United States District Court, M.D. Florida, Fort Myers Division
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
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.
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.
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.)
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.)
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;
(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.
Ineffective Assistance of Counsel
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 ...