requests an evidentiary hearing because the state postconviction court's fact-finding procedure at the evidentiary hearing was inadequate due to Borghi's counsel's absence. (Id. at 1-4.)

         DISCUSSION

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., a federal court's “review is greatly circumscribed and is highly deferential to the state courts.” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir. 2002). Indeed, AEDPA “modified a federal habeas court's role in reviewing state prisoner applications in order 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) (citation omitted). 28 U.S.C. § 2254, which applies to persons in custody pursuant to a state-court judgment, provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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.

28 U.S.C. § 2254(d). Furthermore, § 2254 states that “a determination of a factual issue made by a State court shall be presumed to be correct.” Id. § 2254(e)(1). The burden is on the petitioner to “rebut[] the presumption of correctness by clear and convincing evidence.” Id.

         A. Ineffective Assistance of Counsel

         Borghi can succeed on his claim that his counsel was ineffective only if he can show that the trial court's or appellate court's determination of the facts surrounding his claim was unreasonable. 28 U.S.C. § 2254(d). Thus, he must establish both that his counsel was ineffective and ...


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